Parental Leave and Employment Protection Act 1987
Part 7 Remedies Available To Employees

Section 55 Interim order

(1) Where any employee . . . alleges that the employee's employer has, within the preceding 2 months and in contravention of section 49(1) of this Act, terminated the employee's employment or given the employee notice terminating the employee's employment, the employee may apply ex parte to the [[Employment Relations Authority]] for an interim order reinstating the employee in the employee's position or cancelling the notice terminating the employee's employment.

(2) Subject to subsection (3) of this section, every interim order made under subsection (1) of this section shall expire on a date to be specified in the order, being the later of

(a) A date not later than 26 weeks after the date on which the order is made; or

(b) A date not later than 26 weeks after

(i) The expected date of delivery; or

(ii) In the case of adoption, the date on which, with a view to adoption, the employee first assumes or expects to first assume the care of the child.

(3) An interim order made under subsection (1) of this section may be renewed by the [[Employment Relations Authority]] from time to time on the ex parte application of the employee in whose favour it was made if the [[Employment Relations Authority]] is satisfied that the employee is taking reasonable steps to use the procedures available to the employee under sections 57 to 67 of this Act.

(4) An officer of the [[Employment Relations Authority]] shall send a copy of the interim order and of every decision renewing the interim order to the employer by registered letter.]

Section 56 Parental leave complaints

(1) Where any employee . . . alleges that the employee's employer—

(a) Is not justified in stating, in the notice given to the employee under section 36 of this Act, that the employee is not entitled to take any period of parental leave or that the employee's position cannot be kept open; or

(b) Has, in contravention of section 49(1) of this Act, terminated the employee's employment or given the employee notice terminating the employee's employment; or

[(c) has taken other action, or has omitted to do something, that affects, to the employee's disadvantage, the employee's rights and benefits in respect of parental leave or a parental leave payment; or]

(d) Has exercised, without reasonable justification, the powers conferred on the employer by section 14 or section 16 of this Act,

that allegation shall be a parental leave complaint to which this section applies, and the employee may use, in respect of that parental leave complaint, the procedures provided in sections 57 to 67 of this Act.

(2) A parental leave complaint to which this section applies shall not be made

(a) After the expiration of 26 weeks from the date on which the subject-matter of the complaint arose; or

(b) After the expiration of 26 weeks from—

(i) The expected date of delivery; or

(ii) In the case of adoption, the date on which the employee, with a view to adoption, first assumed the care of the child; or

(c) After the expiration of 8 weeks from the expiry of any period of parental leave taken by the employee,

whichever is the later.

(3) The procedures provided in sections 57 to 67 of this Act may be used before or after the making of an interim order under section 55 of this Act.

[(4)A parental leave complaint to which this section applies is not a personal grievance within the meaning of section 103 of the Employment Relations Act 2000.]

Section 57 Procedures for settlement of parental leave complaints

(1) The procedures for the settlement of a parental leave complaint shall be in accordance with this section and sections 58 to 67 of this Act.

(2) As soon as practicable after a parental leave complaint arises, the employee shall submit the complaint to the employee's immediate supervisor, affording the immediate supervisor an opportunity to remedy the cause of the complaint, the intent being that it is desirable, if the circumstances permit it, to settle the complaint rapidly and as near as possible to the point of origin.

(3) Where any such attempt at settlement has failed, or where the complaint is of such a nature that a direct discussion between the employee and the employee's immediate supervisor would be inappropriate, the employee shall either

(a) Notify the branch secretary or secretary or a duly authorised representative of any union to which the employee belongs or could belong; or

(b) Where the employee elects to act on his or her own behalf or to appoint an agent or barrister or solicitor to act on his or her behalf, forthwith take the matter up, or arrange for that agent, barrister, or solicitor, as the case may be, to take up the matter on his or her behalf, with the employer or the representative of the employer.

(4) Where the person notified under subsection (3)(a) of this section considers that there is some substance in the parental leave complaint, that person shall forthwith take the matter up with the employer or the representative of the employer.

(5) If the matter is not disposed of in discussion with the employer or the representative of the employer, the complaint shall be reduced to writing in a statement setting out all the facts relied on. The statement shall establish the nature of the employee's complaint, and of the issues, for all subsequent consideration of the case.

Section 58 Power to refer complaint to Employment Relations Authority

(1) Where a parental leave complaint is not disposed of between the parties, it may be referred to the Employment Relations Authority.

(2) The Employment Relations Authority must, subject to any decision to provide mediation services, proceed to hear and determine the complaint and, in doing so, must consider

(a) the written statement of the complaint required by section 57(5); and

(b) any evidence or submissions given by or on behalf of the parties; and

(c) such other matters as the Employment Relations Authority thinks fit.

Section 59 Role of institutions

Where any parental leave complaint comes before the Employment Relations Authority, sections 177 to 184 of the Employment Relations Act 2000 apply in relation to that parental leave complaint and sections 214 and 215 of that Act apply in relation to appeals to the Court of Appeal.]

Section 64 Duty to promote settlement

It shall be the duty of every party to a parental leave complaint—

(a) To promote the settlement of the complaint under the procedures provided in sections 57 to 67 of this Act; and

(b) To abstain from any action that might impede the effective functioning of the procedures.

Section 65 Remedies

In the case of any alleged breach of any of the provisions of this Act, [any decision made for the purposes of this Act] may, if it includes a finding that any of the provisions of this Act have been breached by the employer, provide for any one or more of the following:

(a) The reinstatement of the employee in the employee's former position or in a position not less advantageous to the employee:

(b) The reimbursement to the employee of a sum equal to the whole or any part of any wages lost by the employee:

(c) The payment to the employee of compensation by the employer.

Section 66 Reinstatement

Where the remedy of reinstatement is provided by the Employment Relations Authority or the Employment Court, the employee must be reinstated immediately or on such date as is specified by the Employment Relations Authority or the Employment Court and, despite any appeal against the determination of the Employment Relations Authority or the Employment Court, the provisions for reinstatement remain in full force pending the determination of the appeal.]

Section 68 Non-compliance with formal requirements

(1) An employer must not unreasonably refuse to allow an employee to exercise any rights and benefits in respect of parental leave or a parental leave payment that the employee would be entitled to exercise but for an irregularity.

(2) In this section, irregularity means

(a) omitting to do something required by or under this Act or under the alternative provision under which the leave is taken; or

(b) doing something required by or under this Act or the alternative provision under which the leave is taken before or after the time when it is required to be done; or

(c) otherwise doing anything irregularly in matter of form.

(3) An employee or an employer, or any person acting on behalf of an employee or employer, may apply to the Employment Relations Authority or the Court for relief in respect of an irregularity.

(4) The Employment Relations Authority or the Court must grant relief to an employee in respect of a failure to comply with the notice requirements of this Act or of the alternative provision under which the leave is taken if satisfied that—

(a) the employee's failure to comply with the notice requirements was in good faith; and

(b) the extent to which the employee did or did not comply with the notice requirements was reasonable in all of the circumstances of the case.

(5) The Employment Relations Authority or the Court may grant relief in respect of any other irregularity if it thinks it is reasonable to do so, having regard to the nature of the irregularity, the good faith or otherwise of the parties, and any other matters it thinks proper.

(6) The Employment Relations Authority or the Court may grant relief—

(a) by amending or waiving the irregularity, extending the time within which anything is to be or may be done, confirming the right of the employee to exercise rights and benefits in respect of parental leave or a parental leave payment, or granting any other relief as is reasonable:

(b) subject to terms, if any, that the Court, in the circumstances of each case, thinks fit.]

Section 70 Enforcement of judgments

(1) A certificate under the hand of the Registrar of the Court, specifying the amount payable under any order for the payment of money made under this Act by the Court, and the persons by whom and to whom it is payable, may be filed in any District Court, and, subject to subsection (2) of this section, shall then be enforceable in the same manner as a judgment given by a District Court in an action for the recovery of a debt.

(2) No proceedings shall be taken under the Imprisonment for Debt Limitation Act 1908 against any person for failing or refusing to pay any penalty imposed on that person under this Act.

Section 70A Role of Labour Inspectors

(1) A Labour Inspector may—

(a) determine, if the employee and employer fail to agree, whether an employee will have been in the employment of the same employer for at least an average of 10 hours a week during a 12-month period in accordance with section 72A for the purpose of eligibility for parental leave; or

(b) determine, if the employee and employer fail to agree, an employee's ordinary pay or average weekly earnings for the purpose of section 71M; or

(c) serve a demand notice as provided in section 70B; or

(d) otherwise enforce the rights and benefits in respect of parental leave or a parental leave payment under this Act.

(2) A Labour Inspector must, as soon as practicable after making a determination, serve a copy on the employee and the employer.

(3) The consequences of a determination are that it is prima facie evidence of the matter determined.

Section 70B Demand notice

(1) A Labour Inspector may serve on an employer a demand notice, in the prescribed form, if

(a) either

(i) an employee makes a complaint to the Labour Inspector that an employer has denied the employee's entitlement to take parental leave in a case where the Labour Inspector has previously made a determination that the employee is entitled to take leave; or

(ii) the Labour Inspector believes on reasonable grounds that an employer has denied the employee's entitlement to take parental leave; and

(b) the Labour Inspector has given the employer not less than 7 days to comment on the complaint or the grounds for the Labour Inspector's belief; and

(c) the Labour Inspector, after considering any comments made by the employer under paragraph (b), is satisfied that the employee is entitled to take parental leave; and

(d) the Labour Inspector is satisfied that the employer is not prepared to acknowledge the employee's entitlement to parental leave in a reasonable manner or within a reasonable time.

(2) A demand notice must be served

(a) by giving it to the employer concerned; or

(b) if the employer does not accept the demand notice, by leaving it in the employer's presence and drawing the employer's attention to it.

Section 70C Objections to determination or demand notice

(1) An employer or an employee may lodge with the Employment Relations Authority an objection to a determination or a demand notice.

(2) An objection must be lodged with the Authority within 28 days after the determination or demand notice is served on the employer or employee who makes the objection.

(3) A demand notice has the consequences specified in section 70D

(a) if no objection is lodged before the close of the period specified in subsection (2); or

(b) if any objection lodged before the close of the period specified in subsection (2) is withdrawn (whether before or after the close of that period).

Section 70D Consequences of demand notice

The consequences of a demand notice are that it

(a) imposes a legal requirement on the employer to comply with it; and

(b) is prima facie evidence that the employee has the entitlement specified in the notice; and

(c) may be enforced by the making by the Employment Relations Authority of a compliance order under section 137 of the Employment Relations Act 2000.

Section 70E Authority to determine entitlement to parental leave on objection

The function of the Employment Relations Authority in respect of an objection is to determine whether or not the employee has the entitlement specified in the determination or demand notice.

Section 70F Withdrawal of demand notice

A demand notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of a demand notice does not prevent another demand notice being served in relation to the same matter.]

Section 71 Procedures available to State employees

Nothing in this Act shall limit the procedures by which State employees may enforce their conditions of employment and those procedures may be used, where appropriate, to enforce the rights conferred on State employees by this Act.

End of Part 7