Complainant

Respondent

Anonymised Parties

An Employee

A Public Sector Employer

Representatives

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-00030358-001

19/08/2019

The background facts of this case were not in dispute and are set out as follows: the complainant, a long-time employee of the respondent, applied to take four weeks leave (comprising a mix of annual and parental leave) commencing 29 July 2019. On the Sunday night before the leave period was due to commence, the complainant’s 6-year-old child fell and suffered an arm injury and was brought to hospital. It was ascertained following consultations that the child required surgical intervention, which was undertaken on the Wednesday. Following the operation, the complainant returned to work and cancelled her leave and sought to have the days she was off classified as force majeure leave, completing the application for the leave on 6 August 2019.

The complainant submitted that she initially sought force majeure leave from her line manager who granted the leave but sought some clarification from the Human Resources section regarding how this was to be carried out. She submitted that the HR section refused the leave stating that as she was already on leave she was not entitled to seek force majeure leave in these circumstances. The complainant contends that she was entitled to the leave as according to the respondent’s policy it is for the line manager to consider the grant or refusal of the leave, not the HR section.   Following on from the refusal, the complainant contends that she was not on leave when the accident happened (i.e. the Sunday).

The complainant submitted three decisions in support of her contentions, two from the WRC, namely ADJ 00003077 (An Employee v An Employer) & ADJ00003690 and one from the High Court: Carey v Penn Racquet Sports Ltd. [2001] IHEC 8 (24 January 2001).

The respondent submitted that the line manager concerned merely sought the advice of the HR function before making his decision. The respondent’s contention is that the complainant was already on leave and accordingly did not need the benefit of the force majeure provisions of the Act, and the request for force majeure leave was denied accordingly.

The dispute in this instance centres on two elements, firstly who the decision maker was and secondly on the interpretation of Section 13 of the Parental Leave Act 1998.  

In relation to who made the decision, I note that the complainant accepted that her line manager sought input from the HR Section but stated that such input arose after the decision had already been taken. The respondent submitted that the line manager sought input from the HR Section in order to make the decision as to whether the complainant was entitled to take force majeure leave. The line manager did not attend the hearing of this issue and on balance, having heard both parties and considering that the line manager informed the complainant of the involvement of the HR Section, I prefer the respondent’s version of events.

Section 13 which covers leave on grounds of force majeure states that

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.

(2A) For the purposes of subsection (2)(f) —

(a) a person who resides with an employee is taken to be in a relationship of domestic dependency with the employee if, in the event of injury or illness, one reasonably relies on the other to make arrangements for the provision of care, and

(b) the sexual orientation of the persons concerned is immaterial.

(2B) Paragraph (b) of subsection (2A) is not to be taken to limit in any way the classes of persons in respect of whom an employee is entitled to force majeure leave by virtue of subsection (2)(f).

(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.

(5) A day on which an employee is absent from work on force majeure leave in an employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (4), to be one day of force majeure leave.

The three cases cited are not of direct relevance to the instant case in that they all turn on whether the presence of the complainant was immediate and indispensable, (ADJ 00003690 also dealt with the nature of the illness). However, in the instant case it was not argued that the complainant’s presence was not indispensable or immediate or that this was not an urgent matter, rather the crux of this case revolves around the definition contained in Section 13 (4) specifically whether the element ‘but for the leave, the employee would be working in the employment concerned’ is applicable in this instance.

The respondent argued that as the complainant had applied for and had been granted leave for a four-week period, this element of the test for the applicability of force majeure leave was absent. The compliant confirmed that she was due to commence leave (a mix of parental and annual leave) but in response submitted that she had not yet begun the leave when the accident happened.

Having regard to the facts of this case, I am satisfied that the complainant had completed her last day before the commencement of leave on the previous Friday. I am also satisfied that the accident occurred on a day on which the complainant would not be working. I am further satisfied that the complainant was not required to work on the Monday or the days following the accident due to pre-organised leave arrangements. Therefore, I consider that the circumstance of this compliant do not fall within the requirements of Section 13(4) and that this complaint was not well-founded.

Arising from the finding that this compliant was not well-founded, my decision is that the complainant is not entitled to succeed.

Parental Leave, definition of force majeure