Complainant

Respondent

Anonymised Parties

An Office Manager

A Charitable Organisation

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-00028988-001

12/06/2019

The issue in contention concern a Maternity Protection claim by an Office Manager against a Charitable Organisation. The Organisation is a very small Charity devoted to the welfare of Cats and Dogs. The Complainant alleges that she was not allowed to return to work following her maternity leave and was later dismissed.

The Complainant went on Maternity Leave in August 2018. She had a verbal arrangement with the then Chairperson (Ms. Xa) that she would return to work in March 2019. In the course of her Maternity Leave the Committee of the Organisation changed and the Complainant was now unsure who to contract regarding her return. She e mailed the new Chairperson Ms. Xb on the 15th April and a reminder on the 24th April 2019. The first, most non-committal reply, reply was on the 6th May. A few reminder e mails were sent by the Complainant during May. The first and most substantive reply from the Organisation was by letter of the 6th August 2019. In this letter the Complainant was advised that she was being made Redundant.

There was no consultation, notification or discussion with the Complainant prior to this letter being received. There was no opportunity offered to Appeal the decision. It was recognised in this letter that the Complainant was due to return from Maternity leave on the 13th May 2019.

Her entitlements and basic legal rights to return to work following Maternity Leave were flagrantly breached and she is due full compensation as provided for in the Maternity Protection Act 1994

During the Complainant’s Maternity leave the Organisation undertook a review of the position of Office Manager. It was immediately obvious that no economic or business rational existed for the position. In addition, during this period the Organisation was audited by the Charities Regulator. The Regulator also queried the rational for such a small Charity having an Office Manager.

The Board of the Organisation reviewed the situation and decided unanimously on the 13th July 2019 that the position of Office Manager should be made redundant. The Complaint was informed of this decision by letter of the 6th August 2019.

The issue of the Complainant being on Maternity Leave was never an issue. The role she fulfilled was no longer required and had no business of economic justification. The situation was one of straight forward redundancy and no proper claim existed under the Maternity Protection Act.

3:1       The essential Law.

The key Legal provisions in this area are in the Maternity Protection Act, 1994.

Specifically, Section 26 which is quoted below.

General right to return to work on expiry of protective leave.

26

26.— (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) F50 [ with the employer with whom she or he was working immediately before the start of that period or, where during the employee ’ s absence from work there was a change of ownership of the undertaking in which she or he was employed immediately before her or his absence ], with the owner (in this Act referred to as “ the successor”) of the undertaking at the expiry of the period of absence,

( 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, or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period, F51 [ 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 she or he had not been so absent from work. ]

This Section allows for little ambiguity. The Complainant, following proper notification, was due to return to work on the 15th April 2019. This did not happen.

Accordingly, Section 32 of the Act applies – I quote below.

32. (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 the relevant employer relating to any entitlement of the employee under Part II , III or IV (or any matter arising out of or related to such entitlement) may include such directions to the parties to the dispute as the adjudication officer considers necessary or expedient for the resolution of the dispute, and if the decision is in favour of the employee then, without prejudice to the power to give such directions, the adjudication officer may order —

(a) the grant of leave to the employee for such period as may be so specified,

(b) an award of compensation (in favour of the employee to be paid by the relevant employer) of such amount, not exceeding 20 weeks ’ remuneration in respect of the employee ’ s employment calculated in such manner as may be prescribed, as the adjudication officer considers just and equitable having regard to all of the circumstances, or

(c) both such grant and such award.

The Respondent arguments that the position had effectively been found unnecessary by the Board during Maternity Leave and was accordingly a proper Redundancy does not really stand up from an Equality Legislative point of view. The Complainant might have been allowed to return on the 13th May 2019, as per her 4 weeks’ notice period and then subjected to a Redundancy process. This did not happen. It was also clear that the Respondent employer was having considerable internal difficulties both of a Governance and a Regulatory nature. However, these do not provide a legitimate rebuttal defence.

Having considered all the evidence a Compensation Award of some 20 weeks’ pay is due.