Complainant

Respondent

Anonymised Parties

A Trainee Assistant Manager of a Diner

A Diner

Representatives

In person

Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030589-002

01/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00030589-003

01/09/2019

The Complainant worked in the Respondent’s diner since 2013. Their relationship was good until the end of the employment.

CA-00030589-002 [T&C]

The Complainant commenced work with the Respondent in August 2013. She signed a contract as a customer service assistant. Their work relationship was good. In August 2018 the Complainant was promoted to a trainee duty manager and commenced a 6-month probation period in respect of her promoted position. When the Complainant’s employment ended in May 2019, she had not received (since the preceding August) any terms and conditions of employment in respect of her new post in breach of the Terms and Conditions of Employment Act 1994

CA-00030589-003 [force majeure leave]

The Complainant was due to work on Saturday 23 and Sunday 24 March 2019 but her father had an accident on the family farm on Friday 22 March and needed to be brought to hospital the following day. The only person in the family who could drive her father to the hospital in Galway was the Complainant. This period of leave for 2 days (on 22 and 23 March 2019) constituted force majeure leave, as protected under s.13 of the Parental Leave Act 1998. The requirement that she drive her father to hospital was both immediate and necessary. When she returned to work she asked her manager for the 2 days to be counted as force majeure leave. He replied that he would investigate it and get back to her about it. This was the last the Complainant heard about it. The Complainant’s employment ended in May 2019 when she left her job to work elsewhere.

CA-00030589-002 [T&C]

The Complainant receives a written contract in August 2013. The Complainant was promoted to a trainee assistant manager in May 2018 and was put on a 6-month probation period. It is not the practice of the Respondent to furnish a new contract until the probation period is over. In December her probation period was extended until March 2019. In March 2019 the Complainant discussed with the owner of the business that she intended leaving her job and moving to another job in May 2019. And because she would not be working for the Respondent after May, it was felt that there was little point in furnishing the Complainant with a written contract. This complaint is being raised really because the Complainant was unhappy that she did not receive a bonus towards the end of her employment that she felt entitled to.

CA-00030589-003 [force majeure leave]

There was no immediate need for the Complainant to deal with the medical situation of her father. Someone other than the Complainant could have taken on this responsibility. Furthermore, the Complainant was asked, on her return to work to put her force majeure request in writing, however as she did not do this, it was considered by Management that she was not pursung it.

The response of the Respondent is both incorrect in law and lacking in sympathy.

Force majeure leave is an entitlement within the meaning of section 13 of the Parental Leave Act 1998. I accept that the medical condition of her father was an emergency, indeed the Respondents have not attempted to refute this. I accept too that it was her responsibility to drive him to the hospital in circumstances that must have been difficult for the Complainant and her family at the time. I am surprised by the adversarial approach taken by the Respondent in this case and can only explain it benignly by the Respondent being unaware of his obligations as an employer under the 1998 Parental Leave Act, which he should now rectify.

CA-00030589-002 [T&C

The Respondent was obliged to furnish written terms and conditions of employment when the Complainant acquired a new and different post within the employment, i.e. within two months of May 2019. As it is accepted that this did not occur there is no valid defence raised in respect of this complaint. I find this complaint to be well founded.

CA-00030589-003 [force majeure leave]

I accept that the Complainant has satisfied the terms of section 13(1) and 13 (2) of the Parental leave Act 1998. I accept that the immediate presence of the Complainant to drive her sick father to hospital was indispensable.

I accept that the Complainant’s father comes within the definition of section 13(2) (e) (“parent or grandparent of the employee”)

The fact that the Complainant did not put the request in writing as required by section 13 (3) does not deprive the Complainant of the right to such leave. This is a misconstruction of the section by the Respondent. Section 13 (1) states that there is an obligation on the employee taking force majeure leave to confirm this in writing to his employer. However, the obligation in section 13 (3) is not a pre-condition to the entitlement set out in section 13 (1).

I am satisfied that the force majeure leave was requested verbally, indeed this is not denied by the Respondent. It was however not paid.

I find this complaint to be well founded.

CA-00030589-002 [T&C]

I have found this complaint to be well founded and I award the sum of two weeks gross pay (€515x2)

Award: €1030

CA-00030589-003 [force majeure leave]

I have found this complaint to be well founded and I award the sum of 4 weeks gross pay (€515x 5) the maximum statutory award for such a breach being 20 weeks.

Award: €2060

Force majeure leave – section 13 of Parental Leave Act 1998