Complainant

Respondent

Anonymised Parties

A General Operative

A Medical Devices Company

Representatives

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-00018725-001

25/04/2018

This is a complaint that the complainant was denied three days force majeure leave.

His fiancé, with whom he resides, was sufficiently unwell that the complainant had to call to her workplace to take her home. She was subsequently diagnosed with back muscle strain.

On the first of the evenings in question (the complainant works night shifts) as he left to go to work his fiancé became very ill and he stayed at home that evening to take care of her.

He was advised by the family GP that he would have to take care of her as the GP felt she was not able to take care of herself. The GP provided certification to this effect.

The complainant presented this documentation to the respondent the following day but his application for Force Majeure leave was not granted.

The complainant failed to work his nightshifts on Mar 12th, 13th and 14th 2019, returning to work on the 15th.

On his return he told his supervisor that his partner had hurt her back the previous Friday (i.e March 9th).

He applied for Force Majeure leave in the course of his shift on March 20th, and at this stage included a copy of his partner’s medical certificate which indicated that her episode of injury had occurred several days prior to March 12th.

Another note provided by the GP which the complainant has referred to was a ‘medical certificate’, certifying the complainant’s being ‘unable to attend work’ and stated the reason as; ‘Partner has back injury needing assistance’.

The complainant did not raise any grievance about being denied the leave at the time.

The key qualifying element in a force majeure situation is that the presence of the person seeking it be ‘indispensable’. To this might be added that it relates to an illness or injury which occurred suddenly and unforeseeably.

The note from the GP makes no mention of urgency, or that the complainant ‘s presence was required.

The complainant initially gave the impression, whether intentionally or not that the incident which caused his partner to need his presence occurred on the day he was due to undertake the first of the shifts he did not attend for, or in the alternative on the day after.

Indeed, in his evidence at the hearing he stated that the GP was called when she deteriorated ‘the following day’.

As the hearing proceeded this greater, if not total clarity emerged as to what actually happened.

Had it been ‘the following day’, he would have had some grounds for his complaint, at least in respect to that first shift on March 12th, although his case for the further two shifts would have been a good deal weaker.

He also gave evidence that it was only at the point of his leaving to go to work (on March 12th) that his partner ‘became very ill’, including vomiting, although the GP had certified his absence earlier that day.

The couple live in a rural setting but have no children.

There are aspects of the medical certification which are curious to say the least.

The complainant’s partner incurred her injury it would seem on Friday 9th. The GP was not called until Monday 12th, the day the complainant was due to return to work. This was not ‘the ‘following day’ as claimed by the complainant.

The respondent says that the medical certificate it saw predated March 12th by several days. Because it had been returned to the complainant it was not available for the hearing.

The ‘medical certificate’ which was available relating to the complainant, was essentially a form of third-party certification as it did not relate to the doctor’s patient and was to the effect that the complainant was unable to attend work as a result of his partner needing assistance.

Whether such a document may properly be referred to as a ‘medical certificate’ is not relevant to the case and that is not the decisive issue in respect of a complaint of failure to grant force majeure leave. The GP added nothing to his assessment of the situation to ground the complainant’s case, as noted in the respondent’s submission; there was no element of ‘indispensability’.

Of course it might have been desirable for the complainant to remain at home with his partner,

The criteria justifying paid leave are set out in the Act as being;

‘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 home or elsewhere, is indispensable’

Section 13(1), Parental leave Act, 1998

Bear in mind that the complainant’s partner’s condition was so bad on initial onset of the complaint that she had to be collected from work, probably on the Friday.

The GP was not called for three days and surely the complainant developed some familiarity with her care needs over the course of the weekend. His description of the deterioration as he set out for work on the evening of his first shift (and justifying staying at home) related to her vomiting (noting that the partner’s condition was ‘back muscle strain’).

The complainant’s evidence fell some way short of the standards of consistency, clarity and ultimately credibility which is required.

It fell even further short of meeting the criteria necessary to ground a force majeure complaint.

I do not find on these facts sufficient justification for the complainant’s immediate presence as a matter of indispensability to support his complaint and therefore it fails.

For the reasons wet out above I do not uphold complaint CA-00018725-001 and it is dismissed.

Force majeure leave.