ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030818
Parties:
| Complainant | Respondent |
Parties | Sarah Adam | Dublin and Dun Laoghaire Education Training Board |
Representatives | John Curran BL | IBEC |
Complaint:
Act | Complaint 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-00041216-001 | 23/11/2020 |
Date of Adjudication Hearing: 15/10/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 23rd November 2020, the complainant submitted a complaint pursuant to the Maternity Protection Act. The complaint was heard at adjudication with two other complaints (ADJ-00028925 and ADJ-00030820.
In accordance with section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Case:
The evidence and submissions of the complainant are set out in ADJ-00028925. |
Summary of Respondent’s Case:
The evidence and submissions of the respondent are set out in ADJ-00028925. |
Findings and Conclusions:
Maternity Protection Act The complainant outlines that there was a contravention of the Maternity Protection Act in that she did not return to her role at the end of her maternity leave. She also raises the issue of no risk assessment being carried out and, in the papers, that she did yard duty when the general practice was that pregnant employees did not do yard duty. The respondent outlined that there was no contravention of the Maternity Protection Act, in particular as the complainant’s protected leave ended prior to the ending of her employment. Per section 26 of the Maternity Protection Act, an employee who is returning from maternity leave is entitled to return to their job, or to suitable alternative work. Section 10(2) addresses the relationship between fixed-term contracts and maternity leave. It sets out that where the fixed-term contract is to expire during a period of maternity leave, the employment extends until the end of the leave. So, if an employee’s fixed-term contract was to end on, say, the 6th June and the period of maternity leave to end on the 6th August, section 10(2) has the effect of extending the fixed-term to the 6th August. Section 26 of the Maternity Protection Act does not apply in this case as the complainant’s maternity leave had already ended in June 2020. While it was then the school holidays, the complainant’s maternity leave had ended and she would have been back at work, had the school been open. It is the case that Part 6, Chapter 2 of the Safety, Health and Welfare at Work (General Application) Regulations 2007 require that a risk assessment be carried out of the pregnant employee’s work conditions and processes. The Regulations further require the putting in place of preventative and protective measures. This includes working time and roles such as yard duty. A contravention of the 2007 Regulations is addressed by the Health and Safety Authority. A penalisation complaint can be brought to the Workplace Relations Commission, as opposed the contravention itself. A failure to carry out a risk assessment is not justiciable before the Workplace Relations Commission, albeit a complaint of penalisation could be as could an application for health and safety leave (which does not arise here). The lack of a risk assessment or the yard duty issue are not matters that are capable of being contraventions of the Maternity Protection Act. They are matters falling under the 2007 Regulations and the Health and Safety Authority. For the above reasons, the complaint pursuant to the Maternity Protection Act is not well-founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00041216-001 I decide that this complaint pursuant to the Maternity Protection Act is not well-founded. |
Dated: 2nd December 2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Maternity Protection Act / fixed-term contract / risk assessment |