EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Doireann Sheridan Appellant P8/2015
against the recommendation of the Rights Commissioner in the case of:
North Dublin National School Project Respondent 1
Department of Education & Skills, Respondent 2
Under
MATERNITY PROTECTION ACT 1994 AND 2004
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. M. Carr
Mr. N. Dowling
heard this appeal at Dublin on 8th May 2019
Representation:
Appellant: Ms. Mary Paula Guinness B.L. instructed by
Hayes Solicitors, Lavery House, Earlsfort Terrace, Dublin 2
and Irish National Teachers' Organisation, 35 Parnell Square, Dublin 1
Respondents: Mr. Anthony Kerr SC instructed by
Chief State Solicitor's Office, Osmond House, Ship Street Little, Dublin 8
Background:
This appeal was heard before the Tribunal by way of the employee (the appellant) appealing against a Rights Commissioner Decision reference r-136588-mp-13/JW.
Counsel for the respondents confirmed that he represented both of the respondents. The Rights Commissioner Decision stated the respondents to be both a Government Department (Respondent 1) and the Boards of Management of the school (Respondent 2) where the appellants worked. This issue was not explored at the Rights Commissioner.
Counsel for the appellant stated that it was not appropriate that two respondents were named as it was the Government Department’s circulars which had caused the situation that gave rise to the claims. In addition, the Government Department was the paymaster.
Note:
Parties submitted lengthy written submissions and case law to the Tribunal.
Preliminary Issue:
Counsel for the respondent raised the issue of a time limit in respect of the lodging of the original claim by the appellant being out of time. Section 31 (1) (b) of the Maternity Protection Act, 1994 states:
“31. (1) The referral of a dispute shall be initiated by the employee of the relevant employer giving a notice in writing, containing such particulars (if any) as may be prescribed, to a right commissioner –
Within the period of six months from the date on which the employer is informed of the initial circumstances relevant to the dispute, that is to say, that the employee is pregnant, has recently given birth or is breastfeeding or, in the case of an employee who is the father of a child, that the child’s mother has died; or..”
Counsel for the respondent stated that the appellant in this case lodged her claim outside the statutory six-month time limit.
Counsel for the appellant stated that this time could be extended as per Section 31 (1) (b) of the Act which states:
- (1) (b) if the rights commissioner is satisfied that exceptional circumstances prevented
the giving of the notice within the period specified in paragraph (a) within such
period, not exceeding 12 months from the date so specified, as the rights
commissioner considers reasonable.”
Appellant’s Case:
The appellant gave evidence.
The appellant stated that she had notified the management of her pregnancy in November 2012. She explained that this pregnancy (twins) was different to another she had had previously (she had a three-year-old at the time) and she had to attend the hospital regularly.
During her pregnancy the appellant developed a condition connected with multiple pregnancies. In October 2012 the appellant was certified medically unfit for work due to her pregnancy. She notified the board of management straight away. The appellant gave birth to her twins on the 22nd of March 2013.
The appellant stated that she lodged her claim form in respect of this claim on the 15th of August 2013.
When asked she stated that she had been unaware of the Circular of February / March 2013 relating to leave.
The appellant stated that her maternity leave ended in September 2013, she took advantage of unpaid leave and returned to work in February 2014.
Preliminary Determination:
The Respondents’ position is that the appellant did not bring her claim within the statutory six-month time limit set out Section 31 (I) Maternity Protection Act 1994 (‘the Act’).
The case for extending the time:
- - The appellant stated that she had notified the management of her pregnancy in November 2012.
- - She explained that this pregnancy (twins) was different to another she had previously (she had a three-year-old at the time) and
- - she had to attend the hospital regularly
- - During her pregnancy the appellant developed a condition connected with multiple pregnancies. [The appellant gave birth to her twins on the 22nd of March 2013].
- - In October 2012 the appellant was certified medically unfit for work due to her pregnancy and notified the board of management straight away.
The appellant stated that she lodged her claim form in respect of this claim on the 15th of August 2013.
When asked she stated that she had been unaware of the Circular of February / March 2013 relating to leave.
The appellant stated that her maternity leave ended in September 2013, she took advantage of unpaid leave and returned to work in February 2014.
The Tribunal is tasked with deciding whether to extend the time limit, for bringing a claim as provided for under Section 31 ((1) (b) of ‘the Act’.
The Tribunal considered somewhat relevant case law:
In O’Donnell and O’Donnell v Dun Laoghaire Corporation [1991] IRLM 30 the High Court concluded that the ‘good reasons’ test [in relation to delay in bringing proceedings] that the in judicial review cases the test must be an objective test, whereby the onus is on the plaintiff to show that there are reasons which both explain the delay and afford a justifiable excuse for it. In Minister for Finance v CPSU and Others [2007] 18 ELR 36 the High Court went on to expand on the core elements of the ‘test’ and these can be summarised as follows:
- - The applicant must identify the reason for the delay and establish that it provides a justifiable excuse for it
- - The onus is also on the applicant to establish a ‘causal connection’ between the reason provided for the delay and the failure to present the complaint on time. In effect the reason provided must be the actual reason for the delay
- - The Court must be satisfied, as a matter of probability, that the complaint would have been presented on time were it not for the intervention of the factors relied upon as constituting reasonable cause
- - Lastly, although the test imposes a relatively low level of reasonableness, there is some limitation on the range of issues that can be taken into account. Here, reference is made to the view of Costello.J in the O’Donnell case (see above) that a Court ‘should not extend a statutory time limit because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.’
While arguably the “exceptional circumstances” is a higher bar than the “good reasons test” set out in the CPSU case, nevertheless the Tribunal considered it as an aide to consider in reaching its decision. The Tribunal is satisfied that circumstances existed during her pregnancy (summarised as follows) which prevented the Appellant from bringing a claim within six months as required by the Act. These are:
- - the Appellant explained that this pregnancy (twins) was different to a previous pregnancy she had,
- - she had to attend the hospital regularly,
- - During her pregnancy the appellant developed a condition connected with multiple pregnancies.
The Tribunal considers the evidence given by the Appellant persuasive and compelling. The Tribunal further notes that in October 2012 the appellant was certified medically unfit for work due to her pregnancy and notified the board of management straight away. In the circumstances of this case it would be unduly harsh not to extend the time limit for bringing a claim.
Accordingly, the Tribunal so extends the time for bringing the claim under Section 31 (1) (b) of ‘the Act’.
On the second day of the hearing Counsel for both parties again submitted written submissions, case law and gave lengthy oral legal submissions to the Tribunal.
This case was adjourned pending the judgement of the European Court of Justice of the European Union in the case of the Minister for Justice and Equality v Workplace Relations (C-387/17) dated the 4th December 2018.
The ECJ ruled that a national body, such as the EAT, established by law to ensure the enforcement of European Law, is empowered to disapply a rule of national law that is contrary to EU law.
Substantive Case
Appellant’s position on substantive issue, can be summarised as follows:
- Representation for the appellants opened a written submission to the Tribunal;
- This stated that primary school teachers were entitled to a maximum of 30 days leave but this was changed by the Department, in 2013. Initially teachers could avail of leave in lieu to a maximum of 27 days initially under Circular 19/90. The number of days later increased to 30 days.
- The Minister made an announcement in Budget 2013 in this area, the import of which, was set out in Circular 0009/2013. Essentially a teacher could now take this leave on return from maternity leave or if there was not enough time on their return, they could take the remaining leave during school closures the following year. They were not allowed however, to take the additional thirty days, when they returned to school as they had been previously;
- S.22 of the Maternity Acts 1994-2004 makes it clear that maternity leave cannot be used to usurp other rights.
- It is common practice for private sector employees to accumulate annual leave during their maternity leave and avail of the annual leave at the end of maternity leave.
- There was no consent from the appellants and, as per S.20, of the OWTA consent is required.
- Women were being penalised for having taken maternity leave.
- S.22 of the OWT protects rights including contractual rights;
- The appellants were entitled to refer to the OWT Act and its provisions although there were no claims brought under that Act because it was their case that there was no compliance with that Act.
- The previous position agreement prior to May 2013 on S.22 was the only way that it was fully implemented by the Department. Otherwise the person taking maternity leave lost out on annual leave because of school closures. The circular prior to May 2013 specifically dealt with S.22
- The Ministerial Order of 2013 both restricted when leave could be taken and reduced the amount of leave as it became part of the normal closure
Respondent’s position on substantive issue:
- Representative for the respondents relied on the submission used at Rights Commissioner hearing and this was opened to the Tribunal.
- Counsel outlined the background to the Budget announcement and subsequent circular.
- The 15 weeks of school closures were more than adequate to meet the annual leave and public holiday entitlements.
- The respondent Department asked the Tribunal to uphold the Rights Commissioner Decision under S.8(1) and (2) and under S. 22(4) under the Maternity Protection Act 1994 and urged the Tribunal to find that the Boards of Management are in compliance.
- The claims/appeals were not under the Organisation of Working Time Act but were under the Maternity Acts.
- The closure of the school does not mean annual leave.
- Counsel stated that there was no overlap between maternity leave and annual leave in these cases.
Determination:
Prior to the 1st May 2013 where a teacher’s statutory paid maternity leave overlapped with planned school closures, e.g. Christmas /Easter/Summer/Mid-term, Public and Religious Holidays, the teacher was entitled to leave in respect of such days, which overlapped, subject to a maximum of thirty working days. The Tribunal further notes that where a teacher’s statutory additional unpaid maternity leave overlapped with public holidays, the teacher was entitled to leave in lieu for all such public holidays.
Arising from Circular 0009/2013 the Tribunal notes that from 1st May 2013, teachers cease to have any entitlement to time in lieu, for annual leave days and public holidays, that fall during their periods of statutory paid and unpaid maternity leave.
Section 22 (4) of the Maternity Protection Act 1994 states that: “A period of absence from work while on protective leave, shall not be treated as part of any other leave (including sick leave or annual leave) to which the employee concerned is entitled”.
Leave in lieu of holidays is in contravention of the Pregnancy Directive, and in particular, Section 22(2) of the Maternity Protection Acts, in that these days are rights conferred or imposed by statute, and related to the employees’ employment.
Having considered the matter carefully, the Tribunal is satisfied that the new arrangement set out in Circular 0009/2013, is in contravention of Section 22 (4) of the 1994 Act and the Pregnancy Directive 92/85/EEC. Both the Act and the Directive ensure that the rights connected with the employment contract, are preserved other that in relation to pay. Such rights include statutory entitlements to paid annual leave in accordance with the Working Time Directive and the Charter of Fundamental Rights.
Having further considered the lengthy oral and written submissions the Tribunal finds the appeal is upheld.
Accordingly, the Tribunal awards 31½ days in lieu under the Maternity Protection Act 1994 and 2004.
This figure is based on the agreed figures between the parties, plus 50%, which was submitted to the Tribunal on the last day of the hearing.
The Tribunal notes that it is not being asked to dis-apply any of the provisions of the maternity Protection Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)