ADJ-00005170

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005170

Parties:

	Complainant	Respondent
Anonymised Parties	An Employee	An Employer

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00007263-001	30/09/2016

Date of Adjudication Hearing: 11/01/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complainant is a nurse and she has been employed by the respondent since December 2014. She was on maternity leave from 21^st of July 2015 until the 17^th of January 2016. She went home to India in the period 20^th of October 2015 until 2^nd of February 2016 having taken a period of 2 weeks annual leave post maternity leave. The dispute concerns alleged inappropriate deductions from her maternity pay during the period she spent in India. The parties made written and oral presentation to the hearing.

Summary of Complainant’s Case:

The complainant submits that as she is non EU citizen she was disqualified from receiving state maternity benefit while in India. The contractual terms and conditions applicable are “All employees on maternity leave are entitled to full basic pay plus their normal fixed allowances less any social welfare allowances to which they may be entitled on foot of their social welfare contribution.” Furthermore it provides that authorisation must be given for the payment of state maternity benefit directly to the respondent. The complainant was not entitled to statutory maternity benefit in the particular period and therefore she was entitled to her full basic and allowances. The respondent did not make its position clear prior to making the deductions and as such the actual provision does not make it clear that the respondent would so act. In the circumstances the respondent is unilaterally imposing a new term to the contract. The nature of the scheme as envisaged by the respondent is discriminatory on several fronts. The actions of the respondent undermine the spirit and content of the scheme. The complainant petitions for the restoration of the deduction of €2,990.

Summary of Respondent’s Case:

The respondent submits that the complainant applied for her maternity pay in accordance with the normal protocol (HR108) and was successful in her application for payment. The application document is explicit in respect of the rules of the scheme and specifically states that the respondent “is not responsible for any loss that an employee incurs as a result of their failure to comply with the rules governing the granting of maternity benefit as set out by the Department of Social Protection.” The form continues to advise that non-EU citizens will only receive maternity benefit for periods spent in the Republic of Ireland. The respondent states that the conditions attendant in respect of the maternity benefit provision are clearly set out in the relevant form and explanatory element thereof and that in those circumstances it is not liable for any loss as outlined.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

It may well be that there are much wider implications as it relates to the maternity benefit scheme as submitted by the complainant however it is not within my gift to deal with those matters here. Rather it is for the institutions who constructed the scheme to deal with those matters as it relates to the collective implications.

I am satisfied that the respondent has applied the scheme as envisaged and therefore I am not in a position to make a recommendation favourable to the complainant as petitioned other than to exhort the institutions to review the integrity of the scheme.