Complainant

Respondent

Parties

Aisling Power

Wells House & Gardens

Representatives

Self-Represented

No Appearance

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-00044351-001

26/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00044351-002

26/05/2021

The Complainant commenced employment on 10th March 2019. At all relevant times the Complainant was described as an “events manager”. Throughout her employment, the Complainant received a weekly wage of €192.00. The Complainant’s employment was terminated by the Respondent on 17th May 2021.

On 26th May 2021, the Complainant referred the present complaints to the Commission. Herein, she alleged that she was not permitted to return to work following the expiry of her maternity leave. She further alleged that her dismissal on the grounds of a purported redundancy was unfair for the purposes of the impleaded Act.

A hearing in relation to these matters was convened for, and finalised on, 15th July 2022. This hearing conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Following communication of the notice of hearing, a representative for the Respondent advised that the company had ceased trading and no longer existed. Notwithstanding the same, the Respondent’s status was listed as “normal” on the date of the hearing and remains so to the date listed below.

On the date of the hearing, there was no appearance by the Respondent or any representative on their behalf. In circumstances whereby they were informed of the date, time and venue of the hearing, the matter proceeded in their absence.  

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

CA-00044351-001

The Complainant submitted that she commenced a period of maternity leave in late 2020. In April 2021, the Complainant informed her manager of her proposed return to employment on 17th May 2021. By response, the Complainant’s line manager requested a meeting on 7th May to discuss the same.

In the course of this meeting, the Complainant’s line manager informed her that the Complainant’s role had ceased to exist during her maternity leave. As a consequence of the same, the Complainant would return to a “gate attendant” role on her return to employment. In circumstances where the Complainant was engaged as an “events manager” she stated that the offer or alternative employment was not reasonable. This role also amended the Complainant’s contract to provide a lesser weekly pay.

In evidence, the Complainant stated that she believed that her role still existed, but the duties attached to the same were being completed by another member of staff or were outsourced. Having regard to the foregoing, the Complainant submitted that the Respondent’s actions constituted a breach of the Act in refusing to allow her to return to the role she held prior to the commencement of her maternity leave.

CA-00044351-002

The Complainant stated that on 17th May 2021, she was presented with correspondence that confirmed that her role had been made redundant. In evidence she stated that she was not meaningfully consulted in relation to the same, her input regarding the same was not requested, that she was no given any right of representation during the process and not offered any facility to appeal the outcome.

The Complainant submitted that her dismissal was unfair the purposes of the present Act as no process was followed in respect of the same. She further submitted that she was the only member of staff to be made redundant at that time and the Respondent did not examine any other cost saving or other potential alternatives to her redundancy.

Neither the Respondent nor any representative on their behalf attended the hearing. Having reviewed the file, it is apparent that the Respondent received notification of the date, time and venue of the hearing. I further note no application for adjournment was made prior to the hearing nor was any explanation offered post hearing regarding the Respondent’s non-attendance.

CA-00044351-001

Section 26(1) of the Maternity Protection Act (as amended) provides that,

“…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…(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.”

The Complainant’s uncontested evidence in this regard is that she was engaged with the Respondent as an events manager. Her evidence was that in the weeks approaching her return to employment, her line manager informed her that this role had, in effect, ceased to exist and stated that she would not be returning to the same on the expiry of her maternity leave. Such a series of events demonstrates a clear breach of the statutory provision quoted above.

Notwithstanding the same, Section 27(1) provides that,

“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…suitable alternative work under a new contract of employment.”

Section 27(2) then provides that,

“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—

(i) 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 less favourable to the employee than those of her or his contract of employment immediately before the start of the period of absence from work while on protective leave, and

(ii) 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 during that period.”

The Complainant’s evidence was that she was offered the role of “gate attendant” by the Respondent on her return to work. She submitted that this did not represent a suitable alternative as she had formerly worked in a management role. She further submitted that her previous role utilised her third level qualifications and work-experience while the alternative did not. Finally, she submitted that the role would result in lesser pay than her previous employment.

Having regard to the foregoing, and the Complainant’s uncontested evidence, I find that the alternative employment offered was not a suitable alternative for the purposes of Section 27. As a consequence of the same, I find that the Respondent is in breach of the Act and the complaint is duly well-founded.

CA-00044351-002

Section 6(1) of the Unfair Dismissals Acts provides that,

“the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4)c of the Acts expressly lists “redundancy” as a ground of dismissal which shall not be deemed to be unfair. In a situation whereby the Respondent can demonstrate that such a redundancy is substantively and procedurally fair, they may rely on the defence afforded by Section 6(4)C of the Act. In this regard, it should be noted that Section 6(6) of the Acts provides that the onus of proof in relation to the same lies with the Respondent.

In the present case, the Complainant’s evidence was that on her return to work she received correspondence confirming that she was to be made redundant. The Complainant submitted that the Respondent did not engage with any meaningful consultation regarding the same. In addition to the same, she submitted that she was not afforded the right of representation, had no advance notice of the meeting and was not offered a right of appeal. The Complainant stated that she was a stranger as to the finances of the Respondent operation but submitted that she could have fulfilled other roles, specifically a marketing role, as part of a cost saving measures.

In circumstances whereby Section 6(6) of the Acts imposes an onus of proof upon the Respondent to demonstrate that the dismissal was not unfair, and in circumstances whereby the Respondent did not tender any evidence or submission to refute the Complainant’s claims, I find that the complaint is well-founded and the Complainant’s application succeeds.

CA-00044351-001

I find that the complaint is well founded and consequently the Complainant’s application succeeds.

Regarding redress, Section 32(1)b of the Act (as amended) empowers to award,

“…compensation (in favour of the employee to be paid by the relevant employer) of such amount, not exceeding 20 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed, as the adjudication officer considers just and equitable having regard to all of the circumstances”.

In circumstances whereby the Respondent engaged in a substantial breach of the Act, I award the Complainant the sum of €3,840, or the equivalent of 20 weeks’ remuneration, in compensation.

CA-00044351-002

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that it is impractical for the employment relation to recommence, I find that compensation is the most appropriate remedy in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses following her dismissal. In this regard, I note that the Complainant’s evidence that she secured alternative employment following her dismissal. Having regard to the same, I award the Complainant the sum of €1,920 in compensation. For the avoidance of doubt, this payment is to be discharged in addition to the redundancy payment previously received.

Return from Maternity, Reasonable Alternative, Redundancy