ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019884
Parties:
| Complainant | Respondent |
Anonymised Parties | A shop worker | A retail chain |
Representatives | Mandate Trade Union | IBEC |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998 | CA-00026339-001 | 18/02/2019 |
Date of Adjudication Hearing: 03/04/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 18th February 2019, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Parental Leave Act. The complaint was scheduled for adjudication on the 3rd April 2019. The complainant attended the adjudication and was represented by Mandate. IBEC represented the respondent and three witnesses attended on its behalf.
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint 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.
Summary of Complainant’s Case:
On the 11th October 2018, the complainant received a phone call from her son’s school to say that he was sick and had to be collected. The complainant referred to the school’s letter to this effect. She applied for force majeure leave on her return to work.
The complainant submitted that there are two tests to be met in such an application: her presence had to be “indispensable” and “immediate”. The school required the complainant’s presence “asap” and in keeping with the Act, she had no choice but to collect her son from school on the 11th October. |
Summary of Respondent’s Case:
The respondent outlined that the complainant had 12 absences in the last 24-month period. Four related to children being sick. She did not apply for force majeure leave in respect of these previous absences. She only applied for force majeure leave when an investigation commenced into a separate matter.
The HR representative outlined that the letter from the school said that the child was weak and needed to be collected. This does not meet the immediate or indispensable requirements. This related to securing alternative childcare, which does not satisfy the requirements for force majeure leave. |
Findings and Conclusions:
Section 13 of the Parental Leave Act, 1998 provides: “(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… (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.”
As held by the Labour Court in Thermo King Europe v Nolan (PLD171), the Act can only have application on a day when all the circumstances set out in section 13(1) are present. There must be urgent family reasons owing to an injury or illness and the immediate presence of the employee must be indispensable.
I differentiate the situation in this case to that in ADJ-00004964, where the employee’s childcare fell through while the child was ill. In the instant case, the complainant’s child fell ill, and she was summonsed by the school to collect him. She did so. Her presence was, therefore, indispensable and immediately required. It follows that the complainant has met all the requirements in section 13(1) and the complainant is entitled to a force majeure day for the 11th October 2018. As this is her first application for force majeure leave, she has not exhausted her statutory entitlement to this leave. |
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.
CA-00026339-001 I decide that the complaint pursuant to the Parental Leave Act is well founded and the complainant is entitled to a day of force majeure leave for the 11th October 2018. |
Dated: 24th July 2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Parental Leave Act / force majeure leave |