Complainant

Respondent

Parties

A crèche assistant

A crèche

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00006977-001

13/09/2016

The complainant is a crèche assistant and works in the respondent crèche, located in a fitness and leisure centre. Her employment commenced in 2006 and she remains an employee of the respondent. She works 20 hours per week.

The complainant outlined that she took a force majeure day on the 18^th July 2016 as her son was unwell. He had a high temperature and the complainant decided to keep him at home. She arranged for a colleague to cover her shift and informed both her manager and the general manager. On her return to work, the complainant was informed that the respondent had not approved this day as a force majeure day. The complainant claims that an unlawful deduction of €50.18 was made to her pay.

In evidence, the complainant said that her son had become ill on the 17^th July 2016. Her mother in law usually looked after the children, but she rang to say that she could not do so as she accompanied her husband to hospital, who was not been feeling well. The complainant’s son was then four years old and continued to feel unwell that day. Her son could therefore not go to summer camp or to accompany her husband to his place of work. The complainant rang her supervisor to arrange cover, who also agreed that the complainant could stay with her son. The complainant also contacted the general manager.

On the complainant’s return to work on the 19^th July 2016, the supervisor declined to fill in the form for the force majeure day. The respondent then informed the complainant that she had to take an annual leave day or would lose the income.

In reply to the respondent, the complainant explained that she had used the word “away” in her text message of the 18^th July 2016 to indicate that her parents in law were not available, as opposed to being on holiday. She had phoned the general manager after the meeting of the 16^th August 2016 to clarify that her mother in law had changed her mind about attending the hospital appointment. She said that she usually worked 22 to 24 hours per week and there had been no actual change to the rota. The deduction was made in respect of the 18^th July 2016. She said that she had been provided with the policy regarding care for dependents when she had asked for a force majeure day. In respect of a more recent force majeure day, she had a hospital letter regarding this day. The complainant also referred to her letter of the 11^th August 2016 setting out her claim.

The general manager said she received the text message from the complainant regarding the 18^th July 2016. The respondent operated a policy regarding time off to care for dependents and she received advice following the complainant’s message. While cover was arranged for the shift, this person was then six months pregnant and it was not ideal for this person to work six days in a row.

A meeting was held on the 16^th August 2016 to discuss the circumstances around the day’s leave. The general manager referred to the minutes of the meeting, in particular that the child had a temperature, there was no doctor’s note, and her parents in law had attended a hospital appointment and the alternative plan where the child would have accompanied his mother to work and later to be collected by his father. The general manager received advice that the minutes did not merit a force majeure day. She said that the complainant’s son did not attend a hospital emergency room or a doctor. While her father in law had attended hospital for an appointment, her mother in law had chosen to accompany him. She commented that the complainant worked up the hours, so no deduction was made to her pay.

In reply to the complainant, the general manager said that the complainant availed of three force majeure days prior to the 18^th July 2016 and one had been taken since. She distinguished between company policy regarding care for dependents and force majeure leave, as the policy applied when force majeure did not arise. A force majeure day is recorded on the clock-in card and on the pay slip.

In correspondence submitted after the adjudication, the general manager stated that the complainant had taken three days force majeure leave in the last two years. They were 3.5 hours on the 4^th February 2015, four hours on the 8^th April 2015 and 5.5 hours on the 28^th September 2016.

The complainant asserts that she was entitled to take a force majeure day on the 18th July 2016 when her son became unwell with a temperature. Her family support was not available as her mother in law accompanied her husband to a hospital appointment at a time he was in pain. The complainant states that a subsequent deduction made to her pay was in contravention of the Payment of Wages Act. The respondent denies that the circumstances constitute a force majeure day and referred to its time off to care for dependents policy. This provides that the employee can take annual leave or otherwise work up the hours.

The policy referred to by the respondent is ancillary to the entitlement of a parent pursuant to the Parental Leave Act, 1998. This provides that a parent is entitled to force majeure leave of up to three days in a period of 12 months or five days in a period of 36 consecutive months.

Section 13 of the Parent Leave Act provides:

As held by the Labour Court in Thermo King Europe v Nolan (PLD171), 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. Having considered the facts of this case, I do not believe that the complainant has shown that all elements of section 13 applied. While the complainant’s son was certainly ill and the complainant faced the difficult task of securing childcare at short notice, I find that the complainant has not met the “immediate” and “indispensable” criteria set out in section 13.

For these reasons, I find that the complainant is not entitled to a force majeure day for the 18th July 2016. The respondent was therefore entitled to address the leave taken by the complainant on this day according to its policy on taking leave for dependents. This includes the employee making up the hours at another time, which is what occurred. It follows that the deduction was not unlawful and the claim made pursuant to the Payment of Wages Act is not well-founded.

CA-00006977-001

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons outlined above, I find that the complaint made pursuant to the Payment of Wages Act is not well-founded.

Section 13, Parental Leave Act

Thermo King Europe v Nolan (PLD171),