FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No: ADJ-00005170.
BACKGROUND:
2. This case concerns a dispute regarding alleged inappropriate deductions from the Claimant's maternity pay during the period she spent in India while on maternity leave.
The matter was referred to an Adjudication Officer for investigation and recommendation. On 12 June 2017 the Adjudication Officer issued the following recommendation:
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.
The Union on behalf of the Claimant appealed the Adjudication Officer's Recommendation to the Labour Court on 20 June 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 19 September 2017.
DECISION:
This is an appeal by the Claimant against the Decision of an Adjudication Officer in a claim made against her employer alleging that inappropriate deductions were made from her maternity pay while she was in India during part of her maternity leave. The Adjudication Officer did not uphold the claim.
The Claimant was on maternity leave from 20th July 2015 until 17th January 2016, she spent from 21st October 2015 until her return to work on 2nd February 2016 with her family in India. She was paid the State Maternity Benefit during her maternity leave up until she departed for India. EU Regulations provide that EU citizens will continue to receive social welfare payments when they are in another Member State. However, in the case of non-EU citizens, a person is entitled to the benefit only for any period spent in the Republic of Ireland; therefore, the Claimant was not paid the benefit while she was in India.
The Department of Health Maternity Pay Scheme states:-
- “All employees on maternity leave are entitled to full basic pay plus their normal fixed allowances less any social welfare to which they may be entitled on foot of their social welfare contributions.”
Management stated that entitlement to maternity pay is set out in Department of Health Circular 8/98, as outlined above. It stated that where an employee is not entitled to maternity benefit from the State, HSE is not liable to make up the pay differential. Therefore, it held that the terms of the scheme were correctly applied to the Claimant. It pointed to the Explanatory Notes attached to the Scheme, which state:-
- “HSE is not liable 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.”
"As Per Department of Social Protection Maternity Benefit leaflet- SW11(Section 10,pg12):"You will not be paid Maternity Benefit for
any period you spend outside the EU. If you are an EU citizen, you can get Maternity Benefit for any period of your maternity leave spent in an
EU country. If you are not an EU citizen, you will only get Maternity Benefit for any period you spend in the Republic of Ireland".
Having considered the submissions of both parties the Court understands that the Claimant was entitled to Maternity Benefit from the State and was in fact paid such benefit from 29th July 2015 until 21st October 2015. Had she remained in the Republic of Ireland for the remainder of her maternity leave such payment would have continued to be paid. By operation of the State Social Protection Scheme, she was no longer entitled to the payment once she went outside those countries which are covered by EU Regulations for Maternity Benefit.
Accordingly, in accordance with Department of Health Circular 8/98, as the Claimant did not comply with the rules governing the granting of maternity benefit as set out by the Department of Social Protection for the period of her maternity leave after 21st October 2015, she incurred a loss of that benefit. The Court notes that this loss was specifically covered by the Circular and is of the view that HSE cannot be held liable for her loss. In such circumstances the Court cannot accept that the Scheme was not correctly applied to her. The Court is satisfied that as she was paid her maternity pay in accordance with Department of Health Circular 8/98. Therefore, the Court upholds the Adjudication Officer's Recommendation and rejects the appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27 September 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.