Complainant

Respondent

Anonymised Parties

An Art Room Manager

A Graphics Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00025136-001

21/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00025137-001

21/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00025138-001

21/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00025140-001

21/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00025149-001

21/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00025156-001

21/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00025172-001

21/01/2019

The complainant commenced employment with the respondent as an Art Room Manager, in 2007. The respondent is a graphics company. She was paid a gross annual salary of €30,400 for working a four-day week.

At the outset of the hearing it became apparent that there had been a duplication of claims being made.   CA-00025136-001 was duplicated several times. This being the case, complaints CA-00025137-001, CA-00025138-001, CA-00025140-001, CA-00025149-001, CA-00025156-001 and CA-00025172-0001 were withdrawn by the complainant.

The complainant submits that, utilising Parental Leave, she worked a four-day week between February 2015 -September 2015 and May 2017 – 8 November 2018. As the end of her second tranche of Parental Leave approached in November 2018 she was offered a four-day week including Fridays which caused her a problem. After discussion the respondent offered hare a three-day week option, working Monday to Wednesday, which the complainant was happy to accept.

However, on the 8th November 2018, the complainant submits that the respondent withdrew the offer of a three-day week and offered a five-day week, ostensibly to reduce the pressure the complainant would be under at work.     The complainant was not happy with this but returned to work on 12th November 2018 but went out on certified sick leave on 19th November 2019.

On the 20th November 2018, the wrote a letter to the complainant, offering her a three day-week, in a role which the complainant perceived to be a much more junior role to that which she had enjoyed heretofore. This role, according to the complainant was a significantly lesser role than she had occupied before or during her Parental Leave.

The complainant felt demeaned and humiliated by the way she has been treated.

In conclusion, the complainant submitted that she was offered a role which was not the same role as she had had before she took Parental Leave nor was it a suitable alternative.  

The respondent submits that discussions opened up in October 2018 about the complainant’s forthcoming return to work from Parental Leave. The complainant met with the respondent's HR Consultant to discuss her return to work.   Options were discussed at this meeting. According to the respondent, it became apparent at this meeting that the complainant was under stress from her workload.

Taking into account the stress the complainant was experiencing due to her workload, the respondent decided that the best thing to do would be for her to return to a five-day week. The respondent wrote to the complainant on 8th November setting out its position in regard to working days and indicating the respondent’s concerns regarding the pressure of work the complainant was under, and that a three-day week would only increase that pressure.

On 12th November 2018, the complainant sent a letter to the respondent stating that she was not willing to accept the proposal and that she was referring the matter to the WRC.

On 19th November 2018, the complainant went on certified sick leave.

On 20th November 2018, the respondent sent a letter to the complainant in which a three-day week was granted. This letter also included a list of revised duties to help alleviate any undue pressure.

The complaint did not accept this offer and lodged a complaint with the WRC on 21st January 2019.

In conclusion, the respondent denies that the complainant was treated unfairly. It is the respondent’s belief that at no point was the complainant offered a lesser or alternative role. She was not denied future promotional opportunities arising from her status or Maternity. The respondent puts forward that the complainant was scheduled upon her return on 13th November 2018 to be placed on a programme, her return was on the same rates of pay, same position, same location, same employer, but with both parties mutually agreeing working hours.

Section 15 of the Act states:

15.— (1) On the expiration of a period of parental leave (being, in a case where parental leave has been terminated under section 12 , the period specified in the confirmation document concerned) (“ the period”), the employee concerned shall be entitled to return to work—

( a) with the employer with whom he or she was working immediately before the start of the period or, where during the employee's absence from work there was or were a change or changes of ownership of the undertaking in which he or she was employed immediately before the absence, the owner on the expiration of the period (“ the successor”),

( b) in the job that the employee held immediately before the commencement of the period, and

F20 [ ( c ) under the contract of employment under which the employee was employed immediately before the commencement of the period or, where a change of ownership such as is referred to in paragraph ( a ) has occurred, under a contract of employment with the successor that is identical to the contract under which the employee was employed immediately before such commencement, and (in either case) under terms or conditions —

(i) not less favourable than those that would have been applicable to the employee, and

(ii) that incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled,

if he or she had not been so absent from work. ]

(2) For the purposes of subsection (1)(b), where the job held by an employee immediately before the commencement of a period of parental leave to which he or she is entitled was not the employee's normal or usual job, he or she shall be entitled to return to work, either in his or her normal or usual job or in that job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or provision made under statute.

(3) Where, because of an interruption or cessation of work at an employee's place of employment, existing on the expiration of a period of parental leave taken by the employee, it is unreasonable to expect the employee to return to work on such expiration, the employee may return to work instead when work resumes at the place of employment after the interruption or cessation, or as soon as reasonably practicable after such resumption.

In essence the Act stipulates than an employee is entitled to return to the same or a similar role to that which they held immediately prior to going on Parental Leave.

From the evidence adduced it is obvious that the role offered to the complainant by letter from the respondent dated 20th November 2018, is a lesser role than that which she had before her return from Parental Leave. The respondent's submission that it was exactly the same job as before, except it is now a three-day week job, does not stand up to scrutiny.

Notwithstanding the above, it would seem to me that some amount of dialogue went on between the parties in advance of the complainant's return from leave which created confusion and misunderstanding. Both sides must take a share of responsibility for the difficulties which resulted from this dialogue.

However, the onus is on the employer to ensure it follows the Act and in this case it has failed in its responsibility.

Section 21 of the Act states:

21. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute between an employee and his or her employer relating to the entitlements of the employee under this Act (or any matter arising out of or related to those entitlements or otherwise arising under this Act) or a decision of the Labour Court under section 44 of the said Workplace Relations Act 2015 on appeal from the first-mentioned decision, may contain such directions to the parties concerned as the adjudication officer or the Labour Court, as the case may be, considers necessary or expedient for the resolution of the dispute or matter and such other redress as the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all of the circumstances and the provisions of this Act, and accordingly may specify —

(a) the grant to the employee of parental leave of such length to be taken at such time or times and in such manner as may be so specified,

(b) an award of compensation in favour of the employee concerned to be paid by the employer concerned, or

(c) both a grant referred to in paragraph (a) and an award referred to in paragraph (b).

(2) An award of compensation referred to in subsection (1) (b) shall be of such amount as the adjudication officer or the Labour Court, as the case may be, considers just and equitable having regard to all the circumstances but shall not exceed 20 weeks ’ remuneration in respect of the employee ’ s employment calculated in such manner as may be prescribed.

The complaint is well founded. Taking into account the complainant's relatively long service, I direct the respondent award the complainant compensation of €8,769.00 (15 week's pay), which I believe is just and equitable having regard to all the circumstances.