PLD231

1.Appeal of Adjudication Officer Decision No(s).ADJ-00042144 CA-00052897

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 26 May 2023, in accordance with Section 19(1) of the Parental Leave Acts, 1998 and 2006. A Labour Court hearing took place on 23 August 2023 The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Avista CLG against the Decision of an Adjudication Officer (ADJ-00042144 CA-00052897-001) under the Parental Leave Act 1998 (the Act), in respect of a complaint by Elizabeth O’ Reilly that her employer breached the Act. In this Determination the parties are referred to as they were at first instance, hence Ms O’ Reilly is referred to as ‘the Complainant’ and Avista CLG is referred to as ‘the Respondent’.

By Decision dated 27th April 2023, the Adjudication Officer upheld her complaint, and instructed the Respondent to grant her the parental leave she indicated she wished to take in 2023, 2024 and 2025. The Respondent appealed the Adjudication Officer Decisions to this Court on 26^thMay 2023. The appeal came before the Court on the 23^rdAugust 2023.

The complaint was lodged with the WRC on the 16^thSeptember 2022. Therefore, the cognisable period for the purpose of the Act is the 17^thMarch 2023 to 16^thSeptember 2022

Summary of the Complainant’s submission.
The Complainant’s complaint as outlined in her referral form to the WRC is“My case is about access to parental leave and the process involved accessing parental leave. This has been ongoing since 2018 and it is at a stage now that I will lose my parental leave entitlements.”

The Complainant has worked for the Respondent for over 19 years in her role as a social care worker. The Respondent provides housing support to adults and children with intellectual disabilities and complex needs. The Complainant has three children aged 6, 10 and 11. The Complainant has experienced difficulties since 2018 in having her applications for parental leave approved. In the past the Respondent contrary to the Act, has refused parental leave rather than deferring / rescheduling it as provided for under the Act.

The Complainant was facilitated with parental leave in 2021 and 2022. The Complainants parental leave for 2023 was approved and availed off. The Complainant is seeking confirmation from the Respondent that her application submitted on 5^thAugust 2022, for parental leave from 1st July 2024 for 7 weeks or P/L 19.5 hrs for 10 weeks and 30^thJune 2025 for seven weeks or P/L 19.5 hours for 10 weeks be approved now.

Summary of the Respondent’s submission

The Respondent operates parental leave in line with the relevant HSE circulars which provide entitlements over and above what is provided for in legislation, in that parental leave is provided for children up to 13 years of age.

On the 5^thAugust 2022 the Complainant submitted her intention to avail of Parental leave to the then HR Manager, and indicated that she wished to take it in the following manner;

July 3^rd, 2023; for 7weeks block or P/L 19,5 hours for 10 weeks
July 1^st, 2024; for 7 weeks od P/L 19.5 hrs for 10 weeks.
30^thJune 2025: for 7 weeks or P/L 19.5 hrs for 10 weeks.

At a meeting on the 11^thAugust 2022 the HR manager indicated to the Complainant that he was not in a position to approve applications for parental leave one, two, or three years in advance, because of the unknown variables that need to be considered at the time of granting the leave. He undertook to commit to a defined timeline under which parental leave applications would be considered each year, and outcomes communicated.

Following on from a number of engagements, the Respondent committed to confirming parental leave before the 30^thApril each year, even though it is only required by the legislation to give notice no less than 4 weeks before the commencement of the parental leave. The Respondent is happy to continue working with the Complainant to facilitate her future Parental leave requests in a manner that is mutually satisfactory and in keeping with the needs of the service.

The applicable law

The Act at section 8 (1) states.

• (1) When an employee proposes to take parental leave, he or she shall, as soon as reasonablypracticable but not later than 6 weeks before the commencement of the leave, give notice in writing of the proposal to his or her employer.
  
  and at section 9 (1) states.
  • (1) Where an employee has given a notice under section 8(1) to his or her employer, they shall, not less than 4 weeks before the commencement of the parental leave concerned, prepare and sign a document (referred to in this Act as a “confirmation document”) specifying the date of commencement of the leave, its duration and the manner in which it will be taken.

Deliberation:

The Complainant’s representative was unable to identify a specific breach of the Act within the cognisable period. He submitted that he did not believe that the Respondent’s policy was in full compliance with the requirements of the Act but was unable to identify an occasion during the cognisable period where the application of that policy constituted a breach of the Act. The Court determines that as there was no breach of the Act during the cognisable period the complaint must fail.

Determination:

The appeal succeeds. The Decision of the Adjudication Officer is set aside.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
30 August 2023	Deputy Chairman