ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014520

Parties:

Complaint:

Date of Adjudication Hearing: 11/07/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and following the referral of the complain to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

BACKGROUND.

The Complainant is employed as a Technician with the Respondent since 20th October 2005. He is paid £773.29 gross per week and he works 20 hours a week. He referred a dispute to the Workplace Relations Commission on 28th April 2018 in relation to a dispute concerning Force Majeure Leave.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant stated that he had been granted Force Majeure Leave on 6th October 2017 by the Respondent. The Complainant confirmed to the Hearing that he had in fact 4 Force Majeure Leave days in 2017 as follows – 26th May 2017 – 9th August 2017 – 5th October and 6th October 2017. The Complainant stated that he had been refused Force Majeure Leave for 9th August 2017 but he had taken a complaint to the WRC which was heard and adjudicated on by an Adjudication Officer on 5th December 2017 and he issued his Decision in favour of the Complainant on 14th February 2018. However in the meantime the Complainant was informed by the Respondent that the day of 6th October 2017 would now have to be taken as a day of annual leave or unpaid day.

The Complainant argued that according to the legislation he was entitled to a maximum of 5 days in any period of 36 months and that as he had now only been granted and paid for four days he was within the limit of the legislation.

SUMMARY OF THE RESPONDENT’S POSITION.

The Respondent stated that they accepted the decision of the Adjudication Officer issued on 14th February 2018 and had granted the Complainant Force Majeure Leave for 9th August 2017. However their position in relation to the legislation was that an employee can only take 3 days Force Majeure Leave in any 12 month period and that the total number of days within a 36 month period cannot exceed 5 days. They stated that when they had approved Force Majeure Leave for 5th and 6th October 2017 this was on the basis the WRC Decision in respect of 9th August 2017 was still pending and only one Force Majeure Leave had been taken by then i.e. 26th May 2017. As a result of the WRC Decision of 14th February 2018 the Complainant had now exceeded the limit of three days in any 12 month period. The Respondent proposed to the Complainant that he could either take annual leave, unpaid leave or time could be worked back for 6th October 2017. None of these options was agreeable to the Complainant.

FINDINGS AND CONCLUSIONS.

Section 13(4) of the Parental Leave Act, 1998 provides as follows – “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 months”.

The law is very clear, an employee is only entitled to 3 days Force Majeure Leave in any period of 12 consecutive months. The Complainant had his first Force Majeure Leave Day on 26th May 2017. He applied for Force Majeure Leave on 9th August 2017 which was not granted as the Respondent decided the Complainant was not “indispensable” as provided for at Section 13(1) of the Act. The Complainant lodged a complaint with the WRC on 11th September 2016 and the complaint was heard on 5th December 2017 and a decision issued on 14th February 2018. However in the meantime the Complainant had been granted Force Majeure Leave for 5th and 6th October 2017 and the Adjudication Officer who adjudicated in that case acknowledged that at the date of the Hearing on 5th December 2017, the Complainant had received the maximum benefit of 3 days available in a 12 month consecutive period. The Adjudication Officer in that Decision clearly stated “The implications of this decision will obviously necessitate local discussions between the Parties”. ADJ 00010429 refers.

There were discussions between the Parties following the Decision of the Adjudication Officer issued on 14th February 2018, but there was no agreement between the Parties and the Respondent deducted 4 hours from the Complainant’s salary in May 2018. The Complainant is seeking that the 6th October 2017 should be classified as a Force Majeure Day even though this would mean the Complainant would have exceeded the maximum of 3 days allowed in any period of 12 months as provided for in the Act. .

I find that the Complainant has exceeded the maximum of 3 days in any consecutive 12 month period beginning on 26th May 2017. There was no complaint to the Workplace Relations Commission under the Payment of Wages Act, 1991 in relation to the deduction of 4 hours pay from the Complainant in May 2018.

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.

On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded as the Complainant has exceeded the maximum of 3 days in any consecutive 12 month period as set down by law under Section 13(4) of the Parental Leave Act, 1998.

Dated:   4th October 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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