PLD201

The complaint to the Workplace Relations Commission was made on 21^stMay 2018. The Adjudication Officer held that the claim was not well-founded.

Summary position of the Appellant

The Appellant submitted that she had been dismissed from her employment on or about 1^stMarch 2018 in retaliation for her having taken force majeure leave under the terms of the Act.

She submitted that, as a result of her mother’s illness, she was absent on 7^thFebruary 2018. She submitted that she returned to work from the 8^thFebruary 2018 to 13^thFebruary 2018 and was absent from 14^thFebruary onwards. She submitted that the Respondent dismissed her on 23^rdFebruary 2018 giving her one week’s notice.

When questioned by the Court the Appellant was unable to identify the dates when she availed of force majeure leave in accordance with the Act. She submitted that she was unaware of the need to notify the Respondent of her taking of force majeure leave or the obligation upon her to use a prescribed form in that regard.

Summary position of the Respondent.

The Respondent submitted that it had, in November 2017, engaged a recruitment agency to supply a general administrator on a three-month contract. The person commenced work in November 2017 but resigned two months before the completion of the contract in December 2017.

The Respondent engaged the same recruitment agency to recruit a person to take up the remaining two months of the contract which was for a period of two months. The recruitment agency placed the Appellant with the Respondent commencing on 14^thDecember 2017. The recruitment agency confirmed to the Appellant that the placement was for a period of two months.

The Appellant commenced work on 14^thDecember 2017 and the last day she attended for work was on 13^thFebruary 2018. She had been absent on 7^thFebruary 2018 and had been paid on that day by the Respondent. She did not attend work after 13^thFebruary 2018 and the Respondent issued a letter on 23^rdFebruary 2018 to the Appellant giving her one week’s notice of the termination of her contract. That letter advised that the Appellant had not been able to fulfil her duties with the Respondent since the 13^thFebruary and, due to this, the Respondent was obliged to give her one week’s notice of the termination of her employment.

The Appellant appealed the decision to terminate her contract and that appeal, heard on 13^thMarch 2018, was unsuccessful.

The Respondent submitted that the Appellant was not penalised within the meaning of the Act in retaliation for having taken force majeure leave under the Act. The Respondent submitted that the Act placed a strict burden upon the Appellant to notify the Respondent of the fact that she had taken force majeure leave and that Statutory Instrument no. 454 of 1998 prescribed a form to be used for that purpose. The Respondent submitted that the Appellant had never given notice of any kind in advance or after the taking of any leave, that she was taking or had taken such leave. In those circumstances it was not possible for the Appellant to assert that she had taken Force Majeure leave.

The Respondent submitted that no connection could therefore exist between the termination of the Appellant’s employment and her alleged taking of leave on grounds of force majeure within the meaning of the Act.

The Law

The Act at Section 13 in relevant part makes provision for the taking of leave on grounds of force majeure as follows:

Leave on grounds of force majeure.

• 13.— (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.

• 16A. — (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 15(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.

Discussion and conclusion

The Appellant confirmed to the Court that she has not, before or within a reasonable period after any date upon which she might have taken leave on force majeure grounds, raised the issue of force majeure leave with the Respondent. She confirmed to the Court that she has not made an application, formal or otherwise, for such leave and that she has not complied with the requirements of S13 (3) of the Act. The Appellant submits that she was unaware of any obligation in law resting upon her to notify the Respondent of her taking leave on grounds of force majeure.

The established doctrine ofignorantia juris neminem excusat, applied by this Court in different circumstances in UD16/62 GALWAY & ROSCOMMON ETB AND JOSEPHINE KENNY and a line of authorities, must apply in the instant case. In other words, the Appellant’s ignorance of the law cannot provide an excuse for her failure to notify the Respondent, in accordance with the Act at Section 13(3) of leave on grounds of force majeure or her failure to use the statutorily prescribed form or a form to the like effect containing the information and declaration referred to in the statute (S.I No. 454 / 1998).

The Act places a clear and unambiguous requirement upon an employee to notify the employer in the manner set out at Section 13(3) when an employee takes force majeure leave. In circumstances where the Appellant has failed to meet her obligations and indeed where the Appellant was unable to advise the Court of the exact dates upon which she contends she took leave on grounds of force majeure, the Court must conclude that the Appellant at no time took such leave within the meaning of the Act.

In those circumstances the Court must conclude that the Respondent did not penalise the Appellant within the meaning of the Act at Section 16A.

Decision

It is clear to the Court from the Appellant's written and oral submissions that her complaint under the Act claim is misconceived. The appeal fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
DC______________________
12 February 2020Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.