ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006379
Parties:
| Complainant | Respondent |
Anonymised Parties | Receptionist | Doctor on call |
Complaint(s):
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-00008455-001 | 29/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 |
CA-00008460-001 | 29/11/2016 |
Date of Adjudication Hearing: 20/07/2017
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 13 of the Industrial Relations Acts 1969] 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).
CA -00008455-001
Parental, Carers, Maternity and Adoptive Leave
The claimant was employed by the respondent from the 18th July 2005 to the 12th April 2017. He submitted that on the 26th December 2015 and the 7th January 2016 he was urgently required at the hospital where his sister was seriously ill.
The respondent submitted that the first time the claimant raised the issue of “force Majeuer” was 4 months after the date set out. It was further stated that there was an obligation on the claimant to complete the form under the act as soon as he returned to work. In addition, under the act it is required that the individual is indispensable for an illness or injury.
Findings;
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.
(2) The persons referred to in subsection (1) are—
(a) a person of whom the employee is the parent or adoptive parent,
(b) the spouse of the employee or a person with whom the employee is living as husband or wife,
(c) a person to whom the employee is in loco parentis,
(d) a brother or sister of the employee,
(e) a parent or grandparent of the employee, and
(f) persons of such other (if any) class or classes as may be prescribed.
(3) When an employee takes force majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken and contain a statement of the facts entitling the employee to force majeure leave.
(4) Force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months.
(5) A day on which an employee is absent from work on force majeure leave in an employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (4), to be one day of force majeure leave.
I find that on the 26th December 2015 there was a situation that could be described as Murphy's law”
I find that the claimant at that stage would have been aware of the family difficulties.
In the special circumstances I am making the following,
Decision
I award the claimant Force Majeure for the day of the 26th December 2015 in full and final settlement of his claim
CA 00008460-001
Industrial relations Acts
The claimant submitted 2 issues to the Workplace Relations Commission
The claimant was employed by the respondent from the 18th July 05 to the 12th April 17 as a Receptionist. He was rostered to work on the 31st March 2016 from 18-00 to 23.00 hours
The claimant failed to clock out at finishing time and he was docked at total of €5.12. The respondent for their part stated that they have a time and attendance system in place. It was important that strict rules must be followed in its management.
Findings
I find that the respondent has a duty to ensure that at all time they are aware of the employees who attend work. The respondent equally has a right to take the appropriate disciplinary action against an employee that continuously fails to obey these rules. I find that at no stage was it submitted by the respondent that the claimant has frequently failed to clock out.
Recommendation
Section 41 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
That the claimant is paid the €5.12, however should he repeat this offence that he will be docked in accordance with the respondents procedures.
Dispute with regard to to increments for previous service.
The Union was seeking the claimants previous service with the Garda to be recognised and that he be placed on the appropriate point on the salary scale
The respondent submitted that the claimant did not go through the agreed internal procedures and they were not given an opportunity to address the issue
Findings
I find that the parties should fully utilise the internal procedures in the first instance to resolve their dispute
Recommendation
Section 41 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
The parties should utilise the agreed internal procedures prior to referring the matter to the WRC and this process should be completed on or before the 31st March 2018
Dated: 07/11/17
Workplace Relations Commission Adjudication Officer: Jim O'Connell
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