Complainant

Respondent

Anonymised Parties

An Operator

A Manufacturing Company

Representatives

SIPTU

IBEC

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-00029323-001

26/06/2019

The Complainant referred his claim to the Director General of the WRC on 26th June 2019 in respect of a dispute regarding the Respondent refusal to grant him two days of force majeure leave.

SIPTU, on behalf of the Complainant submits that on Monday 27th May 2019 the Complainant became aware that his granddaughter (aged 3) had a serious accident and was attending [named] hospital. Owing to the serious nature of her injuries the Complainant’s granddaughter was admitted to hospital to allow for various medical tests and scans to be conducted. Unfortunately, throughout the course of the week the prognosis increased in severity and uncertainty regarding her treatment ensued. On Thursday 30th May 2019 the Complainant was contacted by his daughter who was distraught as the child was being transferred to Crumlin Children's Hospital by ambulance. The ambulance could only facilitate the transport of one parent and a nurse with the child. Having exhausted other options, the only way the child's mother could get to Dublin was if the Complainant drove her behind the ambulance. Given the urgency of the situation the Complainant was at this point indispensable to his daughter, she had no-one else on whom she could call. The Complainant had to immediately attend to deal with the emergency situation. The Complainant remained in the hospital overnight with his family to provide the necessary support which was crucial for them at that time. On the 31st May, 1st and 2nd June 2019 the Complainant stayed with his granddaughter during this very worrying period. On his return to work on Monday 3rd June 2019 the Complainant completed the appropriate application form for force majeure. The Respondent refused to grant leave under the circumstances. The matter was appealed to the Operations Manager in line with company policy. An appeal meeting took place on Friday 7th June. The Complainant received the outcome via email dated 16th June 2019 which advised that the appeal had failed. UNIONS ARGUMENTS An employer has obligations under the Parental Leave Act 1998 and Section 13 specifies that “An employee shall be entitled to leave with pay form 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 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” The Act is silent on rules or guidance in interpreting the criteria for the granting of force majeure leave and therefore a reasonable subjective test needs to be applied to the circumstances. It is the Complainant’s position that he did not have prior knowledge that his granddaughter would be transferred to the National Children's Hospital. It is true to say that expert consultants were reviewing the medical evidence and were in contact with her treating practitioners in the [named] hospital. The decision to transfer the child was only made on Thursday 30th May 2019 at which point the circumstances became an emergency and required urgent action. The Complainant took force majeure leave on 30th and 31st May 2019 because for urgent family reasons, owing to the illness of his granddaughter, his immediate presence was indispensable. The European Directive 96/34 and the implementation of the framework agreement was anticipated to provide that workers could reconcile their occupational and family obligations. The Complainant remained at work from the 27th to 29th of May and only left work on receiving information that he was required as a matter of urgency to attend his family obligations as a father and grandfather. CONCLUSION SIPTU appreciates the difficulties that the particulars of this legislation provide however it is imperative that we consider the point of view of the Complainant at the time the decision was made to leave work to take care of a family crisis. SIPTU cites Ann Carey v Penn Racquet Sports Limited in support of its position.

The Respondent submits that on Monday 3rd June 2019 the Complainant applied for force majeure leave in respect of two days, Thursday 30th May and Friday 31st May 2019. This application was made via email to the HR Department and cited an accident sustained by his granddaughter the previous Monday 27th May 2019.

This email states "following on from a serious accident last Monday 27th May which involved my grandchild..things escalated on thurs whereby my granddaughter was transferred to the National childrens hospital in Dublin i had to leave work unexpectantly and travel with my daughter to Dublin. I was in Dublin for a number of days due to this unexpected family emergency therefore i wish to claim for the time lost true force majore as this was totally unexpected and an emergency for which I was needed at home"

The application was rejected for the reasons as set out in the memorandum attached to an email dated 4th June 2019. The Respondent stated in this memorandum that as the family emergency took place on Monday 27th May and the leave was applied for in relation to the following Thursday and Friday the 30th and 31st May respectively and "therefore do not constitute emergency family leave as they were after the family emergency".

The Complainant appealed this decision and an appeal meeting was held with the Complainant on Friday 7th June 2019. The basis of the appeal was that, although the accident occurred on Monday 27th May, things escalated between Wednesday evening 29th and Thursday morning 30th as his granddaughter had to be transferred by ambulance to Dublin and he was required to drive his daughter to Dublin. The outcome of the appeal was to uphold the decision by HR on the basis that it did not meet the basic definition of force majeure leave as being urgent, immediate and indispensable.

RESPONDENT ARGUMENTS

Force majeure leave is governed by section 13 of the Parental leave Act 1998 as amended and states as follows; (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) a person other than one specified in any of paragraphs (a) to (e), who resides with the employee in a relationship of domestic dependency

2(A) For the purposes of subsection (2)(f)—

(a)  a person who resides with an employee is taken to be in a relationship of domestic dependency with the employee if, in the event of injury or illness, one reasonably relies on the other to make arrangements for the provision of care, and

(b) the sexual orientation of the persons concerned is immaterial.

(2B) Paragraph (b) of subsection (2A) is not to be taken to limit in any way the classes of persons in respect of whom an employee is entitled to force majeure leave by virtue of subsection (2)(f) It is clear that based on the facts presented by the Complainant that his granddaughter is not a person referred to in subsection (1) as set out in subsection (2). Whilst this covers a grandparent of an employee there is no reference to grandchild and therefore on a plain English interpretation this legislation does not apply to the scenario presented. If the Claimant is alternatively alleging that his presence was required to drive his "distraught daughter" to Dublin it is submitted that this too falls outside the above definition which states that owing to an injury to or the illness of a person specified in subsection (2). Whilst his daughter may understandably have been distraught this does not constitute an illness or injury.

CONCLUSION

The Respondent submits that the matter quite clearly does not come within the definition of force majeure leave as set out in section 13 of the Parental Leave Act 1998. The Complainant’s grandchild is not a person as specified in subsection 2 thereof.

Furthermore, the circumstances as set out in section 13(1) of the Act were not present and the Claimant has not established that for urgent family reasons, owing to an injury to or the illness of a family member his immediate presence was indispensable. The fact that the accident occurred on the Monday and the leave is applied for the Thursday and Friday is contrary to the intention of the legislation.

The Respondent refers to the Labour Court determination PLD171 wherein the Court stated that "it was clear that the Act can only have application on the day when all the circumstances set out in the Act at Section 13(1) are present”. It also said it was "not satisfied that those circumstances can reasonably be taken to have been present more than three days after the occurrence of the injury".

In light of the foregoing the Respondent asks the Adjudicator to find in favour of the Respondent and hold that the complaint is not well founded

Section 13 of the Parental Leave Act, 1998 stipulates as follows:

“Leave on grounds of force majeure

(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) a person other than one specified in any of paragraphs (a) to (e), who resides with the employee in a relationship of domestic dependency.

(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.”

The Complainant, by way of email dated 3rd June 2019, applied for force majeure leave in respect of 30th and 31st May 2019. The Complainant clearly outlines that the request follows on from a serious accident on 27th May 2019 which involved his grandchild. The grandchild was subsequently transferred to Dublin and the Complainant was required to travel to Dublin with his daughter. He remained there for a number of days due to this unexpected family emergency. In the email of 4th June 2019, the Complainant states that “…the situation has changed and it was far more serious than first thought and my granddaughter was in a serious situation and had to be transferred to the national childrens hosp then it became a family emergency …”

Moreover, in the SIPTU submission it is argued that the Complainant took force majeure leave because of “urgent family reasons, owing to the illness of his granddaughter…”

It is clear from the above that the serious accident and serious family emergency involved the Complainant’s grandchild. Section 13 of the Act details the persons in respect of whom there is an entitlement to force majeure leave. A grandchild does not fall within the scope of the Act and therefore, the Complainant has no entitlement to force majeure leave in respect of his granddaughter.

For completeness, I note that at the appeal meeting on 7th June 2019, the Complainant stated that, as the grandchild was moved to Dublin on 30th May 2019, he had to finish work early to drive his wife and distraught daughter to Dublin. In the submission at the adjudication hearing, SIPTU argued that the only way the Complainant’s daughter could get to Dublin was in the Complainant drove her behind the ambulance. SIPTU argued that, given the urgency of the situation the Complainant was at this point indispensable to his daughter. While a spouse and a child clearly fall within the scope of the Act, I note that, the Complainant’s application of 3rd June 2019 did not refer to either. Furthermore, while understandably the Complainant ‘s daughter was distraught, the Act provides that the leave is granted “for urgent family reasons, owing to an injury to or the illness”. It was not argued by the Complainant that his daughter was either injured or ill.

In order for force majeure entitlement to apply on a particular day it is necessary that the reasons are urgent and the immediate presence of the employee at the place where the injured or ill family member is indispensable.

The stipulations that the need must be “urgent” implies that, if an employee has sufficient advance notice, he or she should make alternative arrangements such as taking a day’s annual leave. In that regard, I do not accept SIPTU assertion that the Complainant did not have prior knowledge that his granddaughter would be transferred to Dublin. There was no dispute that the Complainant’s grandchild suffered from a serious accident on 27th May 2019. She was under care of health professionals in a named hospital and it was indicated by the hospital staff on Wednesday morning 29th May 2019 that she may need to be transferred to Dublin. The Complainant informed a member of the Respondent’s HR Department of same on the morning of 29th May 2019. This was confirmed by the Complainant at the appeal meeting on 7th June 2019. While the Complainant’s granddaughter was certainly ill and her mother faced the difficult task of securing transport to Dublin on a short notice, I find that the Complainant has not met the criteria set out in Section 13 of the Act in that regard.

For the reasons outlined above, I find that the complaint made pursuant to the Parental Leave Act, 1998 is not well founded.

Force majeure leave – grandchild