In a case of Tesco Ireland Limited and Sajkozdryk MPD2001 the employee claimed that the respondent employer failed to allow her to return to the job she had immediately before she commenced her maternity leave. The Adjudication Officer had directed the employer to reinstate the complainant into a position in the payroll department or alternatively into a position that is similar and acceptable to the complainant but also ordered compensation of €3,631.60. The employer appealed that decision.
The employee contented that she was working in payroll when she went on maternity but did not return to work in payroll. The employee relied on Section 26 (1) (B) of the Acts. The employee returned to work with no assigned department.
The union representing the employee relied on the case of Tighe -v- Travenol Laboratories (Ireland) Limited 1989 8JISLL where 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 the work involved in production was so different to office work that it did not consider it appropriate from the employee's stand point. The employer contented that the employee was a general sales assistant/customer assistant and was assigned into the training department on her return as it was not possible to assign her to payroll colleagues have been moved around. The employer contended it was standard practice that individuals would move around.
The Court in this case set out Section 26 in full. The Court pointed out that the section being Section 26 of the Acts provides 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. The Court pointed out that Section 26 (3) of the Act 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 in place in which she is so employed.
The Court in reviewing the law on this stated it was satisfied that the reference to "nature of work" meant the job as described in her contract of employment.
The court looked at the definition of what the word "capacity" was and referred to the Oxford Dictionary as being
"a specified role or position"
The Court therefore held it was satisfied that "capacity" in which the employee was employed is graded as a general sales assistant/customer assistant prior to taking maternity leave was in the payroll department a position she had held for three and a half years. The court found that the complainant should have been returned to that role/position which she held immediately before the start of her maternity leave. The court pointed out that her contract of employment required flexibility.
The Court referred to the case of Holland -v- Athlone Institute of Technology 2012 23E.L.R.1 which was a claim under the Protection of Employees (Fixed-Term Work) Act 2003 where Mr Justice Hogan had 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 other employees. The court pointed out that it follows on the same basis that an employee returns to her job on the completion of maternity leave is not placed in a superior position. The Court found that the employee should have been returned to the payroll department.
The Court then looked at the provisions of the right of redress. The Court pointed out that this complainant had sought reinstatement to the role in the payroll department which she occupied prior to her maternity leave and an award of compensation. The Court pointed out that the complainant was currently on sick leave and therefore the Court in exercising its discretion as provided for under Section 32 (2) made no direction regarding the return to work. The Court held that the appropriate redress in this case was an award of compensation and the compensation was increased to a little over €7,000 being 20 weeks wages.
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