FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 Section 13(9), Industrial Relations Act, 1969 PARTIES : SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969 SOUTH DUBLIN COUNTY PARTNERSHIP - AND - A WORKER (REPRESENTED BY PUBLIC SERVICE EXECUTIVE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation No: r-151220-ir-14/JT.
BACKGROUND:
2. This case is an appeal by the Union of Rights Commissioner's Recommendation No: r-151220-ir-14/JT . The issue concerns the non-payment of Maternity top up payments to the worker. The Union contends that the worker had an entitlement to be paid the difference between her statutory maternity payment and her regular net salary payment as this had previously been paid to another worker in the employment. Management contends that it is funded by the Department of Social Protection which did not provide the additional funds to pay the additional payment.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 7th September 2015 and did not find in favour of the worker's claim. On the 30th September 2015 the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 24th November 2015.
UNION'S ARGUMENT:
3 1 The practice in the employment is to provide maternity top-up payments. Such payments been paid to two other workers on the same employment contract as the Claimant and should be paid in this case also.
MANAGEMENT'S ARGUMENT:
4 1 Management does not have the additional funds to pay the worker the maternity top-up payment. Funding is provided by the Department of Social Protection and the required funding has not been provided by them. If the funds were made available Management would have no difficulty in making the payment.
RECOMMENDATION:
This is an appeal by the Union on behalf of an employee against a Rights Commissioner’s Recommendation which found against her claim for paid maternity leave in 2015.
The Court notes that the business is funded by the Department of Social Protection which has not provided funds to cover the cost associated with the Claimant’s claim and on that basis the employer has been unable to pay the Claimant maternity leave pay. The Court was advised that the same funder provided the funding for paid maternity leave for another employee with South Dublin County Partnership in 2014 albeit on a different Programme.
Having considered the submissions of both parties the Court notes that the Claimant’s contractual conditions of employment transferred in 2013 from her previous employer (Dodder Valley Partnership) under theEuropean Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003when the business was taken over by her present employer. Included in her original terms was an entitlement to maternity leave with pay which term transferred in accordance with the Regulations to her present employer. On that basis the Court recommends that the Claimant should be paid the outstanding monies due to her in respect of her maternity leave.
Accordingly, the Court upholds the Claimant’s appeal and overturns the Rights Commissioner’s Recommendation.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th December 2015______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.