EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
EMPLOYEE PL1/2012
against the recommendation of the Rights Commissioner in the case of:
EMPLOYER
under
PARENTAL LEAVE ACTS, 1998 AND 2006
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary BL
Members: Mr. F. Moloney
Mr. F. Keoghan
heard this appeal in Dublin on 3 September 2013
Representation:
_______________
Appellant(s):
Respondent(s):
No legal representation
The decision of the Tribunal was as follows:-
This case came to the Tribunal as an employee appeal under the Parental Leave Acts, 1998 and 2008, against Rights Commissioner Decision r-117116-pl-11/DI by which it was found that the employee’s wife had been suffering from a routine illness and that the employee’s absence did not meet the criteria for a force majeure day as provided for under the parental leave legislation.
Setting out the respondent’s position with regard to the employee appeal to the Tribunal (on the grounds that the substance of the original complaint had not been adequately dealt with), the respondent’s HR director (PD) stated that, as routine and predictable illnesses were not covered by the legislation, the appellant’s manager (TF) had not met the criteria for force majeure leave.
Section 13 (1) of the Parental Leave Act, 1998, provides that an employee shall be entitled to leave with pay from his or her employment (known as force majeure leave) where, for urgent family reasons, owing to an injury or illness, the immediate presence of the employee, at the place where the person is, is indispensable.
The appellant, a bus worker, had been refused force majeure leave in respect of Saturday 28 June 2011 when his wife had flu. Asked at the Tribunal hearing why his presence at home had been indispensable in these circumstances, he replied that his wife had been confined to bed such that she could not mind their children. Asked the ages of the children he said that the then ages of his children ranged from seventeen to four and that a son of twelve suffered from autism such that he went to a special school and received one-to one attention.
PD told the Tribunal that the appellant had previously looked for leave for the day in question (as far back as February 2011) and that the Champions’ League (football) Final was on that day. The appellant was refused the said leave but did not attend work that day and subsequently sought paid force majeure leave.
The appellant told the Tribunal that he had sought the day in connection with a nephew’s communion for which he had been asked to go to the church but that, ultimately, he was at home minding his ill wife and his children.
Asked if his wife had been ill before, the appellant replied that she had and that he had had to look after his autistic son. Asked about the gravity of his son’s autism given that there was a huge variation in what constituted autism, the appellant confirmed that the boy could dress himself and eat unaided.
TF (the appellant’s abovementioned manager) stated that the appellant had previously sought force majeure leave and had got it but that he (TF) had not been able to grant leave to the appellant on 28 May 2011.
Determination:
Having carefully considered the circumstances of this case, the Tribunal does not find that the presence of the appellant was indispensable at the place where his wife was and, therefore, must determine that this was not a case suited to force majeure leave
The appeal under the Parental Leave Acts, 1998 and 2008, against Rights Commissioner Decision r-117116-pl-11/DI fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)