Complainant

Respondent

Parties

Dean  Hart

Komfort Kare

Representatives

Roberta Urbon Peninsula Business Services Ireland

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-00063715-001

25/05/2024

The Complainant is the Respondent’s HR Manager.

At lunchtime on the 21st of May 2024 the Complainant was called away from work due to concerns about his wife’s health and accompanied her to hospital. Later that evening the Complainant’s wife suffered pregnancy loss.

The Complainant requested force majeure leave for the following two days as his wife continued to experience symptoms associated with pregnancy loss and needed to be supervised, as did his children.

On the 22nd of May the Respondent agreed to pay force majeure leave for the half day on the 21st of May when the Complainant was called away but denied force majeure leave for the following two days.

From the outset of the hearing I canvassed the views of the parties on whether this decision should be anonymised. Neither the Complainant, nor his wife who was also present, want the decision to be anonymised.

The Complainant made detailed written submissions and gave evidence under oath.

Where relevant I have referred to the Complainant’s evidence in the findings section of the decision.

The Complainant’s case is that he had to take care of his wife. The matter was urgent and he had to be there. He has reviewed the legislation and believes the wording clearly entitles him to force majeure leave. The Respondent failed to recognise this right but instead suggested unpaid alternatives, him taking annual leave or him working additional overtime.  This would have put him under financial pressure.

The Respondent representative declined to cross examine the Complainant.

The Respondent’s representative made oral and written submissions.

Force majeure leave can only been taken in exceptional circumstances where the immediate presence of the employee is required. The Respondent granted force majeure leave in line with the act. They applied the leave for the 21st of May but not for the 22nd or 23rd.

The Complainant declined to get a letter from the Rotunda hospital when requested.

Ms Brenda Kavanagh the Respondent’s CEO gave evidence under oath.

She really sympathises with the Complainant situation. It is really difficult matter to manage. The company had already set a precedent with similar set of circumstances with another employee and felt to allow the Complainant avail of force majeure leave would be to treat people unequally.

Force majeure wasn’t an option unless it was a unprecedented situation. She was conscious that other members of staff could challenge the fact that the Complainant got it. That’s why they requested that the Complainant obtain a letter from the hospital. She did offer the Complainant carers leave. They had never offered force majeure consecutively to any employee. The Complainant notified them that he would be unavailable on the 22nd of May at 10pm on the 21st of May, which actually a substantial period of notice in their business. They operate on a 24 hour basis.

He later requested work from home but they needed him to be face to face so he could carry out interviews and refer to their physical filing system.

Summary of the Facts

On Tuesday the 21st of May, the Complainant was at work. He spoke to his wife at lunchtime who told him that she was experiencing bleeding and was extremely worried about collecting the children.

He then spoke to his colleagues and the CEO Ms Kavanagh who agreed he should leave.

The Complainant picked up the children and later accompanied his wife to the Rotunda.

About 7pm he texted Ms Kavanagh “Hi just giving an update before it gets and later. (X) is still in ED in rotunda I haven’t been allowed in just yet. If it looks like I wont make it tomorrow for whatever reason I will update the office. I’ve no idea yet id shes staying in or anything.” 

Later than evening the Rotunda confirmed that they had suffered pregnancy loss.

Ms Kavanagh later asked for an update. He informed her by text of what had occurred and that he would get a gp cert for the next day. At the time the Complainant was not aware of force majeure leave as an option. Ms Kavanagh responded letting him know she would assist if he needed anything. In the WRC hearing she apologised if this request for an update had caused any upset.

They were discharged about midnight. The Complainant dropped his wife home. He rang Ms Kavanagh and told her he was not going to be in the next day.

At this point the Complainant’s wife was still suffering the symptoms of pregnancy loss. He wrote to Ms Kavanagh by email the following day, the 22nd of May.

“Unfortunately and sadly my wife suffered a difficult miscarriage yesterday and I have been unable to attend work. I must thank you for your support this far and your understanding and your kind words.

My wife is still in the midst of medical examinations and requires several visits to the hospital. She is quite unwell. We have tests today and further test hoping that this will be concluded by Friday the 24th of May provided there are no hidden complications.

If possible I would like to ask the company to allow for force majeures in this instance as it pertains to the sudden illness of a spouse and requires my urgent attention at home.

Thanks again Brenda and hope to hear from you soon.”

Ms Kavanagh Respondent an hour and a half later and after receiving advice from the Respondent’s HR consultancy Peninsula.

“I’m so sorry to hear that and really appreciate you taking the time to keep us updated I hope you are both ok and please let me know if you need anything.

Force majeure leave is only for one day. Its is granted 3 times a years for separate occasions, it will cover your need to leave work yesterday however wont cover the following days.

There is however there is new legislative carers leave which you can take 5 days in 12 month, which I would be happy to grant”

The Complainant replied later that day.

“Apologies but I can not see anywhere in the legislation where it states it must not be consecutive days.

I have read and reread the relevant statue and can see I am entitled to 3 days in one year which allows me to leave work immediately due to certain reasons such as a sick spouse. This emergency is still an active and ongoing situation which is preventing me from attending work due to caring for my wife and children.

May I ask that this is reconsidered please?”

The Complainant and Ms Kavanagh then corresponded back and forward about the advice each had received. The Complainant outlined that unpaid leave would put him under financial stress and requested some form of paid leave. He also suggested working from home.

Later that evening Ms Kavanagh replied:

“Following our recent communication, As we previously discussed, you have already used up your annual leave entitlement for the first part  of the year. We had agreed that no additional leave would be granted until after June. However, as a  goodwill gesture, I am willing to grant you a day of annual leave for today the 22nd of May. Force Majeure for 21st of May.

Moreover, I would like to offer you some flexibility with your working hours in the office. This could include accommodating time for school runs, extended break to return home, and any other support you may require.

In response to your inquiry about working from home, I regret to inform you that unplanned remote work is not permitted within our company. You mention staff have laptops for working from home when this is not the case, any staff member with Laptops cover on call and out of hours work evenings and weekends. This is not a requirement of the HR Department. Given the confidential nature of your HR role and the sensitive information you handle, it is essential that your duties are carried out in the office. Face-to-face interviews are necessary in line with HSE contract. As our security systems are not equipped to ensure the safety of documentation outside of the office there is not option for the HR department to work off site. Additionally, paper applications cannot be transported to or from the office due to security reasons. I hope this clarifies the claims.

I note that you have declined carer's leave, which would result in your absence from work being considered unauthorised leave.

You mentioned in your email that you will inform me on Friday about your plans to return to work. Are you anticipating a longer absence from your duties?

The company is committed to supporting you, and I acknowledge the importance of treating all staff members equally. Please let me know how you would like to proceed so that I can make the necessary arrangements to provide you with the assistance and resources you need.”

The Complainant replied the following morning:

“Thanks for your further email. Apologies for my delayed reply as I saw it late last night.

My wife is still haemorrhaging heavily and passing clots and is unable to take care of our very active 3 year old bot who doesn’t start naionra until this coming term. Hence my application for force majeure statutory entitlement of 3 days.

I have not family options who live close by to assist.

Furthermore my sick wife has further appointments to investigate the doctors concerns regarding the nature of our miscarriage. I am a bit overwhelmed by all that is going on here. I am awaiting a go appointment from myself now and will update you in due course.”

Ms Kavanagh replied later that morning:

“Please note ‘Force Majeure means urgent family reasons where, owing to an injury or to the illness of an immediate relative the presence in the same place is indispensable.’

As you notified me by text at 7pm on Tuesday evening that you were unable to attend work its eliminates Force Majeure.

As a gesture of good will The company will take your application into consideration if you furnish us with a letter from the maternity hospital which supports the issues you have outlined, including care instructions and support required, appointment dates.

I look forward to hearing from you.”

The Complainant considered the above request invasive. He responded outlining the sequence of events and that there was ongoing requirement for him to be at home. Ultimately, he submitted a sick certificate the next day and has remained on sick leave since then.

He attributes his extended sick leave to the stress caused by these interactions.

The Law

13.—(1) An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.

(2) The persons referred to in subsection (1) are—

(a) a person of whom the employee is the parent or adoptive parent,

(b) the spouse of the employee or a person with whom the employee is living as husband or wife,

(c) a person to whom the employee is in loco parentis,

(d) a brother or sister of the employee,

(e) a parent or grandparent of the employee, and

…..

(3) When an employee takes force majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken and contain a statement of the facts entitling the employee to force majeure leave.

(4) Force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months.

(5) A day on which an employee is absent from work on force majeure leave in an employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (4), to be one day of force majeure leave.

The Respondent has cited a number of cases including Carey v Penn Racquet Sports Ltd 2001 3 IR, McGaley v Liebherr Container Cranes ltd, Giles v Outhaus Group Country Manor Bricks.

I will not summarise them in this decision, each considers the above wording in light of that particular cases and draws attention to the individual nature of each claim.

Findings

It is accepted by both parties that on the 21st of May the Complainant left work for urgent family reasons, owing to an illness of his spouse and that his presence at his spouse’s side was indispensable.

The Respondent arguments as to why he was not entitled to force majeure leave after that point are not entirely clear and are certainly not consistent. At first, they asserted that it was not possible to take force majeure leave for more than one day at time. This is obviously not the case though on review of Ms Kavanagh’s evidence to the WRC it clearly continued to be a consideration, as she referred to the Respondent having never offered force majeure consecutively and suggested if they did it for the Complainant that might impact other people’s expectations of receiving force majeure leave.

The Respondent also argues that the urgency of this matter dissipated after the diagnosis of the Complainant’s wife’s pregnancy loss and at that point the illness was no longer unforeseen. I believe they are misapplying the legislation to the facts of this case. This matter was obviously unforeseen and could not be planned for. After having discovered their pregnancy loss suddenly on a Tuesday night it is totally unreasonable for the Respondent to suggest that the Complainant and his wife should have been able to make arrangements by the Wednesday morning so he could return to work.

A basis for refusing the Complainant’s claim for force majeure leave could be that he was no longer indispensable and did not have to be at the place where his wife was.  However, the Complainant’s evidence was that he was in fact required to be with his wife. He emailed Ms Kavanagh and let her know that his wife was still hemorrhaging heavily and passing clots and that there were ongoing medical examinations which she needed him to bring her to and that she was still actively unwell. He was obviously required to be at her side and to help monitor her condition in case it got any worse.

At one point the Respondent requested a letter from the Complainant’s wife’s doctors at the Rotunda. Normally I do think it is open to an employer to ask an employee to verify that any particular type of leave is necessary and I would tend to draw negative inferences from the failure to provide such a letter. However, the Respondent went much further than simply asking the hospital to verify whether the Complainant’s presence was necessary. They appear to have wanted details of his wife’s care plan so they could make their own evaluation as to whether the Complainant’s presence was necessary. I think this was an inappropriate request and the Complainant was entirely reasonable in refusing it, particularly in light of the Respondent’s process of referring these matters to the senior management team to decide together. I note that he did subsequently provide a letter from the Rotunda which set out that he was required to support his wife on the relevant dates though that letter was only submitted as part of this process.

Separately, while neither party brought up the issue of Sub-Section 3 and the statutory form proscribed in S.I. No. 454/1998, I have reviewed the Complainant’s emails to Ms Kavanagh and I am satisfied that they contain the information and declaration referred to that form.

On review of the above facts and law I am satisfied that the Complainant was entitled to force majeure leave on the 22nd and 23rd of May.

Redress

Section 21 outlines that:

 (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.

The Complainant is paid €35,000 per annum. The maximum award that can be made in this case is €13,425. While the above legislation gives me broad discretion as to what is just and equitable I would note that this legislation does not just cover entitlements to certain kinds of leave but protection from penalisation resulting from taking parental leave. I am of the view that the maximum 20 weeks should be reserved for those kinds of cases.

The Complainant has put forward the case that his prolonged sick leave is due to the refusal of the Respondent to accept his entitlement to force majeure leave. I do not think this is a conclusion I can reasonably come to without expert medical evidence. However, I do accept that the Respondent’s refusal of the Complainant’s reasonable request came at very difficult time for the Complainant and his family. Their approach clearly damaged the employment relationship and I am satisfied that it caused him significant upset.

In the circumstances I believe an award of €7000 is warranted.

I find that the complaint is well founded and direct the Respondent to pay the Complainant €7000 in compensation.