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FULL RECOMMENDATION
SECTION 33 (1), MATERNITY PROTECTION ACTS, 1994 AND 2004 PARTIES : TESCO IRELAND LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - KATARZYNA SAJ KOZDRYK (REPRESENTED BY MANDATE TRADE UNION) DIVISION :
SUBJECT: 1. Appeal of Adjudication Officer Decision ADJ-00025236, CA-00032105
The Complainant returned to work on 15th May 2019 with no assigned department and was informed that she would be conducting staff health and safety training for eight weeks at which point she would be assigned a department. She was then put back into the Payroll department for a period of four weeks, covering absence. The Complainant was of the opinion that maybe she would be retained in the aforesaid department and the matter would be resolved, however this was not to be the case as at the end of the four-week period she was placed on the Systems Roster. In support of the Complainant’s contention, the Union relied on Tighe v Travenol Laboratories (Ireland) Ltd [1989] 8 JISLL whereby the EAT held that a woman who had previously been employed as an office worker and returned following maternity leave to be given production work, was constructively dismissed. The EAT held that the nature of work involved in production was so different to office work that it did not consider it appropriate from the employee's standpoint. It stated: “The words should be interpreted subjectively from the employee's standpoint, including the general nature of the work which suited her and her domestic considerations". The Respondent, represented by Ibec, stated that the Complainant returned to work after maternity leave on the same terms and conditions of employment as she was on before she went on maternity leave, i.e. as a General Sales Assistant/Customer Assistant. She was assigned into the Training Department on her return and was advised that it was not possible to assign her to payroll as colleagues had been moved around over the past year and would be moved again, therefore another colleague was now in the payroll role. The Respondent stated that it is an accepted and established practice within the Company that Customer Assistants move positions from time to time as provided for in their contracts of employment. This provision was specifically provided for in collective agreements reached with Mandate Trade Union in 1999 and 2006, which provide that all employees will be fully skilled to and work in all areas of the store. The 2006 Agreement provides that "As a Customer assistant you will be required to work in all areas and departments of the store as determined by business requirements". The Law The Respondent confirmed for the Court that it was in compliance with Section 26 of the Acts with regard to the Complainant’s return to work following maternity leave. Section 26 of the Acts states:-
Findings of the Court The Complainant’s 2007 contract states that her job title is “General Sales Assistant” and the job description for that role also referred to as a “Customer Assistant” which was agreed during the national Agreement
Having carefully considered the submission made by the parties, the Court notes that section 26 of the Acts provided a general right to return to work on expiry of maternity leave to the job which the employee held immediately before the start of her leave. Section 26 (3) of the Acts defines "job" in relation to an employee and refers to the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed. Therefore, the Court must examine the facts of this case in the context of that provision. The Court is satisfied that the reference to "nature of the work" means the job as described in her contract of employment, in this case it has been referred to as “General Sales Assistant” or “Customer Assistant”. The only other grades in the store are Retail Security Officers and Grocer/ Home Delivery Drivers. It is not disputed that within the General Sales Assistant/Customer Assistant grade, there is an expectation of total flexibility, where staff can be assigned to work in any area of the store. There is no dispute that the “place” of the Complainant’s employment is the Clarehall store, that is the store she had been employed in prior to her maternity leave and the lace to which she returned to. Therefore, the remaining element provided for with the definition of a “job” under section 26 (3) of the acts is the “capacity” in which she was employed prior to the taking of her maternity leave. The Cambridge Dictionary of English defines the term “capacity” as meaning:-
Therefore, the Court is satisfied that the “capacity” in which the Complainant was employed in her grade as a General Sales Assistant/Customer Assistant prior to her taking maternity leave was in the Payroll Department, a position she held for three and a half years. Hence based on the Court’s conclusion in this case on the interpretation of section 26(3), the Court finds that the Complainant should have been returned to the role/position which she held immediately before the start of her maternity leave, she should therefore have been returned to the payroll position on return from the leave. Taking cognisance of the fact that her contract of employment requires flexibility, whereby she can be transferred to different areas of the store “as determined by business requirements” viz, the 1999 Collective Agreement then in accordance with section 26 (1)(b) & (c), the Court accepts that such a flexibility requirement remains part of her conditions. This general proposition is supported by the decision of the High Court in Holland v Athlone Institute of Technology [2012] 23 E.L.R. 1., in a claim under the Protection of Employees (Fixed -Term Work) Act, 2003. Here, the Court had to consider if an employee who acquired a contract of indefinite duration pursuant to section 9 (3) of that Act could be dismissed on grounds of redundancy. Hogan J pointed out that an employee who acquired a contract of indefinite duration by operation of law is not placed in a superior position to that of an employee whose status as the holder of a contract of indefinite duration was never in doubt. It follows, on the same basis, that an employee who returns to her job on the completion of maternity leave is not placed in a superior position to that of an employee who has not had occasion to avail of maternity leave. Therefore, the finding by the Court that the Complainant should have been returned to the Payroll Department on return from maternity leave does not undermine the Respondent’s right to transfer the Complainant to alternative duties as determined by the business needs of the store. Conclusion The Court finds that the Respondent was in breach of section 26 (1) in not returning the Complainant to her previous job which she held prior to taking maternity leave, when she returned on 15th May 2019. Therefore, the Complainant’s claim is well founded.
Right to Redress
The redress sought by the Complainant is reinstatement to the role in the Payroll Department she occupied prior to her maternity leave and an award of compensation. Having regard to all the circumstances of this case the Court notes that the Complainant is currently on sick leave, therefore the Court in exercising its discretion as provided for under section 32(2) makes no direction to the Respondent regarding the Complainant’s return to work. The Court believes that the appropriate redress in this case is an award of compensation. The Court measures the amount of compensation that is just and equitable as €7263.20 (€12.97 x 28 hours x 20 weeks). Determination The Court determines that the complaint under the Acts is well founded, however, the Decision of the Adjudication Officer is varied. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Heather Murray, Court Secretary. |
