ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00023916

Parties:

	Complainant	Respondent
Anonymised Parties	A GP	Health Service Provider

Representatives

The claimant represented himself

The respondent did not attend and was not represented at the hearing

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Paternity Leave and Benefit Act, 2016	CA-00030561-001	29/08/2019

Date of Adjudication Hearing: 16/12/2019

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 27 of the Paternity Leave and Benefit Act ,2016 ] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Case:

In his complaint to the WRC which was received on the 29.08.2019, the claimant submitted as follows :

I wish to refer my dispute to the WRC as I have applied for statutory paternity leave for following my sons birth on 16/04/19- I was informed that I was only entitled to subsidy for 3 days paternity leave -It is my view that as a state agency the respondent should offer subsidy to allow me take 10 days paternity leave as per the statutory guidelines- I engaged in a protracted engagement with the respondent regarding this matter and then a further protracted and delayed appeals process to be declined my request I enclose a copy of my email engagement on the request which I hope clarifies the issue and I informed the appeals officer of my intention to seek the view of the WRC now so have made them aware .

On the 13 May 2019, the claimant wrote as follows to the respondent :

“ Hi I am a GMS GP , currently working County X in a single handed practice. I wish to query how there is a 3 day subsidy given to GPs to take paternity leave on the

GMS - as per the current employment law I am entitled to 2 weeks paternity leave: "With effect from 1September 2016, new parents (other than the mother of the child) are entitled to paternity leave from employment or self-employment following birth or adoption of a child – see ‘Rules’ below for who is eligible.The Paternity Leave and Benefit Act 2016 provides for statutory paternity leave of 2 weeks. The provisions apply to births and adoptions on or after 1 September 2016." It is my view that I should be entitled to 10 days subsidy not the paltry 3 days - It is not possible to take 2 weeks leave from my GP practice with the subsidy of 3

days.As a result I have to return to work early Again as per the guidelines: "The entitlement to 2 weeks’ paternity leave from employment extends to all employees (including casual workers), regardless of how long you have been working for the organisation or the number of hours worked per week. " The current 3 days subsidy discriminates against me as a GP and does not allow me to take 2 weeks paternity leave . I note that Maternity leave applies for 6 months subsidy. I wish to address my grievance formally to you , I see this a major

problem for GPs trying to take paternity leave which is now a statutory entitlement. Many Thanks

The respondent replied as follows :

Further to your e-mail of 8th May 2019 and subsequent e-mail of 13th May 2019, please note that we are seeking advice from the National Contracts Office in relation to your request and will contact you as soon as we receive a

response. Kind regards,

@the respondent.ie> 17 May

The claimant advised that the following response was then furnished by the respondent on the 24th.May 2019

“ In response to your recent query, the contractual terms pertaining to Paternity Leave for Independent GP contractors remains 3 days. However, I should point out that under the recent negotiated GP Agreement with the IMO, GPs who are eligible for and avail of paternity leave and who sign up to the reform modernisation package of measures provided for in the agreement shall be entitled to claim locum expenses for 14 days (2

weeks) with effect from 1st of July 2019. This will apply to births occurring on or after the 1st of July 2019.”

The claimant advised that his son was born on the 14th ofApril 2019 – and ultimately the claimant appealed the respondent’s decision.

The claimant submitted the respondent’s response to his appeal into evidence as set out below:

“ Thank you for your emails in relation to your paternity leave. I have reviewed your correspondence in relation to the extension of Paternity Leave from 3 to 10 days. I can confirm that as your child’s birth was in April 2019 the contractual terms pertaining to paternity leave for independent GP contractors is 3 days. You will be aware, that under the recent negotiated GP Agreement with the IMO, GPs who are eligible for and avail of paternity leave and who sign up to the reform modernisation package of measures provided for in the agreement are entitled to claim locum expenses for 14days (2 weeks) with effect from 1st of July 2019. This applies to births occurring on or after the 1st of July 2019.

If I can be of further assistance please contact me.”

The claimant advised that he had to make 7 phonecalls before he got a reply from the respondent. He expressed disappointment with the respondent’s failure to participate in the hearing and complained about the lengths he had to go to secure time off to attend the hearing.The claimant submitted that the offer of 3 days paternity leave fell

far short of the outgoings he would have to meet in circumstances where it costs him €600 per day to provide locum cover..The claimant submitted that the respondent was failing to recognise his statutory entitlement to paternity leave as set out in the Act since 2016 – he submitted it was most inequitable to limit his leave to 3 days while a mother can avail

of 6 months leave.

In response to the respondent’s post hearing submission the claimant contended the respondent as a Government Body had ignored his entitlement to 2 weeks statutory leave , that the reference to 3 days locum cover was misleading as the subsidy merely amounted to a third of the cost of a locum at current market rates and he submitted IMO policy on paternity leave which he submitted supported his interpretation of his entitlements.

Summary of Respondent’s Case:

Th respondent did not attend and was not represented at the hearing.The respondent, on the 4th.Feb. 2020 expressed their apologies for not attending the hearing owing to a communication malfunction and submitted that they did not expect the hearing to proceed as the claimant was “ not an employee of the HSE” but an “independent contractor who holds a GP Agreement contract.”The respondent set out the chronology of exchanges between the claimant and the respondent from his original grievance to the unsuccessful outcome of the appeal.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 28 of the Paternity Leave and Benefit Act, 2016 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Preliminary Matter of Jurisdiction.

Section 2 of the Act sets out definitions as follows and includes the definition of a contract of service and of an employee:

Interpretation
		2. (1) In this Act—
		“Act of 1977” means the Unfair Dismissals Act 1977 ;
		“Act of 1994” means the Maternity Protection Act 1994 ;
		“Act of 1995” means the Adoptive Leave Act 1995 ;
		“Act of 2005” means the Social Welfare Consolidation Act 2005 ;
		“Act of 2010” means the Adoption Act 2010 ;
		“Act of 2015” means the Workplace Relations Act 2015 ;
		“additional adoptive leave” has the same meaning as it has in the Act of 1995;
		“additional maternity leave” has the same meaning as it has in the Act of 1994;
		“adjudication officer” means a person appointed under section 40 of the Act of 2015;
		“adopting mother” has the same meaning as it has in the Act of 1995;
		“adoptive leave” has the same meaning as it has in the Act of 1995;
		“birth certificate” means a document issued under section 13 (4) of the Civil Registration Act 2004 ;
		“certificate of placement” has the meaning assigned to it by section 13 of the Act of 1995;
		“civil partner” shall be construed in accordance with section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ;
		“cohabitant” shall be construed in accordance with section 172 (1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ;
		“contract of employment” means, subject to subsection (2) —
		(a) a contract of service or apprenticeship, or
		(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency, within the meaning of section 2 of the Protection of Employees (Temporary Agency Work) Act 2012 ), and is acting in the course of that business, to do or perform personally any work or service for another person (whether or not that other person is a party to the contract),
		whether the contract is express or implied and, if express, whether it is oral or in writing;
		“date of confinement” shall be construed in accordance with section 51(1)(b) of the Act of 2005;
		“day of placement” means the day on which a child who is, or is to be, adopted is placed physically in the care of the relevant adopting parent with a view to the adoption of the child or, in the case of an intercountry adoption effected outside the State where the child has not previously been placed in the care of the relevant adopting parent, the day on which the child has been so placed following the adoption;
		“declaration of eligibility and suitability” has the same meaning as it has in the Act of 2010;
		“Director General” has the same meaning as it has in the Act of 2015;
		“employed adopting mother” has the same meaning as it has in the Act of 1995;
		“employee”, other than in section 29, means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and includes a part-time employee and a fixed-term employee;
		“employer” in relation to an employee—
		(a) means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of contract of employment is liable to pay the remuneration of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer, and
		(b) includes, where appropriate, the successor of the employer or an associated employer of the employer;
		“enactment” has the same meaning as it has in the Interpretation Act 2005 ;
		“expected week of confinement” has the meaning assigned to it by section 47(1)(a) of the Act of 2005;
		“fixed-term employee” has the same meaning as it has in the Protection of Employees (Fixed-Term Work) Act 2003 ;
		“intercountry adoption effected outside the State” has the same meaning as it has in the Act of 2010;
		“Labour Court” means the body established by section 10 of the Industrial Relations Act 1946 ;
		“maternity leave” has the same meaning as it has in the Act of 1994;
		“Minister” means the Minister for Justice and Equality;
		“part-time employee” has the same meaning as it has in Part 2 of the Protection of Employees (Part-Time Work) Act 2001 ;
		“paternity leave” has the meaning assigned to it by section 6 (1);
		“registered medical practitioner” has the same meaning as it has in the Medical Practitioners Act 2007 ;
		“relevant adopting parent”, in relation to a child who is, or is to be, adopted, means—
		(a) in the case of a child referred to in paragraph (a)(i) of the definition of relevant parent, the spouse of the relevant parent in relation to that child,
		(b) the adopting mother of the child, or
		(c) the sole male adopter of the child;
		“relevant evidence”, in relation to an employee, means a medical certificate signed by a registered medical practitioner;
		“relevant parent”, in relation to a child, means a person (other than the mother of the child) who is—
		(a) in the case of a child who is, or is to be, adopted—
		(i) where the child is, or is to be, adopted jointly by a married couple of the same sex, the spouse chosen by that couple to be the relevant parent for the purposes of this Act, or
		(ii) in any other case, the spouse, civil partner or cohabitant, as the case may be, of the adopting mother or sole male adopter of the child,
		or
		(b) in any other case—
		(i) the father of the child,
		(ii) the spouse, civil partner or cohabitant, as the case may be, of the mother of the child, or
		(iii) a parent of the child under section 5 of the Children and Family Relationships Act 2015 where the child is a donor-conceived child within the meaning of Part 2 of that Act;
		“sole male adopter” has the same meaning as it has in the Act of 1995 and includes, for the purposes of this Act, a person who would be a sole male adopter but for the fact that he is not an employee;
		“surviving parent”, in relation to a child whose relevant parent has died, means—
		(a) in the case of a child who is, or is to be, adopted, the relevant adopting parent of the child, or
		(b) in any other case, the mother of the child;
		“transferred paternity leave” has the meaning assigned to it by section 15 (1).
		(2) For the purposes of this Act—
		(a) a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act 1956 , shall be deemed to be an employee employed by the State or Government, as the case may be, under a contract of service, and
		(b) an officer or servant of a local authority for the purposes of the Local Government Act 2001 , a harbour authority or the Health Service Executive or a member of staff of an education and training board shall be deemed to be an employee employed by the authority, Executive or board, as the case may be, under a contract of service.
		(3) For the purposes of this Act, one employer shall be taken to be associated with another employer—
		(a) if one is a body corporate of which the other (whether directly or indirectly) has control, or
		(b) if both are bodies corporate of which a third person (whether directly or indirectly) has control.
		(4) For the purposes of section 17and Parts 3 and 4, a reference to paternity leave includes a reference to transferred paternity leave.
		(5) A reference in this Act to a child who is, or is to be, adopted is a reference to a child who is, or is to be, the subject of—
		(a) an adoption order within the meaning of the Act of 2010, or
		(b) an intercountry adoption effected outside the State and recognised under that Act.

· As the claimant is not employed on a contract of service by the HSE , I find I have no jurisdiction to investigate the complaint.

Dated: 30th April 2020

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Key Words:

Paternity Leave & Benefit Act, 2016