Complainant

Respondent

Anonymised Parties

HR manager

Aviation recruitment and staff support agency.

Representatives

Ken Stafford Management Consultancy Services

Matheson Solicitors. Ms Rosemary Mallon, B.L.

Act

Complaint/Dispute 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-00029214-001

21/06/2019

The complainant submits that the respondent is in breach of section 26 of the Maternity Protection Act 1994.

The complainant commenced work with the respondent in June 2016. In April 2017 she was appointed to the position of Head of Human Resources, reporting to the MD.

On 29th July 2018 the complainant commenced her Maternity Leave. She returned to work on 24th June 2019.

The position to which the complainant was required to return was materially different from the post which she occupied immediately prior to her Maternity Leave

Her salary is €68,624 per annum. The position carried an annual bonus of up to €8235 and a company car to the value of €10,000.

She submitted her complaint to the WRC on 13 July 2019.

The respondent’s barrister argued that using dual avenues of redress for processing the same complaint – the job the complainant was offered upon her return from maternity leave-was ruled out in the Labour Court determination of Power v. Jahan Company t/a Irema Ireland Ltd EDA 1326.There, the Labour Court concluded that one cannot bring an identical case under the Employment Equality Acts to a claim previously brought under the Maternity Protection Act 1994..The Labour Court stated that the issues before it had been ventilated in proceedings before a Rights Commissioner and could not be pursued in other proceedings between the same parties as it was res judicata.

Therefore, the complainant could not use the same set of facts to pursue her complaint under both the Employment Equality Acts and the Maternity Protection Acts and must confine her complaint to one of the statutory routes.

The complainant’s representative stated that the complainant is entitled to hold her position open and advance two complaints at this point but if obliged to choose would elect to have her complaint heard under the Act of 1998.

The Labour court determination of Power v. Jahan Company t/a Irema Ireland Ltd EDA 1326, cited to me, acknowledges that the Employment Equality Acts do not contain a statutory prohibition on duplication of claims. In that case the complainant had already been awarded a sum for the complaint heard under the Maternity Protection Acts, based on the same set of facts, and now being recycled before the Labour Court to ground a complaint under the Employment Equality Acts.

The Court, however, went on to consider whether in the absence of the said statutory prohibition the doctrine of res judicata operates to prohibit a party from litigating the same issue twice. They concluded that in the absence of a statutory prohibition, common law estoppel can apply in proceedings before quasi-judicial tribunals. The Labour Court considered a number of authorities one of which was the statement of Hedigan J in Cunningham v Intel Ireland Ltd. (2013) IEHC 207

“All matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings”

The Labour Court concluded that the complainant was estopped from ventilating the complaint under the Employment Equality Acts as the complaint had already been adjudged and a remedy applied. The Court stated that the legal doctrine of transit in rem judicatem operatedto deny the complainant the opportunity to have her complaint heard under the Act of 1998 as the redress awarded in the previous award was intended to cover the totality of her complaint and she cannot use the present proceedings to obtain an additional or better remedy for what is undoubtedly the same wrong for which she has already been compensated. The Court stated, “the present proceedings were merged and extinguished by the Decision in her favour under the Maternity Protection Act 1994 and she is estopped from seeking to litigate that cause of action again.”

But the circumstances are distinguishable in the instant case. The absence of a previous hearing, decision or award under the Maternity Protection Acts casts doubt about the applicability of res judicata or transit in rem judicatem in the instant case. There is no existing award to be merged with a later award. Additionally, the complainant asks to have both complaints determined on the same set of facts and at one sitting the unlike the facts which led to the Labour Court’s reasoning in Power.

The equality officer when faced with the argument that simultaneous dual avenues of redress were prohibited stated in DEC-E2006-007

“Section101 of those Acts sets out specific circumstances restricting a complainant from following dual avenues of redress under, inter alia, those Acts and unfair dismissals legislation. It does not place any restriction on claims which may also have a course of redress under the maternity protection legislation, in particular requiring a complainant to choose one avenue of redress over the other”.

Finally, the Adjudicator in a Financial Administrator v a Telecommunications Provider, ADJ 15172, awarded redress under both Acts in circumstances where the complainant submitted the same set of facts to ground a complaint under the Maternity Protection Acts and the Employment Equality Acts.

I find that I am not prohibited from considering the complainant’s complaints under both the Maternity Protection Acts and the Employment Equality Acts.

The complainant commenced work with the Respondent in June 2016. On 9 August 2017 she was appointed to the position of Head of Human Resources, reporting to the MD.

On 29th July 2018 the complainant commenced her maternity leave. She returned to work on 24th June 2019.The complainant submits that the position to which she returned following her maternity leave was materially different from that which she occupied immediately prior to her leave.

The complainant submitted a table comparing her role pre and post- maternity leave. It is reproduced hereunder.

The complainant argues that the above table shows that under multiple areas of responsibilities her role was significantly diminished. It is not the job which she held before she went on maternity leave. The contract which she held before her departure on maternity leave was the contract of 9 August 2017. Her title but not her reporting relationships or duties were revised on 23 October 2017 to that of Human Resources Counsellor.

The complainant argues that the proposed new role was disadvantageous to her and failed to maintain the level of responsibility which she had enjoyed prior to her taking maternity leave.

The complainant stated in evidence that her role prior to going on maternity leave was predominantly concerned with drawing up contracts for cabin crew, pilots and staff, producing the handbook, devising HR policies. She reported to the then Managing Director. It was not a broken line of reporting. Following her return from leave she reports to the Global Talent, People and Client HR Services Manager ( “HR Manager”)and has a broken line of reporting to the MD appointed in May 2018.

The complainant was not consulted about the impact of or the changes which the September 2018 strategic review could have on her pre- maternity leave role. The complainant tried to get clarity about her position post- return; she asked the MD in April about her role on the leadership team. He declined to answer her. He did indicate that the respondent had hired a new HR manager. This post was filled in or around April 2019. She was not told of the loss of her leadership position. She asked the new HR manager in May 2019 to whom should she report; he was uncomfortable and didn’t respond. The complainant in answer to a question that she had been advised in the January discussions that she would no longer be a member of the management team was emphatic that she had not been advised that she would no longer serve on the leadership team,

The complainant advised the respondent on 20 and 22 June that she was unhappy with the changes to her role.

After her return she was issuing contracts to staff and as per usual contacted managers re personnel matters. They advised that the new Global Talent, People and Client HR Services Manager, filled by DM, would be dealing with these matters.

She declined the offer of mediation as she believed that all the 3 nominees for the position of mediator had been engaged in moving her out of her position. it was not external mediation.

The complainant accepted that she had signed a statement on 23 October 2017 accepting what was called a promotion to the post of Human Resources Counsellor. No altered job description or reporting arrangements came with the change of title.

The complainant’s representative said it was not denied that she had 7 direct reports pre-maternity leave and 3 afterwards.

The complainant relies on Gardiner v Mercer Human Resources Consulting DEC-E-2006-007, where that complainant was faced with a new reporting structure, the removal of certain tasks and a lack of clarity about her function which was not the case prior to her maternity leave. These factors led the equality officer to conclude that it was not an equivalent post.

The complainant refutes the respondent’s position which is that that she occupies the same job. The fact that she has the same title is irrelevant.

The complainant states that the respondent’s actions and failures are a breach of the Maternity Protection Acts.

The respondent denies that they acted contrary to the provisions of the Maternity Protection Acts. The respondent submits that she got her same job back and if the adjudicator rejects that argument the respondent states that the adjudicator must accept that she was appointed to a suitable alternative role. The operations element of her role is unchanged.

The respondent provides aviation recruitment and airline support services.

The complainant commenced employment with the respondent in 2016. She was promoted to the position of Human Resources Counsellor on 23 October2017. On 29th July 2018 the complainant commenced her Maternity Leave and returned to work on 24th June 2019.

Changing needs of the organisation.

The MD gave evidence that the key driver in changing the HR structure and hence the complainant’s role was their client Airline 1’s decision to outsource not only the recruitment of pilots but the training and management of the full crew to the respondent. It was a new revenue generating stream for the respondent. The MD concluded that the complainant did not have the skill set to meet this role.

Prior to the complainant taking maternity leave, she was HR Counsellor, reporting to the VP of Human Capital, based in Canada. The complainant has a broken line reporting to the MD, who was her line manager for operational reasons. The MD advised that the primary difference between the role undertaken by the complainant and the new HR role was the ability to create a revenue generating stream. The new HR manager was appointed in or around April 2019.

The MD was unable to state when asked if the new HR manager was doing tasks previously performed by the complainant.

The respondent accepts that there were a few minor changes to the role. It is submitted in the alternative (if it is deemed by the Adjudication Officer not be the same position) that the complainant returned to a suitable alternative role on her return from maternity leave. The complainant still deals with the same 160 employees. Her key HR functions are unchanged. The respondent now employs 300 employees directly whereas before the complainant went on maternity leave, they did not.

The new HR manager to whom the complainant reports, took on 3 new HR executives who had worked previously in the airline industry to help with the expanded function of the HR department.

The respondent states that a reporting line is not determinative of a change in the role.

The cases referred to by the complainant’s representative are at the extreme end of loss of responsibilities. She is doing the same job – managing 160 staff.

The respondent argues that the complainant had decided that it was a different job prior to her return from maternity leave.

The respondent relies on Cunningham v Intel Ireland, DEC-E2012-020 which held that “the strategic role” given to that complainant after her return from maternity leave was a suitable alternative even though many of the operational roles of her job were assigned to a more junior colleague while the complainant was on maternity leave.

The respondent asks the adjudicator to find in their favour

I am obliged to establish if the respondent has breached the Maternity Protection Act of 1994 in, as alleged, not allowing the complainant to return to work in the job which she held prior to her maternity leave and/or if circumstances prevented that, by failing to offer suitable alternative employment.

Relevant Law.

Section 22 of the Act of 1994 acknowledges that an employee who is absent from the workplace by reason of being on maternity leave will be treated as if she had not been absent.

Section 26 of the Act of 1994 states.

“-(1) Subject to this part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work-

(a)with the employer with whom she was working immediately before the start of that period…

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

(c)under the contract of employment under which the employee was employed immediately before the start of that period…and under terms and conditions

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

If she had not been so absent from work.”

I find on the evidence submitted that the complainant did not return to the same job or under the same contract as required by section 26 of the Act. That job and contract dated 9 August 2017 situated her as the most senior HR person in Ireland with a direct reporting line to the MD, whereas the job to which she was expected to return saw her relegated to the position of one of three HR Business Partners reporting to a more senior HR Manager, and which left her at a further degree of separation from the MD. This was a role created while she was on leave and for which she received no invitation to apply. While her title was changed in October 2017, she was not advised of any other changes in her terms and conditions. The reduced managerial function, the exclusion from the senior leadership team, the lack of an invitation to apply for the new HR position means that the respondent failed to return her to “the contract of employment under which the employee was employed immediately before the start of that period…and under terms and conditions

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

If she had not been so absent from work.”

The complainant being absent on protected leave during the period when her role was being reduced was restricted in her ability to reverse the respondent’s relegation of her role within the organisation.

The respondent requests that in circumstances where I find that the complainant does not return to the same job, as required in section 26 of the Act of 1994, I should find that the respondent acted in accordance with Section 27 of the Act. It states –

(1) Where an employee is entitled to return to work in accordance with Section 26, but it is not reasonably practicable for the employer ….to permit the employee to return to work in accordance with that section, the employee shall be entitled to be offered by the employer suitable alternative work under a new contract of employment.

While the respondent may have had difficulty returning the complainant to the exact same role held by her prior to her maternity leave, I do not find that the respondent was prevented from complying with the requirement set out in section 26 above to return the complainant to a position carrying no less favourable “terms and conditions” than those enjoyed by her prior to her leave in terms of her managerial reach and responsibilities, and her membership of the senior leadership team when set alongside their failure to invite her to apply or consider her candidacy for the new HR role. Hence, I do not find that section 27 assists the respondent.

Unlike in Cunningham v Intel Ireland, DEC-E2012-020, the case cited by the respondent in support of their position that the complainant was offered a suitable alternative role, I do not find that the compliant retained her strategic role or influence. She lost it.

The balance of the evidence leads me to conclude that the complaint is well- founded.

I require the respondent to pay the sum € 9547 which is equal to 6 weeks remuneration and is in compensation for the breach of the provisions of the Act of 1994. This amount takes into account the redress awarded to the complainant in respect of her complaint under the Employment Equality Act 1998.

I find this complaint to be well founded. I require the respondent to pay the complaint the sum of €9547 in compensation for the contravention of the Act of 1994.

Failure to provide no less favourable terms and conditions upon returning to work following a period on maternity leave.