ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024224
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaner | A Contract Cleaning Company (1) |
Representatives |
|
|
Complaint:
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-00030940-001 | 16/09/2019 |
Date of Adjudication Hearing: 25/10/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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.
Summary of Complainant’s Case:
The complainant had worked with the respondent since February 2017 and she and her co-workers received an email on the 27th March from the respondent stating that it had been unsuccessful in its bid to renew a cleaning contract it had with the secondary school in which she worked.
The contract was due to terminate on the 29th March.
The email stated that the transfer of undertakings regulations would apply and that her contact details would be forwarded to the new contractor.
She turned up at the workplace on the 29th March at 16:00 and were told at 18:00 that the new employers would not apply the TUPE regulations.
The complainant went on maternity leave on leave April 14th which was not due to terminate until October 14th 2019.
In due course her employer made her redundant on April 18th and while she was still on maternity leave. |
Summary of Respondent’s Case:
The respondent confirmed that his company lost the contract to clean the school in question. Two days before the expiration of the contract he was told by the new contractor that it would not accept a transfer of his employees to carry out the new contract. He emailed the complainant on April 15th advising her that she was being made redundant and the basis on which she would receive a redundancy payment of €1080.00 and payment in lieu of notice of €432.00; a total of €1512.00 This was followed by a letter on April 18th confirming those details. The employment then concluded. |
Findings and Conclusions:
This is a complaint under the Maternity Protection Act 1994. As the name of the statute makes clear, this is a measure to protect women who are on maternity leave against a number of possible detriments, the most important of which is the loss of their employment while on this period of protected leave. There is little doubt that this is what happened here. The complainant’s evidence was her maternity leave began on April 14th, 2019 some two weeks after the respondent lost the contract which has given rise to the claim. He, it appears, had a fairly vague expectation (at best) which he communicated to his own employees and to the company which successfully tendered for the contract that the Transfer of Undertakings Protection of Employees (TUPE) regulations would apply. This is not the first case in which such a presumption was made. It seems remarkable that an employer with no legal qualifications would proceed to pronounce on the applicable law, and without taking prior legal advice in an area of law acknowledged even by professional practitioners to be complex. That any employer should proceed to act on the basis of this presumption brings then into very hazardous territory indeed. However, having discovered that the new contractor was not similarly minded he proceeded on a different tack, and now accepting that the complainant remained an employee made her redundant. He did so the day after she commenced her maternity leave. Section 23 of the Act renders void ‘any purported termination of an employee’s employment while the employee is absent from work on protective leave’. Accordingly, the complainant remains in employment and has the right to return to work on the conclusion of her period of protected leave. I also make an award of compensation arsing from the breach of the complainant’s rights under the Act. The complainant earned €216 per week. I consider she is entitled to the maximum twenty weeks’ compensation, from which I discount the payment made in respect of the purported redundancy and notice payment. This results in an award of €2808.00. |
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.
Complaint CA-00030940-001 is well-founded and on the basis of the authority in section 32 (2) of the Maternity Protection Act, 1994 I decide that the purported redundancy is void. The complainant continues to be and remains an employee of the respondent and I direct that she be facilitated with a return to work with effect from the conclusion of her maternity leave. On the basis that she retains the sum of already paid by way of a purported redundancy and notice payment of €1512.00 I direct the respondent to also pay the complainant €2808.00, the combined total of which which is compensation for the breach of her rights under the legislation and not subject to taxation or other deductions. |
Dated: 18th December 2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Maternity protection, redundancy void. |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024224
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaner | A Contract Cleaning Company (1) |
Representatives |
|
|
Complaint:
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-00030940-001 | 16/09/2019 |
Date of Adjudication Hearing: 25/10/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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.
Summary of Complainant’s Case:
The complainant had worked with the respondent since February 2017 and she and her co-workers received an email on the 27th March from the respondent stating that it had been unsuccessful in its bid to renew a cleaning contract it had with the secondary school in which she worked.
The contract was due to terminate on the 29th March.
The email stated that the transfer of undertakings regulations would apply and that her contact details would be forwarded to the new contractor.
She turned up at the workplace on the 29th March at 16:00 and were told at 18:00 that the new employers would not apply the TUPE regulations.
The complainant went on maternity leave on leave April 14th which was not due to terminate until October 14th 2019.
In due course her employer made her redundant on April 18th and while she was still on maternity leave. |
Summary of Respondent’s Case:
The respondent confirmed that his company lost the contract to clean the school in question. Two days before the expiration of the contract he was told by the new contractor that it would not accept a transfer of his employees to carry out the new contract. He emailed the complainant on April 15th advising her that she was being made redundant and the basis on which she would receive a redundancy payment of €1080.00 and payment in lieu of notice of €432.00; a total of €1512.00 This was followed by a letter on April 18th confirming those details. The employment then concluded. |
Findings and Conclusions:
This is a complaint under the Maternity Protection Act 1994. As the name of the statute makes clear, this is a measure to protect women who are on maternity leave against a number of possible detriments, the most important of which is the loss of their employment while on this period of protected leave. There is little doubt that this is what happened here. The complainant’s evidence was her maternity leave began on April 14th, 2019 some two weeks after the respondent lost the contract which has given rise to the claim. He, it appears, had a fairly vague expectation (at best) which he communicated to his own employees and to the company which successfully tendered for the contract that the Transfer of Undertakings Protection of Employees (TUPE) regulations would apply. This is not the first case in which such a presumption was made. It seems remarkable that an employer with no legal qualifications would proceed to pronounce on the applicable law, and without taking prior legal advice in an area of law acknowledged even by professional practitioners to be complex. That any employer should proceed to act on the basis of this presumption brings then into very hazardous territory indeed. However, having discovered that the new contractor was not similarly minded he proceeded on a different tack, and now accepting that the complainant remained an employee made her redundant. He did so the day after she commenced her maternity leave. Section 23 of the Act renders void ‘any purported termination of an employee’s employment while the employee is absent from work on protective leave’. Accordingly, the complainant remains in employment and has the right to return to work on the conclusion of her period of protected leave. I also make an award of compensation arsing from the breach of the complainant’s rights under the Act. The complainant earned €216 per week. I consider she is entitled to the maximum twenty weeks’ compensation, from which I discount the payment made in respect of the purported redundancy and notice payment. This results in an award of €2808.00. |
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.
Complaint CA-00030940-001 is well-founded and on the basis of the authority in section 32 (2) of the Maternity Protection Act, 1994 I decide that the purported redundancy is void. The complainant continues to be and remains an employee of the respondent and I direct that she be facilitated with a return to work with effect from the conclusion of her maternity leave. On the basis that she retains the sum of already paid by way of a purported redundancy and notice payment of €1512.00 I direct the respondent to also pay the complainant €2808.00, the combined total of which which is compensation for the breach of her rights under the legislation and not subject to taxation or other deductions. |
Dated: 18th December 2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Maternity protection, redundancy void. |