Complainant

Respondent

Anonymised Parties

A Care Worker

A Nursing /Care Home.

Representatives

Self-Represented

Manager/CEO

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00030908-002

13/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00030908-003

13/09/2019

The issues in contention concern an allegation that the Complainant was (1) Penalised for making an application under the Carer’s Leave Act, 2001 and (2) the Respondent employer caused her distress by an unwillingness to sign a Carer’s Leave Confirmation document.

The Complainant commenced employment in December 2017 and remains an employee.

1:1       CA - 00030908-002 – Penalisation regarding having or proposing to exercise Parental Leave Entitlements and CA-00030908-003 – Employer unwilling to sign Carer’s Leve Confirmation Document.

The Complainant first indicated to the Respondent in February 2019 that she was proposing to take Carer’s Leave. The Complainant brought the forms to the Respondent on the 4th March. A prolonged period of delays and prevarications by the Respondent took place. Eventually the forms were signed on the 8th May 2019. On the 22nd of August the Dept of SP wrote to the Parties seeking further information from the Respondent Employer. Further delays by the Respondent ensued but eventually the Dept of SP (4th October 2019) sanctioned the Carer’s leave and the Carer’s benefit payment.

The Complainant strongly argued in her Oral evidence that the Respondent had deliberately frustrated the Carer’s leave process. This was tantamount to Penalisation and redress should be awarded to her in lieu of the completely unnecessary stress she was put under throughout the process.

2:1       CA - 00030908-002 – Penalisation regarding having or proposing to exercise Parental Leave Entitlements and CA-00030908-003 – Employer unwilling to sign Carer’s Leve Confirmation Document.

The Respondent employer completely denied any unnecessary delays on her part. Initially she had sought to clarify with the Complainant the exact dates she was proposing to take as carer’s leave. This had eventually been clarified as being from the end of June 2019 to the start of July 2021.

The Complainant was an excellent employee. The Respondent stated that she, of course, knew that the Complainant’s son was major worry and challenge to his mother. She had every sympathy for her in this difficult situation. The taking of carer’s leave was not unexpected. None the less the Respondent was always hoping that the Complainant might still be able to do some permitted hours for the Care Home even if On Carer’s Leave and Carers Benefit.

The query in September that’ she had made to the Dept of SP was in this connection.

It was a legitimate inquiry from any employer and it was unfair of the Complainant to make it out to be an unnecessary delaying tactic designed to in some way punish the Complainant.

It was accepted by all that the most serious Industrial Injury to the Complainant’s Husband in late May 2019 had made life very difficult and stressful for the Complainant.

However, there was nothing wrong in the Respondent’s behaviour and any claims that she made life difficult for the Complainant was completely false. At worse it was a mix up in communications between the Parties added to by the additional stresses of the Industrial Injury.

3:1     The relevant Law

The complaints were filed under Section 19 of the Carer’s Leave Act, 2001. This was overtaken by Section 41 of the Workplace Relations Act,2015. Section 21 of the amended Carer’s Leave Act now refers.

Section 21 provides

Carer’s Leave Act,2001

21 Decision under section 41 or 44 of Workplace Relations Act 2015.

21. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute to which this Part applies between an employee and an employer concerning the employee ’ s entitlements under this Act may include —

(a) a grant of carer ’ s leave to the employee of such length to be taken at such time or times and in such manner as the adjudication officer may specify,

(b) an award of compensation (in favour of the employee concerned to be paid by the employer concerned) of such amount, not exceeding 26 weeks ’ remuneration in respect of the employee ’ s employment calculated in such manner as may be prescribed, as the adjudication officer considers just and equitable having regard to all of the circumstances, or

(c) both such grant and such award.

3:2 :1        CA - 00030908-002 – Penalisation regarding having or proposing to exercise Parental Leave Entitlements

There was much oral evidence presented in this case. The Complainant was an excellent worker and much valued by the Respondent. At all times during her work the Manager had always facilitated the Complainant with shift times etc to facilitate her caring duties for her child.

The Respondent Manager, Ms. XA, gave evidence that she had found the Complainant hard to pin down, in the early stages from February, as to when, the dates, she exactly wanted to go on Carers leave.

The Manager, wanted to keep her, in view of her excellent work record, on the working roster even on reduced hours and within the rules of the Carer’s leave scheme.

However, the very severe Industrial Injury to the Complainant’s Husband in May had further complicated matters and she had accepted that the Complainant would not be available. All the Manager had been doing was trying to manage the situation and try to keep some hours work with the Complainant. The evidence given was straightforward and I accepted it as truthful.

The evidence regarding the Carer’s benefit claim in September was likewise direct. It was not unreasonable to raise a question with the Dept of SP and any delay was not unreasonable.

There was absolutely no Penalisation involved.

The Complainant had a different, equally well advocated, version of events.

It was clear that she had experienced in mid-2019 a very tough situation with a challenging child and her husband’s potential loss of sight. It was clear that she had been a lady under considerable stress. Her tolerance of her employers possibly relaxed attitude to signing forms etc was obviously at a very low ebb.

Section 16 of the Act defines Penalisation

Protection of employees from penalisation.

16

16.—(1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to carer’s leave.

(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.

None of these situations arose and I have to find, having heard all the evidence, that the Complaint of Penalisation was in general very weak.

None the less, from listening to the Oral arguments made, I came to the view that the Respondent could probably have gone a bit faster with some of the paperwork. However, it was a minor issue in the overall scheme of things and only merits a small redress award.

The Complaint is deemed to be well founded but only in a most minor fashion.

3:2:2       CA-00030908-003 – Employer unwilling to sign Carer’s Leave Confirmation Document.

By the date of the Hearing this issue had resolved itself. The only issue was the alleged delays in the early part of the 2019.

The Complaint is, in my view, not well founded.

Carers’ Leave - Penalisation – Refusal to Sign paperwork