Complainant

Respondent

Parties

Aisling  Bermingham

Eiratech Robotics Ltd.

Complainant

Respondent

Anonymised Parties

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Representatives

  In person.

Olivia O'Connor IBEC

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-00051580-001

06/07/2022

The complainant was employed by the Respondent as an administrative assistant. Employment commenced on 16th September 2021 and ended on 7th January 2023.

This complaint was received by the Workplace Relations Commission on 6th July 2022.

The Complainant commenced employment with the Respondent on September 16th, 2021. Shortly after, she found out she was expecting her first baby. The Complainant informed her employer of her pregnancy on October 18th, 2021.

After Christmas the Complainant arranged to meet with her manager and CEO, and the ex-HR manager who had left the company in September 2021. This meeting took place on January 14th, 2022.

As soon as the Complainant had found out she was pregnant, and again just before this meeting, she looked at the Employee Handbook and the Maternity Leave policy which stated as follows:

Policy – Maternity Leave

All female Employees are entitled to avail of up to 26 weeks basic maternity leave. Leave must commence at least 2 weeks before the end of the expected week of confinement and at least 4 weeks leave must be taken following the birth of the child.

Additional Maternity Leave

An additional period of up to 16 weeks leave may be taken at the discretion of the Employee immediately following the initial maternity leave period.

Where an employee qualifies for state maternity benefit, the amount will be deducted at source from the Employee’s pay.

Eiratech makes no payment in respect of additional Maternity Leave.

From the above, it was clear to the Complainant that she would be paid her salary throughout her maternity leave and if she qualified for State Maternity Benefit, they (the Respondent) would deduct this payment from her salary.

The Complainant adds that when she submitted her complaint to the WRC, July 6th, 2022, this version of the policy was still present on the online HR System HIBOB, even though it was updated in February 2022, after she met with those involved.

At a meeting with management on January 14th, 2022, the Complainant asked about pay while on leave and the former HR Manager advised that beyond the social welfare entitlements that Eiratech does not pay during maternity leave. The Complainant questioned the policy and was told that the CEO hadn’t had a chance to review it so it was agreed to have a meeting the following week to clarify this. The CEO of a company hadn't read their maternity policy before coming into a meeting with a pregnant employee. The Complainant was told by the former HR Manager during the meeting, regarding salary, "that shouldn't be in there" and "there is a mistake in the policy". The CEO also mentioned that "this policy was created when there were 3-4 people in the company, and no-one read it or needed it."  The Complainant explained that the policy may not have been needed then; however, it is now, and this is relevant to me and my family.

The Complainant sent an email to both managers directly after the meeting asking for the notes of the meeting and she stated all the above. The former HR Manager responded four days later, on January 18th, 2022, telling the Complainant she did not get her first email.

The former HR Manager said: “The ML (maternity leave) policy under ‘Additional Leave’ the two lines in question should not be in the policy and it’s an error, as we don’t pay ML (maternity leave).” She went onto state “unfortunately it is simply an administrative error… During the hiring process such as the job offer or in the employment contract there is no mention about getting maternity leave”

The former HR Manager told the Complainant she would be updating the ML policy. The Complainant was informed that the ML policy was updated on February 1st, 2022. She will note that the updated ML policy was not updated on the system at the time of submitting this complaint, July 6th, 2022.

The Complainant contacted Citizen Information for advice and was assigned a case worker who was experienced in employment law. Upon her first email, the case worker told her "Your employer clearly does pay salary while you are on maternity leave. If they are now saying they will not pay, they must explain why. If they state the reason is the payment of salary depends on entitlement to maternity benefit, this should be stated in your contract, however, it is not.".

The Complainant asserts that her employer knew that she was not entitled to maternity benefit from the State as she did not have enough contributions. Her manager said and she quotes "you are a citizen of this country; you are entitled to something". The Complainant was not. During this difficult time, the Complainant was in receipt of Supplementary Welfare Allowance of €206 a week plus child benefit of €140 a month. She was struggling financially, and I still is.  The Complainant states that she will never be able to make up for the loss of earnings.

Background to the Respondent:

1.       Eiratech Robotics Ltd was established in Dublin in June 2014 by a group of entrepreneurs and engineers with a passion for robotics. They have strived to develop a ‘goods to person’ solution that meets the rapidly changing needs of ecommerce enterprises of all sizes.

2.       With current growth rates in the market and the increasing need of both retailers and 3PLs to compete in efficiency, accuracy, and speed of delivery to the consumer, EiraTech has developed a complete automated picking solution for fulfilment operations both small and large.

3.       Their focus is very much on warehouse and logistics automation solutions and making robotics technology accessible to ecommerce enterprises of all sizes. They have developed a business model that allows suitable SME companies to access the technology without major upfront capital outlay, and that also takes account of the peaks and troughs of demand. EiraTech are a company that develops people friendly robotic systems. They use the latest technology to combine hardware and software in an innovative way to bring intelligent efficiency to the table.

Background to the Complainant:

1.       The Complainant began employment with the Respondent on the 16th of September 2021. A copy of the Complainant’s offer of employment and Contract of Employment were made available at the hearing.

2.       The Complainants role was an administrative assistant. Her normal working week was 39 hours per week. The Complainant’s salary was €38,000 per annum.

3.       The Complaint informed the Respondent that she was pregnant on the 18th of October of 2021.

4.       The Complainant availed of paid time off to attend ante-natal classes in February 2022 as per section 15 of the Maternity Protection Act,1994.

5.       The Complainant went on maternity leave on the 1st of April 2022.

6.       The Complainant then went on additional maternity leave from the 30th of September 2022.

7.       The Complainant resigned from the Respondent Company on the 7th of January 2023.

Preliminary Argument

The Respondent submits that maternity benefit is not a benefit under the Maternity Protection Act, 1994 and therefore this claim should not be heard.

There is no entitlement to maternity pay under the Maternity Protection Act, 1994 and therefore this claim is misguided.

The Claim is submitted by the Complainant under Section 30 (Reference of Disputes of which Part V Applies) and Section 31 (Procedure for referral of disputes to rights commissioner) of the Maternity Protection Act, 1994. Section 30 of the act states that.

30.— (1) Subject to subsection (2), this Part applies to any dispute between an employee and the relevant employer relating to any entitlement of the employee under Parts II to IV(or any matter arising out of or related to such an entitlement) other than—

(a) a dispute relating to the dismissal of an employee; or

(b) a dispute as to a matter which is within the competence of the Authority under the 1989 Act; and in the following provisions of this Part “dispute” means one to which this Part applies.

(2)  This Part does not apply where the employee is in employment as a member of the Defence Forces and, accordingly, in the following provisions of this Part, “employee” does not include an employee in such employment.

(3)  In this Part “the relevant employer”, in relation to an employee, means the employee's employer or,

where appropriate, the successor or an associated employer.

(4)  Either the employee or the relevant employer may refer a dispute to a rights commissioner.

(5)  The Minister may make regulations for the purposes of this Part, and in this Part “prescribed”

means prescribed by such regulations.

(6)  In subsection (1) (a) “dismissal” has the same meaning as in the 1977 Act except that, in applying that definition for the purposes of subsection (1) (a), the expressions “employer” and “contract of employment”, where used in that definition, shall be given the same meanings as in this Act.

The Respondent submits that nothing in Part II to IV of the Maternity Protection Act, 1994 relates to the Complainant’s claim and dispute relating to maternity benefit as seen below.

Part II of the Maternity Protection Act, 1994

Part III and IV of the Maternity Protection Act, 1994

The Respondent issued the Complainant with a contract of employment. Section 20 of said contract refers to an employee handbook. These two documents together form the contract of employment.

At the time of the Complainant’s maternity leave the policy read as follows:

Maternity Leave.

All female employees are entitled to avail of up to 26 weeks basic maternity leave. Leave must commence at least two weeks before the end of the expected week of confinement and at least 4 weeks leave must be taken following the birth of the child.

Additional Maternity Leave.

An additional period of up to 16 weeks leave may be taken at the discretion of the employee immediately following the initial maternity leave period.

Where an employee qualifies for state maternity benefit, the amount will be deducted at source from the Employee’s pay.

Eiratech makes no payment in respect of additional Maternity Leave.

There is no ambiguity in any of these statements. Employees have an entitlement to be paid during periods of Maternity Leave but not for any Additional Maternity Leave.

Maternity Leave falls into the category of Protected Leave, this provides protection against dismissal or any other changes to an employee’s terms and conditions of employment during the period of Maternity Leave.

As enacted the Act serves the purpose of:

An act to implement Council Directive 92/85/EEC of 19TH 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 would consider the unilateral changes to an employee’s terms and conditions of employment as a related matter.

The Representative of the Respondent has raised a preliminary point suggesting that

•         The Respondent submits that maternity benefit is not a benefit under the Maternity Protection Act, 1994 and therefore this claim should not be heard.

•         There is no entitlement to maternity pay under the Maternity Protection Act, 1994 and therefore this claim is misguided.

I find myself in a position in which I am unable to disagree with her. There is no provision for the payment of a maternity benefit, or the payment of maternity pay under the Act.

The Complainant’s terms and conditions were unilaterally changed whilst she was on Maternity Leave, I conclude that this is a breach of the Act.

Section 32 of the Act reads as follows:

32(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute between an employee and the relevant employer relating to any entitlement of the employee under Part II, III or IV (or any matter arising out of or related to such entitlement) may include such directions to the parties to the dispute as the adjudication officer considers necessary or expedient for the resolution of the dispute, and if the decision is in favour of the employee then, without prejudice to the power to give such directions, the adjudication officer may order –

(a)    The grant of leave to the employee for such period as may be so specified,

(b)    An award of 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, or

(c)     Both such grant and such award.

I conclude that the complaint as presented is well founded. The respondent has made a unilateral change to the complainant’s terms and conditions of employment whilst the Complainant was on a period of protected leave. I now order the Respondent to pay to the Complainant the sum of €14,615.38 in compensation (an amount equivalent to 20 weeks’ pay).

Such sum should be made within 42 days from the date of this decision.

I conclude that the complaint as presented is well founded. The respondent has made a unilateral change to the complainant’s terms and conditions of employment whilst the Complainant was on a period of protected leave. I now order the Respondent to pay to the Complainant the sum of €14,615.38 in compensation (an amount equivalent to 20 weeks’ pay).

Such sum should be made within 42 days from the date of this decision.

Maternity Protection Act, 1994.