Complainant

Respondent

Parties

Caroline  Giles

Outhaus Group Country Manor Bricks

Representatives

Tully Rinckley LLP, Solicitors

 Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035272-001

16/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035284-001

18/03/2020

The Complainant commenced employment on the January 22nd, 2019 as a Design Assistant.

Her employment was terminated on November 7th, 2019.

She has less than one year’s service normally required by the Unfair Dismissal’s Act.

She seeks to have her complaint brought within the jurisdiction of that Act arising from her dismissal resulting from her availing of the force majeure provisions of the Parental Leave Act.

From the April 16th, 2019 onwards, issues arose with the Complainant’s attendance at work.

There was a pattern of lateness and a failure to follow the correct procedures for notification of any delay or non-attendance at work.

The following was the pattern of attendance

On the 16/4/19 the Complainant was twenty-five minutes late, on the 15/05/2019 she was six minutes late for both work and her appraisal, which had been scheduled for first thing that morning. 

On the July 8th she was fifteen minutes late and on July 26th one hour late for work. On August 16th she was five minutes late and on the 22nd thirty-five minutes late.

The matter was specifically raised as an issue at the Complainants appraisal.

Following the ‘late’ on the August 22nd, the Respondent sent the Complainant an email reminding her of the correct procedure when delayed or running late. That was that she should make a phone call to a specified, senior member of management to advise.

This resulted in an apology by the complainant and confirmation that she would adopt the new procedure from then on.

On October 30th she was one hour and fifteen minutes late back from her lunch break and failed to inform management or give advance notice of this to her senior manager. On her return from lunch that day she returned to her desk without any explanation and carried on working.

She left at 5pm, still without communicating why she was had been late from lunch.

In the weekly sales meeting on the October 23rd, a week earlier it was specifically raised with all staff that if anyone was sick or running late they must follow the documented company policy.

Each member of the sales team was asked to ensure that they had the relevant manager’s direct mobile number saved to their phone.

The following week on October 29th that manager sent an email to the Complainant informing her that as she failed to apply for time off taken she should update the HR online system to reflect the absence.

On Sunday November 3rd the Complainant texted a co-worker to say her daughter had been admitted to hospital.  She sent a second text to the complainant asking her to phone her senior manager as required by the protocol.

The Complainant phoned reception and left a voice message on Monday November 4th before 8am. 

Her message stated that she would not be at work Monday or Tuesday because of her daughter’s ill health and her being in hospital.  She also spoke to her senior manager that morning to explain circumstances. She was told to look after her daughter and he requested she keep him updated on her progress and recovery.

On Wednesday November 6th, 2019 the Complainant rang and said she would be returning to work the following day, Thursday the 7th November 2019.

On Thursday morning the Complainant went into the office of her manager and stated she wished to make a complaint about the co-worker she had rung on the previous Sunday for reminding her of the correct protocol for reporting absences.

That afternoon, November 7th, 2019, the Complainant was dismissed for failing repeatedly to follow company procedures. This meeting was followed by a registered letter to the Complainant dated the 8th November 2019.                                                                                                                                                                                                                      

The dismissal followed a period of continuous lateness and failure to follow instruction, specially to follow the correct procedures when late or to not attending for work.

On Sunday November 3rd, 2019 the complainant’s daughter was admitted to hospital and she was

unable to attend work on Monday 4th, Tuesday 5th and Wednesday 6th. 

Her daughter who is a Type 1 diabetic took ill was rushed to Temple Street Hospital where she was admitted with a life-threatening condition for a diabetic.

The complainant kept her employer informed at all times and text messages sent during the period were submitted for the hearing

She returned to work on Thursday, November 7th, 2019 and was dismissed.

A letter was subsequently posted to her dated November 8th, 2019 she was presented with a letter of termination due to her ‘Failure to follow company policies and procedures namely the absence and late reporting procedures’.

While in the emergency room on Sunday afternoon she contacted her duty manager at 15.53 to inform her of the situation and sent her an image of her daughter in bed in the hospital as she feared her employer would not believe her.

She received a reply at 15.58 assuring her that she would pass on the message to the Director and then at she was contacted again at 8.49pm to remind her that to follow protocol she would need to personally contact a named manager.

She rang the office the following morning but   there was no reply and at 07.16 she left a voicemail.

At 10.46 am on that morning she spoke to the designated senior manager and told him the situation and that she was unable to attend work on Monday and Tuesday and would keep him up to date.

On Wednesday November 6th, 2019 she advised that she return to work the following day and she did so.

On returning she approached a manager to explain her absence and asking why she had been contacted on the previous Sunday evening and told she would need to contact him on Monday morning to follow protocol. 

She felt this was ‘inappropriate’ in the circumstances where she was dealing with a very ill child.

Later that day she returned to that manager’s office as she needed to have some paperwork signed and he indicated that he needed to talk to her.

He said that it was not working out and her employment was terminated immediately. The complainant asked for the reason and was told it was because she had claimed that the company was not family friendly.

Parental leave is defined in the Parental Leave Act (as amended) in accordance with Section 6(1)

Section 6 (3) of the Parental leave act sets out that a period of parental leave shall not commence before a time when the employee concerned has completed one year’s continuous employment with the employer from whose employment the leave is taken.

Force Majeure Leave is defined in Section 13 of the Parental Leave Act 1998 as amended.  It sets out at Section 13 that an employee shall be entitled to leave with pay from his or her employment where for urgent family reasons the immediate presence of the employee is indispensable.

The persons referred to include a parent under sub-section (e)

Under section 13(3) force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment but shall not exceed three days in any period of twelve consecutive months or five days in any period of thirty-six consecutive months.

There is no requirement in the act for Force Majeure to require one years’ service being urgent leave and confined to a small number of days within prescribed time periods.

Force majeure leave therefore applies from the beginning of the employment relationship. The Act goes on in several places to distinguish parental leave from force majeure leave including for example Section 14 (2).

Under Section 13(3) an employee shall as soon as reasonably practicable give notice in the prescribed form to her employer. In the present case this was frustrated by the termination.

Under Section 16A of the Parental leave act an employer shall not penalise an employee for having exercised their entitlement to force majeure leave. Penalisation includes dismissal of the employee.

Under Section 16A(3) if a penalisation of an employee in contravention of subsection (1) constitutes a dismissal of the employee as referred to in Section (2) (a) the employee may institute proceedings under the Unfair Dismissals Act in respect of that dismissal and such dismissal may be referred to a Rights Commissioner under Part IV.

The facts of the case are well set out in the narratives above in both submissions.

The complainant was involved in one of those situations which is the dread of all parents; the onset of a sudden and very worrying bout of illness which could have had life threatening implications for her young daughter. Happily, this did not happen, and her daughter made a recovery.

However, on her return to work her employment was terminated.

She says that, despite not meeting the general one-year qualifying requirement in the Unfair Dismissals Act she is brought within its jurisdiction by the fact that it followed a period of force majeure leave and, as set out in the complainant’s submission, an act of penalisation, in this case the termination of her employment, and this therefore this brings her within the jurisdiction of the Act.

The respondent says that the termination of her employment was directly a consequence of her punctuality and pattern of ‘lates’ and was not in any way related to the absence arising from her daughter’s illness.

Invariably, any review of the force majeure provision must focus on the key criterion necessary to justify a parent’s absence from work; that it is ‘indispensable’. While this approach may appear to lack a degree of compassion it appears so only because of the high bar set by the employee’s attendance being indispensable, and this is what is required by the legislation.

A search for synonyms for indispensable will produce a range of words from ‘absolutely necessary’ to ‘important’ or ‘vital’ and it would be easy to get into an argument about what precisely is meant by indispensable. It is clearly something much greater than important or desirable.

The Supreme Court decision in Minister for Justice and Equality v Skibal [2018] IESC 68 contains the following definition (not a workplace case).

The concept of ‘force majeure’ had to be understood as: - 

“[…] referring to abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care.”

In general terms it must mean that there is in some way an emergency such that the event giving rise to the absence means that the employee in question be excused from attending work.  It may seem obvious, but it is nonetheless necessary to re-state that the force majeure is the episode giving rise to the need for the leave. 

In this case that did not actually arise on the first day as the complainant’s daughter became ill on a day when she was not required to be in work. However, she did not return to work until the following Thursday and she claims that the three days absence all fall within the protection of the force majeure leave.

While the Act provides for three days’ leave in any year it is very difficult to see circumstances, especially in a modern urban setting and where a person has been admitted to a hospital that the principle of force majeure would cover three consecutive days.

The concept essentially derives from that of an emergency, and the related element of unforeseeability due to which the employee making the claim, and no other person, must attend to the emergency.

In this case, had the incident occurred on a working day, it would not be difficult to see that the complainant would have been well justified in accompanying her daughter to hospital and remaining with her. (The daughter lost consciousness at home).

The respondent submitted as the first of two tests whether the complainant’s attendance at the hospital was indispensable. But this question must be further refined to address the entire period of her absence from work.

On a second day of hospitalisation the imperative of indispensability is less clear. A parent’s presence is surely important to a sick child, but the abnormal and unforeseen element of the situation has probably diminished by then and the child is in the care, in this case, of one of the best children’s hospitals anywhere.

The patient was discharged on the Tuesday and the complainant’s evidence was that, as a single parent, she could not arrange child care until two further days later, Thursday.

However, the discharge was a foreseeable eventuality and while no-one would suggest that the complainant’s presence was not extremely important, vital even to her daughter’s recovery it is difficult to see it meeting the criteria set out above for a force majeure event specifically.

The respondent’s claim that its reason for terminating the complainant’s employment was related to the previous pattern of punctuality issues only, and not the specific period of absence lacks credibility and is somewhat disingenuous.

On the other hand, the complainant, while understandably distracted by her daughter’s condition, nonetheless showed a very poor grasp of her responsibilities as an employee.  Her apparent outrage at being reminded, on Sunday evening of the protocol for reporting absence shows a particular lack of insight and she failed to maintain the level of communication with her employer she might reasonably have been expected to.

Contrary to what was stated as her reason for not applying for the leave (the termination of the employment) the complainant made no effort to apply for the leave throughout the best part of a working day.

That said the manner of the termination lacked any gesture in the direction of fair procedure and clearly reflected a degree of pique at what it probably saw as the complainant’s cavalier attitude to keeping it advised as to her likely return to work.

If so, the complainant’s conduct had given the respondent some reason to be piqued but nothing excuses the peremptory manner in which it acted to bring the employment to an end.

That said, if the complainant does not make out her case that the termination was an act of penalisation for having taken a period of force majeure leave then there is no jurisdiction to provide her with a remedy.

For reasons that will be clear from the discussion above about the emergency element of force majeure I find that her absence from work does not fall within the requirements of an indispensable presence (except perhaps on the Tuesday; the day of her daughter’s discharge), but this is insufficient to bring the three days’ absence in its entirety within the definition of force majeure leave.

Working parents are regularly placed in child minding crises which will not automatically fall within the criteria applicable to a ‘force majeure’ situation, each of which will turn on its own facts

It seems more likely that the complainant’s approach was a continuation of her somewhat casual approach to the requirement to attend for work regularly and on time, and despite the extenuating circumstances of her daughter’s illness, on these facts they are insufficient to bring the three days of absence within the requirements of the unforeseen emergency provided for in the Act. 

And, as already noted, while the complainant had only a rather narrow window of opportunity to do so she had not actually applied for force majeure leave, which of its nature is generally done retrospectively. But this does raise a question over the termination being an act of retaliation.

I find therefore that this was not a period of force majeure leave, that she had not applied for such leave at the time she was dismissed and therefore a termination of her employment cannot be penalisation for having availed of it. 

Despite what must remain as very serious criticism of the unfair and peremptory manner in which her employment was terminated, I cannot provide a remedy under the Unfair Dismissals Act for these reasons.

Both complaints relate to this same set of facts and neither is well founded. Her complaints are not within jurisdiction.

For the reasons set out above neither complaint CA-00035272-001 nor complaint CA-00035284-001 is well-founded.

Force majeure leave, penalisation, Unfair Dismissal