ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003077

Complaint(s)/Dispute(s) for Resolution:  

Date of Adjudication Hearing: 28/06/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant submits that his eight year old daughter sustained a broken arm on Sunday the 24^th of May 2015 and that as a result he applied for three days of force majeure leave on the following three days. The circumstances of the application are unique in that a court order sets out the terms of his access and provides that he care for her on six days in every fortnight. Furthermore he did not have alternative family support, she was in great pain and anxiety in that she was completely helpless initially and he was left with no other choice or option in the matter.

Respondent’s Submission and Presentation:

The respondent submits that it took the decision not to grant the third day of force majeure leave on the basis that the situation extant on the particular day (recovery from a broken arm) was not an unforeseen event (meaning illness or injury on the day)requiring the immediate and indispensable presence of the complainant. There was at that point sufficient time to have made suitable alternative arrangements or take annual leave if he was unable to do so. It is the sudden and unforeseen nature of the illness or injury that precipitates entitlement under the Act.

Decision:

Prior to coming to a decision in this case I would wish to acknowledge the difficult position the complainant found himself in and commend him on the concern shown and support he gave to his young daughter in this case. I would note that there is a particular difficulty which arises where employers make a grant of annual leave days in these cases in that the provisions of the Working Time Act, 1997 may be breached if the annual leave days which the employee is required to take are discounted from the statutory entitlement. I note that the complainant has argued that the respondent was not consistent in that the grant of the first day of Force Majeure leave implies that the whole entitlement is justified however I do not think this argument is sustainable. I also note the complainant was apprehensive in the matter of the court order in respect of his access however it has not material bearing on the statutory entitlement deriving from this enactment in my opinion.

I find that the respondent has been able to justify the non-grant of the third day of Force Majeure leave in this case and I am satisfied that it has successfully done so on the basis of the three criteria outlined at s. 13 (1) of the legislation (urgent, immediate and indispensable).

The complaint therefore is not well founded.

Dated:   7^TH December 2016