Complainant

Respondent

Parties

Karen  O'Leary

Specsavers Opticians and Hearing Centre

Representatives

 Mason Hayes & Curran LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00043972-001

10/05/2021

The complainant had been on a period of extended maternity leave and followed by a period of sick leave, and difficulties arose in relation to her eventual return to work.

The complainant was employed by the respondent from May 20th, 2014 until her resignation on September 30th, 2021. She worked fifteen hours per week over two days, initially on the shop floor as part of the dispensing team. 

In September 2018, she transferred to the office to provide cover for a team member who was absent on sick leave. The respondent commenced a period of maternity leave on January 6th, 2020 and had an expected return to work date of July 6th, 2020.

On June 22nd, 2020, she advised of her intention to take additional maternity leave. 

In April 2021 she indicated that she wished to return to work but was told that her previous position was not available and was offered a position on ‘the floor’ which she refused.

A suggested alternative to working in the office did not suit either because it involved working weekends.

In due course she was offered what she had been looking for, but this came too late.

The complainant was employed by the respondent from May 20th, 2014 until her resignation on September 30th, 2021. She worked fifteen hours per week over two days, initially as part of the dispensing team. 

In September 2018, she transferred to the office to provide cover for a team member who was absent on sick leave. The respondent commenced a period of maternity leave on January 6th, 2020 and had an expected return to work date of July 6th, 2020. On June 22nd, 2020, she advised of her intention to take additional maternity leave.

On July 24th, 2020, the respondent received a sick note from the complainant and she continued to submit sick notes up until 18 April 2021 and resigned with immediate effect on 30 September 2021. 


While the Respondent rejects the Complainant’s claim of not being allowed return to work; it submits that this claim should be struck out on two preliminary grounds. 


First the complaint is submitted under Section 18 of the Parental Leave Act 1998, but the complainant had not been on parental leave. Therefore, the respondent has no case to answer. 


Secondly, even if the Adjudication Officer accepts jurisdiction, claims under the Maternity Protection Acts 1994 – 2004 are governed by Section 41 (6) of the Workplace Relations Act 2015 which provides:

 
“... an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates”; (emphasis added) 


The Complainant’s maternity leave ended on July 24th, 2020 and she had until 23 January 2021 to submit a complaint under the Maternity Protection Acts. The complaint was filed on May 10th, 2021 therefore the Adjudication Officer has no jurisdiction to hear it. The complainant has not made any application for an extension of time. 


In any event the respondent says that the complainant was not prevented from returning to work after her period of sick leave. The respondent sought to accommodate her in any way possible prior to receiving her resignation letter on September 30th, 2021.


In any event, the Complainant does not have an unfettered entitlement to return to the exact same position after maternity leave. Section 27 of the Maternity Protection Acts 1994 – 2004 provides:


“where... it is not reasonably practicable for the employer... to permit the employee to return to work in accordance with [section 26] ... the employee shall... be offered by the employer... suitable alternative work...” 


In April 2021, the complainant contacted the respondent indicating that she was fit to return to work. She spoke to the store manager about her return from sick leave. At that point, she had been absent from the office for sixteen months; sick leave for nine months and, prior to that, maternity leave for nearly seven months. 


Around December 2019, the respondent completed an extensive shop refit and expansion that enabled it to expand and incorporate a call centre.

This changed the office from a very small and tight space and the respondent now operates seven days a week. Since the complainant’s absence, it had also faced commercial difficulties associated with the pandemic and the various restrictions affecting the business. This caused significant changes in the way the respondent conducted its business.

The shop manager discussed the complainant’s anticipated return to the office with the Dispensing Partner, and, following that, sent an email to the Complainant on April 27th, 2021 responding to her work pattern request and setting out an alternative for consideration.

She was not happy with this offer which involved working every second Saturday.  In an attempt to accommodate her preference for not working on a Saturday, the was offered two days’ work from Monday, Tuesday or Wednesday, working as part of the dispensing team on the shop floor.

This offer was also refused. The options were set out in a further email dated April 30th, 2021. This was not accepted by the complainant. Very shortly thereafter, she submitted a complaint under the Parental Leave Acts which was received by the WRC on 11 May 2021.

It is the respondent’s respectful submission that the complaint form does not articulate the nature or detail of the complainant’s complaints.

The respondent has no case to answer under the Parental Leave Acts and, notwithstanding our objections on that, the complaint is also out of time.

In the first instance it is necessary to consider the preliminary issues raised by the respondent related to jurisdiction to hear the complaint.

The complainant identified her complaint as falling under the Parental Leave Act, even though she had not actually been on parental leave.

Some such errors on the complaint form may not be fatal to a complainant’s case proceeding where there has been an obvious error, and where the respondent is reasonably clear about what the complainant actually intended and understood the case it had to answer.

In some cases, this can be remedied by giving the opportunity to prepare and respond by means of adjournment. There may of course be situations when a fundamental flaw in relation to a complaint or the legislation cannot be mended, and this will turn on the facts of each case.

In this case, and in fairness to it, the respondent understood clearly enough the essence of the complaint and came well prepared to address the case under the Maternity Protection Acts 1994-2004.

However, the obstacles faced by the complainant did not end there. As noted in the respondent’s submission the only possible legislation under which the complainant might have pursued a complaint was the Maternity Protection Acts.

In the course of the hearing the complainant said that she had intended to make the complaint under the Maternity Protection Acts.

The complainant’s maternity leave ended on July 24th, 2020 and, she had until January 24th, 2021 to submit a complaint. In the event, it was submitted on May 10th, 2021 which is well outside the time permitted for making it.

She did not formally request an extension of time and her explanation for the delay was that she was in continuing contact with the respondent about a return to work, and her uncertainty about whether she would make a complaint.

This does not meet the ‘excuse and explain’ test set out by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338 and in other cases.

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the     circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would    have initiated the claim in time.

Accordingly, the complaint has not been made within the required statutory time limits and is not well founded.

For the reasons set out above Complaint CA-00043972-001 is not well founded

Maternity leave Return to work