ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013738

Parties:

Complaint(s):

Date of Adjudication Hearing: 28/01/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

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

Background

The claimant has worked for the respondent since 11th November 1997 as a process operative. The claimant has sought and been approved for force majeure leave on 4 occasions between 2004 and 2016.

This case revolves around a claim for force majeure in respect of the 3rd November 2017, which was not approved by the respondent.

Claimant’s position

The Claimant says that he rang in to work on the 3rd November 2017 @ approx. 17.30 and explained to the Team Leader for D-shift, that he wouldn’t be coming to work due to his mother falling ill whilst in Cork city and had to be rushed to hospital, she has an existing heart problem. The claimant also states that he informed the Shift leader that that he only finished work that morning and had been woken at 11am with the news of his mother falling ill and had to go to the hospital.

The claimant also states that he informed the shift Leader that he would be looking to claim force majeure leave for that night.

On the 9th November 2017, the claimant lodged his claim for force majeure leave, following which the respondent denied the claim because it didn’t have a medical certificate or a letter from the hospital concerned.

Respondents’ position

The respondents’ position is one that entails details of policy change on 14th April 2016, due to concerns about potential abuse of force majeure leave. This amendment included that “all requests for Force where appropriate, must be accompanied by evidence of the illness certified by the medical practitioner, or a letter from the hospital where the immediate family member attended”, as a note “this section was included as some managers were not comfortable probing staff members in detail about individual family members’ health circumstances”

The respondent states that the claimant was not co-operative with his team leader when asked for further details regarding the claim for force majeure. It was further submitted that the claimants claim for force majeure was not in accordance with the company policy or the legislation. The respondent also stated that under the act, force majeure is a qualified entitlement which only exists provided factual circumstances exist, that it is clear under the act that the onus is on the employee to demonstrate that he/she qualifies for the leave and that the claimant refused to do so on this occasion.

Findings

Both parties made written and verbal submissions at the hearing

Section 13 of the act states

—(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.

(2) The persons referred to in subsection (1) are—

(a) a person of whom the employee is the parent or adoptive parent,

(b) the spouse of the employee or a person with whom the employee is living as husband or wife,

(c) a person to whom the employee is in loco parentis,

(d) a brother or sister of the employee,

(e) a parent or grandparent of the employee, and

(f) persons of such other (if any) class or classes as may be prescribed.

(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.

(5) A day on which an employee is absent from work on force majeure leave in employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (4), to be one day of force majeure leave.

I find that the facts of the case are not in dispute.

I find that claimant was on Night shift went to bed and at 11 am received a call that his mother was taken to the hospital.

I find the claimant went to the hospital as he is his mothers’ sole carer.

I find that approximate 17.30pm the claimant telephoned the Shift Leader on duty at the time to inform him that as he was due to work that evening he would not be in because he was his mother was taken to the hospital.

I find that it was stated that he (Claimant)would be applying for a Force Majeure day.

I find that the claim was made 9th November 2017, which is within the time frame as given by the act.

I find that the claimant could have been more open in the Force Majeure form details of the emergency that occurred.

I find that this issue should have been resolved at the local level.

I find that the team leader who received the phoned call should have passed the message onto this counterpart on the following shift .

In the interest of better communication I am making the following

Decision:

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

I find that based on the circumstances of this case I am awarding the claimant 1 day as Force Majeure in accordance with the legislation.

Dated: 30th May 2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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