Complainant

Respondent

Anonymised Parties

Community Employment Scheme Supervisor

Community Employment Scheme

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00029122-001

17/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029122-002

17/06/2019

The Complainant contends she was unfairly dismissed by way of constructive dismissal when the Respondent failed to pay her during her maternity leave. The complaint under the Minimum Notice & Terms of Employment Act was withdrawn at hearing.

The Complainant was employed by the Respondent from 1st May 2014 to 19th December 2018.     She was furnished with and signed a Statement of Main Terms of Employment that stated:

“The Employee acknowledges that the DSP CE Project is governed by a system of funding and that the continuation of the Project is subject to the continuation of adequate funding”.

She was further required, at that time, to sign an additional document containing the following statement :

“I have read the employee handbook, understand its contents and accept that it forms part of my contract of employment”.

The Company Handbook which accordingly forms part of the contract of employment provides at paragraph 41:

“The Company recognises the importance of a healthy balance between work life and family life and will make provision for maternity/adoptive leave in accordance with the Maternity Protection Acts 1994.   Paid maternity leave is only available to employees who have completed 3 years continuous service with the Company”.

The Complainant was on maternity leave in 2016 and was not paid for this period. She understood and accepted this as she was of the belief that paid maternity leave was a condition of her employment but only when she had completed three years service with the Respondent. She was aware of two other colleagues who received paid maternity leave during the period 2017/2018.

The Complainant became pregnant again in 2018. She expected to be paid for the period of maternity leave having in excess of three years service at the time and being aware of other colleagues who had received such payment. The Complainant was told by the Respondent in May 2018 that the Respondent did not have the money to pay her during her maternity leave. The Complainant invoked the grievance procedure and her Trade Union Representative sought a meeting with the CEO and advised a suitable date, but no response was received and no meeting took place.   The Complainant commenced her maternity leave on 8th June 2018. On or about 12th November 2018, the Complainant advised the Respondent of her return to work date and her wish to use her annual leave thereafter. The Complainant submitted notice of resignation on 19th December 2018, following the expiry of her maternity leave due to the Respondent’s unwillingness to pay her maternity leave, deal with her grievance and treat her equally.   It is argued that the circumstances in which the provision of section 2 (1) of the Act as it applied to constructive dismissal provides two tests as set out in the Labour Court decision A Worker (Mr O) v An Employer (No 2) [2005] 16 ELR 132, the “contract” test where the employee argues “entitlement” to terminate the contract and the “reasonableness” test where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.   Case law in relation to repudiation of contract and unreasonable conduct of the employer was cited in elaborating these tests i.e. Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332.

It is submitted that the Respondent in this case, showed conclusively that it no longer intended to be bound by an essential term of the contract of employment, i.e. to pay maternity leave pay to the Complainant, despite having accrued three years service.   It is submitted that this constituted a repudiatory breach of contract. In the alternative the conduct of the Employer was entirely unreasonable justifying the Complainant in resigning her employment.

It is argued that there has been no breach of contract. There is no contractual entitlement to maternity pay for the Complainant. Her contract states

“This contract is at all times subject to and should be read and interpreted in accordance with the rules governing the DSP CE Project and all other programmes being delivered by (the Respondent) at any point in time”.

The Complainants role was fully funded by the Department of Employment and Social Protection which does not provide funding payment for maternity leave. The relevant clause in the manual states:

“If a Sponsor elects to pay a participant while on maternity leave, it is on the clear understanding that DSP cannot provide grant support for such payments”.

Employment is therefore conditional of the rules of the associated funding provider – this is expressly stated in the contract of employment signed by the Complainant.   The effect of this is there is no money to pay maternity leave. If there was, the Respondent would happily do so.

The burden of proof is on the Complainant in matters of constructive dismissal. It is the Respondent’s position that it neither acted unreasonably nor did it breach the Complainant’s terms and conditions of employment. The Respondent CEO replied to the Complainant’s representative’s request for the grievance procedure to be followed, however, she heard no more from him.   The Complainant applied for and secured new employment in the public sector which enjoys a wider spectrum of benefits that the Respondent does not.

The definition of constructive dismissal as contained in Section 1 of the Act is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

In considering whether the Complainant was entitled to terminate her contract of employment in circumstances in which, because of the conduct of the employer, it would have been reasonable for her to terminate the contract without giving prior notice, I have considered the evidence and submissions.

In this instant case, I find there was no contractual right to paid maternity leave. It follows then that the Respondent has not repudiated the Complainant’s contract and she cannot therefore rely of the “contract” test, as set out in A Worker (Mr O) v An Employer (No 2) [2005] 16 ELR 132, and Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332.

In considering the second limb of the tests commonly used in constructive dismissal claims, the “reasonableness” test, I have considered the evidence especially in relation to the Respondent’s handling of the grievance submitted by the Complainant.   The email sent by the Complainant’s Representative on 1 August 2018 seeking a meeting and suggesting a date was not replied to as it appears the Representative sent it to the Complainant not the CEO. The CEO therefore could not be responsible for not replying to an email she never received. The Complainant did not follow up on the grievance. She simply secured another employment and resigned at the end of her maternity and annual leave periods.   I do not find that the Respondent repudiated her contract and I do not find that the Respondent acted unreasonably in dealing with her grievance. The complaint of unfair dismissal is not upheld.

Unfair dismissal, constructive dismissal, not upheld,