Complainant

Respondent

Parties

Angela  Garcia Collado

Stobart Air (In provisional liquidation)

Representatives

  In person.

Mr. John Quinlan, Deloitte on behalf of the Provisional Liquidator.

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-00040469-001

18/10/2020

The Complainant was employed by the Respondent Airline on 27th July 2015. He most recent position was that of General Instructor.

This complaint was submitted under s.31 and 31 of the Maternity Protection Act 1994 and was received by the Workplace Relations Commission on 18th October 2020.

The Complainant commenced employment on 27th July 2015.

The following is a timeline of events leading to the complaint submitted under sections 30 and 31 of the Maternity Protection Act, 1994.

31st March 2020 - commenced lay-off due to Covid – 19 pandemic.

28th May 2020 – the Complainant informed her employer that she was pregnant.

17th July 2020 – submitted written confirmation to her employer showing expected date of confinement.

19th August 2020 – requested confirmation from her employer that her Maternity Benefit would be paid to her. Also sought advice from employer.

14th September 2020 – emailed employer requesting information in relation to her return to work.

16th September 2020 – emailed to employer re return to work date and reminded the employer of the Maternity policy.

17th September 2020 – Email from employer stating there was no return to work date and also informed Complainant that they would not be paying maternity benefit.

18th September 2020 – Video conference call with staff and employer reps present. The Complainant was informed that the Head of Inflight Service would follow up with her in relation to Maternity Benefit top up.

6th October 2020 – Complainant received information from Dept of Social Welfare, Maternity Benefits Section informing her that information received from her employer was incorrect.

12th October 2020 – Complainant sent letter to employer for correction.

16th October 2020 – Complainant sent corrected form to Department of Social Welfare, Maternity Benefits Section.

18th October 2020 – The Complainant submitted her complaint to the Workplace Relations Commission.

14th December 2020 – The Complainant commenced her Maternity Leave.

? February 2021 – The Complainant was restored to the payroll.

14th June 2021 – The company went into Provisional Liquidation.

The Complainant also stated the following:

“We (the employee) have been frequently told throughout the pandemic that we are not unemployed and just laid off temporarily / on furlough. If that is indeed the case, then Stobart Air are bound by the employment contract as there is no contingency for maternity pay during a lay- off period outlined in said document”.

The Complainant has calculated that she was not paid a total of €556.79 per week for a total of 9 weeks, this provides an overall total of €5011.11 gross pay.

Mr Quinlan attended on behalf of the Provisional Liquidator.

Mr Quinlan observed the hearing of the complaint and did not present any submission.

Section 11 of the Redundancy Payments Act, 1967 (as amended) reads as follows:

11.(1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and –

a)      It is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

b)      The employer gives notice to that effect to the employee prior to the cessation

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

A lay -off is in effect a suspension of the obligation to pay wages and to provide work but continuity of employment is preserved.

The Policy document to which the Complainant refers to at section 1 states as follows:

 1. Scope

All employees based in Ireland.

Whilst this policy forms part of the terms and conditions of employment it does not form part of an employee's individual contract and the content may be subject to revision as the need arises.

There is a lay – off clause contained in the contract of employment:

Lay Off/Short-Time:

The Company reserves the right to lay you off from work or reduce your working hours, where through circumstances beyond its control it is unable to maintain you in employment. You will receive as much notice as is reasonably possible prior to such lay-off or short-time. You will not be paid during the lay-off period. You will be paid only in respect of hours actually worked during a period of short-time.

Looking at the Complainant’s complaint form she states:

“I did not receive my entitlement to maternity leave”

Technically this is not correct. The Complaint form was completed on 18th October 2020, this was some 8 weeks before the Complainant was due to go on Maternity Leave.

I have carefully considered the complaint and due to the fact that the Complainant was on lay – off at the commencement of her maternity leave I cannot agree with her argument that the Respondent is in the wrong in not paying her maternity top- up payment. During the period of lay – off the contract was suspended.

The complaint as submitted under sections 30 and 31 of the Maternity Protection Act,1994v is not well founded.

The complaint as submitted under sections 30 and 31 of the Maternity Protection Act,1994v is not well founded.

Maternity Protection Act, 1994.