ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002200

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

Date of Adjudication Hearing: 17/08/2016

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 18 of the Parental Leave Act, 1998, 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).

Background

The Complainant was employed as a senior sales and marketing manager in a human health company. His complaint was received by the Workplace Relations Commission on 3rd March 2016 and a hearing took place in Davitt House, Dublin, on 17th August 2016. The complainant had just over 10 months service with the company at the time of his dismissal. His salary was agreed by the parties to be €12,800 gross per month.

Complainant’s Submission and Presentation:

The Complainant's Specific Complaint as per the Complaint Form states that he was "refused force majeure leave" and that he is seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998.   The Complainant's written Statement in the Complaint Form outlined the background to the case.

The Complainant submitted that he had been contacted in the early hours of Friday 13th November 2015, by his sister to tell him that their brother was seriously ill. He immediately went to the aid of his brother. He had left his phone at home. He had an appointment with his line manager, the CEO of the company, at 9.00 AM on the morning of the 13^th but due to this event he could not attend it. As soon as his brother stabilised he telephoned his line manager at 3.00 PM to apologise for not attending the meeting, explaining to him that he had unavoidable urgent family business to attend to regarding his brother. According to the submission, the CEO "summarily and aggressively dismissed" the Complainant saying that he could no longer work with him and deemed it an insult in not warning him or attending the meeting. The Complainant exchanged a text message to apologise once more but the CEO insisted that he was dismissed for gross misconduct. On 30^th November the Complainant's solicitors sent a document to his employer outlining the reason for his absence on 13th November stating that he had exercised his right pursuant to S13 of the Parental Leave Act 1998 (force majeure leave). Even at that stage the Complainant was offered no right to appeal or reinstatement.

In direct evidence the Complainant stated that he had left the office on Thursday evening (12th November) and had gone out for dinner. Things got frantic after he got the call from his sister about their brother. The Complainant gave details about what transpired in attending his brother, who was in a life threatening situation.

He was scheduled to meet the CEO the following morning for what should have been a positive meeting to discuss the Complainant taking on more responsibility.

In answer to a question the Complainant agreed that he should have called his CEO earlier on the 13th and that he had been out socially on the night in question.

The Complainant's representative drew attention to a phone text message sent by the CEO to the Complainant at 4.39pm on Friday 13th November which read:

"I could never even talk to you again never mind trust you. In my X years in [company name] I have never been treated the way you treated me today. Your employment is terminated forthwith for gross misconduct. You are not to appear at any [company name] facilities or places of business again. Please arrange to leave all company property back."

The veracity of this text message was accepted by the Respondent's representative.

The Complainant's representative submitted that after representations by him the Complainant's "account" had been settled in February 2016 when he was paid a sum which included Holiday Pay and Notice. Later in the hearing it was agreed by both parties that the Complainant had been paid a day's pay for the 13th November.  

The Complainant's representative went on to submit that his client had been penalised for invoking a right to take force majeure leave. That the criteria for invoking this right are not required by the Act. Despite this he was dismissed. His client did attempt to resolve the situation and was in contact with the company in the days after the 13th November but to no avail. The Complainant believed at that time that he had an opportunity to get his job back despite what had happened.

Respondent’s Submission and Presentation:

The Respondent's representative provided a detailed written submission. The written submission states that the Complainant was due to meet his CEO at 8.00 AM on Friday 13^th November 2015. The meeting had been scheduled for some time as the CEO is resident abroad and needs to schedule meetings well in advance. The Complainant did not show up for the meeting and only contacted the CEO at 4.18 PM that day, stating that he had been looking after his brother all night. The submission highlighted the explanation given by the Complainant for not contacting his CEO was that he did not have his phone with him.

A Force Majeure Request Form was submitted by the Complainant (through his solicitor) some 17 days later.

The Respondent's submission refers to the Complaint's Complaint Form and the reference in it to his dismissal. The Respondent submitted that such a claim is outside the claim made by the Complainant, which is a claim for an alleged failure to be provided with force majeure leave. The Respondent referred to and quoted from section 18(2) of the Act (as amended by the Workplace Relations act 2015). It is the Respondent's view that the Complainant's dismissal is outside the jurisdiction of the dispute/claim in question, and irrelevant in law to the claim being brought.

The submission continued to say that contrary to the Complainant's allegation he did not receive leave with pay for 13^th November he was in fact granted leave with pay for the day in question (this was not disputed). It is the Respondent's contention that as the Complainant received leave with pay for the 13^th November 2016 no claim under the acts arises.

The Respondent's submission then went on to cover the "Question of existence of force majeure". The Respondent questions whether, without prejudice to their position that no claim arises for the reasons set out above, the Complaint satisfies the criteria for the grant of force majeure leave under section 13 of the Acts.

The Respondent proposes that for an entitlement to arise, there must be an unforeseen illness or injury of a specified family member which requires the employee's immediate presence at the place where the family member is. The Respondent submits that it is not clear that these criteria were met in this instance and that although evidence was sought from the Complainant in this regard, aside from the Force Majeure request Form and the Complainant's verbal explanation to the CEO, no collaborating evidence had been provided. The Respondent went on to state that activity on the Complainant's company credit card creates uncertainty as to whether the criteria for force majeure leave were met in this instance. A record of telephone activity indicates that the Complainant contacted a number in the United States at 4.59am on the morning of 13^th November, just three hours before the scheduled meeting with the CEO, yet the Complainant did not contact his CEO until the 4.18pm on the 13^th November.

The Respondent also cited section 13(3) of the Acts and contends that as the Complainant's request for force majeure was not made for 17 days after the date in question that the request was not submitted as soon as reasonably practicable. The Respondent's representative submitted that if the claim for force majeure leave was not legitimate then a claim for penalisation cannot stand.

In conclusion the Respondent stated that the Complainant has no entitlement under section 13 of the Acts as he has been paid for the day in question and that it is not clear that the Complainant has satisfied the criteria for the granting of force majeure. The Respondent also reiterated their view that any reference to dismissal by the Complainant is entirely outside the jurisdiction of the claim referred to the Workplace Relations Commission.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act and/or Section 18 of the Parental Leave Act, 1998.

Issues for Decision:

The Specific Complaint, as per the WRC Complaint Form, is brought under section 18 of the Parental Leave Act 1998 and in the Complaint Specific Details or Statement section of the same form reference is made to section 13 of the Act.

Issue 1

In the Complaint Form the Complainant states that "I was refused force majeure leave." So the first issue for decision is whether the Complainant was refused force majeure leave.

Issue 2

The second issue for decision relates to the alleged dismissal and it is whether it is within the jurisdiction of the claim in question or whether it is irrelevant in law to the claim being brought. The Respondent believes it is not and refers to section 18(2) of the Acts as amended by the Workplace Relations Act 2015, to validate this argument.

Issue 3

The third issue for decision is whether the Complainant was penalised by way of dismissal for exercising his entitlement to force majeure leave.

Legislation involved and requirements of legislation:

Issue 1

The first issue for decision is whether the Complainant was refused force majeure leave? Section 13 of the Act refers to force majeure leave:

Leave on grounds of force majeure.

3. —(1) An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.

Decision:

It was agreed by both parties at the Hearing that the Complainant was paid for Friday 13^th November, therefore force majeure was granted, and this complaint fails.

Issue 2

The second issue relates to the legitimacy of the claim of dismissal made by Complainant and whether it is within the jurisdiction of the claim in question or whether it is irrelevant in law to the claim being brought?

The Respondent referred to section 18 of the Act to validate their argument however, section 16A of the Act covers the penalisation by dismissal of an employee for exercising their entitlement to force majeure leave:

Protection of employees from penalisation.

(2) Penalisation of an employee includes—

(a) dismissal of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the conditions of employment of the employee.

(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in subsection (2)(a), the employee may institute proceedings under the Unfair Dismissals Acts 1977 to 2005 in respect of that dismissal and such dismissal may not be referred to a rights commissioner under Part IV.

(4) An employee who is entitled to return to work in the employment concerned in accordance with section 15 but is not permitted by his or her employer to do so—

(a) shall be deemed to have been dismissed on the date on which he or she was entitled to so return to work and the dismissal shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2005, to have been an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal, and

(b) shall be deemed for the purposes of the Redundancy Payments Acts 1967 to 2003, to have had his or her contract of employment with his or her employer terminated on the date aforesaid. ]

Decision:

The Act states that penalisation includes dismissal and that an employee may institute proceedings under the Unfair Dismissals Acts 1977 to 2005 in respect of that dismissal and such dismissal may not be referred to a rights commissioner under Part IV. In this instance the Complainant has not instituted proceedings under the Unfair Dismissals Acts 1977 to 2005 and therefore may refer their dismissal to a rights commissioner, as per section 18 of the Act. The claim of penalisation by dismissal is legitimate.

Issue 3

The third issue for decision; was the Complainant was penalised by way of dismissal for exercising his entitlement to force majeure leave?

The Complainant was dismissed on the afternoon of 13^th November 2016, the day he sought to exercise his entitlement to force majeure leave. Although the company had serious doubts over the facts surrounding the taking of this leave, it was subsequently granted (the employee did receive a full day's pay for 13^th November). From the evidence adduced at the hearing I believe the Complainant's attendance at his brother's side fell within the requirements for the exercise of force majeure leave as laid down in section 13(1). It is noted that the Complainant did not help the situation by not contacting his CEO until the afternoon of 13^th to appraise him of the situation; more is expected of a senior manager.

Whatever doubts the company may have had over the request for force majeure leave, the contents of the text message sent by the CEO to the Complainant on the afternoon of 13^th November, (the veracity of which was not denied by the Respondent), are of vital importance when assessing the validity this claim.

The contents of the text message demonstrate that there was no regard whatsoever for fair procedures. The employee did not receive any warning. An attempt at rapprochement fell on deaf ears. On the evidence presented, whatever the perceived slight, the dismissal was totally disproportionate.

Decision:

Having given much consideration to the matter I am satisfied that the Complainant was penalised by way of dismissal for exercising his entitlement to force majeure leave.

Section 21 of the Act covers the award of compensation.

Decision under section 41 or 44 of Workplace Relations Act 2015.

1. section 41 of the Workplace Relations Act 2015 in relation to a dispute between an employee and his or her employer relating to the entitlements of the employee under this Act (or any matter arising out of or related to those entitlements or otherwise arising under this Act) or a decision of the Labour Court under section 44 of the said Workplace Relations Act 2015 on appeal from the first-mentioned decision, may contain such directions to the parties concerned as the adjudication officer or the Labour Court, as the case may be, considers necessary or expedient for the resolution of the dispute or matter and such other redress as the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all of the circumstances and the provisions of this Act, and accordingly may specify—

(a) the grant to the employee of parental leave of such length to be taken at such time or times and in such manner as may be so specified,

(b) an award of compensation in favour of the employee concerned to be paid by the employer concerned, or

(c) both a grant referred to in paragraph (a) and an award referred to in paragraph (b).

(2) An award of compensation referred to in subsection (1) (b) shall be of such amount as the adjudication officer or the Labour Court, as the case may be, considers just and equitable having regard to all the circumstances but shall not exceed 20 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed.

I have decided that the complaint is well founded. I believe there is a causal connection between the taking of the force majeure leave and the dismissal. As the Complainant was penalised by way of dismissal compensation is warranted. Taking into account the Complainant's relatively short service, I direct the Respondent award the Complainant compensation of €48,000 (15 week's pay), which I believe is just and equitable having regard to all the circumstances.

This to be paid within six weeks of the date below.

Dated:   21 October 2016