Complainant

Respondent

Anonymised Parties

A Trainer

A Training Company

Representatives

The Complainant attended the hearing in person and was not represented

Sean Ormonde & Co. Solicitors

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-00030139-001

08/08/2019

The Complainant was employed by the Respondent as a Trainer from 21 January, 2019 until 2 May, 2019. The Complainant claims that the Respondent has contravened the provisions of Section 13 of the Parental Leave Act, 1998 by refusing to grant her force majeure leave for two days in March, 2019 for urgent family reasons. The Respondent denies the claim and contends that the Complainant did not satisfy the requirements as provided for in Section 13 of the Act in order to qualify for force majeure leave.

Issue of Jurisdiction

The Complainant disputes the Respondent’s contention that she has pursued the incorrect Respondent in relation to this complaint. The Complainant stated that she did not receive a written contract of employment from the Respondent and that to the best of her knowledge the name of the legal entity that employed her was the trading name of the business.

The Complainant stated that she was not made aware that she was employed by a limited company and that all of the documentation associated with the business contained the trading name. The Complainant submits that the entity which employed her was fully aware at all material times that she was pursuing this complaint and it was not prejudiced in any way because of the mis-statement of the Respondent’s name on the Complaint Referral Form.

Substantive Issue

The Complainant submits that she worked as a Trainer for the Respondent on Monday, Wednesday and Thursday each week during her period of employment. The Complainant stated that she was unable to attend work on 20 March and 21 March, 2020 as her two year old child was very ill. The Complainant stated that she took her child to the doctor on Wednesday, 20 March and the child was diagnosed with a viral infection. As a result of this illness, the Complainant’s child was unable to attend crèche and there wasn’t anyone other than the Complainant available to care for her child on 20 March and 21 March. The Complainant stated that, in any event, it would not have been safe for her to undertake the 1.5-hour journey by car to the work location on these dates as she had been awake most of each night caring for her sick child.

The Complainant stated that she informed the Respondent at the earliest possible opportunity (i.e. on the morning of Wednesday, 20 March) of the circumstances in relation to her child and advised that she would be unable to attend work that day. The Complainant also informed the Respondent that she would keep them updated regarding her child’s condition and whether she would be able to attend work on Thursday, 21 March. The Complainant stated that it became apparent by the Wednesday afternoon that her child was not recovering sufficiently to enable her to return to work on the Thursday, so she advised the Respondent that she would be unable to attend work the following day. The Complainant stated that her attendance record was exemplary and that these dates were the only occasions during her period of employment that she was unable to attend work.

The Complainant considered that she may be entitled to force majeure leave in respect of her absence on these dates, so she made enquiries in relation to this matter with Payroll on 26 March, 2019. The Complainant also e-mailed the Training Manager in relation to this matter and was advised to contact one of the Company Director’s. The Complainant stated that she didn’t get a response from the Company Director until 15 May, 2019 in which she was informed that the Respondent’s advisors had indicated that she wasn’t entitled to force majeure leave in respect of the absence. The Complainant stated that she subsequently requested an explanation from the Respondent in respect of the rationale behind the decision not to grant her force majeure leave but did not receive any reply prior to the referral of the instant complaint to the WRC (approx. three months later).

The Complainant stated that she did not receive a written statement of her terms and conditions of employment from the Respondent and wasn’t provided with a copy of the company’s sick pay policy. The Complainant stated that she had hoped that this matter could have been resolved if the Respondent had provided her with an explanation of the reasons behind the refusal to grant her request for force majeure leave but no explanation was forthcoming. The Complainant stated that she was left with no other option but to refer a complaint to the WRC in order to obtain an explanation from the Respondent in relation to the matter.

Issue of Jurisdiction

The Respondent submits that the Complainant has impleaded the incorrect Respondent in these proceedings. The Respondent submits that the Complainant has impleaded the trading name of the company in these proceedings rather than the actual name of the limited company which was the legal entity that employed her. The Respondent submits that the Complainant in now statute barred from pursuing a complaint against the correct Respondent to these proceedings.

Substantive Issue

The Respondent submits that the Complainant was scheduled to deliver training on behalf of the Company on 20 March, 2019 and 21 March, 2019. The Complainant did not attend on either day. The Complainant indicated that she was unable to do so “as my two-year-old daughter was unwell”. The Respondent submits that one of the two training classes was subsequently rearranged for a separate date which the Complainant delivered and was paid for while another Trainer took the other. The Complainant was subsequently paid for one of the two dates and the Company declined to pay the Complainant for the other.

The Complainant engaged in correspondence with the Respondent’s Director and was informed ultimately that the Company would not pay the remaining day as in the Company’s view this did not constitute force majeure leave.

The Respondent submits that the essential requirements as provided for in Section 13(1) of the Act which a person must satisfy in order to qualify for force majeure leave are: 1) that the absence is urgent and 2) the immediate presence of the employee is indispensable. The Respondent referred to the case of Thermo King -v- Nolan PLD171 where the Labour Court held that the Act can only have application on a day when all the circumstances set out in Section 13(1) are present. The Respondent submits that there must be urgent family reasons owing to an injury or illness and the immediate presence of the employee must be indispensable.

The Respondent accepts that the Company did not provide the Complainant with a policy in respect of Force Majeure leave. However, it was submitted that it is well established that the employee must provide the employer with details of the illness or injury which required their immediate presence. In this case, the Complainant simply advised the Company that her child “was unwell”. It was submitted that an employee’s child simply being unwell is neither urgent nor requires the employee’s immediate presence. This is more particularly so in circumstances where the employee missed the first day (which was subsequently rearranged) and it would appear that prior to the second day of absence her child’s illness was improving but “she was not recovering enough for me to return to work on Thursday”.

It was the Respondent’s respectful view at the time that the Complainant’s presence at the very least on the second day of her absence was neither urgent or indispensable. While sympathetic to any employee who has a sick family member, the Respondent is of the view that alternative arrangements could have been made by the Complainant in these circumstances. It was submitted that the Complainant’s attendance at that stage was not indispensable and the issue was no longer urgent. The Respondent referred to the WRC Decision of A Firefighter -v- A Local Authority ADJ-00001893, in which it was held that the stipulation that the need must be urgent suggests that the employee did not have sufficient advance notice in order to make alternative arrangements such as taking annual leave.

The Respondent submits that the Complainant failed to comply with the requirements as provided for in Section 13(3) of the Act and that she failed to use the statutory form (as prescribed under the parental Leave (Notice of Force Majeure Leave) Regulations 1998 – SI No. 454 of 1998) to notify the Respondent that she had taken the force majeure leave on the material dates in question.

Issue of Jurisdiction

The first issue that I must decide relates to the jurisdictional issue raised by the Respondent as to whether or not the Complainant has pursued the incorrect entity as the Respondent in these proceedings.

The Respondent submits that the Complainant has referred the complaint against the trading name of the business (XXX YYY ZZZ) and contends that the correct identity of her employer was XXX YYY Limited. The Respondent submits that the Complainant has therefore pursued the incorrect Respondent and is now statute barred in her claim.

The Complainant submits that she was not aware of the correct name of the legal entity that employed her as she did not receive a written contract of employment. The Complainant submits that the trading name of the business (XXX YYY ZZZ) was included on all documentation and correspondence which she received from the Respondent. The Complainant contends that her employer was fully aware of this complaint at all material times and she sought leave to amend the name of the Respondent to that of the correct legal entity which had employed her. The Respondent objected to this request and submits that the complaint should not be dismissed.

Therefore, the question I must decide is whether or not it is legally permissible for me to accede to the Complainant’s application to substitute the correct respondent in this case. In considering this issue, I have taken cognisance of the Labour Court case of Auto Depot Limited -v- Vasile Mateiu UDD1954. In this case the Complainant, Mr. Mateui, made an application in the course of proceedings before the Labour Court under the Unfair Dismissals Act to amend the name of the Respondent from “Auto Depot Tyres Ltd” to “Auto Depot Ltd”. The Court allowed the request for the amendment and in doing so held that: “Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’”.

The Labour Court, in this case, provided an extensive analysis of the jurisprudence and relevant authorities on this subject and set out a number of factors which it took into consideration in arriving at its decision on this matter. In particular, I have taken cognisance of the following paragraphs from the decision: “Having regard to the foregoing and relying in particular on the High Court decision in Capital Food Emporium, the Court is fully satisfied that the correct employer has been pursued by the Complainant. The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC from July 2017. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter.

In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be) …. In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response” as envisaged in O’Higgins.

The Court is further satisfied that this approach is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: - “This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.”

I am satisfied that the general principles enunciated by the Labour Court in the Auto Depot Limited case can also be applied in the circumstance of the instant case. In considering this matter, I have taken the following factors into consideration:

·         The Complainant has named the trading name of her employer as the Respondent in these proceedings as opposed to the actual name of the limited company that employed her. The Courts have held in a number of cases, that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation. Consequently, since a party can initiate proceedings in the High Court using a business name, it would be inconsistent with the informal and accessible nature of the procedures set out under the Workplace Relations Act 2015 to hold that proceedings cannot be similarly initiated under that Act.  

·         I am satisfied that the Complainant’s employer was fully on notice and accepted these proceedings from the outset. The notification of the complaint was sent by the WRC to the Director of the company that employed the Complainant on 22 August, 2019. In the corcumstannces, I am satisfied that the Complainant’s employer was fully informed as to the precise nature of the complaint.

·         The parties were notified on 23 October, 2019 of a hearing date before an Adjudication Officer on 12 December, 2019. Up to that point, no issue regarding the correct Respondent was notified by the Complainant’s employer to either the Complainant or the WRC. Moreover, I note that the WRC was informed by the solicitor for the Complainant’s employer on 12 September, 2019 that it was coming on record in relation to this matter. It was not until the date of the hearing on 12 December, 2019 that the issue in relation to the incorrect Respondent was raised by the solicitor acting on behalf of the Complainant. This was some four months after notification of the complaint had been forwarded to the Complainant’s employer.

·         The correct employer appeared at the hearing with its solicitor on 12 December, 2019 and was fully prepared to defend the claim which had been initiated by the Complainant. I am satisfied that the Complainant’s employer was not prejudiced in any way in terms of its ability to defend the instant proceedings as a result of the mis-statement of the name of the Respondent on the initiating form for this complaint.

·         The Complainant was not provided with a written statement of her terms and conditions of employment by her employer during her period of employment. I am satisfied that had this statement been provided to the Complainant it would have identified the name of the legal entity that employed her.

Having regard to the foregoing, I am satisfied that the correct employer has been pursued in relation to this complaint and that the mis-statement by the Complainant of her employer’s name on the Complaint Referral Form constitutes a technical error. Moreover, I am satisfied that the Complainant’s employer was fully aware of the existence and details of the instant complaint from August, 2019. I take the view that if I were to decline jurisdiction in the pertaining circumstances that it would clearly amount to a “grossly disproportionate response” as envisaged by the High Court in the case of O’Higgins -v- University College Dublin & Another (2013) 21 MCA. In the circumstances, I find that the Respondent’s name can be amended to reflect its correct legal title.

Substantive Issue

I will next proceed to consider the substantive claim in respect of this complaint.

An issue arose at the outset of the hearing in relation to the precise scope of the instant complaint under the Act. The Complainant had ticked the box on the Complaint Referral Form indicating that she was seeking redress in respect of penalisation contrary to Section 16A for proposing to exercise her entitlement to force majeure leave under the Act. However, it appeared from the accompanying narrative which the Complainant submitted on the Complaint Referral Form setting out the specific details of the claim that she was, in fact, seeking redress in respect of an alleged contravention of the provisions of Section 13 of the Act in respect of her entitlement to force majeure leave. The Complainant confirmed at the hearing that her complaint was in respect of an alleged contravention of Section 13 of the Act and that she was not pursuing a complaint in respect of penalisation.

The Law

Section 13 of the Act makes provision for the entitlement to force majeure leave.

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.”

In the instant case, it was not in dispute that the Complainant was absent from work on 20 March and 21 March, 2019 in order to take care of her child who was ill on those dates. The Complainant claims that she was entitled to avail of force majeure leave in respect of her absence from work on these dates and contends that the Respondent has failed to provide her with a satisfactory explanation of the reasons why it was deemed that she did not qualify for such leave.

The Respondent disputes that the Complainant was entitled to force majeure leave for both days of her absence and contends that she has not satisfied the requirements as provided for in Section 13 of the Act in order to qualify for force majeure leave in the circumstances. The Respondent submits that the Complainant was paid for one of days she was absent and that she was not statutorily entitled to force majeure leave for the second day.

Having regard to the evidence adduced, I am satisfied that the Complainant raised the issue about her entitlement to force majeure leave with the Respondent by way of e-mail within a few days of her return to work following the absences on 20 March and 21 March, 2019. However, the Act places a clear and unambiguous requirement on an employee to notify the employer in the manner set out at Section 13(3) when an employee takes force majeure leave. I find that the Complainant failed to use the statutorily prescribed form (i.e. SI No. 454/1998) or a form to like effect to notify the Respondent in respect of the required information as set out in Section 13(3) in order to avail of an entitlement to force majeure leave. In the circumstances, I find that the Complainant failed to comply with the requirements of Section 13(3) of the Act, and therefore, was not entitled to force majeure leave in the circumstances of this case.

For the reasons outlined above, I find that the complaint made pursuant to the Parental Leave Act, 1998 is not well founded.

Parental Leave Act, 1998 – Section 13 – Force Majeure Leave – Jurisdictional Issue – Incorrect Respondent