ADJ-00009219

Complainant

Respondent

Parties

Advertising Salesperson

Newspaper Publisher

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00012077-001

23/06/2017

The complainant is employed as an Advertising Salesperson on a full-time basis by the respondent, a Newspaper Publisher. The complainant commenced employment in September 2016 and is paid €480.00 gross per week. The complaint is in relation to the alleged failure of the respondent to complete and return Form MB2 in relation to the complainant’s maternity leave which commenced on 17 July 2017. The complainant has not received payment of Maternity Benefit as a result of this failure.

The complainant went on sick leave prior to the Maternity Leave.

The appropriate sick certs were supplied to the respondent in accordance with company requirements.

The certs specified pregnancy related illness but the respondent insisted on greater detail.

The respondent refused to complete the MB2 Form and as a result the complainant has not received the Social Welfare payments due to her.

The respondent extended the complainant’s probation because of the amount of time she was absent through illness.

The complainant did not supply the certificate from her doctor specifying her pregnancy.

Form MB2 is a statutory declaration and the respondent could not fill in false information on the form.

Nevertheless the respondent completed the form as far as possible and sent it to the complainant.

The respondent is not at fault for omissions in this matter.

The complainant stated that she had gone on sick leave some time before she was due to take her Maternity Leave. She had emailed sick certs to the respondent in this regard.   The complainant also said that she had posted in the documentation regarding taking Maternity Leave including the Form MB2 and had requested that the respondent complete their section of the Form and return it to her so that she might lodge same with the Social Welfare office in order to claim Maternity Benefit. This exchange of emails had continued for some time and the complainant had never received the completed Form. As a result of this she was excluded from receiving Maternity Benefit and because of this she had suffered financial hardship

The respondent stated that there had been an issue with the sick certs provided by the complainant and that the complainant had been requested to send the original certs with the cause of illness completed. In relation to the MB2 Form there was a requirement that this should be accompanied by a certificate from the complainant’s doctor confirming the pregnancy and advising when Maternity Leave would commence. The respondent stated that this certificate had not been received from the complainant despite requests from management regarding this matter. The respondent said that they were not prepared to complete the statutory declaration contained in the form with information that they did not possess.   The Managing Director stated that eventually in mid-June he completed the Form with the information that he did have but excluded the section regarding the employee’s due date for commencing Maternity Leave. This was then posted to the complainant.  A copy of a completed Form was produced at the hearing. The complainant stated that she had never received this Form.

The respondent denies receiving the certificate regarding Maternity Leave which the complainant states that she sent and likewise the complainant denies receiving the Form MB2 which the respondent states was sent to her. I have studied the documentation presented at the hearing. There is no doubt that the respondent was unhappy with the sick certs that were being emailed by the complainant but it is clear that there was an awareness of her pregnancy and in early April there was a query from the respondent as to when the baby was due. This was followed by correspondence about the possibility of part-time working if medically cleared to do so. On May 29 2017 the complainant sent an email which stated that she had sent her cert and the Form for Maternity Benefit to the respondent by registered post to ensure receipt of same. It is unclear whether this refers to the specific cert in relation to the commencement of Maternity Leave or to a sick cert. When the respondent informed the complainant that they had not received the documents it was requested that the complainant should forward the tracking number in order to trace the letter. The complainant’s response was to the effect that she believed the respondent was refusing to sign the Form. The respondent again suggested checking the tracking number and on 9 June 2016 the complainant sent an email attaching the medical certs already sent by email and the Form MB2. There were further exchanges between the parties and according to the evidence given by the respondent the MB2 Form was completed as far as possible and posted to the complainant on 16 June 2017. The complainant stated that she did not receive this Form.

Section 9(1) of the Maternity Protection Act, 1994, states:

Entitlement to the minimum period of maternity leave shall be subject to a pregnant employee –

(a)    Having, as soon as reasonably practicable but not later than 4 weeks before the commencement of maternity leave, notified in writing her employer (or caused her employer to be so notified) of her intention to take maternity leave; and

(b)    Having, at the time of the notification, given to her employer or produced for her employer’s inspection a medical or other appropriate certificate confirming the pregnancy and specifying the expected week of confinement.

It appears to me that the best course of action would have been for the complainant to forward to the respondent the tracking number for the registered post as requested or, alternatively, to have tracked the post herself as the presentation or production of a certificate is an essential part of the process laid down in the legislation for the granting of maternity leave. It must be stressed, however, that the complainant is presently on maternity leave from her employment and that the complaint relates to the difficulties that she has experienced in receiving the Maternity Benefit payment because of the absence of the MB2 Form.

The administration and requirements of the Maternity Benefit Payment scheme are a matter for the Dept. of Social Protection and are outside the scope of the legislation. The respondent did not refuse to grant Maternity Leave to the complainant.

Complaint No. CA-00012077-001:

I find that this complaint under Sections 30 and 31 of the Maternity Protection Act, 1994, is not well founded for the reasons stated above and it accordingly fails.