Complainant

Respondent

Parties

Elaine  Reilly

Stobart Air Unlimited (in provisional liquidation)

Representatives

John Quinlan Deloitte Ireland

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-00041711-001

23/12/2020

The complainant submits that the respondent failed to allow her to return to work upon cessation of her maternity leave.

The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

The parties were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that this hearing before the Workplace Relations Commission would be held in public and that this decision would not be anonymised and there was no objection to same. 

Parties were also advised that an Adjudication Officer may take evidence under oath or affirmation and that cross examination is permitted.  Evidence was taken under oath or affirmation, from the complainant, Ms Elaine Reilly and from John Quinlan for the Respondent and cross examination permitted.

The complainant worked as a senior cabin crew and commenced employment in 2010.  On 15 March 2018 the complainant commenced maternity leave and her paid maternity ceased on 14 September 2018.  During her pregnancy she suffered with significant hip pain such that she required surgery and, therefore, went from paid maternity leave to sick leave from 15 September 2018 and submitted that her sick leave covered either until 25 August 2020 or 15 October 2020.  She was then placed on lay off by the respondent and was advised later that the company petitioned to be wound up and is now going through the process of liquidation.

The complainant submitted that she did everything she could do in order to return to work but the respondent would not allow her to return.  The company refused her request for part-time work and also would not pay for a medical doctor to deem her fit to return to work and fly.  The complainant offered to pay monies towards the medical examination to determine her fitness to fly as she believed the respondent could not afford to pay for such a medical assessment.  The complainant provided copies of exchange of correspondence with the respondent.

The complainant submitted that in all her years she never had reason to bring a case to the WRC and she enjoyed working with the respondent.  It was submitted that she tried every avenue to communicate to the company but to no avail.  During cross examination the complainant confirmed that she was most likely deemed fit to return to work by her own doctor on 15 October 2020 as per the exchange of messages with the respondent.

The respondent submitted that Ken Fennell and Mark Degnan of Deloitte Ireland have been appointed as joint provisional Liquidators over Stobart Air Unlimited Company (In Provisional Liquidation) by the High Court dated 15th June 2021. 

It was submitted that as the complainant had ceased her maternity leave and commenced sick leave, she was not covered under the Maternity Protection Act 1994 such that her complaint should be dismissed.  It was not disputed that the complainant’s hip surgery, was a result of pregnancy.  It was also not in dispute that the complainant did everything to return to work but it was not possible to bring her back as the respondent was in financial difficulties; employees, including the complainant were laid off and the complainant needed a specific type of medical to determine her fitness to fly and the complainant also required training before she could return to work.  A legally required medical examination was difficult to secure during covid as there were limited medical examiners available during the health crisis to assess the complainant.  It was submitted that when the complainant applied for part-time working, she did not satisfy the required criteria.

The respondent petitioned the wind-up of the company and this was granted by the High Court in June 2021.

The complainant submits that the respondent failed to allow her to return to work after her maternity leave.  The respondent submits that the complainant was on sick leave and therefore, no longer covered by the Maternity legislation.  The respondent further submits that employees were on lay off and therefore, it was not possible for the complainant to return to work.  It was furthermore, submitted that the respondent could not secure a legally-required fit to fly medical cert and the necessary retraining that the complainant is required to undergo in order to fly after such absence. 

It was not in dispute that the complainant commenced her maternity on 15 March 2018 until 14 September 2018 and then commenced sick leave from 15 September 2018 and having reviewed the documentation provided I am satisfied that the complainant was deemed fit to return to work by her physician on 15 October 2020.  The complainant gave evidence on her application for part-time working but it would appear that she applied for part-time work at a time when her doctor deemed her unfit for work as she awaited surgery which she did not get this surgery until July 2020.

Section 14A of the Act allows for Termination of additional maternity leave in event of sickness of mother and sets out that

(4) Where the additional maternity leave of an employee is terminated under this section —

( a ) the absence from work of the employee due to sickness following such termination shall be treated in the same manner as any absence from work of the employee due to sickness, and

( b ) the employee shall not be entitled to the additional maternity leave or the part of it not taken by her at the date of such termination.

Section 26 provides for a General right to return to work on expiry of protective leave.

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 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, 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.

The respondent submits that the complainant can no longer rely on Section 26 to return to work on expiry of protective leave as the respondent submits that the complainant was returning from sick leave and not maternity leave.  I find it noteworthy that Section 14A(4)a and Section 14A(4)b are connected together with the word “and”, such that while the absence from work of an employee, due to sickness, is treated in the same manner as any absence from work of an employee due to sickness, this is clearly with reference to terminating a worker’s additional maternity leave.  Furthermore, Section 14A(4)a and Section 14A(4)b refer to the absence of an employee and not to the return to work of a recently pregnant employee.  There is nothing to suggest under this section that employees’ rights under Section 26 are removed.  Indeed the long title of the Act sets out the intended spirit of the legislation :

“An act to implement Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, to reenact with amendments the provisions of the maternity protection of employees acts, 1981 and 1991, to entitle a male employee to leave in certain cases where the mother of his child dies, to extend as a consequence of the above-mentioned provisions the protection against unfair dismissals conferred by the unfair dismissals act, 1977, and to provide for related matters. [27th December, 1994”.

I, therefore, do not find that Section 14A, removes the protection of a worker to return to work having recently given birth, in line with the legislation.

Notwithstanding the above, the respondent next submits that employees were on lay off and that it was not possible to allow the complainant to return to work and that the complainant’s lay off was not related to maternity.

Section 11 of the Redundancy Payments Act 1967 defines Lay-off and short-time.

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.

The complainant gave evidence of her fitness to return to work on 15 October 2020 and confirmed that she was placed on lay off and that employees remained on lay off up to her submission of her complaint on 23rd December 2020.  I do not have jurisdiction to investigate events that happened after this time.

In a decision under equality legislation (Karen Kelly v G4Secure Solutions (Ireland) Limited, EDA ADJ-0014455), the Labour Court reviewed whether the complainant would have continued to work in her job had she not gone on maternity leave.  While the Court found in that aforementioned decision in favour of the complainant, I must find having reviewed all the evidence and submissions that the complainant would have been on lay off, regardless of her recent maternity at the time of the submission of her complain.  The Covid-19 pandemic had a catastrophic impact on industries, such as the respondents, such that employees including the complainant were placed on lay off.  Having heard all the submissions and evidence, I find that it was for this reason that the complainant was not in a position to return to her work up to the submission of her complaint on 23 December 2020.

I find, therefore, that the complainant’s claim under the Act is not well founded and I dismiss her complaint.   

The complaint is not well founded and I dismiss the complaint.

Maternity protection and return to work