ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003690
Dispute for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00003693-001 | 06/04/2016 |
Date of Adjudication Hearing: 23/08/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 18 of the Parental Leave Act 1998 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
:
Complainant’s Submission and Presentation:
The complainant applied for three days force majeure leave and this was refused. The circumstances were such that her youngest daughter aged 11 at the time required her presence at home as she was taken ill during the night of 30th September 2015 and was ill for the following three days with gastroenteritis. The complainant did not have a childminder, nor was her family or her husband’s family living nearby. The complainant stated that she applied for the leave in accordance with S.I. 454/1998. She was denied the leave and appealed it to a higher manager, who determined that she could have one day’s leave. He stated that she should have foreseen that her daughter would be ill for more than one day and made alternative arrangements. However, as family were not nearby, this was not possible. |
The Act provides that force majeure leave must not exceed 3 working days in any 12 consecutive month period or 5 days in any period of 36 consecutive months.
It is submitted that the department of the HSE in which the complainant works has on many occasions sanctioned force majeure leave of more than one day for employees. It is further to be noted that the complainant took 1 day force majeure leave 14 years previous to this application and 2 days force majeure leave 12 years previous to this application.
Respondent’s Submission and Presentation:
The respondent notes that the complainant did not complete the internal grievance procedure. She submitted an application on 8/10/2015 for three days force majeure leave citing the nature of the illness being her daughters gastric bug from 30/9/2015 to 2/10/2015. This application was refused by her line manager as he believed the circumstances did not qualify for force majeure leave. The manager outlined that she could avail of annual leave or flexi leave. The complainant appealed the decision and was granted on appeal, one day’s force majeure leave. Of significance is that the appeals manager did not approve three days leave as he did not believe the application was of such a nature to meet such a high bar that would necessitate three days. It is submitted that force majeure leave is to cater for family emergencies not routine illnesses.
Decision:
Section 13(1) of the Act provides:
“An employee is entitled to leave with pay (force majeure leave) where for urgent family reasons, owing to the injury to or the illness of a person referred to in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home is indispensable”.
The Act also provides that force majeure leave must not exceed 3 working days in any 12 consecutive month period or 5 days in any period of 36 consecutive months.
The dispute referred here centres around the respondent’s interpretation. The respondent made a number of points regarding the “routine nature” of the child’s illness and the foreseeability of the situation. The respondent also stated in a number of letters to the complainant that she may wish to avail of flexi leave or annual leave. It should be noted that the Labour Court has found on many occasions that annual leave is for recreational purposes and for example, cannot be compensated for financially except in cases of cessation of employment. While I have a certain sympathy for the respondent in that 3 consecutive days force majeure leave would not be the norm and should only be granted in exceptional circumstances, a reading of the Act would indicate that 3 consecutive days is not disbarred. I note the evidence of the complainant that her daughter’s health background was such that the illness which occurred could not be considered routine. Whilst she stated that she made this point to the appeals manager, no mention of it was made in his findings. I accept the complainant’s evidence that in the circumstances and in her particular domestic and family circumstances, her immediate presence was indispensable for the duration of her daughter’s illness. For this reason, in accordance with Section 21 of the Act I find that the complainant should be granted the force majeure leave for which she applied.
Dated: 24th October 2016