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A question about maternity leave… November 25, 2012

Posted by WorldbyStorm in Uncategorized.
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Fergal asks the following question…

…on a different matter but related. Anybody au fait with maternity leave and labour law? A friend has just returned to work after maternity leave,back a few weeks. She was called in by her superior on Friday and told that she had been overpaid on maternity and now wolud have to pay back this money. There’s no union in her workplace. I’ll be contacting my own union tomorrow to see what’s possible . Initially she was told that she would have to give 45 per cent of her wages a month,this was then revised down to 30 per cent a month. She’s an immigrant and is afraid that if she kicks up she’ll get the door. She’s employed by one of the sexier(sexist?)multinationals.
1 Does she have to pay this money back(she made no mistake?)
2 Can she not pay 1 or 2 per cent for a longer period of time
3 what are her legal rights here?
Many thanks

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1. CL - November 25, 2012

‘She was called in by her superior’- ‘superior’- a somewhat archaic term still in use. Says much about the Irish caste system.

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Bartley - November 25, 2012

Sigh … I’m sure such junior common room platitudes are exactly what the woman in question wants to hear.

IANAL, but I would point out that the Payment of Wages Act, 1991, does explicitly allow an employer to make deductions in respect of prior overpayments of wages:

http://www.irishstatutebook.ie/1991/en/act/pub/0025/sec0005.html

However there may be wiggle room. For example if she was (even informally) given to understand by a manager that her normal salary level would be maintained by way of top-up from the state-provided maternity benefit (when in fact her contract didn\’t support this, or limited the amount of time she received the top-up to say 4 of the 6 months maternity leave). In that case, she could possibly make an argument based on legitimate expectation, or at least push for the repayment to spread over a long period.

If OTOH the over-payment related to say the portion of her wages covered by the maternity benefit paid through social welfare also being double-paid in error by the company, then she would be on far less solid ground.

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CMK - November 25, 2012

Ah, yes, the ultra-efficient private sector in operation. Eat your hearts out you inefficient sloths in the public sector!

For f**ks sake administering maternity leave payments should be standard operating procedure for any multi-national. Leitrim County Council would do it with their eyes closed surely an company ending with -soft, -ple, -gle or -ook could manage it, no? Surely, the multi-nationals can’t be falling down on such a basic function? A basic function which must be exercised regardless of the ideological context within which it takes place and which a multi-national would have fully trained its staff on the local laws. Unless, of course, said multi-national thinks that what it written in the Sindo are the laws applicable and misread some ISME ranter on page 39 (next to the motor ads) complaining about maternity leave payments?

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Bartley - November 25, 2012

Again I have to say, is raging against the MNC machine really what this woman wants to hear?

For once, can we just confine ourselves to practical advice on where she stands legally and how she might get herself out of the bind she find herself in without being left massively short.

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CMK - November 25, 2012

That’s cute, Bartley. Trying to pick apart sharp practice by a multinational (the heroes!!) is ‘raging against the MNC machine’. I can imagine you running about 1840’s Manchester telling the workers that the contaminated bread they were eating was better than the bread they would be eating were it not for the mill owners employing them. Indeed, I could imagine you trying to persuade a six year old chimney sweep, on the cusp of the banning child labour, that the legislation was not in the child’s best interest (‘keep climbing up those chimneys and someday you could be the chief chimney sweep, think about that!). Bartley, most here have probably read some parts of the neo-liberal cannon (Friedman, Von Hayek etc) have you read Engels’ ‘The Condition of the Working Class in England’? I think you should – if you have the attention span (a lot of right wingers, agitated by the prospect of a low paid worker earning a cent above the ‘market rate’, don’t really have time for attention spans). Good night and sweet dreams of your dearly beloved road to serfdom. (Neo-liberals, in keeping with the customs of their religion usually retire early to bed in deference to the practice of one of their deities, Margaret Thatcher. Bartley is probably retiring with a copy of ‘The Constitution of Liberty’ as I’m typing).

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2. Ivorthorne - November 25, 2012

I’m no expert, but would expect that she is obliged to pay it back, but the timeframe is another question.

How much she needs to pay back is another matter. 30% is ridiculous.

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3. Branno's ultra-left t-shirt - November 25, 2012

This was posted by CMK below the original post- it seems to make a great deal of sense to me.

‘I had a full response written and deleted it as I didn’t want to be giving misleading advice. But I’ll take the risk: 1) I’d ask for the request to be made in writing i.e. an email from HR or payroll detailing how much is due and the timeframe for repayment. Also, ask for the contractual terms that govern This at the very least creates a paper trail and that can be assessed by a third party if this goes any further. What an MBA sozzled manager thinks is permissible and what the law of the land regarding employer/employee relations dictates are often widely divergent and, equally often, supportive of employees in such circumstances; 2) your friend should consider joining a union as a ‘confidential’ member (SIPTU provide this, for instance). It may not be much use at the moment but if this escalates there will be some support and advice even if the employer doesn’t recognise unions; 3) ask the Revenue for a tax balancing statement which should detail what was paid during the maternity leave (there may even be a rebate there, it has happened); 4) the only time I’ve ever heard of something similar was when someone underpaid Income tax due to a payroll error and they had to pay it back to Revenue. Revenue came to a mutually agreeable arrangement. 30% sounds like a shakedown; and, finally, 5) contact an employee friendly solicitor (i.e. not one of the big flashy law firms who’ll invariably represent employers and charge top dollar). If there’s a sole practitioner who specialises in employment law give them a bell. Best of luck.

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4. smiffy - November 25, 2012

ICTU/Union Connect says this:

“If the employer overpaid you by mistake they can reclaim it , but the amount of the deduction, according to law should be “fair and reasonable”, taking all details of the particular circumstances into account.

If the deduction is related to an act or omission by yourself all details should be supplied to you in writing including the amount of the deduction, at least one week before the deduction is made.

Any deductions which may be made, have to be taken no later than 6 months after the act or omission became known to the employer. If there are a number of deductions to be made, the first one should be made within the 6 month period.”

Here: http://www.unionconnect.ie/rights/7/

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5. RosencrantzisDead - November 25, 2012

She should take her documentation to FLAC (Free Legal Advice Centre: http://www.flac.ie). They have centres throughout the state and will be able to advise her properly. They will, at the very least, give her an outline of her rights and indicate if it would be worth her while speaking to a solicitor.

I would also strongly advise her to gather up and bring her documentation (contract of employment, pay-slips, any records of maternity benefit paid over) with her. People tend to be poor historians and worse raconteurs when it comes to matters like this – paperwork is always to be preferred.

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6. Bartley - November 25, 2012

@CMK

Normally, I’d happily debate the finer points of being in the employ of an MNC (in most respects a million miles from being an underage chimney sweep).

But for once, I’m gonna zip my lip and not get in the way of this developing as a genuine advice thread that might actually help the person in question.

So with that, I’ll bid thee good night.

Hopefully there will be a happy resolution, or at least not too awkward a compromise …

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7. fergal - November 26, 2012

Many thanks to everyone(and esp. WbS) for their advice and tips,much appreciated.Will let you know what happens……..

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