Complainant

Respondent

Anonymised Parties

A Worker

A Government Dept.

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-00016254-001

10/12/2017

The claimant commenced employment as a temporary clerical officer with the respondent on the 29th.May 2017 – the contract was temporary and had no fixed end date. In her referral to the WRC she set out her complaint as follows:

“I was expecting at the time, and made my employer fully aware

of my situation when I commenced my employment. I applied for maternity leave on the 28.08.17

and later commenced my leave on Friday the 11th of September. I received an email from Central HR stating

that I would return to the office on 11/03/2018 receiving full entitlements to my maternity benefits. At this point, I had commenced my maternity leave and had not received any verbal or written communication regarding the end date of my contract. I then received a letter after I had commenced my maternity leave from Ms EH of the HR Division on 17th October 2017, stating that my

contract of employment would end on Friday 27th of October 2017. This meant that my contract would be

terminated during my period of already agreed maternity leave, conflicting with the original letter I received

from Central HR stating I would receive full maternity benefits until returning to work on the 11/03/2018. I

emailed Ms EH to clarify the position regarding my maternity leave on the 23rd of October 2017. She

replied stating that Central HR would not have known my end date and hence, she advised them that I would

only be paid maternity leave up until the end date of my contract, which had just been communicated to me as

being the 27/10/2017. This communication to Central HR was sent despite the fact that I had not received any

notification of the end date of my contract prior to commencing maternity leave. The first notification I received

regarding the end date of my contract was during my maternity leave on the 17th of October 2017. I have since

obtained legal advice regarding this situation and have been advised that under Section 21 of the Maternity

Protection Act 1994, maternity leave is classified as protective leave and as such, any termination notice by an

employer when the employee is on protective leave (as in my circumstance) is void. Furthermore, the relevant

legislation also states that an employee in my situation on a fixed-term contract is entitled to full maternity leave

and even if my fixed term contract ends during the period of maternity leave, this does not affect my entitlement

to the full 26 weeks of Maternity Benefit. As such, the original email that was communicated to me from

Central HR which stated that I would receive full maternity benefit up until the 11/03/2018, was the correct

communication. Because I had taken maternity leave prior to the end date of the 27/10/2017, I have a legal

entitlement to be paid the full 26 weeks of Maternity Benefit. The fact that my contract was for a fixed term does not change this”.

It was submitted that on the basis of the foregoing facts the claimant’s employment was terminated during her already agreed maternity leave which had already commenced. It was submitted that her maternity pay was stopped despite receiving written confirmation from Central HR that she would receive her full entitlement to 26 weeks. The correspondence from Central HR to the claimant dated the 29.09.17 was submitted into evidence.

As the claimant was not represented at the hearing she was invited to furnish the WRC with a written response to the legal arguments being relied upon by the respondent. In a post hearing submission, she contended that the reliance by the respondent on Section 10(2) of the Act was not relevant to her complaint in light of the fact that she already had her full Maternity Leave agreed by Central HR with a return date of the 11th.March 2018. Some weeks into her maternity leave she received a letter stating her last day of service was the 27th October 2017 which was in conflict with the position set out by Central HR. She submitted that under Section 21 of the Act, maternity leave is classified as “protective leave” and that Section 23(a) provides that “any purported termination of an employee’s entitlement while the claimant is absent from work on protective leave is void.

Based on this research and advice, my understanding of the Maternity Protection Act is that under Section 21 of the Act, Maternity Leave is classified as ‘protective leave’ and furthermore, Section 23(a) of the Act states that “any purported termination of an employee’s employment while the employee is absent from work on protective leave is void”.

She took issue with the respondent’s assertion that she would not have continued in employment after the 27th.Oct. 2017 given the letter from central HR saying she would return on the 11th.March 2018 and given the current practise whereby temporary clerical officers are kept for periods from 9 – 18 months.

She referred to the financial hardship she had to endure because of the curtailment of her maternity leave – resulting in her having to borrow from family members. She explained the level of stress she was under with the financial pressure and the heart problems from which her baby suffered. She submitted “An employer should never treat a new mother in this manner regardless of whether they are a fixed-term worker or not. I am determined to keep fighting and remain hopeful that the protections our laws afford in cases of maternity leave will be upheld by my complaint”.

The respondent set out a chronological account of the claimant’s employment history. It was submitted that the claimant’s contract was a temporary “fixed purpose contract” to “facilitate the administration of the back to school clothing and footwear Scheme”. It was submitted that local management may transfer more experienced officers to administer this scheme and in the claimant’s case she was backfilling for an officer who had been assigned to the Scheme.

It was submitted that the end date of the contract was unclear because of the nature of the project and that she would have been advised that she would receive 2 weeks’ notice when the project was wound down.

Local management decided to wind down the project on the 29th.Sept. 2017. The claimant was verbally advised of this on the 10th.Oct. 2017 and notified in writing on the 17th.Oct. 2017.Central HR were notified of the proposed termination of the claimant’s contract and issued an amended letter advising that her paid maternity leave would cease on the 27th.Oct. 2017.

It was submitted that the respondent was entitled to terminate the claimant’s contract once the objective grounds no longer exists. It was contended that while an employee on a fixed term contract is entitled to maternity leave, if the contract ends before the last day of the maternity leave, “this counts as the last day of maternity leave. This means that if the fixed term contract ends during maternity leave, then the employee’s contract of employment terminates on that date. The provisions of Section 10(2) were invoked in support of this argument-

“Where an employee is employed under a contract for a fixed term and that term expires before the day which, apart from this subsection, would be the last day of her maternity leave, then

(a)    Notwithstanding any other provision in this Part, the last day of her maternity leave shall be the day on which the term expires”.

In their post hearing submission, the respondent contended that they were relying on the provisions of Section 10(2) in making a determination on the appropriate end date for the claimant’s maternity leave. It was submitted that the claimant could not have been retained to cover a new absence following the cessation of the purpose for which she had been recruited – it was submitted that this purpose ended on the 27th.Oct. 2017.The temporary CO’s are given their notice once the purpose / term ends. It was submitted that the respondent was consistent in this practise – “All new absences that are approved for temporary cover will be filled by the assignment of a new temporary clerical officer from the PAS panel. The claimant was recruited for a specific purpose – to cover the back filling of a clerical officer who had been temporarily assigned to administer the clothing and footwear scheme. Once the purpose ended, so did the claimant’s contract “all be it that she was on maternity leave. It was submitted that the claimant had been employed for the same purpose in 2016 and her contract ended in Oct. 2016.