P3/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                            CASE NO.

Inga Elijosiene                                                                                                           P3/2014

against the recommendation of the Rights Commissioner in the case of:

Inga Elijosiene

-v-

Packlett Limited

under

MATERNITY PROTECTION ACT 1994 AND 2004

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms P. McGrath B.L.

Members:        Mr. A. O'Mara

                        Mr. J. Maher

heard this appeal at Dublin on 29th January 2016

Representation:

Appellant: Mr. Richard Grogan, Richard Grogan

& Associates, Solicitors, 16 & 17 College Green, Dublin 2

Respondent: Ms Louise O'Byrne, Arthur Cox, Solicitors,

Earlsfort Centre, Earlsfort Terrace, Dublin 2

Determination:

The Tribunal has carefully considered the evidence adduced. The Claimant brings a claim under the Maternity Protection Acts 1994 and 2004 and in particular under section 26 (1) of that Act.

The Claimant had been engaged by the Respondent company since 2009 and it is common case that other than a short period of promotion which the Appellant had not enjoyed the Appellant had worked in the housekeeping end of the Respondent hotel business and in particular a supervisory capacity ensuring that the bedrooms over which she had been assigned were cleaned, cleared and generally got ready for new occupancy. The Appellant gave evidence to the effect that she would not personally do the cleaning other than where as a matter of expediency or urgency it was required. This evidence was backed up by Ms PW who confirmed that the actual cleaning of the bedrooms was not performed by the Appellant as she had a supervisory and coordinating function.

During the course of her employment the Appellant had two contracts of employment which described her as an accommodation supervisor which job the Appellant says she was largely carrying out. In the second contract, signed in August 2010 the title had been lengthened to supervisor and assistant.

“Assistant” is not defined and it seems that the Respondent has invited the Tribunal to recognise this word as importing a cleaning function to the job.

The only thing that the Tribunal can be sure of is that the Appellant continued in her position as supervisor from the August date up to March 2013 when she went out on Maternity leave. The Appellant was not expected to clean the rooms but instead oversaw their cleaning, maintenance and upkeep and this was her full-time job.

The issue of the Appellant’s short –lived promotion to deputy housekeeping manager is largely irrelevant as the Appellant was not seeking to pursue that work and notified her employer in writing of this fact in April of 2012 at which time the Appellant was back to being the accommodation supervisor she had always been.

The Appellant went out on her maternity leave aforesaid and found that on her return to work she was met with a somewhat changed workplace to the one she had left.

It is worth noting at this stage that the Legislation imposes a general right on an employee returning from protective leave to return to the job which the employee held immediately prior to taking up her said leave. “Job” in this context includes the nature of the work.

What happened to the Appellant on her return to the workplace is that the role that she was being asked to take up her supervisory role only half the time and she was expected to carry on a cleaning role half the time.

The Tribunal was impressed with the evidence of the Respondent General Manager who was engaged in the course of 2013 and who had been set the task of bringing about efficiencies in the workplace. In looking at the way the staff worked it was felt that full-time staff needed to be used to greater effect and therefore avoid the need to bring in so much part-time labour.

The Tribunal was impressed with the General Manager’s open and frank manner and he described a generally positive workplace where people were expected to help one another out and give a “dig out” where required.   In the context of this shake up he had implemented an open forum type approach and generally got the staff to come with him and agree to a change to their work practices.

Unfortunately of course the Appellant was out of the picture and was entitled to remain undisturbed for the duration of her Maternity leave.

On her return to the workplace the Appellant found that her day-to-day job as previously averred to was now generally changed insofar as she was now expected to do something (cleaning) which she had heretofore overseen.

On balance the Tribunal accepts that the Appellant’s lawful expectation that she would not be disadvantaged by reason of having taken her rightful Maternity leave was infringed and she was disadvantaged and in particular came back to a significantly different job to the one she had left.

The Tribunal determines that the appeal under the Maternity Protection Acts 1994 and 2004 succeeds, and in doing so upsets the Decision of the Rights Commissioner.

In looking at compensation, the Tribunal must have regard to the reality of a changing workplace and awards the Appellant the sum of €1,750.00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)