Complainant

Respondent

Anonymised Parties

CDU Technician

Hospital

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-00013852-001

11/09/2017

The Complainant is employed as a CDU Technician since 2005. He is paid €766.37 per week. He has claimed a “Force majeure “day.

The Complainant stated that his wife had an accident at home on 8th August 2017. He had to bring her to the hospital and leave his 8-year-old daughter with neighbours. He and his wife didn’t get home until 3.00am on 9th. He was due to start work at 10.00am but could not make it as he had to look after his daughter and get her to school. He had to get a prescription for his wife and take care of her as her ligaments were torn. He phoned work and explained. He was unable to get help from his neighbours at such short notice. With the help of his neighbours he was able to go to work the next day. He requested a force majeure day for 9th but was refused. His presence was indispensible as his wife was unable to cope and he had had no sleep. He is seeking a force majeure day for 9th August.

Summary of Respondents Case

The Respondent acknowledged the challenging situation that he faced. However, for 9th August, he was not indispensable, the matter was not urgent or immediate. He should have been able to make arrangements to deal with the situation. So they decided not to grant a force majeure day. They instead offered him to take holidays, unpaid leave or work up the time. The Complainant rejected these offers of a solution. They stated that by the date of this hearing he has had already taken 3 force majeure days in 2017 on 26th May, 5th & 6th October. Under the Parental Leave Act eligible employees are allowed a maximum of 3 days in in any 12 month or 5 in days over 36 months. Therefore, he is not entitled to any more days in 2017. This claim is rejected.

Findings

I find that the accident occurred on 8th August 2017.

I find that the date being requested as a force majeure day was 9thAugust.

I note that on 9th August the Complainant did not return from the hospital with his wife until 3.00am that morning.

I note that their child was with a neighbour. The Complainant had to get a prescription for his wife and had to wait for a chemist to open as they live in the country side. He had to get his child ready and take her to school. He was due into work at 10.00am.

I find that on 9th August the Complainant’s presence was indispensable as this matter was very immediate.

I find that he was entitled to a force majeure day for August 9th.

I note that the Complainant submitted this complaint to the Workplace Relations Commission on 11th September 2017. By that date, he had only taken one force majeure day on 26th May and was seeking a second day for 9th August.

However, by the date of the hearing he had received three force majeure days for 26th May, 5th & 6th October.

Sec 13(4) states, “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.

Therefore, I find that by the date of the hearing the Complainant has received the maximum benefit available in a 12-consecutive month period.

I note that in awarding the force majeure day for 9th August will now mean that the Complainant will exceed his legal entitlement. However, I had to adjudicate on the merits or otherwise of the 9th August claim because at that date the Complainant had only had one force majeure day taken.

I find that the parties must adhere to the provisions of this Act.

The implications of this decision will obviously necessitate local discussions between the parties.

Decision:

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.

I have decided that the Complainant has an entitlement to a force majeure day for 9th August.

Parental Leave force majeure