Complainant

Respondent

Anonymised Parties

A Bus Driver

A Transport Operator

Representatives

National Bus and Rail Union

IBEC

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-00028372-001

09/05/2019

The complainant applied for Force Majeure Leave in relation to a day’s absence on 29 January 2019. His application was refused by the respondent.

The complainant’s wife became ill at around 11am on the morning of 29 January 2019. She was violently sick and the complainant’s immediate presence was required. He tried to see if his son or daughter were available to look after his wife as he was due to start at 4pm. Unfortunately, they were not available. He notified the respondent at midday that he would not be able to come in for his shift.

On his return to work he applied for Force Majeure Leave, as he considered his immediate presence was required because of his wife’s illness. His application was refused and turned down on appeal.

The respondent confirms the complainant was absent from work on 29 January 2019 and informed his manager this was due to his wife’s illness. On 31 January he applied for a day of Force Majeure leave to the Depot Administrator. She considered the application in accordance with the respondent’s ‘Force Majeure Leave Assessment form’ and decided that facts before her did not warrant the Force Majeure leave being granted. The complainant appealed her decision but was not successful.

The respondent submits that, as it was not necessary to seek medical attention, it could not be deemed that the complainant’s presence was “indispensable” in the case of this routine illness.

Section 13 of the Parental Leave Act, 1998 provides:

“(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…

(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.”

 As held by the Labour Court in Thermo King Europe v Nolan (PLD171), the Act can only have application on a day when all the circumstances set out in section 13(1) are present. There must be urgent family reasons owing to an injury or illness and the immediate presence of the employee must be indispensable.

I have considered all the evidence submitted in this case. The complainant’s wife was at home being ‘violently sick’ and according to the complainant this went on all day. His wife was sick suddenly on a number of occasions during the day, but the complainant and his wife decided that medical attention was not needed. However, from his direct evidence I accept the complainant’s considered view that someone needed to be with her. When he was unable to arrange for his son or daughter to come this fell to him and I conclude his immediate presence to have been indispensable on the day.

For the reasons given above, in relation to the particular circumstances of this case, I find that the complaint pursuant to the Parental Leave Act is well founded and the complainant is entitled to a day of Force Majeure leave for 29 January 2019.

Parental Leave Act – force majeure leave