Complainant

Respondent

Anonymised Parties

An Assistant Manager

A Chemist Shop

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-00025159-001

21/01/2019

The Complainant is an Assistant Manager and is employed by the Respondent since 22nd October 2007. She is claiming 3 days force majeure leave pursuant to the Parental Leave Act 1998.

The Complainant said that her husband was due to have a medical procedure on the 10th of December 2018. She informed her store manager about this in November and it was agreed that she could change her shift and work late for 3 nights on the 11th 12th and 13th of December. The 10th of December the date of the medical procedure was her day off.

On the day of the operation, the Complainant's husband was informed that it would not be a day patient procedure, and that he would be kept in hospital overnight following his operation as the operation was no longer keyhole surgery. The Complainant contacted the Store Manager and told him what had happened, and that she would not be back to work on the 11th December, as she needed to collect her husband from the hospital.

The Complainant said that when she collected her husband from the hospital it was clear that he was not in a fit state to look after himself. She said that she had to provide assistance and general nursing care to him. She contacted her Store Manager and explained the situation to him. She informed him that she would be unable to attend work until Saturday the 15th of December, when she would have assistance available to her. On her return to work she applied for force majeure leave for 3 days. It was refused by the Respondent as it was a scheduled operation and the leave was for childcare purposes.

The Complainant’s Union said that's the entitlement to emergency family leave arises where for urgent family reasons, due to injury or illness of a member of an employee’s immediate family and that employee’s immediate presence is indispensable in the place where that member of their immediate family is at that time.

It was submitted that it is clear that her husband's medical treatment and overnight stay in the hospital was not a planned or envisaged. He was supposed to have minor keyhole surgery in a day care facility, but it turned out to involve a more severe surgical operation than expected, which left him in need of urgent and immediate care that was not for foreseen and could not have been avoided.

It was submitted that the Complainant’s discussions with the store manager, prior to events taking a turn for the worse, show that she was intent on carefully and diligently putting in place a plan to cover the absence. This should have been taken into account before the decision was made to refuse her the force majeure leave. 

It was submitted that part of the indispensable nature of her presence was the unforeseen requirement for her to provide care to her three children, all under the age of 8, who she could not leave in the care of her very ill husband, and which she was unable to provide an alternative solution until the Saturday of that week.

It was submitted that the Complainant meets the criteria contained in the Parental Leave Act 1998 for an entitlement to force majeure leave for the time requested.

The Complainant applied for force majeure leave on the 15th of December 2018, giving two reasons firstly to look after her husband following an operation and secondly to look after their three children all under the age of 8.

The Complainant's application was reviewed by the company, and on the 19th of December 2018, and having considered the application, in line with the company's policy on force majeure leave, and a response was issued refusing the application. The application was refused on the basis that it did not meet the provisions of the Parental Leave Act 1998 in accordance with Section 13(2).

It is the company's contention that neither a period of convalescence following her husband’s surgery, not childcare or school run requirements meet the requirement that the Complainant’s immediate presence was indispensable on the 11th to the 13th of December.

The Respondent submitted that the Complainant’s presence was not indispensable in respect of her husband's case, if it was a case that she was in a position to leave his side to participate in school runs. There was no indication that the Complainant’s husband required medical attention during this period, nor would a period of convalescence following a medical procedure normally meet the requirements of the act.

Furthermore, the Complainant's children were neither ill nor injured during this period and so she was not entitled to force majeure leave in relation to their care. Childcare is a routine requirement, and, in this case, it is unrelated to the illness or injury of the Complainant’s children.

It is submitted that the Complainant became aware of the nature after her husband's condition which triggered an alteration in their child care routine on the day preceding the days claimed and therefore this was not an immediate need.

Taking the provisions of the Act into consideration, the Respondent’s position is that the Act does not apply in respect of any of the 3 days for which the Complainant requested force majeure leave. I was referred to an Adjudicators decision in ADJ-000- 3077 in which the Respondent company argued:

“that it took the decision not to grant force majeure leave on the basis that situation extant on the particular day (recovery from a broken arm) was not an unforeseen event (meaning illness or injury on the day) requiring the immediate and indispensable presence of the Complainant. There was at that point sufficient time to have made suitable alternative arrangements. It is the sudden and unforeseen nature of illness or injury that precipitates entitlement under the act.”

The Respondent submitted that the above is relevant and taking all the foregoing arguments in consideration t, the complainant is not entitled to force majeure leave in respect of the 3 days.

The Act at Section 13(1) provides as follows

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.

The Complainant said that she was entitled to force majeure leave on the 11th, 12, and 13th December to care for her husband and her children following her husband having a more serious operation than had been planned. The Respondent believes she is not entitled to the leave as the reasons given for the force majeure leave do not meet the requirements of the Act.

The Labour Court in the case of Thermo King Europe v Brian Nolan PLD171 stated:

“The Act provides a statutory entitlement to leave on grounds of force majeure. In order for that 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. …. It is clear that the Act can only have application on a day when all of the circumstances set out in the Act at Section 13(1) are present.”

I note that the operation was planned, and the Complainant knew from the 10th December that her husband had a more serious operation than what was originally scheduled. Furthermore, no other intervening urgent illness or injury occurred on the 11th to the 13th December requiring the Complainant’s “immediate presence”.

Applying the jurisprudence of the Labour Court, I am not satisfied that the Complainant has shown that the circumstances present from the 11th to the 13th comply with the terms for granting the leave in accordance with the Act. She has not established that for urgent family reasons arising from an illness or injury to a family member that her presence was indispensable. I find that the complaint is not well founded.

I find that the complaint is not well founded

Parental Leave Act, force majeure leave