Complainant

Respondent

Anonymised Parties

A Commercial Assistant

A Travel Agency

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00025505-001

03/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007

CA-00025505-002

03/02/2019

The complainant joined the Dublin office of the respondent’s travel company on January 28th 2013 in the role of a commercial assistant. He resigned on August 29th 2018 following investigations into his attendance and grievances that he submitted concerning his treatment by his former employer. These complaints are about penalisation regarding parental leave and penalisation for whistleblowing.

At the hearing, I was informed that, in October 2017, the complainant applied for parental leave and his request was approved. On the form he submitted to the WRC, the complainant said that he made an application for parental leave which was originally granted, but that the dates he requested became “no longer relevant due to family issues.” When he asked if he could take the leave on different dates, he said that this was refused “as there were other issues going on in the workplace at the time which rendered me unfit for work due to workplace stress.” He said that he believes that his former employer penalised him by refusing to approve the alternative dates.

The respondent’s representative referred to section 11(1) of the Parental Leave Act 1998, which provides that parental leave may be postponed if the employer

“…is satisfied that the taking of parental leave at the time specified in the notice would have a substantial adverse effect on the operation of his or her business, business profession or occupation, by reason of seasonal variations in the volume of the work concerned, the unavailability of a person to carry out the duties of the employee in the employment, the nature of those duties, the number of employees in the employment, or the number thereof whose periods, or parts of whose periods, of parental leave will fall within the period specified in the said notice or any other relevant matters, the employer may, by notice in writing given to the employee not less than 4 weeks before the intended commencement of the leave, postpone the commencement of the leave to such time not later than 6 months after the date of commencement specified in the relevant notice under section 8(1) as may be agreed upon by the employer and the employee.”

It is the respondent’s case that they postponed the dates of the complainant’s leave, as they are entitled to do. The complainant was permitted to take the leave he requested verbally, which he later indicated was not suitable. The respondent refutes any contention that they refused to allow the complainant to take parental leave.

The Relevant Law

A new section 16A, was inserted into the Parental Leave Act 1998 (“the Act”) by the Parental Leave (Amendment) Act 2005. The objective is to protect employees from penalisation for exercising their rights under the Act:

(1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to parental leave or force majeure leave or to make a request under section 15A(2).

(2) Penalisation of an employee includes —

(a) dismissal of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the conditions of employment of the employee.  

(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in subsection (2)(a), the employee may institute proceedings under the Unfair Dismissals Acts 1977 to 2005 in respect of that dismissal and such dismissal may not be referred to a rights commissioner under Part IV.

(4) An employee who is entitled to return to work in the employment concerned in accordance with section 15 but is not permitted by his or her employer to do so —

(a) shall be deemed to have been dismissed on the date on which he or she was entitled to so return to work and the dismissal shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2005, to have been an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal, and

(b) shall be deemed for the purposes of the Redundancy Payments Acts 1967 to 2003, to have had his or her contract of employment with his or her employer terminatedon the date aforesaid.

Findings

From the evidence submitted by the respondent, I understand that the complainant originally made a verbal request to take parental leave in October 2017, and this request was granted. I understand from the complainant that he asked if he could change the dates, and this was refused. Neither side produced any clear evidence of when this request was refused and it is the respondent’s case that this complaint has been submitted outside the six-month time limit specified at section 41(6) of the Workplace Relations Act 2015. As the complainant had planned to take parental leave originally at the end of 2017, it follows logically that his request to postpone this leave and to take the leave on different dates was made and refused sometime before the end of 2017. As this complaint was submitted to the WRC on February 3rd 2019, it may be the case that it has been submitted outside the six-month time limit.

In the absence of definitive evidence regarding when the respondent refused to agree to alternative dates of parental leave, I wish to address the complainant’s concerns about this matter. It is his case that the refusal of his request to change the date of his parental leave amounts to penalisation. It is apparent from section 16(a)(2) of the Act which has been reproduced above, that penalisation is considered to be dismissal, unfair treatment, including unfair selection for redundancy and an unfavourable change in an employee’s conditions of employment.

It is clear to me from this amendment to the Act that penalisation is defined as unfair treatment of a certain considerable significance. The refusal to agree to alternative dates of parental leave is not, in my view, of the significance intended by the legislation.

Section 11 of the Act which was referred to by Mc McNamara clearly provides for postponement of parental leave, if the dates are not suitable for the respondent’s business.   This is what occurred. It is my view that the respondent was entitled, in accordance with section 11, to postpone the complainant’s parental leave to a more suitable date, and that by so doing, no penalisation occurred.  

I have concluded that the complainant was not penalised and that a contravention of section 16A of the Parental Leave Act 1998 – 2005 has not occurred. For this reason, I have decided that this complaint is not upheld.

On the form he submitted to the WRC, the complainant said that he made a disclosure about certain workplace practices which he believed were in breach of a customer’s right to privacy. He said that his disclosure was dismissed by the management. He did not specify the date when he made the disclosure and he did not submit any documents as evidence that he made a disclosure or that the information he provided to his employer was not taken seriously.

At the hearing, the head of the company’s Irish business, who I will refer to here as “HIB,” said that in July 2018, the complainant alleged that there had been a breach of data security in respect of a customer. HIB said that any allegation of this nature is reported to the security department and, when he received the complaint, the company’s head of security contacted the complainant to arrange to meet him. HIB said that the complainant did not attend the meeting because he was out sick at the time. She said that he was unwilling to come to the meeting because his sick pay had expired.   She said that no action was taken against the complainant in relation to this matter and the company concluded that there had been no breaches of data security.

For the company, Ms McNamara argued that, as the complainant made a report about data security to the respondent in July 2018, and this complaint was submitted to the WRC on February 3rd 2019, it is outside the six-month time limit specified at section 41(6) of the Workplace Relations Act 2015.

This complaint was submitted to the WRC more than six months after the alleged incident that is complained about occurred. I find therefore, that it is outside the time limit specified at section 41(6) of the Workplace Relations Act, within which I have jurisdiction to adjudicate on a complaint. There has been no application for an extension of time.

I have concluded that this complaint has been submitted outside the legal time limit. I decide therefore, that I have no jurisdiction to adjudicate on it.

Penalisation, Parental Leave Act 1998, Consumer Protection Act 2007