LCR23056

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00042238 (CA-00052910 IR-SC-00000694)

BACKGROUND:

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 1st July 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on 18th October 2024.

DECISION:

This is an appeal by the Embassy of Brazil of an Adjudication Officer’s Recommendation in relation to a complaint made by a former worker. The Embassy did not attend the Adjudication Officer hearing due to an administration error on their part.

The matter before the Court is a claim made by the worker during her employment for payment of 26 weeks maternity pay for the period from 5 September 2022 until 4 March 2023, on the basis that it is an established practice of the Embassy to top up salaries for staff when on maternity and paternity leave.  The Embassy rejects the claim on the basis that no such entitlement to maternity pay arises.

SIPTU, on behalf of the worker, accepts that the worker’s contract of employment does not contain an express provision conferring an entitlement to payment for maternity leave. However, it asserts that maternity pay is an established custom and practice in the Embassy and so constitutes an implied term of her contract of employment. In June 2022 SIPTU wrote to the Embassy requesting that the worker be paid maternity pay and, in that letter, referenced other colleagues who were paid maternity, and paternity pay in the past.

Counsel for the Embassy submits that there is no custom and practice of paying maternity or paternity pay, and that the worker was treated in the same manner as other colleagues absent on maternity or paternity leave. In 2006 the Ministry of Foreign Affairs issued a binding order that staff at embassies be paid local statutory entitlements only. The Embassy is bound by that directive.  The Worker was provided with all statutory and contractual entitlements during her employment. She was not treated unfairly or subject to unequal treatment in any way.

The Embassy fully accepts that in 2016 one individual received maternity pay and in 2019 another received individual received paternity pay in error. It submits that such errors do not confer an entitlement on workers, and that following those errors a general a communication issued to all staff in 2020 to clarify and restate the binding order that staff at embassies be paid local statutory entitlements only. SIPTU expressed surprise at that statement, and stated that both the union and the worker were unaware of such a communication to staff. SIPTU further stated that it was unaware of any efforts by the employer to recoup any overpayments if such payments had been made to staff in error.

The Court has given careful consideration to the oral and written submissions.

The matter on appeal before the Court relates to a trade dispute between a worker and her former employer. The role of the Court in disputes such as these is to provide its opinion in the form of a Recommendation where parties have been unable to find agreement in relation to a workplace dispute. It is not the function of the Labour Court to interpret and determine contractual entitlements or to consider matters of law.

In the Court’s view, it is understandable that the worker in this case may have believed that she should benefit from salary top-up arrangements in circumstances where other employees had received such payments, albeit those payments were made in error. However, having regard to the submission made, the Court cannot recommend in favour of the Worker’s claim for payment of maternity pay.

In reply to questions from the Court, the Embassy clarified that the communication it relied upon in 2020 were made verbally to eleven staff. It appears to the Court that the efforts made by the Embassy to clarify the position in relation to the staff benefits was ad hoc and informal, and in any event did not reach the worker in this case. That is unfortunate. Had the communications about staff entitlements been clear and precise, it might have obviated the need for the worker to progress her complaint to a third party. 

Having regard to the very specific circumstance of this case as outlined at the hearing, the Court recommends that the employer pay the worker the sum of €3,000 as a goodwill gesture in full and final settlement of this matter.

The Court so recommends.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
30th October 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.