Complainant

Respondent

Anonymised Parties

A Payroll Administrator

A Security Company

Representatives

Citizens Information

 Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030900-001

13/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00030900-002

13/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030900-003

13/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030900-004

13/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00034648-001

14/02/2020

This Complainant alleges that she was discriminated against by her employer on gender and family status when made redundant. She also alleges; breaches of the Maternity Protection Act insofar as she was not allowed to return the role she had prior to going on maternity leave or an agreed suitable alternative;  when she was made redundant she did not receive payment for outstanding leave and; she did not receive a copy of her terms of employment.

CA-00030900-002 (Maternity Protection) and CA-00034648-001 (Employment Equality)

Section 6 (1) of the Employment Equality Act  provides that;

For the purposes of this Act, and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds in subsection (2) in this Act referred to as “the discriminatory grounds”

Section 6 (2) provides that:

2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

Section 6 (2 A) provides;

Without prejudice to the generality of  subsections (1)   and  (2)  , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated

Section 26 of the Maternity Protection Act 1994 provides:

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) with the employer with whom she 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 was employed immediately before her 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, and (in either case) under terms or conditions not less favourable than those that would have beenapplicable to theemployee if she had not been so absent from work.

Section 27 provides:

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

 (2) Work under a new contract of employment constitutes suitable alternative work for the purposes of this Act if—

 (a) the work required to be done under the contract is of a kind which is suitable in relation to the employee concerned and appropriate for the employee to do in the circumstances; and

 (b) the terms or conditions of the contract relating to the place where the work under it is required to be done, the capacity in which the employee concerned is to be employed and any other terms or conditions of employment are not substantially less favourable to the employee than those of her contract of employment immediately before the start of the period of absence from work while on protective leave.

It is claimed that the respondent has breached the Maternity Protection Act Section 26 and 27, by failing to allow the complainant to return to the same terms and conditions of employment following maternity leave.

The complainant’s case is that she was discriminatorily dismissed on the grounds of gender and family status and the fact that she was pregnant and availed of maternity leave is sufficient grounds for a prima facie case to be made and the burden of proof shifts to the employer.

The complainant was originally employed on 13th June 2016 as a Payroll Administrator in her father’s company in Donegal. Her employment transferred to the respondent on 18th June 2018.  The respondent company is based in Monaghan. The complainant continued her employment in Donegal and under the same conditions of employment.  She worked Monday to Thursday and, while she had full flexibility in relation to her daily hours, she worked on average 6-7 hours each day and was paid €600 per week.  She was never provided with any written terms and conditions of employment. From 1st October 2018 until 1st April 2019 the complainant was on maternity leave.  While on maternity leave she heard rumours that the respondent was seeking to remove payroll processing from Donegal to Monaghan and she immediately contacted the Director (Ms B) on 7th March 2019 to clarify the situation. Ms B said that it might be beneficial to allow payroll be completed one week per month in Monaghan, so that if the complainant was absent for any reason it would not impact the process.

On 14th March the complainant met with the respondent representatives, including Ms B, and a discussion took place about the Donegal office becoming the main switch to relieve pressure in Monaghan.  The complainant indicated she was agreeable to this and asked what the arrangements would be on Fridays as she worked Monday to Thursday.  Ms B said the position was Monday to Friday 9.am to 5.pm.

The complainant had arranged to take 2 months unpaid leave at the end of her maternity leave but due to concerns about work she cancelled this.  On her return she became aware that her role had been altered and previous responsibilities she held had been removed from her or access to information required by her to perform her duties had been made more difficult.

On 23rd May the complainant received a phone call from the Monaghan office  from Mr C, who stated that there was talk of moving payroll to Monaghan or being outsourced.  He also informed the complainant that she had a choice to either be paid for the hours she worked or to commit to a 40 hour week.  The complainant spoke with Ms B about the issue and Ms B undertook to revert to her. On 29th May 2019 Mr C emailed the complainant stating that the company were proposing 2 positions as an alternative to making her redundant;

1         Payroll/Receptionist, Monday to Thursday, 9am to 4 pm, at €15 per hour or

2         Marketing Assistant, Monday to Friday, 9.am to 5.30. pm at €12 per hour.

The complainant emailed Mr C requesting a written contract.  No acknowledgement was received.  On 12th June Mr C wrote to the complainant suggesting that her position was at risk of being made redundant unless she could suggest reasons as to why payroll administration should not be streamlined in the best interests of the business. On 25th June the complainant wrote outlining her rights under employment legislation and seeking clarification from the respondent.  She also sought access to various documentation relating to her employment.  When this was forwarded on 31st January 2020 a document was included purporting to be a contract signed by the complainant on 18th June 2018.  This signature is vastly different from the complainant’s signature recorded on other documents. On 16th August 2019 the complainant received a letter from Mr C informing her that she was being made redundant with effect from 30th August 2019 and she was being placed on garden leave until then. She received a payment on 18th September 2019 purporting to include 7.44 weeks redundancy pay, which, as it was processed through payroll, was subject to deductions in respect of PAYE etc.

The complainant was entitled to return to work in her job as Payroll Administrator under the same terms and conditions which she held before going on maternity leave.  It is clear that the respondent had commenced a process of removing her from her role in the company during her maternity leave.

The respondent advertised for staff to work in the company in Donegal and also for a receptionist in Monaghan two months prior to terminating the complainant’s employment.

Under the Maternity Protection Act, if it is not reasonably practicable to allow an employee to return to her work, then she must be provided with suitable alternative work and this new position should not be on terms substantially less favourable than those of her previous job. Neither of the positions offered to the complainant can be regarded as complying with the Act.

CA-00030900-001

The complainant did not receive a Contract of Employment at any time from her. When the Company was involved in a transfer on 18th June 2018, no new Contract of Employment was signed and when the complainant requested a copy in June 2019, no Contract of Employment was produced to her.

CA-00030900-003

From 1st October 2018 until the complainant’s alleged redundancy on 30th August 2019, she did not take any annual leave and was not compensated for same in her most recent payslip dated 11th September 2019. Monetary compensation allegedly amounting to 5.63 annual leave days only, was paid to the complainant on her penultimate payslip. Between January 2018 and 1st October 2018 when the complainant started her Maternity Leave, she did not take any annual leave either and this was never rectified by the Employer despite the fact that the complainant was off on Maternity leave during the period when employee's annual leave entitlements recommenced at the start of the New Year (i.e. December 2018-January 2019. From 1st Jan 2018 until 1st October 2018 the complainant accumulated an entitlement of 12 days and during the period of her maternity leave she accumulated an entitlement of 12 days.  From 1st April 2019 until 30 August 2019 she accumulated a further entitlement of 6.66 days. This equates to 7.66 weeks at €600 per week meaning she is owed €4,599

CA-00030900-004

The complainant did not receive any time off in lieu or compensation following her alleged redundancy for the public holidays that she accrued during her Maternity Leave from 1st October 2018 until 1st April 2019.  The complainant is owed for 5 public holidays equating to €750.

The Respondent has a signed contract on file for the complainant.

In relation to Maternity Leave, the complainant took her leave, received payment and returned to work at the agreed time after deciding against taking time off.

Payment for holidays and redundancy has been made. The complainant booked and took her annual leave in September 2018 prior to going on Maternity Leave.

Prior to the complainant returning to work representatives of the respondent had a conversation with her on 7th March regarding her return.  During that conversation it was agreed that the payroll would be completed once a month in Monaghan.  She was also informed that workload would increased if she was able for that as the company needed more help in Monaghan.  The complainant stated that she would welcome more work and she felt she didn’t have enough to do anyway. On 14th March representatives again met with the complainant to discuss having the office in Letterkenny as the main switch. The complainant asked what would happen to the phones on a Friday when she wasn’t there and the respondent representative informed her that they would talk about that again.  The respondent was of the view that they were paying the complainant a high wage for a small number of hours and made proposals to change the workload which she declined.

On 12th June the respondent advised the complainant that they would be moving payroll to Monaghan and asked that she advise why it would not be in the best interests of the company to do this.  As the respondent had no feedback from the complainant they decided to make the position redundant as they were in the process of scaling down the office in Donegal and winding up.

CA-00030900-002 – Maternity Protection Act

Section 26 of the Maternity Protection Act 1994 provides protection for the employee on maternity leave to return to her role on the same terms and conditions which she enjoyed prior to going on maternity leave.  If this is not possible Section 27 of the Act says she should be given a suitable alternative work which cannot have terms and conditions substantially less favourable than those of her contract immediately before the period of maternity leave.

 It is the complainant’s case that the respondent did not permit her to return to work following her period of maternity leave to the same terms and conditions as she had enjoyed prior to going on maternity leave.  The respondent has argued that the terms and conditions were fundamentally the same as the signed copy of the complainant’s terms and conditions which predated the period of maternity leave and which they had retained on file.

There is conflicting evidence in relation to whether or not the complainant received and/or signed a copy of her contract of employment.  The complainant has supplied a number of copies of her signature attached to other documents which differ considerably from the purported signature on her contract. The respondent has stated that the complainant’s father stated that she had signed the contract.  However, in direct evidence, the complainant has stated that she did not. I therefore accept the complainant’s evidence that she did not sign the document.

In further evidence the respondent has submitted an email purportedly from the complainant in which she discussed the draft contract.  Again the complainant denies receiving such a draft contract.  In any event, from the text of the email which the respondent alleges was received from the complainant, it is clear that the complainant did not accept a clause in the draft contract involving working on Fridays.

 In these circumstances I find that I cannot rely on that contract and therefore the express terms contained therein relating to hours of work have no effect. It is agreed between the parties that she actually worked 4 days per week and between 6 and 7 hours per day.  This therefore is her established hours of work and an implied term in her contract of employment.

It is common evidence that the issue of the change to the complainant’s work was discussed between the parties at a meeting on 14th March 2019 during her maternity leave. It is clear from the respondent’s evidence that the complainant told them on 14th March she would not be working on Fridays.  It is evident that the respondent at this stage during the protected period of employment had embarked on changing the Terms and Conditions of employment of the complainant. The respondent therefore is in breach of the Maternity Protection Act 1994.

CA-00034648-001  Employment Equality Act

The complainant alleges discriminatory dismissal under the gender and family status grounds.

It is for the Complainant in the first instance, as set out in Mitchell v Southern Health Board [2001] ELR 201, to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which she relies. In Melbury Developments v Arturs Valpeters EDA0917 the Court stated “ Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

The termination of her employment on the grounds of redundancy,  was related to the refusal of the complainant to accept changes to her established terms and conditions of employment.  The employer could not make fundamental changes to her terms and conditions during the period of the complainant’s maternity leave which was a period of protected employment.  I have dealt with this complaint earlier in this decision.  However, outside of this protected period, the respondent was free to reorganise his business, including making positions redundant.  No evidence was presented at the hearing that would suggest that the decision to make the complainant redundant was related to her gender and/or her family status and therefore I find that the complainant has failed to establish a prima facie case of discriminatory dismissal.

CA-00030900-004 – Public Holidays

The complainant did not receive time off or an additional payment in respect of the public holidays which fell within her period of maternity leave.  The respondent therefore is in breach of the Organisation of Working Time Act.

CA-00030900-003 – Annual Leave

The claim for untaken annual leave related to September 2018 which the complainant had booked for annual leave in advance of her maternity leave.  The complainant says that she came in every day for that month in order to prepare the company for the period of her absence during maternity leave.  The respondent has supplied evidence in the form of emails which would support their assertion that the complainant was on annual leave during this period including an email from the complainant which stated that she would be finishing up at the end of August. The complainant submitted no evidence that she had cancelled this period of annual leave. The respondent acknowledged that the complainant may have come into the office occasionally during this period but was not asked to. I therefore conclude that this complaint is not well founded.

CA-00030900-001 Terms of Employment

The respondent claims to have a contract signed by the complainant containing her terms of employment.  The complainant in direct evidence denies signing such a contract and I accept this evidence. I note that the respondent relied on the complainant’s father who informed the respondent that she had signed the document.  The respondent has provided Emails in evidence of having sent the complainant a copy of the terms and conditions they wanted her to accept.  The complainant denies receiving this. Her purported response would indicate that she received them and disagreed with one aspect.  I am satisfied based on the evidence submitted that a draft was sent and that the complainant sought clarification on, which to her was a fundamental aspect of it – working on Fridays  The respondent did sent a copy of their desired version  of the complainant’s terms of employment to the complainant and therefore this complaint is not well founded.

CA-00030900-001:  This complaint is not well founded

CA-00030900-002:  I order the respondent to pay the complainant the sum of €12,000 (equivalent to 20 weeks pay) in compensation for the breach of the Act

CA-00030900-003:  This complaint is not well founded

CA-00030900-004:  This complaint is well founded and I order the respondent to pay the complainant the sum of €750 (equivalent to 5 public holidays)

CA-00034648-001: The complainant was not discriminated against.

Maternity Leave – right to return to role.  Discriminatory dismissal – prima facie evidence.  Organisation of Working Time Act – public holidays during maternity leave and payment for outstanding annual leave.  Terms of employment.