PLD171

FULL RECOMMENDATION

PL/17/1

DETERMINATIONNO.PLD171

ADJ-00003077 CA-00004424-001

SECTION 19 (1), PARENTAL LEAVE ACTS, 1998 AND 2006

PARTIES :

THERMO KING EUROPE
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

BRIAN NOLAN
(REPRESENTED BY UNITE THE UNION)

DIVISION :

Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Adjudication Officer's Decision No: ADJ-00003077.

BACKGROUND:

2. An Adjudication Officer hearing took place on 28 June 2016 and a Decision was issued on 7 December 2016. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 22 December 2016 in accordance with Section 19(1) of the Parental Leave Acts, 1998 and 2006. A Labour Court hearing took place on 17 May 2017.

DETERMINATION:

The Court has given careful consideration to the submissions of the parties in this matter.

The Act at Section 13(1) provides as follows

13.—(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.

The Act provides a statutory entitlement to leave on grounds offorce majeure. In order for that entitlement to apply on a particular day it is necessary that the reasons are urgent and the immediate presence of the employee at the place where the injured or ill family member is is indispensable.

The injury to a family member which underlies the within matter occurred on 24^thMay 2015 and was medically treated on 25^thMay. The Court notes that leave on grounds offorce majeurewas afforded to the Complainant on 25^thMay 2015 and 26^thMay 2015. The Court notes that the decision to grant such leave on those dates is not before the Court. Consequently the Court is not required to decide the application of the Act to the leave of the Complainant on those dates. The matter before the Court on Appeal is the decision of the Respondent not to grant leave on grounds offorce majeureon 27^thMay 2015.

The Court concludes that the Complainant has not established that for urgent family reasons arising from an injury to a family member the presence of the Complainant at the place where that family member was on 28^thMay 2015 was indispensable. It is clear that the Act can only have application on a day when all of the circumstances set out in the Act at Section 13(1) are present. The Court is not satisfied that those circumstances can reasonably be taken to have been present more than three days after the occurrence of the injury which occurred to the Complainant’s family member on 24^thMay 2015.

The appeal fails and the decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court

Kevin Foley
22 May 2017______________________
MNChairman

NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.