ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00016364
Health Service Provider
Maura Hickey Irish Nurses and Midwives Organisation
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 12/11/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint / dispute to me by the Director General, I inquired into the complaint / dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint / dispute.
Summary of Complainant’s Case:
1.1 This claim is brought under Section 13 of the Industrial Relations Act on behalf of the claimant by the INMO.
1.2 The claimant claims that;
Her employer is treating her less favourably than other colleague employees in the manner in how it has applied the extended paid maternity leave due to the premature birth of her twins on 17 January 2018. This is unfair and unreasonable. The claimant is seeking to have this payment applied to her in its entirety.
1.3 The claimant be paid €5,000 in compensation for failure of the employer to issue a Circular on the extended paid maternity leave in a timely manner in order that she would have received her extended paid maternity leave in a timely manner.
2.1 The claimant undertook a Diploma in General Nursing in 2004. In October 2004 the claimant completed a BSc in Nursing. The claimant worked in Hospital in medical and surgical wards in Hospital A before moving to Hospital B in 2005. The claimant worked in the Intensive Care Unit and moved to the High Dependency Unit in 2005 where she currently works as a staff nurse. The claimant is committed to professional learning and development and has completed the Global Wound Academy Wound Management Programme; Teaching / Assessing Student Preceptorship programme; IV Cannulation and Venepuncture and all HSE mandatory training inclusive of BLS; ACLS; Fire Training; Moving and Handling; Hand Hygiene and Infection Control; NEWS and COMPASS and IN drug administration. The claimant has also worked as a Community Nurse advisor for TCP, a homecare company educating and training clients on self-administration of sub-cutaneous medication.
2.2 The claimant gave birth to twin boys on 17 January 2018 at 29+6 weeks gestation in Dublin. The babies were due on 29 March 2018.
2.3 The claimant’s original date for maternity leave was 13 March through to 10 September. However, due to the early delivery of the babies, the claimant’s maternity leave commenced on 17 January 2018 and was completed on 17 July 2018.
2.4 The claimant received an email from Ms N.H.L. on 25 January 2018 advising that her Maternity Benefit application had been awarded. Appendix 1a.
2.5 The claimant responded to Ms N.H.L. on 9 February 2018 informing that a letter had been sent to the Maternity Benefit from her consultant a week or so previously. Appendix 1b
2.6 The claimant received a letter from the Assistant Director of Nursing / Service Manager for her nursing speciality, Mr L.D., on 26 January 2018 advising of her new dates for maternity leave due to her early confinement. Appendix 2
2.7 On 28 June 2018 at 14:26 hours, the claimant received an email from Ms C .R., Deciding Officer, Maternity Benefit, DEASP, informing her of her new end date and that the additional leave must be taken directly at the end of the 26 weeks statutory maternity leave. Appendix 3
The claimant emailed, HR Manager in Hospital B, at 15:59 hours regarding her application for additional maternity leave due to the premature birth of her twin sons in January 2018. Appendix 4.
The claimant informed the HR Manager that the Department of Social Protection had advised that extended leave granted must be taken after the 26 weeks paid maternity leave. The claimant also highlighted that she could not commence unpaid leave while receiving payment from Social Welfare.
2.8 The claimant requested that the HR Manager email her the position the respondent had regarding the extended paid maternity leave. Appendix 5
2.9 On 28 June at 17:01 hours the HR Manager emailed the requested information to the claimant. Appendix 6. Letter dated 24 April 2018 from Ms E.H., Assistant National Director, Modernisation and Efficiency, Corporate HSE.
2.10 On 29 June 2018 at 14:41 hours the claimant contacted the HR Manager at Hospital B thanking her for the document and advised that it did not state whether the claimant would receive payment. Furthermore, she advised the HR Manager that she had been informed that the extended paid leave had already been awarded to another employee which gave the claimant the impression that she was being treated less favourably. Appendix 7.
2.11 The HR Manager responded on 2 July 2018 advising that she had sent another query to Corporate HSE seeking clarification. Appendix 8
2.12 The claimant contacted the HR Manager on 3 July seeking to establish if there was any further update and received a response at 14:09 hours advising no there was not. Appendix 9
2.13 The claimant emailed the HR Manager on 4 July seeking to clarify if any other employee had been in receipt of this payment, as she had been led to believe by the maternity benefit office in Buncrana that there was. Appendix 10a. The HR Manager responded that there was not. Appendix 10b.
2.14 The claimant received a letter from Mr L .D.requesting that she sign and return the enclosed documents to him as soon as possible, 1. Additional Maternity Leave form (paid by Social Welfare) and 2. Additional Unpaid Maternity Leave form. Appendix 11
2.15 The claimant complied and returned the forms following which she made numerous calls to the HR department during her confinement to enquire about the status of her application. The claimant was informed that they were waiting on a Circular from head office on said leave before they could process. However, the claimant was assured on each occasion that she would receive the payment. The claimant had also been in touch with DESAP who advised that they could not process her application as Hospital B had not submitted the required paperwork. Eventually after many calls to the claimant’s manager and the HR department, Hospital B eventually signed the necessary paperwork and the claimant’s social welfare payments were processed.
2.16 Mid July, the HR department advised the claimant that she would not receive payment for the additional paid leave from LUH for the 8 weeks extended leave but instead they were granting her special unpaid leave.
2.17 DESAP paid the claimant €235 per week for those 8 weeks extended maternity leave, the same amount as if on regular maternity leave. If Hospital B had paid the claimant, she would have received €390.44 on top of the social welfare payment, coming to a total of €3123.60.
2.18 On 17 July the claimant wrote to the Director of Nursing,, invoking Stage One of the Grievance Procedure in respect of the respondent’s failure to honour the payment of extended / additional paid maternity leave in respect of the premature birth of her twin boys. Appendices 12a and 12b.
2.19 On 18 July the claimant received a letter from Mr D advising that the paid maternity leave related only to the Social Welfare aspect and not the respondent. Appendix 13
2.20 On 18 July the claimant received a letter from Social Welfare advising that her maternity benefit dates had been amended to take cognisance of her premature twin sons’ birth. Appendix 14
2.21 The INMO met with Dr D and L D at the Grievance Hearing where the INMO stated that the claimant was being treated less favourably than her colleague in a sister group hospital which was unfair and inequitable. The DON advised that it was her understanding that the employer was waiting for a Circular to issue but committed to contacting Hospital Group Head of HR on the matter as she did not wish to add additional stress to the claimant’s situation. Appendix 15
3.1 From 1 October 2017 the Minister for Employment, the period for which maternity benefit is paid is being extended in cases where a baby is born prematurely. The extended period of benefit will be equivalent to the duration between the actual date of the premature baby and the date when maternity leave was expected to commence. (Ordinarily two weeks before the expected date of birth). This new measure, which took effect for premature babies born on or after Sunday, 1 October 2017, increases the duration of maternity leave and the associated benefit to be paid in cases where a baby is born prematurely. Ministers Ms Regina Doherty, Employment Affairs and Social Protection, and Minister Charlie Flanagan, Justice and Equality, made a joint announcement. Appendix 16. Minister Doherty stated during the joint announcement, “I am delighted to announce today that maternity leave and benefit will be extended to support families at one of the most difficult times in their lives. The Government is acutely aware of the many pressures that families with pre-term babies and this new measure to extend maternity leave and benefit will ensure additional support for families at a time when nurturing a new life can be daunting and stressful”
4. Unions Arguments
4.1 The claimant gave birth to premature twins on 17 January 2018. Under changes made in October 2017 to maternity benefit, the claimant was entitled to an additional eight weeks paid benefit from social welfare and her employer. The claimant endured much stress and tribulation in trying to get her employer to sign the necessary form for social welfare benefit payment but eventually the employer capitulated and signed the form. It is the claimant ’s understanding that other employees in the respondent’s employment are in receipt of payment from the employer, therefore the claimant has been treated less favourably and disadvantaged. This is unfair, inequitable and unacceptable.
4.2 The employer refused to pay the claimant for the eight weeks on the basis that it was waiting for a Circular to issue on the matter. A year and one month later, this circular has still not issued. Ms Toye has been disadvantaged from a pay perspective to the sum of €3,123.60. This is unfair and unjust. Ms Toye should not be a victim as a result of an employer who cannot fulfil its role / function in issuing the relevant Circular in a timely manner. It is on this basis the INMO is seeking that the claimant be paid €5,000 in compensation for failure of the employer to issue a Circular on the extended paid maternity leave in a timely manner in order that the claimant would have received her extended paid maternity leave directly at the end of her twenty six weeks maternity leave, as advised by the Department of Employment Affairs and Social Protection.
5.1 We have outlined the pro-active approach taken by the claimant to ensure that the changes made to maternity benefit in October 2017 would be applied to her by her employer. Instead, the claimant met obstacles during a very difficult, stressful, vulnerable and highly charged time trying to care for two ten-week premature babies in a special care baby unit in Dublin, and all the while being separated from her other children in the West for a period of time. We are seeking that the employer is held accountable and responsible for treating employees differently; paying one employee this benefit and refusing to pay another, the claimant in this case. Furthermore, the employer must be made accept responsibility for its failure to issue the necessary Circular that would have resulted in the claimant being paid the extended maternity benefit.
It is on this basis, we respectively seek a recommendation in our favour.
At the hearing, the union asserted that payment had already been made to the claimant’s colleagues in other hospitals within the Group ; it was submitted that additionally other public servants had been paid the additional maternity leave including employees in the Education sector.
Summary of Respondent’s Case:
The respondent set out their terms and conditions of employment with respect to Maternity Leave – “ all employees on maternity leave are entitled to 26 weeks paid maternity leave”.It was submitted that the respondent granted the claimant paid maternity leave of 26 weeks from the 17.01.2018 – 17.07.2018 and issued a letter to the claimant on the 12.02.2018 confirming same and noting that the respondent was awaiting further clarification from their parent dept. in respect of premature births.
It was further submitted that the respondent was aware of the enhanced entitlements from 1st.Oct. 2017 where a baby is born prematurely .The respondent issued a memo advising of these changes in April 2018 but noted there was no sanction for payment by the employer.On the 18.07.2018 , the respondent advised the claimant that the payment for the additional leave related only to the social Welfare aspect and not the employer. It was submitted that the respondent had complied with their obligations to pay the claimant 26 weeks of paid maternity leave and that “ unless and until there is agreement to change and the respondent is instructed to change , the respondent’s position will remain the same”.
It was submitted that the respondent had received no instruction nationally to pay the additional maternity leave ; it was submitted that if and when an instruction issues to pay the additional leave for the particular circumstances of the claimant and retrospection is applied , they will make good the claimant’s losses.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I have reviewed the evidence presented at the hearing and noted the respective positions of the parties.In light of the fact that the union’s contention that the additional maternity leave has been paid to other qualifying staff in the respondent’s employment and in the wider public sector in Education , has not been refuted by the respondent , I am upholding the complaint. It is unfair for the claimant to have to wait indefinitely for payment that has already been sanctioned within the respondent’s employment and in the Education sector .The union made compelling and credible submissions on the distress caused to the claimant as a result of the delay in progressing her claim.In the circumstances I am recommending in full and final settlement of this dispute that the claimant be paid the additional 8 weeks maternity pay within 2 weeks of the date of this recommendation and an additional compensatory payment of €1,500 for the delay in resolving the matter of payment .
Dated: March 25th 2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea