FULL RECOMMENDATION
SECTION 33 (1), MATERNITY PROTECTION ACTS, 1994 AND 2004 PARTIES : TULANE BUSINESS MANAGEMENT LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - OLGA BARABOLA (REPRESENTED BY ROSTRA SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of an Adjudication Officer's Decision No(s) ADJ-00000907 CA-00001299-001.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 13 September 2016. A Labour Court hearing took place on 15 November 2016. The following is the Court's Determination.
DETERMINATION:
This is an appeal under section 33(1) of the Maternity Protection Act 1994 – 2004 (the Act) by Ms Olga Barabola (the Complainant) against a decision of the Adjudication Officer reference number ADJ-00000907 issued on 29thAugust 2016. The Adjudication Officer decided that her employer Tulane Business Management Limited (the Respondent) had not infringed the Complainant’s entitlements under Sections 26 and 27 of the Act. The Complainant appealed against that decision to this Court. The case came on for hearing on 15thNovember 2016.
Background
The Complainant commenced working for the Respondent in the Ballsbridge Hotel on 7April 2014 as a Night Auditor, reporting to the Front of House Manager. Her hours of work were from 11.00pm to 7.00am. The role involved the creation and development of night-time procedures for the Hotel, the smooth running of the front desk and generation of relevant reports for departments. It involved general receptionist duties when required.
The Complainant informed the Respondent in May 2014 that she was pregnant and would be commencing maternity leave on 15thJanuary 2015.
In October 2014 the Complainant was invited to take up a temporary role as an Accounts Assistant for a period of three months from 22ndNovember 2014 until 15thJanuary 2015, reporting to the Front of House Manager. This arose where the Respondent identified a specific and temporary requirement for a role regarding the issuing, clarification and payment of invoices in the hotel to deal with a backlog of bills and invoices. The role required her to continue to assist at the reception desk as required. A fixed term contract was drawn up, amending the Complainant’s substantive contract; this stated that the fixed term contract would expire on 15thJanuary 2015. This amended contract was not signed by the Complainant.
On the completion of her maternity leave the Complainant sought to return to work in her role as Accounts Assistant and claimed that the Respondent was in breach of the Act, when she was informed that that role was no longer available.
Summary of the Complainant’s Case
Mr Michael McCormack B. L., instructed by Rostra Solicitors on behalf of the Complainant submitted that the Complainant’s employment was as an Accounts Auditor and this role was terminated by the Respondent on her return to work after her maternity leave. He submitted that the Complainant had been offered that position on a permanent basis by the Respondent in December/early January, before she commenced her maternity leave and accordingly she had a right to return to that job. He contended that this washer normal or usual job, as defined by Section 26 of the Act, therefore under the Act she was entitled to return to the role as an Accounts Auditor. He maintained that even if it was not her normal or usual job before her maternity leave, as the Act was designed to give a choicefor the employee,not the employer, she was entitled to return as Accounts Auditor.
The Complainant is currently on sick leave and is due to commence maternity leave from 1stDecember 2016.
In her evidence to the Court the Complainant stated that at a meeting with Ms Claire Oliver, HR Manager for the Respondent, in December/early January 2015, Ms Oliver offered her the position of Accounts Auditor on a permanent basis on her return from maternity leave. The Complainant said that the offer included working on days, which would suit her better after she had her baby. She said shortly afterwards the Respondent advertised the role of Accounts Auditor (Maternity Cover) on jobs.ie. She said that prior to her return to work on 25thNovember 2015, she was advised that she would be returning to work as a Senior Receptionist and that her job as Accounts Auditor was no longer available. The Complainant said that her role was never as a Receptionist, although she was available to assist at reception whenever required.
In her evidence she said that the job of Accounts Auditor is the same as the job of Billing Auditor, it’s a Billing Auditor job carried out on days and comes under the payroll of the Front of House Department.
Summary of the Respondent’s Position
Mr Michael McGrath, Ibec on behalf of the Respondent denied the Complainant’s allegation that the Respondent was in breach of the Act. He stated that the Complainant’s substantive role was that of Night Auditor and the fixed term role as Accounts Assistant she fulfilled between October and January 2015, before she commenced maternity leave was a temporary role to fill a backlog of work and was no longer available. He maintained that on her return from maternity leave in November 2014 the Complainant was entitled to return to her substantive role, as per Section 26 of the Act. He said that the fixed term role as Accounts Assistant was no longer available. This was confirmed by letter from the Respondent to the Complainant on 1stDecember 2015.
Ms Claire Oliver, HR Manager in her witness evidence to the Court stated that the Complainant was offered and accepted the fixed term role as Accounts Assistant. She said that it was clearly understood that this role would be completed in accordance with its provisions on 15thJanuary 2015, on the commencement of the Complainant’s maternity leave. While a contract was prepared and signed by her and copied to the Complainant, the Complainant did not sign it. She said that the Respondent then proceeded to advertise the Complainant’s role as Night Auditor on a maternity cover contract basis, pending the completion of the Complainant’s maternity leave.
Ms Oliver said that at the meeting with the Complainant in December/January 2015, following a request by the Complainant, she agreed to her working on days instead of nights on her return from maternity leave. She denied that this offer related to the Accounts Assistant role, as she said that that role was temporary in nature and related to the completion of a specific project. It was under the control of the Front Desk Department and reported to the Front Desk Manager, not to the Head of the Accounting Department. There were separate payrolls for each department and Ms Oliver was clear that the fixed term role came under the Front Desk Department payroll. Ms Oliver said that while she had the authority to offer the Complainant a positon working on days within the Front of House, she had no authority to offer her a role as an Accounts Assistant in the Accounts Department on a permanent basis.
Ms Oliver stated that the position of Auditor working on days as distinct from Night Auditor is in fact a Senior Receptionist position. This was the position that the Complainant was offered on the completion of her maternity leave and if she was not satisfied with that position she had also been offered to return to the Night Auditor position she held prior to the temporary role she took up immediately prior to her maternity leave.
Ms Oliver confirmed for the Court that if desired, the Complainant’s title could be “Day Auditor”, instead of “Senior Receptionist”.
The Law
- 26.—(1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work—
- (a)with the employer with whom she or he was working immediately before the start of that period or, where during the employee’s absence from work there was a change of ownership of the undertaking in which she or he was employed immediately before her or his absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,
(b)in the job which the employee held immediately before the start of that period, and
(c)under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period, and (in either case) under terms or conditions —- (i)not less favourable than those that would have been applicable to the employee, and
(ii)that incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled, if she or he had not been so absent from work.
(2) For the purposes of subsection (1) (b), where the job held by an employee immediately before the start of the period of her or his absence on protective leave was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in her or his normal or usual job or in that job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or instrument made under statute.
(3) In this section “job”, in relation to an employee, means the nature of the work which she or he is employed to do in accordance with her or his contract of employment and the capacity and place in which she or he is so employed.- (i)not less favourable than those that would have been applicable to the employee, and
- (a)with the employer with whom she or he was working immediately before the start of that period or, where during the employee’s absence from work there was a change of ownership of the undertaking in which she or he was employed immediately before her or his absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,
Findings of the Court
The Court has considered the oral and written submissions made by both parties and has examined the evidence given. There was a conflict of evidence given by the Complainant and Ms Oliver in relation to what transpired at the meeting in December/January 2015. On the one hand the Court was told that Ms Oliver had offered the Complainant a permanent role as an Accounts Auditor and that she would be entitled to return to that role to work day hours on her return from maternity leave. On the other hand, Ms Oliver denied this and stated that the conversation was solely related to the Complainant being offered to return to work on days rather than nights in order to facilitate her with her new baby.
The “Accounts Assistant” role was a fixed term role which expired on 15thJanuary 2015. The Court was furnished with a copy of the contract of employment; this stated that it was an “Amendment” to the terms of her contract of employment. While it is not in dispute that this was a fixed term to expire on 15thJanuary 2015, it was not signed by the Complainant.
The contract states:-
- �Job Title:Accounts Assistant – Credit Control
- �Conditions: As this is a fixed term contract, you will revert to your contract of Night Auditor from 15/1/2015.
- �Date Changes Effective: 22.10.2014
What is in dispute is whether or not that fixed term role or as the Complainant referred to it - the “Accounts Auditor” role, was offered to the Complainant on a permanent basis in December/January 2015.
It is clear from the documents furnished to the Court that the Respondent advertised and filled the Night Auditor role on a temporary maternity cover basis. The job advertised onjobs.iewas “Front Office Billing Auditor (Maternity Contract)”. The contact offered to the person who successfully applied for the position included the following:-
Particulars of Employment – Fixed Term Contract
Job Title: Relief Night Auditor
Department: Front Office/Nights
Finish Date: “TBC (On Return of Olga Barabola from Maternity Leave)”.
The Court notes that in her evidence to the Court the Complainant stated that “the job of Accounts Assistant is the same as Billing Auditor”. It appears to the Court that the Complainant was of the understanding that on her return from maternity leave she would continue to be located in the Accounts Department, working under the Front of House Manager, paid by the Front of House Department payroll, doing essentially the same role she was undertaking as a Night Auditor, with occasional reception duties.
Having considered the submission made and the evidence given, the Court is satisfied that the job which the Complainant held immediately before the start of her maternity leave was of a fixed term nature and expired on the commencement of that leave. Furthermore, the Court accepts the Respondent’s contention that the Complainant’s substantive role was as a Night Auditor (Front Office Billing Auditor). The Court notes that while the Respondent made every effort to accommodate the Complainant with day hours as distinct from night hours (and at a later point with 4 day per week as distinct from 5 days per week) it nevertheless, changed her title from Night Auditor to Senior Receptionist. This reference to Senior Receptionist was included in an email to the Complainant from the HR Manager dated 23rdNovember 2015. This did not suit the Complainant.
The Court notes the letter sent to the Complainant dated 25thNovember 2015 from the HR Manager which included the following:-
- “Following expiration of the fixed term accounts auditor contract your role reverts back to that of your original full time contract as Night Auditor. Notwithstanding this, you stated that when you were returning from Maternity leave that you would like to return to a day position with early shifts at four days per week as this is more suited to your personal life.
We have facilitated your request to return to day shifts, to reduce from five working days to four and to work early shifts. The day position offered to you within the Front Office is at the same salary pro rata as your previous Night Auditor position which included a night shift premium. The position offered to you is typically remunerated at a lower rate however we have honoured your salary pro rata. As part of your rights under the Maternity Legislation you are entitled to return to the same Job and Terms and conditions, this being your position as a full time permanent Night Auditor.
The position of Full time Night Auditor remains open should you wish to return to his role. Alternatively you have the option to move to the role within your department in front office on your same terms and conditions as mentioned above.”
On 1stDecember 2015, the HR Manager confirmed that there was no obligation on the Complainant to take the day position if she wished to return to her contracted Night Auditor position.
The Court does not find that the reference to “Senior Receptionist” changed the nature of the substantive role she carried out before she went on maternity leave and based on the clarification given in the above letters which no longer refers to the Senior Receptionist title, the Court does not find that there was breach of the Act.
Determination
The Court therefore determines that the complaint is not well founded and the Complainant’s appeal fails. The Decision of the Adjudication Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CO'R______________________
28 November 2016Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.