PLD241

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00047722 (CA-00058731-002)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 01 July 2024. A Labour Court hearing took place on 27 September 2024.

The following is the Decision of the Court:

DECISION:

Background to the Appeal

This is an appeal by Ms Nesu Burcu Teke (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00047722/CA-00058731-002, dated 4 June 2024) under the Parental Leave Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 1 July 2024. The Court heard the appeal in Dublin on 27 September along with the Complainant’s related appeal under the Parent’s Leave and Benefit Act 2019.

The Factual Background

The Complainant was employed by Emagine (‘the Respondent’) (formerly known as Aspira) as a Service Lead between 1 July 2022 and her dismissal on 26 May 2023. In that capacity, the Complainant was assigned by her former employer – which holds an employment agency licence - to work for a client organisation. She was paid €5,833.33 gross per month.

The Complainant successfully completed her six-month probation. On 21 March 2023, the Complainant made a formal request to the Respondent for a period of parent’s leave in order to care for her son who was approaching two years of age and for whom the Complainant had been unable to locate a creche place. She also requested a period of parental leave in respect of her daughter born in 2013. The request for parent’s leave was for the period 12 to 28 June 2023; that for parental leave was for the period 28 June to 28 July 2023. The Complainant received no reply to her request from the Respondent until 3 April 2023 when she was informed that the Respondent that she could only avail herself of two weeks’ leave (of her choice) in the period 1 June to 28 July 2023 “due to business reasons concerning the role [she was] fulfilling”. The Complainant queried this decision in email correspondence with the Respondent’s HR Department but was consistently told that the Respondent, for business reasons, could not facilitate her request which would have to be postponed (other than the two weeks mentioned earlier) to a later (unspecified) date.

On 19 April 2023, the Complainant was invited to attend a meeting with HR in relation to her role. At that meeting she was informed, without any prior notice, that the client with whom she had been placed by the Respondent, had requested to end her contract early due to ‘performance issues’. The Complainant was told that her last working day with the client would be 3 May 2023 and that the Respondent would endeavour to find her an alternative role with another client as soon as possible. As it transpired, no such role was identified and the Complainant was given notice of termination by the Respondent on 12 May 2023. Her date of dismissal was 26 May 2023.

The Complaint

When invited by the Court to specify what her claim under the Act was, the Complainant stated that her claim was one of penalisation contrary to section 16A of the Act. She further stated that the penalisation consisted of her dismissal on 26 May 2023 arising from her request made to the Respondent on 21 March 2023 seeking to avail herself of leave under the Act.

The Law

Section 16A of the Act provides:

16A. Protection of employees from penalisation

(1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or his or her entitlement to make a request referred to in section 13B(1) or 15A(2).

(2) Penalisation of an employee includes—

(a) dismissal of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the conditions of employment of the employee.

(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in subsection (2)(a), the employee may institute proceedings under the Unfair Dismissals Acts 1977 to 2015 in respect of that dismissal and such dismissal may not be referred to an adjudication officer under Part IV.

…..”

Discussion and Decision

The Court notes that the Complainant’s contract of employment provides that she was employed on a permanent basis by the Respondent. The Complainant successfully completed her probation and was never alerted to there being any issues with her performance before 19 April 2023 at which stage she been in place with the Respondent’s client organisation for almost ten months. The performance concerns about the Complainant post-dated her request for parent’s leave and parental leave. While it does not follow that the Complainant’s request for statutory leave was a causative factor in her removal from the client organisation and her ultimate dismissal, the rationale offered by the Respondent for substantively refusing her request (‘business needs’), coupled with the subsequent haste with which the Respondent concluded that no alternative role could be identified for her, raises many questions in the Court’s mind about the Respondent’s bona fides vis-à-vis the Complainant.

However, the Complainant has submitted that her dismissal constituted an act of penalisation within the meaning of section 16A. Section 16A(3) expressly provides that a claim of that nature must be brought under the Unfair Dismissals Act 1977. The Complainant did not initiate such a claim at first instance.

In all the circumstances, therefore, the Court has no option but to dismissal the appeal and uphold the decision of the Adjudication Officer.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
ÁM	______________________
03 October 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.