Complainant

Respondent

Parties

Breda  O Loughlin

Galway University Hospital

Representatives

  Self Represented

A HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00066770-001

17/10/2024

The Complainant was a Phlebotomy Nurse employed on various contracts of temporary employment and went on Maternity and Paternity Leave. The Complainant alleged that by not granting her the shift pattern she worked prior to going on Maternity leave when she was due to return from leave was a breach of the Act.

In January 2021, the Complainant was hired by Mr. Tommie Mellett, the Phlebotomy Manager, for the position of Phlebotomist in the Phlebotomy Department at Galway University Hospital. She was initially placed on a temporary contract, working 20 hours per week. Later that same year, she interviewed for a permanent position, where she was ranked number one on the panel. However, she never received a contract for the permanent role. The agreed-upon working hours were 2 x LD (Long Day) shifts, from 07:00 to 18:00, two days a week. 

This work pattern continued for the entire duration of her employment until she went on maternity leave in January 2023. At the time of her leave, the current management team consisted of Kara Burke and Maureen Keane, following Tommie Mellett’s retirement. 

The Complainant was scheduled to return to work from maternity leave on Monday, May 13, 2024. At present, she has three children, aged 6, 4, and 1. Prior to her maternity leave, she had childcare arrangements in place for her two workdays each week. Her plan was to continue with the same childcare for all three children on the same two days.  However, upon reaching out to the management team via email, she was informed that her 2 x LD shifts were no longer available, and she would now be required to return on three short shifts instead.   

At the time, she was away and communicating with her manager, Maureen, via WhatsApp. She expressed her willingness to return to work for her 2xLD shifts at either GUH or Merlin Park Hospital, if the shifts were available. However, her request was declined. She then asked Maureen if her 2xLD shifts were available at all, to which she replied, “No.” 

 The Complainant reached out to her childminder, but she was unavailable to care for her children three mornings a week. She could only accommodate the 2 x LD shifts, as they had previously arranged. Due to this lack of childcare, the Complainant realized it would be extremely difficult to return to work. At the same time, her father was diagnosed with cancer, and she was unable to pursue the matter with management. It was an incredibly stressful period, as she was unable to return to work under the same conditions she had before her maternity leave. 

The Complainant attempted to contact Kara Burke by phone, but she alleged she cut her off and did not respond. She then reached out to Mary Hynes in the Human Resources Department at GUH, hoping to seek advice. She explained her situation to her secretary and asked that Mary contact her. The Complainant alleged she never received a return call or email from Mary. Instead, her secretary advised her  to contact Maria Molloy, the Lab Manager. The Complainant left multiple messages for Maria via the switchboard, but again, there was no response. She did not have her email address. 

After exhausting all attempts to resolve the situation with management and HR, the Complainant felt unsupported and defeated. As a result, she handed in her resignation to Kara Burke on April 26, 2024. She received a prompt reply stating she would send her the necessary resignation documentation. Kara did not contact her again until May 31, when she called to thank the Complainant for her work in the department. 

While the Complainant was in the process of resigning, she noticed on the phlebotomy department’s WhatsApp group that Kara was advertising for staff to cover two evening shifts from 2-6 pm — the exact shifts the Complainant had requested to return to and was previously told were unavailable. The Complainant was disgusted by this and decided to withdraw herself from the WhatsApp group. 

The Complainant stated the entire situation has caused significant stress and financial strain, especially with a new baby and two young children at home. The financial worries have led to many sleepless nights. The situation could have been avoided if the right people had responded when the Complainant reached out to them at the time. She felt like she was the only one trying to resolve the issue, with no support from anyone within the HSE. It is only now, after filing a formal complaint with the WRC, that they have begun to engage with the Complainant.

The Complainant alleges that the management team failed to accommodate her return to work after maternity leave with the same hours over the two days, as she had prior to her leave. Instead, she feels this amounts to constructive dismissal, as she was effectively forced to accept unfavourable changes to her terms and conditions of employment without her agreement. 

Under the Maternity Protection Act 1994, Section 26, Part (c), it is stated that an employee is entitled to return to their position under the same terms and conditions as before their maternity leave, or, in the case of a change of ownership, under a contract that is identical to the one they held prior to the leave. These terms should be no less favourable than those applicable to the employee, and they should incorporate any improvements to employment terms or conditions that the employee would have been entitled to, had they not been absent from work due to maternity leave. 

 On November 19th, 2024, the Complainant received an email from Phlebotomy Manager Maureen Keane requesting a meeting with Lab Manager Maria Molloy, Phlebotomy Manager Kara Burke, and herself to informally discuss her WRC complaint and explore potential resolutions. The Complainant agreed to meet and responded to confirm her availability.  Prior to the meeting, the Complainant emailed Maria Molloy requesting a phone call to discuss the situation. This call took place on December 4th, 2024. During the conversation, Maria listened carefully and acknowledged everything the Complainant had outlined above. The Complainant explained that, in order to resolve the dispute, she would like to return to her previous role, working two days per week at either GUH or Merlin Park, as she had done prior to her maternity leave. The Complainant expressed her willingness to work in either hospital and on any ward. Additionally, she requested back payment for the period from April 2024 to the present, due to the loss of earnings resulting from the mismanagement of the situation. The conversation concluded with Maria agreeing to take both requests to HR and to discuss the outcomes at our in-person meeting scheduled for December 11th

On the 11 December 2024 the meeting took place in Merlin Park hospital. No resolution was found.

The Respondent denied any breach of the Act and set out the various employment relationships between the Complainant and the Respondent.

The Complainant was employed as a Staff Nurse from 24th September 2007 – 15th September 2019. The Complainant was then employed as an Enhanced Nurse from 16th September 2019 – 11th April 2021. In January 2021, a transfer was arranged for the Complainant from Nursing to the Phlebotomy Department. There was no grade change and the Complainant remained in her nursing grade. 

The following is a summary of the timelines of the Complainants period within the Phlebotomy department as a Phlebotomist:

On 11th April 2021, a HR 102 form was completed and signed by the Complainant which involved a change to her terms and conditions. The change was a grade change from her Nursing grade to that of a Temporary Phlebotomist.

At this time, a new temporary contract was issued to the Complainant for the Phlebotomist grade working 37 hours per week. The contract clearly stated that she would be required to work the agreed roster and that her contracted hours of work were liable to change to meet the requirements of the service.  There is no evidence of a HR 111 Flexible Working Agreement in place at any time for the Complainant and the Complainant was working 20 hours per week out of her 37 hour per week contract. 

In mid-2021, at the request of the Laboratory Manager there was a review of all staff who were not fulfilling their contracted hours. During this review period, all Phlebotomy staff not fulfilling their contracted hours were informed that they must fulfil their contracted hours and were required to work as per service need over both sites; Galway University Hospital and Merlin Park University Hospital. Those not wishing to fulfil their contracted hours were given the option to reduce their hours, so that the department could recruit staff to meet the hours not fulfilled. 

Staff who worked part-time were informed that where possible they would be rostered as per requests.   

On the 1st November 2021 the Complainant agreed and signed a further HR102 form reducing her hours to 20 hours per week with a work schedule rule of 5/5 Monday to Friday. The Complainant worked these hours until she commenced her Maternity Leave.  

On 28th March 2023 the Complainant commenced her Maternity Leave until the 25th September 2023.   

23rd September 2023 - Senior Phlebotomists received a communication from the Complainant that she was looking for a Career Break of one year to rear her children once all of her leave entitlements had been completed (i.e. from 13th May 2024 for 1 year). This was explored with Employee Relations who checked with National Employee Relations and the Complainant was informed that it would not be feasible to grant a Career break as she was on a fixed term contract which was due to expire on the 31st December 2023.  

The Complainant also requested to take a block of Parental Leave of 26 weeks as per her entitlement for each child after she had taken her annual leave. This was discussed with HR and was not approved as we were required to give a reason for extending the temporary contract further and the only Employment Control Committee (or ECC) approved hours available for the Complainant were a backfill of Parental Leave. 

From the 26th September 2023 - 15th January 2024 the Complainant was on Special Unpaid Leave following her Maternity Leave. The Complainant was due to return to duty on the 16th January 2024. 

The Complainant did not return on this date as she had applied for Parent’s Benefit; this was approved from the 16th January 2024 until 4th March 2024.

On the 5th March 2024 payroll was informed that the Complainant was to be restored to the payroll system following Parent’s Leave. 

The Complainant had requested to take Annual Leave owed from 4th March 2024 to 12th May 2024 and this was approved.  

During the above period, the Complainants temporary fixed term contract was due to expire on the 31/12/2024. The Complainant was concerned during this period that as her contract was temporary it would not be renewed. The Complainants contract expired on 31/12/2023 and despite the recruitment embargo, a renewal was sought for the Complainant and her contract was renewed with her until 12/05/2024. The extended temporary contract (which was covering Parental Leave hours) were to cover mornings as per service need; 2 mornings per week from 7am – 2pm and 1 morning from 7am – 1pm.  Both Senior Phlebotomists Kara Burke and Maureen Keane issued an email on the 24th April 2024 informing the Complainant of same and offered some options for shifts with an offer to discuss further in terms of Parental Leave and the carry-over of Annual Leave to reduce the working week to 2 days until the Parental Leave could be approved.  The options were suggestions, so that they could work through the best option for The Complainant and to cover service gaps.  These hours were not filled thereafter due to the recruitment embargo.

The Complainant did not respond to the email but sent a WhatsApp message asking if there was any option to work 2 long days and was informed as previously agreed by both Senior Phlebotomists Kara Burke & Maureen Keane that there were no afternoon shifts currently available but that this would be reviewed when the new Out-Patients Department opened in Merlin Park University Hospital which was at the time due to open in September 2024.  The Out-Patients Department has only recently opened in Merlin Park since February 2025.  

On 26th April 2024, whilst on holiday in the USA, the Complainant emailed Senior Phlebotomists Kara Burke and Maureen Keane stating that she was due to return to work on 13th May 2024 but wished to hand in her resignation as she wanted to take the time to rear her 3 young children. This did not come as a surprise as the Complainant had been exploring options for taking a break from work to rear her children for some time. Senior Phlebotomist, Kara Burke replied to the Complainant via email that afternoon advising that she was sorry to hear this news. She thanked the Complainant for her contribution to the Phlebotomy Department and wished her well for the future. 

An email was sent to the Complainant on the 30th April 2024 with a HR106 - HSE Leaving Form attached for The Complainant to sign and return. The Complainant was also advised of her annual leave balance which was 19 hours owing to her. 

Email sent to the Complainant on 14th May 2024 from Senior Phlebotomist looking to see when the Complainant would be back from her holiday in the US so that she could call her to thank her for her time working in the Phlebotomy Department. Following this email, a cordial conversation was exchanged between Senior Phlebotomist and The Complainant whereby The Complainant was wished well and thanked for her time with the hospital. 

There were no further communications received from the Complainant between 14th May 2024 and 23rd October 2024.   

On 23rd October 2024 a notification was received from the WRC outlining the Complainant’s complaint. 

Galway University Hospital wished to mediate and solve this complaint informally with the Complainant.  It was suggested that an informal meeting should be arranged with the Complainant to discuss her complaint prior to proceeding to the WRC. A phone call was made to the Complainant on 4th December 2024 by Maria Molloy asking her to meet with her and the Senior Phlebotomist Kara Burke and Maureen Keane on 11th December 2024. – The Complainant was very open to this meeting being held. 

Informal in person meeting held between Maria Molloy, Kara Burke & Maureen Keane and the Complainant on 11th December 2024 in Merlin Park University Hospital in relation to WRC complaint received. The Complainant was accompanied at the meeting by her husband.  The Complainant was offered a return to her 20 hour contract which involved 2 long day shifts with the hospital. The Complainant was open to returning on the basis of a leave type i.e. Parental Leave, Career Break. Special Unpaid Leave until such time as she had childminding arrangements in place. This timeframe was unknown but the Complainant advised may likely take a few months. The Complainant asked whether she would receive back pay from May 2024 until her date of starting back to work as she felt there had been a mismanagement of the situation by the HSE. The Complainant was advised at the meeting that this could be queried with Employee Relations.

The Complainant was advised that Galway University Hospital were able to offer a permanent contract to her from January 2025 and that her missing time from work could be retrospectively approved to show either a Career Break or Parental Leave to cover the period since The Complainant had handed in her notice to date, in order to enable unbroken service, enabling The Complainant to move to a permanent contract once 4 consecutive years were reached. – The Complainant was satisfied with this plan and expressed that she was looking forward to returning to work. 

20th December 2024 – Email was issued to The Complainant following a communication received from National Employee Relations. In relation to the Complainant’s request for “back pay”, it was noted by National Employee Relations that The Complainant had voluntarily resigned from her role with Galway university Hospital on 26th April 2024 and that there was therefore no obligation to give retrospective payment and as such they could not comply with the request.

20th December 2024 – Emailed response received from the Complainant advising that the response received from National Employee Relations was unacceptable and that she would be proceeding with her complaint to the WRC.  

Despite the Complainant being on a temporary fixed term contract that expired during her Maternity Leave, we ensured that the Complainant’s contract was renewed until 12th May 2024, despite the significant recruitment embargo that was implemented and an offer for the Complainant to return to work post Maternity Leave with the same 20 contracted hours per week and same position she had before going on Maternity leave was given. The extended contract was on the basis of covering different leave types as to her original temporary contract covered. We believe that Galway University Hospital has made every effort to support the Complainant in her employment and had looked forward to welcoming the Complainant back to work.

Once we were reassured by HR that it was looking like we could renew the Complainant’s contract for a further three months, The Complainant’s line managers reached out to the Complainant to start looking at potential options of hours to work, where the service require cover.  These hours were to provide cover in the backfill of Parental Leave. The line managers also offered suggestions to take other leave types if the 3 day working week did not suit The Complainant, which would allow her to work the original two days that she was seeking.  The Complainant did not respond to this email and chose to resign from her position.  

At no time did the Complainant discuss childcare issues with us. We are sorry to hear of the difficult time The Complainant was having but we were not made aware of same. 

Whilst on holiday in the USA the Complainant emailed Senior Phlebotomists Kara Burke and Maureen Keane on the 26th April 2024 stating she wished to hand in her resignation, as she wanted to take the time to rear her three young children.  The Complainant had been exploring options for taking a break from work to rear her children since the Career break could not be approved.  Her line manager believed this to be the reason for her resignation.  Her line manager replied via email to acknowledge her resignation.

Galway University Hospital were surprised to receive the WRC correspondence outlining the Complainant’s complaint and are disappointed by its content and what we believe to be unsubstantiated grounds. Upon receipt of the complaint we sought to mediate and solve this complaint informally with the Complainant if possible and met with the Complainant on 11th December 2024. The Complainant is seeking back pay from 26th May 2024 which was her last day of paid employment as she believes that the HSE mismanaged the situation regarding her return from Maternity Leave to work. We completely refute this claim.  

It is the view of Galway University Hospital that given the Complainant voluntarily resigned from her role with Galway University Hospital on 26th April 2024, that there should therefore not be any obligation to give retrospective payment in this case. 

The Respondent believe that we have made every effort to satisfy Maternity Leave legislation. 

Galway University Hospital endeavour to try to support our employees wherever possible and in this case, we believe that we have gone above and beyond trying to support the Complainant in remaining in our employment. We are very much of the view that the Complainant  claim to the WRC is unfounded. 

The Complainant resigned voluntarily and ticked personal / family caring reasons on the HR106 Leaving Form as her reason for leaving..  We believe he Complainant had been dissatisfied at this stage that she had the opportunity to raise this with her line manager. The Complainant’s communication to her line manager advising of her resignation was one of cordiality and gratitude and did not indicate that she was unhappy with her decision to leave.

Our view is that the Complainant resigned from her position within Galway University Hospital on 26th April 2024 despite our significant efforts to support her in continuing with her role / career. Her last day of paid employment was 26th May 2024. 

Contracts supplied were;

1. Specific purpose Contract of Employment commenced on 11/04/2021 – 37 hours per week
2. HR 102 Change to employee terms and conditions – Grade change from Enhanced Staff Nurse to Phlebotomist staff grade, signed on 18/03/2021.
3. HR102 Change to employee terms and conditions- change of contract hours reduced from 37 hours per week to 20 hours per week, signed on 01/11/2021.
4. Contract renewed from 31/12/2023-12/05/2024, ECC ref G1147 as temporary contract expired on 31/12/2023. (This extended temporary contract which was covering Parental Leave hours involved cover of mornings as per service need; 2 mornings per week from 7am – 2pm and 1 morning from 7am – 1pm.
5. A further temporary contract was due to be offered to the Complainant from 12/05/2024 to  09/11/2024 but was never implemented as the Complainant had resigned from her role. 

.

In this case the sequence of the contractual relationship between the parties is key to the Decision on this case. The Law on Maternity Leave is as follows;

“26.—(1) Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work—

• • (a)with the employer with whom she or he was working immediately before the start of that period or, where during the employee’s absence from work there was a change of ownership of the undertaking in which she or he was employed immediately before her or his absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,(b)in the job which the employee held immediately before the start of that period, and(c)under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period,and (in either case) under terms or conditions —
    • (i)not less favourable than those that would have been applicable to the employee, and
      • i.(ii) that incorporate any improvement to the terms or conditions of employment to which the employee would have been entitled,if she or he had not been so absent from work.
      • ii.(2) For the purposes of subsection (1) (b), where the job held by an employee immediately before the start of the period of her or his absence on protective leave was not the employee’s normal or usual job, the employee shall be entitled to return to work, either in her or his normal or usual job or in that job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or instrument made under statute.
      • iii.(3) In this section “job”, in relation to an employee, means the nature of the work which she or he is employed to do in accordance with her or his contract of employment and the capacity and place in which she or he is so employed.”

Findings;

The Complainant stated she was employed from January 4TH 2021 to April 26th 2024. The Respondent gave details of the Complainant being employed earlier than that. The Complainant was employed on a specific purpose contract (Covid) from January 11th 2021 to April 10th 2021 on 22 hours per week on a 5/5 shift. The next contract supplied was a Special  Purpose Fixed term contract from April 11th 2021 to October 10th 2021.  In that contract the hours were 37 per week, on a 5/5 days shift with the work hours to be assigned by the Complainants Manager. These contracts included a right to change hours of work over a 7/7 shift.  An internal change to terms and conditions form was signed by the parties and was effective November 1st 2021. This changed the hours to 20 per week and maintained on the form a 5/5 day schedule. No mention was made of a change to hours of work or actual shift pattern.

This appears to be the contractual status of the Parties when the Complainant took maternity leave on March 28th 2023 and was due to return on September 9th 2023 but took special/paternity leave and outstanding holidays’ etc and was not due to return to work until she resigned in April 2024. The Respondent appears to have gone to great lengths to ensure continuity of the Complainants employment and a full time role was possible on her return to work.

In the evidence of the witness Mr. Mellet (who was the Lab Manager and who had retired while the Complainant was on leave) he stated that the Complainant was working on 2 long shifts prior to her leave by arrangement with him as the Lab Manager. He advised this arrangement was not formalised by a change of contractual terms. Mr. Mellet gave evidence that his management stye was to try and find arrangements which assisted staff private circumstances regrading child minding etc and he felt this was a good way for both him to run the lab and for staff. My conclusion of this situation is this was a private and informal arrangement (as in normal in many circumstances) but it did not form a legal change to the complainants contractual situation. It appears the Respondent has a mechanism for recording off contract/flexible arrangements (HR111 form) but this was not completed in this case.

The Complainant was due to return to work on May 13h 2024 and was advised of her options in late April, one of which included working two days a week by using unused holidays until her parental leave was reviewed/approved and a review took place of overall requirements in September 2024. The Complainant decided not to take up this offer.

From a review of the situation the Respondent staff seem to have gone to great lengths to assist the Complainants leave. The Complainant was about to become permanent and there was no obstacle to that other than her return to work.  I note the Complainant also, in correspondence to the Respondent dated April 26th 2024  stated he was going to  resign to mind her children. In that correspondence she thanked the Respondent staff for their assistance and made no mention of any issue regarding her hours of work. The Respondent Phlebotomy staff went to considerable lengths to meet the Complainant post notification of her complaint and tried to find a solution to her situation.

The Complainant did not appear to set out in her communications with the Respondent prior to resigning either her personal difficulties with childminding or her agreement with Mr. Mallet. She also referenced a Whats app advert for 2 shifts per week but did not supply any evidence of same. She also never implemented the grievance procedure about her issue (although not essential to her claim) when she had the opportunity to return to work on a structured two shift arrangement, similar to the situation before she went on extended leave, for a period until the scheduled review of requirements was completed. This would have allowed the Complainant return to work on the same informal arrangement she had prior to going on leave, at least for about 10 weeks until either the review was complete or a grievance process concluded. Given the allegation of mismanagement it would be remiss of me not to mention the great lengths that the Respondent Management staff went to keep the Complainant employed, return on a full time contract and try resolve the shift situation with an acceptable conclusion for all. The Complainant sought compensation for the period of time after she resigned until she lodged her complaint (about five months) but made no mention of seeking a return to her prior informal working arrangement as a solution to her complaint.

I have considered the Complainants legal contractual situation and nothing differed in her contractual status in the date she left employment on leave and the date she was due to return.   The formal contractual situation was she was required before and after leave to work 20 hours per week over any of 5 days. The informal situation was she was working two 10 hour days prior to her leave, by arrangement with her Manager but never formalised using the HSE documents for recording such arrangements.  The Complainant was offered 20 hours work over three days on return from maternity/paternity leave. For the avoidance of doubt had the parties formally agreed a change to the contract which involved a change to a two shift/two day work pattern the Complainant would have been entitled to return to work on that pattern. No evidence was put before me that this was the legally contracted situation prior to the Complainant taking her legally entitled leave.

In conclusion, given the Complainants legally contracted hours of work/shift pattern before and after her leave were exactly the same, I conclude no breach of the Act has occurred and the complaint is not well founded as the Respondent complied with Section 26 (c) of the Act when offering the Complainant a return to work ” under the contract of employment under which the employee was employed immediately before the start of that period”. The Complainants informal working arrangement did not form a contractual agreement and the Respondent was not required to offer the Complainant the same informal arrangement almost 17 months after she took her leave.

I find that no breach of the Act has been identified by the Complainant and the complaint is not well founded. CA-00066770-001

Maternity Leave