ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00009373

Parties:

Complaint(s):

Date of Adjudication Hearing: 09/03/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 13 of the Industrial Relations Acts 1969following 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 complaints.

Background:

The Complainant was employed as a part-time receptionist by the Respondent. She commenced her employment on 5th March 2016. The Complainant was employed to work Saturdays each week and where she worked seven hours, and was paid €10 per hour

The Complainant commenced Maternity Leave on 4th August 2016 and has alleged that when she sought to return to work at the end of her Maternity Leave she was advised that there was no position for her.

The Respondent denied the complaint and submitted the Complainant had indicated she did not intend to return to work after her maternity leave.

The Complainant was seeking redress under the Industrial Relations Act, the Maternity Protection Act, and where she also advised that she did not receive a minimum notice upon her termination of employment.

Summary of Complainant’s Case:

CA-00012303-001 Complaint Under the Industrial Relations Acts- Unfair Dismissal

The Complainant submitted she was not permitted to return to work following her maternity leave and she was seeking a recommendation under the Industrial Relations Act for the matter to be redressed. She also made a similar complaint under the Maternity Protection Act as set out in complaint 003 below.

The Complainant maintained she was unfairly dismissed on 3rd February 2017 by not being allowed to return to work after her maternity leave.

With regard the unfair dismissal, the Complainant maintained that following her maternity leave she contacted her employer by phone on 12th January 2017 seeking information on her return date.   The Complainant maintained that she left her request with a person who took the call and who advised the Complainant that her manager would be told that she called. The Complainant submitted that she eventually spoke with the Respondent by phone on 3rd February 2017 and she was told that another person had been appointed to the role. From this conversation she understood there was no longer a job for her. The Complainant maintained that from 3rd February 2017 she received no further correspondence from the Respondent, and in July 2017 she sought her P45.

CA-00012303-002Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant maintained that as she was not allowed to return to work following her maternity leave and as a consequence her employment was terminated without notice.

CA-00012303-003under Section 30 and 31 of the Maternity Protection Act 1994

The Complainant submitted that contrary to section 26 of the Maternity Protection Act,1994 she was not permitted to return to work on the expiry of her maternity leave.

The Complainant maintained that she advised the Respondent in June 2016 that she was 25 weeks pregnant and was due to have a baby on 5th September 2016. At this time, she advised the Respondent in writing that she wished to start her maternity leave on 6th August 2016 and that she intended to return to work after six months maternity leave. (A copy of this letter was provided by the Respondent).  

The Complainant advised that she gave birth prematurely on 4th August 2016, and on 5th August she contacted the Respondent and spoke to her manager to advise that she had her baby. The Complainant then advised she would have corresponded with the Respondent in September 2016 and sent the Respondent a copy of a letter she received from the Maternity Benefit Section of the Social Welfare Services Office for the Respondent to complete the start and end date of her maternity leave. She advised that this letter was not returned to her but would have been forwarded by the Respondent to the maternity benefit section of the Social Welfare Office. A copy of this letter was provided by the Respondent at the hearing and which noted that the start date of maternity leave was 18th July 2016 and the end date of maternity leave was stated as 16th January 2017.

The Complainant maintained that her maternity leave had not started until the date of her confinement due to the premature birth, and that she would have been working past 18th July 2016, and therefore the dates provided for her maternity leave by the Respondent were incorrect. The Complainant was not aware that the Respondent had provided these dates to the maternity benefit section of the Social Welfare Services Office at the time.

The Complainant continued on her maternity leave with an expected return date of around 21st January 2017, and when she contacted the Respondent on 12th January 2017 she did not get to speak to a manager but was told her message would be passed to a manager. She heard no further from the Respondent and contacted the Respondent again on 3rd February 2017, at which time she was told that somebody else was now employed and therefore she understood that her position was no longer available to her. She asked for a manager to provide this information by email but she never received this information. The Complainant advised that she did not hear from the Respondent again in relation to her return to work.

The Complainant therefore submitted that she was not allowed to return to work following her maternity leave, and therefore she was unfairly dismissed.

Summary of Respondent’s Case:

CA-00012303-001 Complaint Under the Industrial Relations Acts- Unfair Dismissal

The Respondent refuted that it dismissed the Complainant. The Respondent advised that it had sought information from the Complainant with regard to her maternity leave, and had sought a medical certification with regard to her pregnancy, but the Complainant had not provided same to the Respondent.

The Respondent maintained that on 16th August 2016, after the Complainant had given birth, it wrote to the Complainant advising her that in line with legislation and company policy, the Complainant must provide the company with notice of her planned date of return, and this notice must be sent not less than four weeks before her planned date of return to work. This letter also advised the Complainant that should she wish to take the additional 16 weeks maternity leave she was again required to notify the company in writing not later than four weeks before the date of her expected return. The Respondent maintained that it received no response from the Complainant to this letter.

The Respondent advised that it did not receive any further communication from the Complainant but phoned the Complainant on 3rd February 2017 to confirm if she was coming back to work. The Respondent advised that over this telephone call it informed the Complainant that as somebody else had been recruited to cover for her and they needed to know if he was coming back. The Respondent denied that it told the Complainant that there was no longer a job for her. The Respondent submitted that they expected the Complainant to return to work the following day after the call.   The Respondent advised that the Complainant did not return to work and they heard no further from the Complainant.

On that basis the Respondent maintained it did not dismiss the Complainant and contended that the Complainant failed to notify them in writing of her return to work from maternity leave, failed to provide them with the appropriate certification to confirm her pregnancy, and failed to return to work following her maternity leave. It was therefore entitled to assume she had terminated her own employment.

CA-00012303-002Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Respondent advised that it did not dismiss the Complainant or terminate her employment. It maintained that it was the Complainant who failed to return to work following her maternity leave and the Complainant’s position remained open until the Complainant sought her P 45 in July 2017. The Respondent contended that as the employee terminated the contract of employment the Respondent was not obliged to pay any notice.

CA-00012303-003under Section 30 and 31 of the Maternity Protection Act 1994

The Respondent submitted that in accordance with the Maternity Protection Act, the Complainant was required to provide it with notice in writing of her intended date of departure on maternity leave at least four weeks prior to the date of her departure; and that she was also obliged to provide a date of return in writing at least four weeks prior to her intention to return.

The Respondent submitted that in circa May 2016 the Complainant advised her manager that she was pregnant and she was advised at that time notification must be submitted in writing together with a doctor’s certificate stating the expected date of delivery. The Respondent also advised that the Complainant was contacted and told that a pregnancy risk assessment would need to be arranged and where she was advised of the requirement for written confirmation of her pregnancy on a doctor’s certificate.

The Respondent contended that the Complainant never provided a return date in writing, nor did she provide a medical certificate confirming her pregnancy, and that despite asking for this she failed to provide same. The Respondent further submitted that at that time the Complainant advised that she would not be returning to work following the birth of her baby.

The Respondent maintained that on 7th June 2017 a pregnancy risk assessment was carried out and during this assessment the Complainant was advised again that a doctor’s certificate was required. It submitted that on 11th June 2017 the Complainant provided a letter stating the expected date for the birth was 5th September 2016 and that the Complainant intended starting her maternity leave on 6th August 2016, however no letter was received from the doctor as requested.

The Respondent submitted that on 5th August 2016 a manager received a phone call advising that the Complainant had given birth to her baby.

The Respondent submitted that on 16th August 2017 it sent a letter to the Complainant advising her that she was required to notify them, at least four weeks in advance, of the date she would be returning to work. The Respondent further submitted that on 27th September 2016 the Complainant forwarded to them a document from the Department of Social Protection for their payroll department requesting a letter confirming her maternity start and finish and where the Complainant had provided the dates of 18th July 2016 to 16th January 2017 as the maternity leave.

The Respondent maintained that there was no further contact from the Complainant throughout maternity leave, nor did they receive any notification of the Complainant’s expected return to work.

The Respondent maintained that based on the dates submitted on the maternity benefit form that the Complainant was due to return to work on the 16th January 2017, following 26 weeks of her maternity leave. The Respondent advised that on 3rd February 2017, having had no contact from the Complainant, a manager telephoned the Complainant to confirm if she was planning to return to work. During this call the Complainant was advised that temporary cover had been arranged and as they had not heard from the Complainant they were unaware as to whether she was returning. The Respondent maintained that at no time did they tell the Complainant that there was no longer a position for her to come back to. The Respondent maintained that they had expected the Complainant to return to work the following day, 4th February 2017, but she did not return to work.

The Respondent therefore denied that it prevented the Complainant from returning to work after her maternity leave, or that it advised her there was no job available for her. It maintained that the Complainant had failed to adhere to her obligations under the Act, and despite advising the Complainant of these obligations on a number of occasions, including a written letter to her on 16th August 2016, the Complainant failed to meet her obligations. In light of the Complainant not advising the Respondent of her return date, nor providing the Respondent with the medical certificate conforming her pregnancy, the Respondent argued that it was the Complainant who is at fault and who failed to heed the advice given to her about her maternity leave period and the need to inform the Respondent of her intended return to work following her maternity leave period.

Findings and Conclusions:

CA-00012303-001 Complaint Under the Industrial Relations Acts- Unfair Dismissal

Section 13 (3)(a)(i) of the Industrial Relations Acts, 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.

This complaint refers to the handling by the Respondent of the return of the Complainant to her workplace after her maternity leave. This complaint is also made under complaint 003 below. I have decided to make a decision to this complaint under Complaint-003 below rather than making a recommendation under the Industrial Relations Act as I cannot make two findings in relation to the same complaint.

CA-00012303-002Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

S4 (2)(a) of the Minimum Notice & Terms of Employment Act, 1973 requires that the minimum notice to be given by to terminate the contract of employment of an employee shall, if the employee has been in the continuous service of her employer for less than two years, is one week.

In this complaint, the Complainant submitted that her employment was terminated without being provided with the minimum notice in accordance with the Act. The Complainant maintained that when she sought to return to work following her maternity leave the Respondent failed to allow return to her work, or failed to provide her with reasonable alternative employment. As the Respondent failed to follow up with the Complainant in regard to her return to work, particularly after the phone conversation on 3rd February 2017, I find that her job was in effect terminated without providing her with the minimum notice of one week as required Under S4 of the Act. .

It is acknowledged that the Respondent contends that the Complainant failed to return to work after her maternity leave, and failed to provide the Respondent notice of her intention to return to work. However, the evidence supports that the Complainant had provided in writing notification to the Respondent of her intention to return to work in June 2016, and never altered this notification.

CA-00012303-003under Section 30 and 31 of the Maternity Protection Act 1994

Section 9(1) of the Maternity Protection Act 1994, as amended, provides an entitlement for a minimum period of maternity leave for a pregnant employee provided the employee (a) having, as soon as reasonably practicable but not later than four 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.

Section 9 (2) states that a notification under this section may be revoked by a further notification in writing by the employee concerned to her employer. There is no evidence to suggest the Complainant revoked her notification.

With regard the notification, I am satisfied that the Complainant did advise the Respondent in writing in the letter addressed to a manager in circa 11th June 2017 that she was 25 weeks pregnant and due to have a baby on 5th September 2016. She further advised that she wished to commence her maternity leave on 6th August 2016. In this letter she also referred to the fact that she had spoken to the HR manager about returning to work where she had previously said she was not going to return to work, but in that letter she advised, as she was entitled to do, that having thought about it she did wish to return to work after her six months maternity leave.

I’m also satisfied that the evidence supports the Complainant was asked to provide the appropriate medical certificate to support her pregnancy, and where this was also asked for when the pregnancy risk assessment was carried out. The evidence supports that an appropriate certificate confirming the pregnancy was not provided by the Complainant prior to her departure on maternity leave. However, there is no evidence to corroborate that the Respondent was actively seeking this certification from June 2017.

A dispute exists as to whether the Complainant received a letter of 16th August 2017 from the Respondent advising the Complainant that she was required to notify the Respondent of her intention to return to work not less than four weeks prior to return date. It is further noted that in this letter there was no reference to the requirement for the Complainant to submit a medical certificate regarding her pregnancy.

I therefore find that irrespective of the disputed letter of 16th August the Complainant had understood that she had met her obligations to qualify for the maternity leave in that she had already stated in writing her intention to return to work when she notified the Respondent that she was pregnant. The Complainant never revoked this written notice. Furthermore, as the Respondent did not seek any further information from the Complainant regarding a medical certificate, it was reasonable for the Complainant to conclude that the notification of her pregnancy and the subsequent maternity leave was in order. I am therefore satisfied that the Complainant met her obligations under section 9 (1)(a) of the Act, and it was reasonable for her to conclude that from mid-June 2016 the Respondent had no difficulty with regard to the appropriate certification required under section 9(1)(b) the of the Act.

The evidence further supports that the Complainant prematurely gave birth on the 4th August 2016, which was shortly before the planned start of her maternity leave. The Complainant notified the Respondent on 5th August 2016 that she had given birth, and again she was not asked to provide any further appropriate certification. Indeed, in the disputed letter of 16th August 2016 there was no reference to a requirement to submit an appropriate certificate of her pregnancy.

The Complainant also arranged for the social welfare documentation to be forwarded to the Respondent in September 2016 so she could claim her maternity benefits. The Complainant did not complete the dates of the commencement of her maternity leave, or the end date, as she understood that was to be completed by the Respondent, which it was. It appears that the Respondent made an error when completing the dates of maternity leave where it stated a start date of 18th July 2016, and an end date of 21st January 2017.

In accordance with section 26(1) of the Act, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work—in the job which the employee held immediately before the start of that period, or to a job that is not less favourable than that which would have been applicable to the employee.

I’m satisfied the evidence supports that the Complainant did not receive any contact from Respondent at the end of her maternity leave, it was the Complainant that contacted the Respondent in January 2017, but her call was not returned until 3rd February 2017. During this phone call on 3rd February 2017 the Complainant advised that she was intending to return to work.

The Complainant and Respondent are in dispute with regard to content of the telephone call, however the Respondent does acknowledge that it expected the Complainant to return to work on 4th February 2017, but as she did not do so they assumed she had resigned from her position. The Respondent acknowledges during the telephone call on 3rd February 2017 they advised the Complainant that another person had been appointed in the absence of the Complainant to cover her role while on maternity leave. The Respondent submitted that it was never their intention to prevent the Complainant from returning to work.

It is evident from the Respondent that they anticipated a return to work of the Complainant on 4th February 2017, and where the evidence also supports the Complainant advised them in writing in June 2016 of her intention to return to work. The Respondent maintained it did not receive notification in writing- although they submitted a letter to the hearing in which the Complainant has advised them in writing. It is therefore remarkable that having received this written notification, and also advising that following a phone call on 3rd February 2017 they expected the Complainant to return to work on 4th February 2017 that they hold the view when she did not turn up they concluded the Complainant had not intended to return to work. I do not find this version of events to be credible.

A prudent employer would have followed up on a letter it purported to send the Complainant in August 2016, and again would have contacted the Complainant if she had failed to turn up on 4th February 2017 particularly as they had expected her to attend work that day. I also note the Respondent was aware, or ought to have been aware, that the Complainant had contacted them by phone in January 2017 in order to return to work, but the Respondent failed to follow up on this matter. I conclude it is not credible that, effectively out of the blue, they decided to contact the Complainant on 3rd February 2017 on the basis they had not heard from her prior to that date.

Based on the evidence I conclude that the return to work arrangements, if any, were not sufficiently outlined to the Complainant, and on balance I conclude the Respondent had decided for whatever reason it did not require the Complainant back at work after her maternity leave. I find that the Respondent’s failure to sufficiently or reasonably make arrangements for the Complainant’s return to work amounts to a breach of their obligations under S26 of the Maternity Protection Act 2004.

Decision:

CA-00012303-001 Complaint under Sec 13 of the Industrial Relations Act- Unfair Dismissal

As this complaint was also raised under Complaint-003 regarding a return from Maternity Leave, I have dealt with this issue under the Maternity Protection Act and set out my decision under complaint 003 below.

CA-00012303-002Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Having found that the Complainant was prevented from returning to work following her maternity leave, I find that the Respondent in effect terminated the Complainant’s contract of employment. I therefore find that the Complainant did not receive her statutory notice period and accordingly find that the Respondent is in contravention of Section 4 of the Act.

Section 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act. As I have found the Respondent is in Contravention of the Act I direct that the Respondent pay to the employee compensation of one weeks’ pay, which represents her statutory notice, and amounts to €70.

CA-00012303-003under Section 30 and 32 of the Maternity Protection Act 1994

In accordance with S32 of the Act, and having regard for all the circumstances I find in favour of the Complainant in that the Respondent was in breach of its obligations under S 26 of the Act, in that it denied the Complainant her entitlement to return to work following her maternity leave. I award the Complainant compensation of 20 weeks’ remuneration, which is the maximum award I can make under the legislation, and where this amounts to €1,400.

Dated:  26/07/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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