Complainant

Respondent

Anonymised Parties

A General Operator

A Medical Company

Representatives

Appeared in Person

Catriona McKeating. IBEC

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-00028155-001

02/05/2019

On May 2, 2019, the Complainant submitted a complaint regarding not receiving parental leave in relation to her child born in 2013.

The case was set for hearing on 8 October 2019 and the complainant was the sole attendee. The hearing proceeded accordingly. The respondent requested a resumption in the hearing as they submitted that they had not been properly notified. I agreed to this request and both parties reconvened on 20 November 2019.

By then the complainant had left the business.

I summarised the complainant’s submission from the first day of hearing for the attention of both parties.

The respondent disputed the claim.

Final documentation was received from the complainant on November 20, 2019 and copies to the respondent.

The complainant worked as a production operator from 30 July 2001 to 31 December 2018. she worked a 19.5 hr week and received nett pay of €298.00 per week.

The complainant’s case was that she was denied parental leave. The complainant submitted that she had made a primary application in April 2018 and this was not processed. She then made a second application at the behest of her supervisor in October 2018, where she submitted that she complied with the 8-week notice required and was informed that she would have to wait until March 2019 to avail of the leave.

The complainant submitted that she had experienced several medical conditions which had caused her absence rate from work to rise from 2017. She also had a very young family.

The complainant submitted that during an earlier disciplinary procedure appeal concerning her absence pattern in June 2018, the management had suggested that she apply for parental leave, but she could not afford it at that stage.

The complainant could not accept the attempt at deferring her parental leave and she understood that a colleague working in the same section had secured parental leave. The complainant indicated that she was struggling with a very pressing set of personal circumstances. No further engagement followed, and she gave her verbal notice of leaving on 5 December and committed it to paper on 13 December 2018.

“I do not want to leave my job after 17 years and 5 months, but I feel I am burning out and am going to get sick and do not want to deal with the worry and stress of another warning.

I applied for Parental Leave giving 8 weeks’ notice, 2 more than required but my health cannot wait a further 10 weeks, 18 in total to have parental leave granted. This is the reason I feel I have no other choice but to hand in my notice “

She indicated that she did not want to leave her position but felt that she had no choice. The complainant submitted that a manager had penalised her for seeking parental leave as when she tried to discuss the leave application, she was informed “we will have to see how that goes? “

she was not requested to participate at an exit interview. she did receive a Christmas bonus. The complainant submitted that she had not been replaced since she left her position. Nobody had concluded the administrative part of her pension on leaving.

This experience had traumatised the complainant, who after 17.5 years of service felt worthless by being treated so poorly. she sought the remedy of compensation.

The respondent operates a 1200 workforce in a medical device plant and is a market leader. The respondent denied that the complainant was denied parental leave and instead, her application was deferred to accommodate a surge of activity on the plant. the question of penalisation did not arise

The respondent outlined that the complainant worked as a full-time product builder from 2001 to when she commenced a job-sharing contract in May 2017 as a production operator.

The respondent exhibited the company Parental Leave Policy and explained the various stages of application necessary. the policy was updated in October 2019.

The respondent submitted that the complainant had mentioned parental leave in passing or around July 2018 but had not applied in accordance with the policy. the respondent went on to reflect that during a disciplinary appeal, the complainant had informed the company that she would be unable to accept a suggestion of parental leave due to her economic situation.

The respondent exhibited an application for Parental Leave submitted by the complainant on 6 November 2018. this request could not be accommodated due to an intensive ramp up of activity where the complainant was core to this need. she was permitted a commencement date of March 2019. this action was permitted in accordance with section 11 of the Act and the complainant did not contest this decision by way of a grievance.

The respondent did not have a copy of the confirmation document or details of the postponement given to the complainant was communicated verbally.

The respondent acknowledged that the company had not undertaken an exit interview with the complainant as the dept had been very busy.

Legal arguments;

The respondent contended that any claim involving constructive dismissal was not properly before the hearing. Quoting section 18 of the Act, the respondent representative argued that any such claim would be statute barred.

The respondent always addressed the claim for parental leave and reaffirmed that the respondent acted in compliance with the Act and was permitted to defer the commencement of parental leave considering the exhibited surge in plant activity which demanded the complainant’s continuance at that time.

They advanced that the complainant was an experienced production operator who worked in a named section. The complain ant was one of only 3 people trained in this sector. training for back fill purposes takes a minimum of 6 weeks and there was not enough time to cover the complainant’s absence at that time. A high absence level of 15 employees co -existed with this scenario.

The respondent was clear that the complainant could start her parental leave in March 2019 and had no reason to resign from the company.

The respondent acknowledged that a changeover in staffing at the human resource dept had occurred around the time of the complainant’s departure and this was the reason that the exit interview may have been overlooked.

The respondent, in relying on section 11 of the Act, had not breached the Parental Leave Act. The respondent deferred the leave in accordance with the provisions of the Act and sought that the claim be dismissed.

I have carefully considered the claim as advanced by the complainant. it is somewhat regrettable that the case ran over two days for both parties. While I endeavoured to summarise the complainant’s presentation on day 1 of the hearing, which the complainant in turn augmented by evidence herself, the respondent had prepared and delivered a comprehensive submission, the process of reconvention was disjointed for both parties. I tried my best to ensure both parties were heard.

The case came for hearing on the foot of two granted postponements.

At the end of the hearing, I offered the parties an opportunity to engage privately on the claim. Both parties engaged but this did not conclude in a resolution.

The complainant worked on a job-sharing basis and I am satisfied that she is an employee and relevant parent for the purposes of the Act. Her claim is that by requesting parental leave during 2018, she was penalised and given a start date of March 2019, which in turn was impossible for her to honour. This caused her to tender her notice which was not acknowledged by her long-term employer.

The respondent, on the other hand has disputed the claim and had rebutted the claim for penalisation.

Parental leave evolved from EC Directive 96/34 and was brought into law in Ireland by the Parental leave Act 1998 and since amended in 2016 and 2019.

The legislation provides that unpaid leave will apply to parents of children born or adopted on or after December 3, 1993. an employment is deemed to be in employment during parental leave and all employment rights are protected.

Section 9 outlines the central operating document which tracks the agreement on parental leave between an employee and her employer. In this case, no such document was raised.

The complainant was working a job-sharing contract which was due for review in October 2017. while I appreciate that the complainant considered applying for parental leave during 2018, she had not filled an application form for the purposes of the Act.

While section 6 outlines an entitlement to parental leave, section 8 provides for the obligations of the applicant to make an application in writing.

Entitlement to parental leave.

6

6. — (1) Subject to this Act, an employee who is a relevant parent in respect of a child shall be entitled to leave from his or her employment, to be known and referred to in this Act as ‘parental leave’, for a period of 18 working weeks to enable him or her to take care of the child. (1A) The reference in subsection (1) to a period of 18 working weeks shall be construed —

(a) in the period from 1 September 2019 to 31 August 2020, as a reference to a period of 22 working weeks, and

(b) on and from 1 September 2020, as a reference to a period of 26 working weeks.]

(2) Subject to sections 10(4) and 11(6), a period of parental leave shall end —

(a) subject to paragraphs (b) and (c), not later than the day on which the child concerned attains the age of 12 years,

(b) subject to paragraph (c), in the case of a child who —

(I) is the subject of an adoption order, and

(ii) has, on or before the date of the making of that order, attained the age of 10 years but not 12 years,

not later than the expiration of the period of 2 years beginning on that date,

Section 6(4) of the Act entitles a relevant parent to parental leave in respect of each child. in the instant case, the female child was 5 years old.

Section 8(1) of the Act defines that the applicant must give notice in writing of her proposal to take parental leave.

Section 8(4) provides that where leave purporting to be parental leave is taken by an employee who is entitled to it but who has not complied with the terms of s8(1). The employer holds a discretion to consider the leave taken as parental leave.

The complainant has not provided any tangible evidence of a formal application for parental leave prior to November 6, 2018. I appreciate that she had teased it around in her mind and may have discussed it informally, however, the formal process appears to rest exclusively from 6 November 2018 and it that application that I will now consider further. the record of the application form was exhibited by the respondent as the complainant had not retained an original copy.

The complainant was clearly struggling in seeking to reach the company target for attendance in 2017 and 2018. she gave evidence of a series of unanticipated reasons for that absence as well as a range of personal issues running concurrently.

The respondent was aware of these and sought to manage the attendance by offering a range of supports in July 2018, none including parental leave were deemed viable at that time by the complainant.

I considered both the legislation and the Parental leave policy exhibited by the respondent, which I note was revised in October 2019. Neither party presented the version which was live during the period claimed by the complainant. I did notice that there was a variance in the application for parental leave. The form exhibited by the respondent dated 6 November 2018 was placed on a form entitled “Form A Notice of Intention to take Parental Leave “whereas the complainant submitted a much-altered templated form titled “Parental Leave Application Form” dated 15 October 2019. My analysis will centre on the first version as this is the form which prevailed in 2018.

Section 9(1) of the Act provides that a confirmation document is embodied not less than 4 weeks before the commencement of the parental leave concerned both parties are to retain a copy of same.

As I have stated a confirmation document was not raised in this case. The respondent attributed this to the supervening event of postponement as the complainant was deemed critical to operations.

This prompted me to consider the terms of section 10 and 11 of the Act carefully.

Section 10 describes

the confirmation document as the blueprint for agreement and it serves as the document from which changes, curtailments, postponements, sick leave can be discussed and agreed.

section 11(1) of the Act provides:

Postponement by employer of parental leave.

11

11.— (1) Subject to this section, where an employee has given a notice under section 8(1) to his or her employer and the employer is satisfied that the taking of parental leave at the time specified in the notice would have a substantial adverse effect on the operation of his or her business, profession or occupation by reason of seasonal variations in the volume of the work concerned, the unavailability of a person to carry out the duties of the employee in the employment, the nature of those duties, the number of employees in the employment or the number thereof whose periods, or parts of whose periods, of parental leave will fall within the period specified in the said notice or any other relevant matters, the employer may, by notice in writing given to the employee not later than 4 weeks before the intended commencement of the leave, postpone the commencement of the leave to such time not later than 6 months after the date of commencement specified in the relevant notice under section 8(1) as may be agreed upon by the employer and the employee.

(2) Before giving a notice under this section to an employee, an employer shall consult with the employee in relation to the proposed postponement of parental leave.

(3) A notice under subsection (1) shall contain a statement in summary form of the grounds for the postponement of the commencement of the parental leave concerned.

While the complainant accepts that she engaged in a consultation with the respondent, she has confirmed that she did not receive a statement outlining the postponement of the commencement of the leave. I was struck by an inconsistency here as the respondent had taken the time to record the outcome of a disciplinary appeal in a very comprehensive manner, they chose to rely on a verbal exchange as being fully complaint with the Act. I was also troubled that no notes had been retained by either party on the consultation which occurred under section 11 of the act.

I take issue with this interpretation by the respondent as section 11(5) of the Act provides that 11(1) does not apply where a confirmation document had been co-signed. The respondent had not taken the step of issuing the confirmation document where March 2019, the date on offer was listed. Therefore, the terms of section 11(1) have a special meaning here. There are there as a protection for the complainant in the spirit of the purpose of parental leave.

in addition, section 11(7) requires the employer to retain a copy of the notice of postponement. this was not done. I cannot accept that a grid extract of “activity ramp up “constitutes this required record.

While I accept that the respondent had scope and was permitted to declare a postponement of parental leave commencement date, they were on balance obliged to follow a certain declared pathway of consultation and written communication to the complainant. it is on the second leg of this obligation that the respondent erred in my way. This error has constituted a breach of section 11 of the act and regrettably ultimately served a chasm between the parties.

Section 16A (1) of the Act protects employees from penalisation.

Penalisation includes dismissal, unfair treatment, selection for redundancy and an unfavourable change in the condition of the employee’s employment.

The complainant contended that she was penalised in how she was treated post her application for parental leave.

I have considered her claim for penalisation under the auspices of “unfair Treatment “. I have heard both parties on this central point.

I am satisfied that the complainant was not treated fairly by the respondent in her application for parental leave. firstly, the terms of section 11 were not correctly applied in her case, which led to a vacuum in communication. The respondent stressed that this occurred due to a changeover in key staff. However, for me I found the submission of the complainant’s resignation was a cry for help which went unanswered by the respondent. of course, a resignation, should always be a “last reaction” and should only occur when internal procedures are exhausted.

However, in this case, the respondent had some knowledge of the gravity of the complainants demands in life in July 2018, October and November 2018. I believe that the respondent had a duty of care to keep a quiet eye on her welfare and by ignoring the resignation letter, when her specific reason for resignation was so overtly linked to parental leave, I find that the complainant was penalised by the respondent in the form of unfair treatment for her application for parental leave.

For me at least, the respondent did not adopt the usual ceremony on termination of employment, i.e. an exit interview, pension statement, letter of acknowledgement. I believe the complainant viewed the exit interview as an opportunity to restate her case for parental leave in January 2019, however misguided that may have been.

I have identified that but for the application for parental leave, the complainant would not have been treated in this manner. That was the antecedent event in the case. I was concerned that the respondent had earlier identified parental leave

I cannot pronounce a finding that the complainant was compelled to resign as the respondent correctly states that this course of action was not permitted in section 16(3) of the Act. However, I must find that the complainant was unfairly treated in her application for Parental Leave. I did not have the benefit of a real time policy outside that of 2019 version .

The complainants personal needs were not balanced with the company’s needs when the respondent failed to issue the summary document governing the postponement. In addition, when the complainant gave notice of leaving, she was ignored. I view this as a considerable oversight from the respondent not fully mitigated by the changeover in personnel and one in direct conflict with the spirit of the respondent’s policy on parental leave and the legislation itself.

I find the claim for penalisation to be well founded.

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.

Section 21 of the Parental leave Act 1998 requires that I decide in relation to the complaint in accordance with Section 16 A of the Act.

I have found the claim to be well founded. I have no scope to make any order on the parental leave itself as the employment relationship is over.

I believe that having regard for all the circumstances that an award of compensation is both just and equitable in the circumstances. I award the complainant the sum of €5,000 in compensation in respect of unfair treatment amounting to penalisation. I have made this calculation in accordance with the 1999 Parental Leave Regulations.

This award is not in respect of remuneration including arrears of remuneration.

Parental leave