Complainant

Respondent

Parties

Anastassia  O’ Connor

Cru Na Greine Ltd t/a Keanes Supervalu (amended on consent at the hearing)

Complainant

Respondent

Anonymised Parties

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Representatives

Richard O Connor

The HR Suite

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-00062602-001

05/04/2024

The Complainant is employed in the Accounts Department of the Respondent. She commenced employment in March 2021. She gave her evidence on Affirmation. The Complainant’s husband, Mr. Richard O’Connor, represented her.

Ms. Susan Brennan, HR Manager, and Mr. Peter Keane, Director, both gave evidence on Affirmation.

Submissions were exchanged between the parties in advance of the hearing which were relied upon by the parties.

There was no dispute as to the correspondence exchanged in this case.

It was the Complainant’s evidence that she requested parental leave from her manager on 15 February 2024 for her child, who turns 12 years old on 9 September 2024. She was advised to speak with the HR Manager, who informed her that she was limited to taking two weeks’ leave during the summer, as per Mr Keane’s instruction.

On 5 March 2023, the Complainant wrote to the HR Manager, seeking two weeks’ parental leave plus two weeks’ annual leave, advising that she was flexible regarding which four weeks between 24 June 2024 and 31 August 2024.

She received a reply on 13 March 2023 stating that the company was unable to accommodate four weeks’ leave together, and indicating that the Respondent could only facilitate two weeks off together. The stated reason was “the significant adverse effect on the operations of the business due to seasonal variation in the volume of the work concerned.” An offer of two weeks’ parental leave, or alternatively, two weeks’ annual leave from 24 June 2024 to 31 July 2024, was made.

The Complainant replied on 14 March 2024, requesting four weeks’ parental leave at any time between 24 June 2024 and 31 August 2024.

In response, on 14 March 2024, the Respondent noted that her application was not refused, the option to take two weeks remained open, but it was unable to accommodate four weeks’ parental leave during the requested dates “due to seasonal variations in the volume of the work concerned.” An offer was made to postpone this leave, allowing her to take four weeks’ parental leave at any time between 1 September and 30 November 2024.

The Complainant appealed this decision by letter dated 21 March 2023, explaining her situation.

The HR Manager replied by letter dated 27 March 2024, stating, “Unfortunately, at this time we are unable to reconsider your previous requests to grant four weeks’ parental leave/ two weeks’ parental leave plus two weeks’ leave to run concurrently.” The reasoning was repeated, as was the offer to postpone the parental leave within the next six months.

The Complainant sought a meeting with the Director by letter dated 28 March 2024 to discuss the matter. They met on 3 April 2024, with the Director explaining that the summer months were busy and that when someone is off, it puts pressure on the other staff. He stated that there needed to be a balance between what’s good for the business and what’s good for the staff. He sought confirmation that her leave request was unpaid and offered her 2.5 weeks’ leave. The complaint was lodged with the WRC thereafter.

The Complainant gave evidence that she had a very good working relationship with her employer and colleagues. She accepted in cross-examination that she was previously granted annual leave in Summer 2022 and Summer 2023. This was her first request for parental leave.

She did not accept that the work was busier during the summer months, stating that she performed the same tasks regardless of the time of year.

It was her evidence that she was willing to be flexible with her employer regarding the block of leave she wanted between the end of June and the end of July.

It was put to the Complainant that her application was not refused but postponed. It was her evidence that when her application was not granted and she was not offered a compromise, she took that as a refusal. It was suggested to the Complainant that the Respondent genuinely wanted to work with her, but she disagreed with this.

She explained that the HR Manager’s offer of two weeks with days off either side was not acceptable, as she was not looking to split her leave period.

In response to the reason provided, together with the purchase of the new shop in 2023, for not granting the four weeks’ parental leave, it was the Complainant’s evidence that she had received four weeks’ leave in 2022 and 2023. Since the acquisition of the second shop, she had not been assigned any additional tasks.

When asked about the postponement of the parental leave to a four-week block between 1 September and 30 November, she explained that her child, along with her other children, would have returned to school by then, and as she did not have any family in Co. Kerry to assist her, she needed the time during the school holidays.

Upon inquiry, the Complainant confirmed that her daughter would turn 12 years old on 9 September 2024, and her entitlement to parental leave would expire on 8 September 2024.

The HR Manager provided undisputed evidence regarding the correspondence between the parties. When asked about the reasons a period of four weeks was not agreeable, the HR Manager's evidence was as follows:

·       The Respondent had purchased another store in 2023, and the office was busier as a result.

·       Footfall for the store increased by 35%.

·       She wanted to ensure that the financial demands of the business were met.

·       Two other staff members in the office—the Financial Controller and the Cash Office Manager—had also requested time off during the summer break.

It was her evidence that the decision was "about the business needs." The HR Manager denied that there was a policy limiting blocks of leave to two weeks and confirmed that this was not contained in any policy. When asked during cross-examination, the HR Manager stated that two other staff members took three-week holidays outside of the summer holidays.

It was her evidence that when the Complainant approached her, she offered two weeks with additional days off either side, which would have equated to nearly three weeks. Upon inquiry, when asked why this was not stated in any of her letters, she explained that she had conveyed this offer to the Complainant in February and assumed that the Complainant had not accepted it.

She acknowledged upon inquiry that she made the initial decision and also decided on the Complainant’s appeal of her original decision.

When asked about the other staff members in the office, the HR Manager's evidence was that one employee applied on 3 February 2024 for two weeks of annual leave and one week of parental leave during the summer period, while the other applied on 14 April for one week in June and one week in August. She spoke about the pressures on the business when staff are missing from the office and the need for other employees to complete the work, emphasising the importance of limited overlap. When asked if she had reviewed the calendar to figure out dates that would accommodate all parties, she admitted that she had not.

When asked why she did not provide this reasoning in her letters, she accepted that it was not explained in them. The HR Manager acknowledged that the Complainant was a good employee.

The Director of the Respondent gave evidence about his meeting with the Complainant, describing her as being quite emotional. His evidence was that he understood her situation as a parent, but the HR Manager was trying to manage the roster, and 20 days off in July placed significant pressure on the other staff members in the office. He offered her 2.5 weeks' leave as a compromise. He noted that the Complainant was currently on annual leave from 4 July 2024 to 25 July 2024.

The Director of the Respondent also spoke positively about the Complainant as an employee.

Section 6 of the Parental Leave Act 1998 (as amended) Entitlement to parental leave provides:-

6.— (1) Subject to this Act, an employee who is a relevant parent in respect of a child shall be entitled to leave from his or her employment, to be known and referred to in this Act as "parental leave", for a period of 18 working weeks to enable him or her to take care of the child.

(1A) The reference in subsection (1) to a period of 18 working weeks shall be construed—

(a) in the period from 1 September 2019 to 31 August 2020, as a reference to a period of 22 working weeks, and

(b) on and from 1 September 2020, as a reference to a period of 26 working weeks.

(2) Subject to sections 10(4) and 11(6), a period of parental leave shall end—

(a) subject to paragraphs (b) and (c), not later than the day on which the child concerned attains the age of 12 years”

Section 10, Postponement, curtailment and variation of parental leave by parties concerned:-

“10.—(1) Subject to this Act, when a confirmation document has been prepared and signed in accordance with section 9, the employee concerned shall not be entitled to work in the employment concerned during the period of parental leave specified in the document.

(3) Where parental leave is curtailed under subsection (2)(a) or Part IV, the parental leave not taken by reason of the curtailment may be taken at such other time as may be agreed upon by the parties concerned.

(4) If, solely because of the postponement or suspension under subsection (2)(b) of the taking of parental leave, or of the taking of the balance of parental leave, as the case may be, the period of the parental leave ends by virtue of the operation of section 6(2), then the event which causes that period to so end shall be deemed, for the purposes of this Act, to have occurred after the end of that period.

(2) Notwithstanding subsection (1), if, after the date of a confirmation document (whether or not the period of parental leave to which it relates has commenced)—"

Section 11 of the Act, Postponement by employer of parental leave provides:-

“11.—(1) Subject to this section, where an employee has given a notice under section 8(1) to his or her employer and the employer is satisfied that the taking of parental leave at the time specified in the notice would have a substantial adverse effect on the operation of his or her business, profession or occupation by reason of seasonal variations in the volume of the work concerned, the unavailability of a person to carry out the duties of the employee in the employment, the nature of those duties, the number of employees in the employment or the number thereof whose periods, or parts of whose periods, of parental leave will fall within the period specified in the said notice or any other relevant matters, the employer may, by notice in writing given to the employee not later than 4 weeks before the intended commencement of the leave, postpone the commencement of the leave to such time not later than 6 months after the date of commencement specified in the relevant notice under section 8(1) as may be agreed upon by the employer and the employee.

(2) Notwithstanding subsection (1), if, after the date of a confirmation document (whether or not the period of parental leave to which it relates has commenced)—

(a) the employer concerned or his or her successor and the employee concerned so agree, the leave or part of it may be postponed to such time as may be so agreed upon, the period of such leave may be curtailed in such manner and to such extent as may be so agreed upon or the form of the leave may be varied in such manner as may be so agreed upon, and in such a case the confirmation document shall be amended accordingly, or

(b) the employee concerned becomes ill or incapacitated such that the employee is unable to care for the child the subject of the parental leave to which the confirmation document relates, then the employee may, by notice in writing given to the employer concerned or his or her successor, as soon as is reasonably practicable after becoming ill or incapacitated, and accompanied by the relevant evidence in respect of the illness or incapacity—

(i) if the period of parental leave has not commenced, postpone the taking of the leave to such time as the employee is no longer sick, or

(ii) if the period of parental leave has commenced, suspend the taking of the balance of the leave to such time as the employee is no longer sick,

and in such a case the confirmation document shall be deemed to be amended accordingly.

(2) Before giving a notice under this section to an employee, an employer shall consult with the employee in relation to the proposed postponement of parental leave.

(3) A notice under subsection (1) shall contain a statement in summary form of the grounds for the postponement of the commencement of the parental leave concerned.

(4) The commencement of parental leave in respect of a particular child may not be postponed more than once under this section unless a ground for the postponement is seasonal variation in the volume of the work concerned; and, where that is a ground for the postponement, such commencement in respect of a particular child may not be postponed more than twice.

(a) the employer concerned or his or her successor and the employee concerned so agree, the leave or part of it may be postponed to such time as may be so agreed upon, the period of such leave may be curtailed in such manner and to such extent as may be so agreed upon or the form of the leavemay be varied in such manner as may be so agreed upon, and in such a case the confirmation document shall be amended accordingly, or”

No issue was raised by the Respondent as to contains of the written request received from the Complainant. Therefore, it is deemed to have been accepted.

It is accepted that the HR Manager limited the Complainant to two weeks' leave. Her letters were very clear that she was only permitted to take two weeks of annual or parental leave, and nothing more.

It is also not accepted that the Respondent’s reasons for the postponement of the parental leave were adequately explained to the Complainant in the letters of 13, 14, and 27 March 2024, in accordance with Section 11(3). The basis for this finding is the evidence of the HR Manager, who not only accepted this in her evidence, but also the Director’s evidence, which differed. There was a three-week leave period, albeit split, approved by another member of staff in the office.

What is understandable is an employer seeking to be fair to all employees by accommodating them during the two months of July and August, while ensuring that duties are met. Unfortunately, this was not explained in any of the written responses to the Complainant. Instead, there is an unexplained statement noting “significant adverse effects on operations of the business due to seasonal variation in the volume concerned.” While it is fully appreciated that this is a direct quote from the legislation, it must be reasoned by the Respondent as required by Section 11(3) of the Act.

It appears this is where the breakdown happened between the parties on these issues, where the Complainant did not feel there was a sufficient change in tasks in the months during which she requested her leave, compared to the previous year. After hearing the evidence of the HR Manager and Director, it appears she was correct. However, there were other very legitimate factors that the Respondent was considering but failed to communicate in its repeated written correspondence.

A compromise was offered during the meeting with the Director, where 2.5 weeks of parental leave was put forward. It appears this was not agreeable to the Complainant, as her next step was to refer the matter to the WRC two days later. There is no written evidence of this offer, but following the evidence of Mr Keane, at the end of the hearing, an arrangement was made with the Complainant regarding leave. Unfortunately, no further evidence was given on the type or duration of the leave.

It is regrettable that these parties, who both speak positively of each other, have ended up in such a dispute.

Having considered the evidence, I find that the postponement of the parental leave by the Respondent was not done in accordance with Section 11 of the Act

Redress is provided for under Section 21 of the Act:-

“21.—(1) A decision, other than a decision referred to in section 21A, of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute between an employee and his or her employer relating to the entitlements of the employee under this Act (or any matter arising out of or related to those entitlements or otherwise arising under this Act) or a decision of the Labour Court under section 44 of the said Workplace Relations Act 2015 on appeal from the first-mentioned decision, may contain such directions to the parties concerned as the adjudication officer or the Labour Court, as the case may be, considers necessary or expedient for the resolution of the dispute or matter and such other redress as the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all of the circumstances and the provisions of this Act, and accordingly may specify—

(a) the grant to the employee of parental leave of such length to be taken at such time or times and in such manner as may be so specified,

(b) an award of compensation in favour of the employee concerned to be paid by the employer concerned, or

(c) both a grant referred to in paragraph (a) and an award referred to in paragraph (b)

(2) An award of compensation referred to in subsection (1) (b) shall be of such amount as the adjudication officer or the Labour Court, as the case may be, considers just and equitable having regard to all the circumstances but shall not exceed 20 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed.”

Having regard to all of the circumstances , I am awarding the Complainant compensation in the sum of €580 being the equalitvant of one week’s wages. In arriving at this decision, consideration was given to the positive working relations between the parties, the honest attempt of Mr. Keane to address the situation and discuss it directly constructively with the Complainant and the offer of two weeks parental leave, albeit limited, that was made but refused.