First Previous (PART IV Amendment or Application of Other Enactments) Next (PART VI Miscellaneous and Transitional Provisions)

2 1995

ADOPTIVE LEAVE ACT, 1995

PART V

Disputes Relating to Entitlement

Definition.

31. —In this Part “relevant employer” means the employer, successor or associated employer, as may be appropriate.

Disputes regarding entitlement under this Act.

32. —(1) This Part does not apply to an adopting parent who is in employment as a member of the Defence Forces.

(2) Any dispute other than—

(a) a dispute relating to a dismissal, including a dismissal within the meaning of the Act of 1977 or, the termination of a contract of employment, or

(b) a claim under Part IV of the Act of 1967 as extended by section 29 , or

(c) a dispute under section 11 of the Minimum Notice and Terms of Employment Act, 1973 , as extended by section 30 ,

between an adopting parent and the relevant employer, relating to the adopting parent's entitlements under this Act (or to any matter arising out of or related to such entitlements), may be referred by either party to the dispute to a rights commissioner.

(3) A rights commissioner shall hear the parties to a dispute under this Part and any evidence relevant to the dispute tendered by them.

(4) The Minister may make regulations for the purposes of this Part.

Redress.

33. —(1) On the hearing of a dispute under this Part, a rights commissioner or the Tribunal shall—

(a) in the case of a rights commissioner, make a decision in relation to the dispute, or

(b) in the case of the Tribunal, make a determination in relation to the dispute,

and may give to the parties concerned such directions as the rights commissioner or the Tribunal, as the case may be, considers necessary or expedient for the resolution of the dispute.

(2) A decision or determination under subsection (1) shall, if the rights commissioner or Tribunal, as the case may be, considers it appropriate, include an award of compensation in favour of the adopting parent to be paid by the relevant employer.

(3) Compensation under this section shall be of such amount as the rights commissioner or Tribunal deems just and equitable having regard to all the circumstances of the case but shall not exceed 20 weeks' remuneration in respect of the adopting parent's employment calculated in accordance with regulations made under section 32 .

(4) In this section “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

(5) The decision of a rights commissioner or determination of the Tribunal shall be in writing and shall be communicated to the parties by the rights commissioner or Tribunal, as the case may be.

Referral of disputes to rights commissioner.

34. —(1) Referral of a dispute under this Part shall be initiated by giving a notice in writing, containing such particulars (if any) as may be prescribed, to a rights commissioner—

(a) (i) not later than 6 months from the day of placement or, in circumstances where no placement takes place, within the period of 6 months from the date on which the employer receives the first notification of the adopting parent's intention to take leave under this Act, whether it be adoptive leave or additional adoptive leave, or

(ii) in the case of an adopting father, not later than 6 months from the date on which the adopting mother died, or

(b) if the rights commissioner is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding 12 months from the date aforesaid as the rights commissioner considers reasonable,

and a copy of the notice shall be given by the rights commissioner to the other party to the dispute as soon as may be after the receipt of the notice by the rights commissioner.

(2) Proceedings under this Part before a rights commissioner shall be conducted otherwise than in public.

(3) A rights commissioner shall furnish the Tribunal with a copy of a decision given under this Part.

Appeal from decision of rights commissioner.

35. —(1) A party concerned may appeal to the Tribunal from a decision of a rights commissioner in relation to a dispute referred under this Part and the Tribunal shall hear the parties and any evidence relevant to the appeal tendered by them and shall make a determination in relation to the appeal.

(2) An appeal under this section shall be initiated by a party by giving, within 4 weeks of the date on which the decision to which it relates was given to the parties concerned, a notice in writing to the Tribunal (containing such particulars (if any) as may be prescribed) and the Tribunal shall give a copy of the notice to the other party concerned as soon as may be after the receipt by it of the notice.

(3) A witness before the Tribunal on an appeal under this section shall be entitled to the same immunities and privileges as if the witness were a witness before the High Court.

(4) (a) The Tribunal shall, on the hearing of an appeal under this section, have power to take evidence on oath and for that purpose may cause to be administered oaths to persons attending as witnesses at such hearing.

(b) Any person who, upon examination on oath authorised under this subsection, wilfully and corruptly gives false evidence or wilfully and corruptly swears anything which is false, shall be guilty of an offence and, upon being convicted thereof, shall be liable to the penalties for wilful and corrupt perjury.

(c) The Tribunal may, by giving notice in that behalf in writing, require any person to attend at such time and place as is specified in the notice, to give evidence in relation to any matter referred to the Tribunal under this section or to produce any documents in that person's possession, custody or control which relate to any such matter.

(d) A person to whom a notice under paragraph (c) has been given and who fails, without just cause, to attend in accordance with the notice or who, having so attended, refuses to give evidence or fails, without just cause, to produce any document to which the notice relates shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding £1,000.

(5) Proceedings for an offence under paragraph (b) or (d) of subsection (4) may be brought and prosecuted by the Minister.

(6) A document purporting to be signed by the chairman or vice-chairman of the Tribunal stating that—

(a) a person named in the document was, by a notice under subsection (4) (c), required to attend before the Tribunal on a day and at a time and place specified in the document, to give evidence or produce a document,

(b) a sitting of the Tribunal was held on that day and at that time and place, and

(c) the person did not attend before the Tribunal in pursuance of the notice or, as the case may be, having so attended, refused to give evidence or refused or failed to produce the document, shall, in a prosecution of the person for an offence under subsection (4) (d), be sufficient evidence of the matters so stated, unless the contrary is shown.

Appeal to High Court on point of law.

36. —(1) The Tribunal may refer a question of law arising in proceedings before it under this Part to the High Court for determination by it.

(2) A party to proceedings before the Tribunal under this Part may appeal to the High Court from a determination of the Tribunal on a point of law.

Service of documents.

37. —(1) Service of a notice or other document on any person for the purpose of or in relation to any proceedings under this Part may be effected by delivering it to the person to whom it relates or by sending a copy of the document by registered prepaid post in an envelope addressed to the person to be served at that person's last known residence or place of business in the State.

(2) In the case of a company to which the Companies Act, 1963 , applies such service may be effected by delivering the document to, or by sending a copy of the document by registered prepaid post in an envelope addressed to, the company at its registered office.

(3) In the case of a body corporate to which subsection (2) does not apply or any unincorporated body of persons, such service may be effected by sending a copy of the document by registered prepaid post in an envelope addressed to the body at any place in the State where that body conducts its business or in such other manner as an originating summons may be served on such a body under The Rules of the Superior Courts.

Provisions relating to winding up and bankruptcy.

38. —(1) There shall be included among the debts which, under section 285 of the Companies Act, 1963 , are, in the distribution of the assets of a company being wound up, to be paid in priority to all other debts, all compensation payable under this Part by the company to an adopting parent, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall not be required except in cases where it may otherwise be provided by rules made under that Act.

(2) There shall be included among the debts which, under section 81 of the Bankruptcy Act, 1988 , are, in the distribution of the property of a bankrupt or arranging debtor, to be paid in priority to all other debts, all compensation payable under this Part by the bankrupt or arranging debtor, as the case may be, to an adopting parent, and that Act shall have effect accordingly, and formal proof of the debts to which priority is given under this subsection shall not be required except in cases where it may otherwise be provided by general orders made under that Act.

Enforcement of decision of rights commissioner and determination of Tribunal.

39. —(1) (a) A decision of a rights commissioner and a determination of the Tribunal in proceedings under this Part may provide that the decision or determination shall, be carried out before a specified date.

(b) Where a decision of a rights commissioner or a determination of the Tribunal does not so provide, it shall be deemed, for the purposes of this section, to provide that it shall be carried out within 4 weeks from the date on which it is communicated to the parties.

(2) (a) If a party fails to carry out the terms of a decision of a rights commissioner or determination of the Tribunal in relation to a dispute referred under this Part within the period as provided in accordance with subsection (1), the Circuit Court shall, on application to it in that behalf by—

(i) the other party concerned, or

(ii) the Minister, if of opinion that it is appropriate to make the application having regard to all the circumstances,

without hearing the party in default or any evidence (other than in relation to the failure), make an order directing the party in default to carry out the decision or determination in accordance with its terms

(b) In paragraph (a), the reference to a decision of a rights commissioner or a determination of the Tribunal is a reference to such a decision or determination, as the case may be, in relation to which, at the expiration of the time for bringing an appeal against it, no such appeal has been brought or, if such an appeal has been brought, it has been abandoned and the reference to the date on which the decision or determination is communicated to the parties shall, in a case where such an appeal is abandoned, be construed as a reference to the date of such abandonment.

(3) The Circuit Court may, in an order under this section, if in all the circumstances it considers it appropriate to do so, in case the order relates to the payment of compensation, direct the relevant employer to pay to the adopting parent concerned interest on the compensation at the rate referred to in section 22 of the Courts Act, 1981 , in respect of the whole or any part of the period beginning 4 weeks after the date on which the decision of a rights commissioner or the determination of the Tribunal, as the case may be, is communicated to the parties and ending on the date of the order.

(4) Proceedings under this section shall be heard in the county in which the relevant employer ordinarily resides or carries on any profession, business or occupation.

Extension of Protection of Employees (Employers' Insolvency) Act, 1984.

40. —In section 6 of the Protection of Employees (Employers' Insolvency) Act, 1984

(a) the references in subparagraph (v) of subsection (2) (a) to a determination or order shall be construed as including references to a decision, determination or order under Part V , and

(b) the references in subparagraph (i) of subsection (4) (c) to a determination shall be construed as including references to a decision or determination under Part V and the reference in clause (II) of the said subparagraph, to section 10 (4) of the Act of 1977 shall be construed as including a reference to section 35 or 36 , as may be appropriate.