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34 1994

MATERNITY PROTECTION ACT, 1994

PART V

Resolution of Disputes

Reference of disputes to which Part V applies.

30. —(1) Subject to subsection (2), this Part applies to any dispute between an employee and the relevant employer relating to any entitlement of the employee under Parts II to IV (or any matter arising out of or related to such an entitlement) other than—

(a) a dispute relating to the dismissal of an employee; or

(b) a dispute as to a matter which is within the competence of the Authority under the 1989 Act;

and in the following provisions of this Part “dispute” means one to which this Part applies.

(2) This Part does not apply where the employee is in employment as a member of the Defence Forces and, accordingly, in the following provisions of this Part, “employee” does not include an employee in such employment.

(3) In this Part “the relevant employer”, in relation to an employee, means the employee's employer or, where appropriate, the successor or an associated employer.

(4) Either the employee or the relevant employer may refer a dispute to a rights commissioner.

(5) The Minister may make regulations for the purposes of this Part, and in this Part “prescribed” means prescribed by such regulations.

(6) In subsection (1) (a)dismissal” has the same meaning as in the 1977 Act except that, in applying that definition for the purposes of subsection (1) (a), the expressions “employer” and “contract of employment”, where used in that definition, shall be given the same meanings as in this Act.

Procedure for referral of disputes to rights commissioner.

31. —(1) The referral of a dispute shall be initiated by the employee or the relevant employer giving a notice in writing, containing such particulars (if any) as may be prescribed, to a rights commissioner—

(a) within the period of six months from the date on which the employer is informed of the initial circumstances relevant to the dispute, that is to say, that the employee is pregnant, has recently given birth or is breastfeeding or, in the case of an employee who is the father of a child, that the child's mother has died; or

(b) if the rights commissioner is satisfied that exceptional circumstances prevented the giving of the notice within the period specified in paragraph (a), within such period, not exceeding 12 months from the date so specified, as the rights commissioner considers reasonable.

(2) As soon as may be after a rights commissioner has received a notice under subsection (1) from one party to the dispute, the rights commissioner shall give a copy of the notice to the other party.

(3) Proceedings on the reference of a dispute to a rights commissioner shall be conducted otherwise than in public.

(4) The rights commissioner shall hear the parties to the dispute and any evidence tendered by them.

(5) The rights commisioner shall furnish the Tribunal with a copy of each decision given by the rights commissioner under this Part.

Redress.

32. —(1) On the hearing of a dispute 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) If a decision or determination under subsection (1) is in favour of the employee then, without prejudice to the power to give directions under that subsection, the rights commissioner or Tribunal may order such redress for the employee as the rights commissioner or Tribunal considers appropriate, either or both of the following—

(a) the grant of leave for such period as may be so specified;

(b) an award of compensation in favour of the employee to be paid by the relevant employer.

(3) Compensation under subsection (2) (b) 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 employee's employment calculated in such manner as may be prescribed.

(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.

Appeal from decision of rights commissioner.

33. —(1) A party concerned may appeal to the Tribunal from a decision of a rights commissioner in relation to a dispute 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 four 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) 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 oaths to be administered to persons attending as witnesses at the hearing.

(5) Any person who, upon examination on oath authorised under subsection (4), wilfully and corruptly gives false evidence or wilfully and corruptly swears anything which is false, shall be guilty of an offence and, on conviction thereof, be liable to the penalties for wilful and corrupt perjury.

(6) 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, and a person to whom such a notice has been given who—

(a) fails without just cause to attend in accordance with the notice, or

(b) having so attended, fails without just cause to give evidence or to produce any document to which the notice relates,

shall be guilty of an offence and liable on summary conviction thereof to a fine not exceeding £1,000.

(7) Proceedings for an offence under subsection (6) may be brought and prosecuted by the Minister.

(8) 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 (6) 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 (6), be sufficient evidence of the matters so stated unless the contrary is shown.

Appeal to High Court on point of law.

34. —(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.

35. —(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.

36. —(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 employee, 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 employee, 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 decisions and determinations.

37. —(1) A decision of a rights commissioner or 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.

(2) Where a decision of a rights commissioner or a determination of the Tribunal does not provide as mentioned in subsection (1), the decision or determination shall be deemed, for the purposes of this section, to provide that it shall be carried out within four weeks from the date on which it is communicated to the parties.

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

(a) the other party, or

(b) the Minister, if of the 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 that party to carry out the decision or determination in accordance with its terms.

(4) In subsection (3), 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 references in this section 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 the abandonment.

(5) In an order under this section providing for the payment of compensation, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct the relevant employer to pay to the employee 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 four weeks after the date on which the decision or determination concerned is communicated to the parties and ending on the date of the order.

(6) 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.