ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033734
Parties:
| Complainant | Respondent |
Parties | Adam O'Connor | Smyths Toys Ltd |
Representatives | Self | In house legal representative |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Paternity Leave and Benefit Act, 2016 | CA-00044599-001 | 13/06/2021 |
Date of Adjudication Hearing: 09/06/2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The first attempted hearing of the complaint was adjourned in the interests of fair procedures as the person named by the Complainant on the complaint form had left the employment and notice of the complaint was received by HR with insufficient time to research the case and respond. The Complainant was asked to provide some information regarding his exchanges/documents form the Respondent concerning his complaint none of which detail was provided before the first day of hearing.
When completing the WRC Form, the Complainant referred to Parental, Carers, Paternity, Maternity and Adoptive leave. Under redress he sought adjudication under the Parental Leave Act whereas in the specific details of the complaint he referred to not getting paternity leave. As it clear from messages to his manager at the relevant time that he was seeking Paternity Leave and made no reference to parental leave at any stage, this case is considered and decided under the Paternity Leave and Benefit Act 2016. In his complaint form, the Complainant also referred to not receiving his full entitlement. While disputing the right of the complainant to be heard under the Organisation of Working Time Act, the Respondent provided details of the holiday pay paid to the Complainant before and at the time of termination which indicated that he was overpaid by two days. At the commencement of the reconvened hearing, the Complainant accepted he had received his full holiday entitlement.
The Complainant and his former manager at the time gave sworn evidence at the hearing.
Background:
The Complainant was employed by the Respondent in their store in Tralee County Kerry on a part time basis working at weekends from 13/09/2019 until 19/06/2021 when he resigned. He was laid off for an extended period due to Covid and the issues raised regarding taking holidays and the paternity leave arose in communications with his then manager as he was being rostered back to work.
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Summary of Complainant’s Case:
The Complainant confirmed that he had sought paternity leave and leave in whats app messages to his in April and May to his manager at the time. He had never applied for such leave before. The manager confirmed it would be okay. He was not asked to sign any forms or give any other information. When he returned to work he got his leave alright but not his paternity leave. He left the employment in June 2021. In response to the Respondent on not following the rules set out in the staff handbook-he stated that while he received and signed them,85% of staff who say they have read them don’t. He was not told by his manager that he needed to fill out any documents to get the paternity leave and he had never claimed paternity leave in any employment previously. Asked by the undersigned if he had raised the issue with any manager after he returned to work from lay off, he replied no, he was not aware who took over from the former manager at the time. He was not asked to fill out any forms for the annual leave either, it was just up on the roster.
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Summary of Respondent’s Case:
The Respondent pointed to the complaint being notified as one for parental leave-but in any event answered both complaints to which theirs was a very similar response regarding procedures. The Complainant signed for a staff handbook when he commenced and an updated version at a later stage. In signing for the document, he indicated he had read the procedures set out in the handbook and these included those to be followed when applying for paternity and parental leave. In the case of paternity leave the Complainant was to provide medical evidence of the child’s birth and also written notice of the dates. The child was born in February 2021 when the Complainant was on lay-off. He engaged in some whats app messages in April and May 2021 with the manager at the time, but this is not the requirements of the legislation, is not an approved form of application and does not meet the terms of the company policy as set out in the staff handbook. The Complainant returned to work on May 24th, 2021, gave his notice on June 13th and left on June 19th, 2021. The former manager gave evidence that he had good relationship with the Complainant inside and outside of work. Asked if it was not reasonable of the Complainant to have concluded from the response on the whats app on 14 May- ‘Can I put in for the paternity leave?’ Yeh that should be okay’ as meaning his request (a second request) was approved-he replied that he Complainant would still have had to complete the forms to receive the paternity leave. The manager said that he had never given paternity leave without the forms being completed.
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Findings and Conclusions:
The obligations on employees regarding notice and medical information to be served on the employer are as set out in the legislation at Section 7 of the Paternity Leave Act. Those contained in the Respondents Staff Handbook mirror those requirements. The Respondent representative stated at the hearing that there must be a fifty- fifty responsibility on the part of the Complainant to ensure that the procedures set out in the handbook were followed, and I agree. However, when the Respondent is the one insisting that the Complainant should follow a certain procedure for approval, then the onus to point out that procedure is far greater on the Respondent side. The responses of the manager to the requests on what’s app were at best lazy and at worst gave the wrong impression to the Complainant. The manager must have worked with another person on the return to work rosters and the annual leave but apparently did nothing about the request for paternity leave. The failure of the follow through has cost both the Complainant and the Respondent in terms of time and money in addressing this complaint due to that managers own failure to follow through on company policy. The Complainant is effectively saying his paternity leave was approved but not granted. I take the view that he was correct in principle based on the managers response on the what’s app messages. However, having concluded the whats app messages with a cheery good luck message, he knew that manager was gone from the store. His annual leave was posted on the roster but when he did not see any reference to his paternity leave on the roster. he never followed up about that leave with any remaining manager. He had an obligation to do that rather than jumping to a conclusion that his leave was not granted. Asa matter of fact, the Respondent never refused to grant leave-a manager did not properly follow through on the request which is not the same thing and the Complainant never followed through at all. In the circumstances I cannot find that a request for paternity leave was rejected-this is a simple case of neither party following through on some informal communications through what’s app messages. The finding therefore is that this is not a valid complaint and is not well founded.
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Decision:
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 27 Paternity Leave and Benefit Act 2016
CA-00044599-001 The complaint brought by Adam O Connor against Smyths Toys Ltd is not well founded. |
Dated: 24th June 2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Paternity Leave |