ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011110

Parties:

Complaint:

Date of Adjudication Hearing: 15/05/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

PROCEDURE:

In accordance with Section 41 of the Workplace Relations Act, and following 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 complaint.

BACKGROUND:

The Complainant was employed from 21st October 2013 until the employment was terminated by reason of redundancy on 31st May 2017. The Complainant referred a complaint to the Workplace Relations Commission on 19th September 2017 alleging she had been penalised by her Employer for having exercised her entitlement to Parental Leave when she was unfairly selected for redundancy in April 2017.

This complaint was heard with ADJ 9813 on the same date.

SUMMARY OF COMPLAINNAT’S POSITION:

The Complainant commenced Maternity Leave in January 2016. At her Back to Work Meeting with the Respondent in September 2016 the Complainant requested Parental Leave working a 4 day week which was refused by the Respondent. The Complainant formally requested Parental Leave on 12th October 2016, which was granted by the Respondent on 17th October 2016 to commence in February 2017. The Complainant commenced Parental Leave in February 2017 working a 4 day week. The Complainant stated that at a meeting with the Respondent, named, on 2nd March 20217 she recalls the named Respondent said to the Complainant “parental leave doesn’t help”. The Respondent also stated it puts pressure on the team. The Complainant lodged a grievance on 14th March and she included these comments in her complaint.

There was no investigation and subsequently the Complainant was dismissed and the Complainant believes that she was penalised for having taken Parental Leave.

SUMMARY OF RESPONDENT’S POSITION:

The Complainant did not request Parental Leave at her Return to work meeting with the Respondent in September 2016. She made a formal request for Parental Leave on 12th October 2016 and this was granted on 17th October 2016 to commence in February 2017.

The Complainant was not penalised for taking Parental Leave. The Complainant was selected for redundancy using a comprehensive Matrix System following which the Complainant was scored and selected for redundancy.

FINDINGS AND CONCLUSIONS:

The Complainant was on Maternity Leave from January 2016. She had a return to work meeting with the Respondent in September 2016. At this return to work meeting the Complainant requested to return to work on a 4 day week basis. I note the Complainant sent an email to the Respondent dated 5th October 2016 indicating her disappointment that the Company were unable to accept her Parental Leave request. There was an immediate response on 5th October 2016 in which the Respondent stated “at this time and as discussed during the meeting due to a number of issues a reduced working week is not feasible….. you had requested a reduced working week not parental leave. A parental leave request would be taken into consideration separate to any other request”. The Complainant formally requested Parental Leave on 12th October 2016 and this was granted on 15th October 2016 to commence in February 2017.

Section 8(1) of the Parental Leave Act, 1998 does require an employee to apply in writing. I find that the Complainant was granted Parental Leave when she made a formal request in writing as required by the Act.

Section 16 A(1) of the Act provides that an employer shall not penalise an employee for exercising an entitlement to Parental Leave. Penalisation is defined as – dismissal – unfair treatment to include selection for redundancy.

Section 18(2) of the Act provides that “This Part does not apply to a dispute – (a) relating to a dismissal from employment, including a dismissal within the meaning of the unfair Dismissals Acts 1977 to 2015 (b) consisting of a question to which section 39(1% of the Redundancy Payments Act 1967 applies.”.

Section 39(15) of the Redundancy Payments Act, 1967 provides “….any employee who is dissatisfied with a decision given by a deciding officer under section 38 or with any decision of an employer under this Act may appeal to the Director General against the decision, …..”.

There was no complaint submitted to the Director General under the Redundancy Payments Act, 1967 or the Unfair Dismissals Act, 1977 – 2015.

The Complainant did lodge a complaint under the Employment Equality Act, 1998 alleging she had been discriminated against on the basis of her Gender and Family Status to include dismissal on grounds of redundancy. In that complaint the Complainant cited a number of issues giving rise to her selection for redundancy including that on her return from Maternity Leave in December 2016 she was not allowed to return to her old portfolio and that her portfolio reduced from 558 to 113 units a fact which the Complainant asserted affected her scoring in the context of selection for redundancy.

The Complainant in this complaint is now asserting that she was penalised by the Respondent because she exercised her right to Parental Leave and her subsequent selection for redundancy.

DECISION:

Section 41 of the Workplace Relations Act, 2015 requires that I make a decision in relation to the complaint. On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Act I declare this complaint is not well founded as the Complainant has failed to show how she was penalised by the Respondent for exercising her right to Parental Leave when she was selected for redundancy as different arguments were advanced under the Employment Equality Act, 1998 in relation to her selection for redundancy.

Dated:   5th September 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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