ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004871

Complaints for Resolution:

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Complaint under the Employment Equality Act, 1998 CA-00006943-001 was withdrawn by email dated 23rd January 2017.

The Complainant has been employed by the Respondent from 19^th August 2013. She is paid €31,000 per annum and she works 39 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 12^th September 2016 alleging the Respondent had breached the Payment of Wages Act, 1991 when they refused to pay her while she was on Maternity Leave. The Complainant was issued with a written statement of her Terms and Conditions of Employment and the Staff Handbook, copies provided to the Hearing.

Summary of Complainant’s Position.

The Complaint is that the Respondent made an unlawful deduction from the wages properly payable in Maternity Top Up payments while the Complainant was on Maternity Leave from 14^th March 2016 to 12^th September 20216. The Respondent delivers local and community development programmes as well as local employment services in a specified location in the country. It is funded by Central Government.

The Complainant was provided with a statement of her Terms and Conditions of Employment with additional terms and conditions applicable to staff being set out in the Staff Handbook. The Complainant issued a notice to the Respondent on 4^th February 2016 of her intention to take Maternity Leave. She made enquiries of the Respondent in respect to payment of the top-up payment payable to employees as set out in the Staff Handbook. This entitlement is set out clearly in Section 3 - Work

The Complainant was not paid her wages as set out in the Staff Handbook for the duration of her Maternity Leave and this is an unlawful deduction. The Complainant is seeking payment of €9469.20 in respect of the deductions.

The Complainant referenced a Recommendation of the Labour Court CD/15/319 under the Industrial Relations Act, 1967

Summary of Respondent’s Position.

The Complainant commenced employment on 19^th August 2013. The Complainant and another employee met with the CEO of the Respondent in July 2015 to discuss the Respondent’s Policy in relation to Maternity top-up payments. The Respondent sought a response from the Department of Social Protection, who is the funder of the Respondent. They stated as follows – cannot provide any top-up payments for anyone who is going on Maternity Leaveover and above the basic MaternityBenefit”. This was communicated to the Complainant by email dated 16^th July 2015 – copy provided.

The Respondent, on 5^th November 2015, made another attempt to clarify the Departments position and the response was the same. It is clear that following this response that the Complainant had been informed that she would not receive a maternity top-up payment.

The Complainant notified the Respondent on 2^nd February 2016 that she would be taking a period of Maternity Leave on 28^th March 2016 and the period of Maternity Leave was due to end on 26^th September 2016.

The Complainant had no contractual or statutory entitlement to receive a top-up payment while on Maternity Leave. The salaries of the Respondent employees are all funded by the various funding streams and the Complainant’s role is funded by the Department of Social Protection. The Respondent referenced the Staff Handbook which clearly states – The information in this handbook is of a general nature and in no way varies the specific conditions set out in an individual’s contract of employment…..Some terms and conditions may vary in line with Funders Directives.

The Respondent argued that all times the total wages paid/not paid to the Complainant in this case were at all times the total amount of wages that were properly payable/not payable to her and therefore no deduction as defined by the Act occurred in this case.

On the basis of the evidence and submissions received from both Parties I find as follows-

The Complainant was issued with a written Statement of her Terms and Conditions of Employment dated 19^th August 2013 and signed and dated by both Parties – the Respondent on 22^nd August 2013 and the Complainant on 27^th August 2013.

Section under remuneration provides as follows – Your remuneration will be €31,005 per annum and will be paid weekly in arrears by electronic funds transfer. Your salary will be subject to changes (i) authorised by the Department (ii) provided for under relevant national wage agreements, and (iii) statutory deductions including PAYE, the USC and PRSI.

The Contract under Guidelines also provides as follows:” The Department….may, from time to time issue guidelines and/or circulars. All such communications are deemed to form Part of the terms and conditions of your employment under this contract”.

The Contract of Employment makes no reference to Maternity Leave and an employee’s entitlements.

Both Parties confirmed at the Hearing that the Complainant had been issued with a named Partnership Staff Handbook – cop[y provided to the Hearing. There are five Sections to this Handbook. Section 3 deals with Work-Life Balance arrangements. This includes Maternity Leave.

The Section on Maternity Leave sets out clearly an employee’s entitlements under the Maternity Protection Act, 1994 and the Extension of Periods of Leave Order, 2001. This section goes on to state as follows: Under the Act, staff are not entitled to any pay for the 26 weeks’ Maternity Leave. The Policy at (named) Area Partnership, however,extends full pay to these employees during the period, less appropriate deductions in respect of benefits payable under the Social Welfare Acts.

The Staff Handbook at Section 2 provides as follows – All staff are issued with individual terms and conditions of employment. The information in this Handbook is of a general nature andin no way varies the specific conditions set out in an individual’ contract of employment. If you have a query with regard to your conditions of employment you should discuss these initially with your Manager. Some terms and conditions may vary in line with Funders Directives.

Section 5 (1) of the Payment of Wages Act, 1991 provides as follows: - An employer shall not make a deduction from the wages of an employee….unless – (a) the deduction…is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction…or (c ) in the case of a deduction, the deduction the employee has given his prior consent in writing to it

Both Parties confirmed, and this was the evidence, that the Complainant’s Contract of Employment does not provide for paid Maternity Leave by the Respondent.

The question then arises – does the Staff Handbook, with all its qualifications at Section 2 and 5 quoted above – constitute part of the Employees Contract of Employment. Section 2 of the Staff Handbook I believe is clear when it states as follows: All staff are issued with individual terms and conditions of employment. The information in this Handbook is of a general nature and in no way varies the specific conditions set out in an individual’s contract of employment.

This section is therefore very clear that the contents of the Staff Handbook do not form part of the Complainant’s Contract of Employment.Therefore the Complainant did not have a contractual entitlement to a Maternity top-up payment while she was on Maternity Leave from March to September 2016. Therefore there could have been no unlawful deduction from the wages of the Complainant as defined by Section 5 of the Act.

Decision CA-00006943-002

In view of my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded. The Respondent did not make an unlawful deduction from the wages of the Complainant as the Complainant’s Contract of Employment did not provide for a Maternity top-up payment for the duration of her Maternity Leave.

Rosaleen Glackin

Adjudication Officer

Date: 28/04/2017