ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00007235
A Youth Justice Worker
A Non-Governmental Organisation
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 12/02/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 15th February 2017, the complainant referred complaints to the Workplace Relations Commission pursuant to the Payment of Wages Act and the Terms of Employment (Information) Act. They were scheduled for adjudication on the 12th February 2018.
The complainant attended the adjudication and was accompanied by a family member. The respondent was represented by the Chairperson of the Board.
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant asserts that she was entitled to maternity pay and the respondent denies that this is the case.
Summary of Complainant’s Case:
The complainant commenced employment with the respondent on the 1st January 2008 and remains an employee of the respondent. She outlined that in 2012 her line manager brought to her attention the new employee handbook. This stated that the respondent paid maternity pay during maternity leave. The line manager retained a copy of the employee handbook in the office and this document was not allowed to leave the office. The complainant had this document with her at the adjudication.
In January 2017, the complainant was pregnant and submitted documentation to the accounts department relating to her application for maternity pay. The accounts department inserted the complainant’s bank account details into the form, stating that she would receive Maternity Benefit directly and that the respondent would not be paying maternity pay. The complainant states that while her contract of employment is silent on maternity pay, it refers the terms and conditions contained in the Employee Handbook as being binding.
The complainant then went to consult the employee handbook retained in the office. She saw that someone had crossed out the section dealing with maternity pay. At this time, she came across another version of the 2012 employee handbook, which omitted any reference to maternity pay.
In January 2017, the complainant wrote to the then respondent CEO regarding the maternity pay issue. She asked the CEO to bring the issue to the board of directors. In his reply, the CEO stated that the respondent does not pay during maternity leave and this was the case for other employees who were not paid during maternity leave.
The complainant outlined that she was on maternity leave from the 3rd April 2017 to 27th September 2017. Her maternity leave was due to end on the 3rd October 2017, but she could not afford to stay out any longer. She stated that no colleagues availed of maternity leave between 2012 and 2017. She stated that the claim pursuant to the Terms of Employment (Information) Act related to the change in her terms and conditions of employment with the respondent. The complainant opened the office employee handbook and referred to section 16.15 relating to maternity pay. This is crossed out with a line through the relevant pages. This is not annotated with a person’s initials or the date of the change. The same occurred to the sections dealing with sick pay and adoptive leave pay.
Summary of Respondent’s Case:
The Chairperson outlined that he joined the board of the respondent in January 2017 and also became the Chair. He gave a background of recent events and this included the resignation of the CEO in January 2018. The Chairperson now managed the respondent with two fellow board members.
The Chairperson stated that the board was not involved in managing this complaint. They had found that the Employee Handbooks of 2012 and 2014 and they do not mention maternity pay. These handbooks were approved by the board of directors and the employee handbook approved by the board did not include maternity pay. He did not know why the CEO put out a version in 2012 that says there is such an entitlement. This was not a genuine document of the company.
Findings and Conclusions:
The complainant has submitted two complaints. One is made pursuant to the Payment of Wages Act for the failure to pay maternity pay, i.e. to pay the difference between the complainant’s entitlement to Maternity Benefit and her ordinary weekly wage. The second claim is made pursuant to the Terms of Employment (Information) Act regarding the change in the statement of her terms and conditions of employment. The respondent denied the complaints.
This is a complaint pursuant to the Payment of Wages Act. This piece of legislation provides redress to employees who have been subject to unlawful deductions to their wages. The definition of “wages” in the Act makes specific reference to maternity pay payable under an employee’s contract of employment or otherwise.
The Payment of Wages Act deals with contraventions made by employers in relation to wages due to, or payments required of, employees. The Act is framed to address events that have occurred, as opposed to those that are anticipated. In this case, the complainant sought approval for maternity pay and was informed that the respondent would not be topping up her pay. She referred the matter to the Workplace Relations Commission. The period in which she did not receive maternity pay, however, followed the submission the complaint. These deductions were made between the 3rd April 2017 and the 27th September 2017.
Given that the Act deals with past contraventions, and not anticipated deductions, I cannot make findings in respect of the deductions made between the 3rd April 2017 and the 27th September 2017. This is because the alleged contraventions came after the date the complaint was lodged with the WRC. Given that I have made no findings in respect of the period of maternity leave, it is open to the complainant to raise this issue with the Workplace Relations Commission, bearing in mind the limitation period provided in the Act.
In respect of the complaint made pursuant to the Terms of Employment (Information) Act, I appreciate the difficult position faced by the board of management of the respondent. The background presented by the Chair indicates that they have faced a difficult situation arising from the historical governance of the organisation.
Nevertheless, I note the following points from the evidence. The complainant’s contract of employment is explicit that the terms and conditions set out in the Employee Handbook are binding. The complainant referred to a copy of the 2012 Employee Handbook being kept in the office and its contents made known to staff. This included the sections relating to maternity pay. The complainant expressed her belief that the terms and conditions had been amended in 2012 to explicitly include maternity pay. There was no conflict in evidence that the document produced at the adjudication was the office copy of the Employee Handbook. The respondent indicated that this document had not been approved by the board. No evidence, however, was presented as to what documentation was approved by the respondent in this regard. No evidence in particular was advanced as to the change that led to the relevant sections of the handbook being crossed out with a single line made with ball-point pen down each page. This is not dated and there is no name, annotation or other explanation as to when or where this amendment came from. It does not conform with the notification provision of section 5 of the Terms of Employment (Information) Act.
Given the balance of the evidence presented, I find that the complaint is well-founded in that the terms and conditions of the complainant’s employment included the term that she was entitled to maternity pay. According to section 7 of the Terms of Employment (Information) Act, as amended, I can award redress that is just and equitable in the circumstances, up to four weeks’ remuneration. In this case, while I appreciate the difficulties faced by the respondent, I also note the difficult situation faced by the complainant, a longstanding employee of the respondent. I, therefore, award to the complainant redress equivalent to four weeks’ remuneration, i.e. €2,877.
Section 41 of the Workplace Relations Act 2015 requires that I make decisions in relation to the complaints.
The complaint made pursuant to the Payment of Wages Act is not well-founded as it was made before, and in anticipation of, deductions made to the complainant’s wages.
The complaint made pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay redress to the complainant of €2,877.
Workplace Relations Commission Adjudication Officer: Kevin Baneham