Complainant

Respondent

Anonymised Parties

A General Operative

A Cleaning Company

Representatives

Grzegorz Smykla

Hugh Hegarty , MSS

Act

Complaint 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-00019343-001

22/05/2018

This claim surrounds an application for Health and Safety Benefit in accordance with Section 18 of the Maternity Protection Act, 1994. The Respondent disputed the claim but following an extensive administrative process paid the 21-day payment in August 2018.

An issue arose on the composition of the claim which will be addressed in the body of my findings and conclusions.

The Complainant is a Polish national and commenced work as a General Operative on 15 June 2015. She worked on a part time basis for Gross Pay of €150.00 per week. The Complainant submitted her complaint to the WRC on 22 May 2018 when she was 24 weeks pregnant. She had developed a recurring back pain where she was unable to leave more than 5 kg in weight and was unable to undertake her cleaning duties. She has sought access to Health and Safety Benefit and engaged in many Work place risk assessments, the outcomes of which she disputed. The Complainants husband, in acting as her representative submitted that the complainant had been placed on involuntary unpaid sick leave when all she wanted was access to Health and Safety Benefit which she had secured on a previous pregnancy without issue.

The Complainant submitted that there was a lack of Organisational awareness of the application of Health and Safety Benefit and she was wrongly refused the benefit. The Respondent told her that it dandy cover her presentation but rather in the event of “safety hazards only “. The Company did not pay sick leave and declared that she was unfit for work rather than unsafe.

The Complainant took advice and attended a meeting with the company, accompanied by her husband on April 12, 2018. She submitted that she was informed by the Respondent that she should be classified as being on sick leave rather than Health and Safety Benefit. The Complainant was unsuccessful in securing the benefit as the Respondent was not prepared to submit the required authorisation under the Health and Safety criteria. She stated that this caused her stress while pregnant and submitted that she should be paid by the company from the commencement of her illness on March 12 ,2018. She also sought payment of travel expenses to the company nominated Doctor.

On the day of hearing, the complainant confirmed me that she had been granted Health and Safety Benefit from the Respondent in August 2018. She confirmed that she was also receiving Maternity Leave and Benefit. While conscious that the issue of Health and Safety Benefit had been resolved , her representative requested a decision in the case.

The Respondent is a large cleaning company and confirmed that the complainant had commenced her employment with Company A in June 2015. She became an employee of the Respondent through Transfer of Undertakings in November 2017. The Complainant was engaged in general office cleaning, including canteens and vacuuming. The Respondent disputed the composition and substance of the claim.

The Complainant informed the respondent of her pregnancy in Mid-January 2018 and the company carried out a risk assessment designed to assess risks and hazards associated with expectant mothers on 16 January 2018. The Complainant then had many absences due to separate issues.

On March 12, the complainant was certified fit to return to work on amended duties. A second risk assessment followed on March 20. This culminated in an action point of Occupational Health Assessment on 27 March 2018. This report indicated that the complainant “was only fit for very restricted duties”

The Respondent Line Manager informed the complainant that the position of the company was that she was not fit to discharge her duties and as there was no alternative position in administration or “light duties “the complainant should continue sick leave. He also informed the complainant that she if she could identify an applicable avenue under health and safety benefit the company would happily discuss the matter.

The Company agreed to fill out the requisite section of the Health and Safety Benefit form, but was unable to complete the “is the employee entitled to Health and Safety benefit “as the workplace did not constitute a risk. However, the complainant was informed that in the event the Department of Social Protection (DSP) approved the claim, the company would honour the 21-day payment.

The issue was referred to the WRC in May 2018. The Company reengaged directly with DSP, who outlined that they were unable to process the claim unless the Company committed to the 21-day payment and honoured the 21-day Health and Safety Benefit payment in August 2018.

The Respondent contended that they had behaved reasonably in the face of an ambiguous situation where the claim for Health and Safety Benefit could not be processed outside the down payment of 21 days. The Workplace had not posed a risk and it was the complainant herself who was deemed unfit for work. The Respondent went on to make submissions under Section 18 of the Maternity Protection Act and the circumstances where Health and Safety Benefit was properly payable.

On 31 July 2018 the Respondent wrote to the complainant and confirmed that they had complied with the signature requirements of DSP for Health and Safety Benefit. They added that they were also   processing her application for Maternity Benefit and sought that the complainant notifies the WRC of resolution of the instant claim. The Complainant responded by refusing this request and referring to other issues outside Health and Safety Benefit which they sought to be addressed by WRC.

The Respondent re-affirmed that they had paid the Health and Safety Benefit at the direction of DSP, despite the misgivings that the complainant was not actually entitle to it The Respondent had granted Maternity Leave to the complainant. They sought the claim be dismissed.

I have given careful consideration to the claim before me. I have considered both parties submissions.

The Respondent consented to an amendment in the correct legal title of the Company. The claim before me, received on 22 May 2018 is listed as:

I did not receive my entitlement to Maternity Leave

It became apparent soon into the hearing that this intention was not reflected in the body of the complaint, which referred in the main to an extended process of application for Health and Safety Benefit dated 3 April 2018, amended in July 2018 and subsequently processed in August 2018. I appreciate that the Respondent had misgivings about the application. I have no intention of disturbing this payment other than to comment on the following.

The Complainant transferred to the Respondent employment in November 2017 under a TUPE arrangement. In listening to the parties, it became clear to me that there was insufficient due diligence undertaken in the transfer of staff information as the complainant had applied for the Health and Safety Benefit previously without incident. This was the reason for her distress. The Respondent handled her application differently and she did not have notice of this.

The Respondent took issue with the ambiguity in the content of the claim and the body of the complainant’s submission. I appreciate the time taken to enter discussions on the Health and Safety Benefit, now resolved.

In referring to Section 41(16) of the Workplace Relations Act 2015, I accept that I have the power to correct any administrative or clerical mistakes in a decision (under Schedule 5 of the Act) by way of a Correction Order. I am not, however, able to change the content on a complaint form. I must progress my findings and conclusions on the composition of the claim.

Section 41 (16) An adjudication officer may, by notice in writing given to the parties to a complaint or dispute to which this section applies, correct any mistake (including any omission) of an administrative or clerical nature in a decision under this section in relation to that complaint or dispute.

The judgement of the High Court in the case of County Louth VEC -v- Equality Tribunal [2009] IEHC 370 McGovern J. set out the following principle of law: “If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

In the instant case Health and Safety Benefit is comprehended by Section 18 of the Act while Maternity Benefit is comprehended by Section 8 of the Act. Considering the undisputed position that maternity leave and maternity benefit had been granted, I could not identify grounds to amend the claim. It is of note that the Complainant was advised prior to the submission of her complaint.

At no time in this case, was the complainant denied Maternity leave and she has confirmed that she was in active receipt of the leave and benefit on the day of hearing on 5 September 2018. I have no jurisdiction to award travelling expenses in accordance with the Act.I found it regrettable that the parties had not engaged on the progress made in the actual claim prior to the WRC Hearing .

I have found the claim to be not well founded,

Decision:

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

Section 32 of the Maternity Protection Act ,1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the complaint to be not well founded and I cannot find in favour of the complainant.

Maternity Leave /Health and Safety Benefit