Complainant

Respondent

Anonymised Parties

A Hotel Worker

A Hotel

Representatives

  Appeared in Person

Niamh Daly , IBEC Executive

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-00034016-001

27/01/2020

This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 27 January 2020, the Complainant, a Hotel Accommodation worker submitted a claim for “force majeure leaves “in accordance with the Parental Leave Act, 1998, to the WRC.

The case was scheduled for Remote hearing on August 24,2020 and all parties were in attendance. As the complainant had requested the support of an Interpreter, the hearing was adjourned as technical difficulties on connection arose on that day. The case was resumed on 24 March 2021, the earliest date possible, thereafter.

The Complainant represented his own case. The Respondent operated a Hotel Group and was represented by IBEC. Both parties made written and oral submissions.

Polish translation was provided on a “word for word “basis at hearing.

The Respondent legal title was amended, on consent.

The Complainant outlined that he had commenced work as a Hotel Worker on 21 March 2018. He worked 6 hours per week in return for a salary of €100.00 per week. The Complainant has continued in employment and is currently on sick leave.

The Complaint form, received in January 2020, indicated that the claim was submitted under the provisions of the Parental Leave Act, 1998 and recorded that the complainant had been refused “force majeure “leave. He exhibited a contract of employment and referred to his employment as being in the “casual category “

By 17 August 2020, the Complainant had set out that he had experienced a difficulty in securing requested 3 weeks annual leave and had been overtaken by other employees who had been granted 5 weeks leave.

When invited to give an outline of his case at hearing, the complainant told the hearing that he was here to address an application for 3 weeks annual leave. He had developed health issues which caused him to fly to Poland every 6 months. He clarified that he had not made an application for force majeure or parental leave. His issue was that his application for a 3-week annual leave had been unfairly refused. He confirmed that he had been eventually granted the leave but was overtaken by the pandemic, where he then cancelled the leave.

The complainant submitted that his reason for attending the hearing was to establish whether he was permitted to take 3 weeks of annual leave together. He confirmed that he did not have assistance in filling the WRC complaint form, but he had taken advice on the contract of employment and had been informed that no prohibition existed to him availing of 3 successive weeks leave.

The Complainant confirmed that he had not raised the matter locally with the respondent as he had ceased engaging. He confirmed that he had refused to participate.

The Respondent operates a Hotel Group of 141 employees and agreed to amend the legal title of the business submitted on the complaint form.

On 20 July 2020, the Respondent wrote to the WRC. They submitted that they understood that the complaint lodged by the complainant in January 2020 had been “fully resolved “internally and that the complaint before WRC was misplaced as the complainant had never submitted a claim for

 “force majeure “leave.

In December 2019, the complainant had requested annual leave 4-26 April 2020. This was refused initially as it coincided with the busy Easter period.

On 23 January 2020, the complainant informed the Accommodation Manager that he had a Doctors appointment in Poland on 6 April 2020. The complainant was requested to provide supporting documentation. He refused to do so.

Instead he responded that the Clinic in Poland could not give him a letter and he intended to submit an official complaint to the WRC, citing discrimination. He indicated that he would not be available for work 3 to 26 April 2020.

The Respondent endeavoured to tease the matter out with the complainant, including preparing to facilitate his request for an Interpreter. However, on 18 February, the complainant withdrew from the process and directing “any questions, please direct them to the WRC Committee”.

The Respondent approved the leave request on 20 February 2020 through a combination of annual leave accrued and unpaid leave in recognition of the complainants stated Doctors appointment.

The WRC hearing was cancelled on March 23, 2020. On that day, the complainant cancelled his leave, he stated that he was unable to travel due to the Pandemic. This was facilitated by the Respondent.

The Respondent expressed some concern at having to attend a hearing, where the complaint was clearly misplaced. A complaint in relation to “Force Majeure “had never been in being.

Furthermore, the complainant was bound by the express terms of his contract which stated:

“Normally, not more than half the annual leave entitlement may be taken between 1 January and 30 June, the balance to be taken between 1 July and 31 December “

The Respondent requested that the claim be recognised as misplaced and should be dismissed on grounds of being frivolous and vexatious.

I have considered both parties stated positions in this case. I have read and considered both parties written submissions and the contract of employment. I have also considered the complainants oral evidence adduced at hearing.

My jurisdiction in this case rests in the Parental Leave Act 1998, specifically Section 13 on Force Majeure Leave and Section 21 on the role of the Adjudicator.

I accept that the Complainant has not at any time in his employment made an application for “Force Majeure “leave. Therefore, the claim as framed on 27 January 2020 is not the claim that the complainant wished to bring. He made it clear at hearing that he wished to ascertain if he could claim 3 weeks of consecutive annual leave at his employment? He did not seek to amend his complaint form. He simply asked me to answer that question for him. I explained that I could not answer that question and he was best served engaging with the respondent on this key issue.

I understand that the complainant may well have been aggrieved at not receiving approval for leave. However, it is very important that he should reflect on his contract of employment, where local pathways for resolution of issues is clearly set out. These were not exhausted prior to his referral to the WRC on 27 January 2020.

He was granted leave to go to Poland in February 2020 and still proceeded for his claim on force majeure leave before WRC. It is best practice, when an issue is resolved to close the matter.

However, it was important to hear from the Complainant directly at hearing to clarify what up to that moment was unclear. I accept that he did not have any assistance in filling out his complaint form for WRC.  He was influenced by his lawyer’s advice that he was not prohibited in taking 3 weeks consecutive annual leave.  This Lawyer was not available at hearing.

I addressed the parties at hearing on the role played by the Adjudication Service of WRC in dispute resolution and I emphasised that it came at what is often referred to in stage 4 of a grievance procedure in Industrial Relations terms.

 I explained that parties were obliged to seek to resolve disputes locally in the first instance. I note that the respondent contract provides for a 3-stage grievance procedure where external referral comes at stage 3.

I must acknowledge that the respondent in this case kept an open door for the complainant to resolve his grievance locally, but he withdrew prematurely. I realise that it is hard to engage if you believe you have suffered an injustice, however, in this case, I found that the respondent had reached out to the complainant in a fair and reasonable manner and this was not reciprocated.

I think it important that the complainant reflect on the circumstances of the respondent seeking to manage 141 staff in a Hospitality setting. There may be occasions where an employer needs to give some lea way to a worker on a confidential basis. Circumstances may arise where the complainant may, himself need additional lea way some day. It is vital that an employer and employee sit down and discuss their issues and it is even more important that each party listen to and hear the other party. That is the mutual trust and confidence necessary in all employment relationships.

I am hopeful that once the complainant returns to work post sick leave that he will engage with his employer.

My attention is drawn to terms of Section 42 of the Workplace Relations Act, 2015 in advancing the in instant issue before me.

Dismissal of claim by adjudication officer

42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41if  she is of the opinion that it is frivolous or vexatious.

(2) (a) A person whose complaint or dispute is dismissed in accordance with this section may, not later than 42 days from its dismissal, appeal the dismissal to the Labour Court.

(b) A person shall, when bringing an appeal under this subsection, give notice to the Commission in writing of the bringing of the appeal.

(c) A notice referred to in paragraph (b) shall specify the grounds upon which the appeal is brought.

(3) Upon the hearing of an appeal under this section, the Labour Court may—

(a) affirm the decision of the adjudication officer dismissing the complaint or dispute concerned, or

(b) annul that decision and refer the complaint or dispute to the Director General

I have given some consideration to the respondent submission that the claim should be dismissed. As the claim is not connected with the complainants stated intentions on establishing whether he can take 3 weeks of annual leave consecutively and given that the topic of his leave is now moot, where he did not seek to amend the complaint form.

 I have decided to accede to the respondent request and I wish to exercise my powers conveyed under Section 42 of the Workplace Relations Act, 2015 and hereby dismiss the claim as being frivolous and vexatious.

I dismiss the claim.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 18 of the Parental Leave Act, 1998, requires that I decide in relation to the complaint in accordance with Section 13 that Act.

In accordance with my jurisdiction conveyed in Section 42 of the Workplace Relations Act, 2015, I hereby dismiss the claim as frivolous and vexatious.

Application for Force Majeure Leave