Complainant

Respondent

Parties

Julie  Murphy

Abtran

Representatives

  Appeared In Person

Lisa Maloney, IBEC Official

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-00056319-001

25/04/2023

On 25 April 2023, the Complainant submitted a complaint that she had been refused “Force Majeure leave “contrary to the Parental Leave Act, 1998.

The Respondent Representative came on notice on 2 May 2023 and has denied the claim.

The case came for hearing on 12 April 2024.

The Complainant presented her case with the support of her husband. The Respondent was represented by IBECs Lisa Maloney, who prepared comprehensive written submissions.

All three witnesses availed of the Affirmation to accompany their evidence to the hearing.

Prior to the hearing, I required additional documents from both parties .

1 Original Policy on Force Majeure leave operational during April 2023.

2 The application for Force Majeure leaves by the Complainant.

I also sought sight of the application form revised in June 2023.

The Complainant has worked for the Respondent from 11 December 2012 to the present day. Her work pattern consists of a 30-hr week.

She submitted a written background to her complaint that on 20 April 2023 she was required to manage two children at home who had developed chicken pox and for whom she was not able to secure “alternative childcare “

The Complainant informed the respondent that she was required to take the day off to care for the children and on her return to work the following day, she requested that her absence be covered by “force majeure leave “.

This was denied as “chicken pox was considered a routine child illness “The Complainant obtained external advice which in turn fortified her opinion that she should receive “force majeure leave “

Complainants Evidence at hearing.

The Complainant recalled April 20, 2023, while she was preparing her children for Creche, her child had developed spots and was warm. As her son had previously developed chicken pox, she believed that this was another instance of the condition. She managed the high temperature and lethargy.

Her husband had previously taken time off due to illness and had no further scope to take further time off.

The Complainant stayed at home that day and alerted the respondent that her children were sick.

The next day, her mother-in-law looked after the children, and she returned to work. She requested access to one day force majeure leave and was directed to write an email to her line Manager.

The application was rejected as chicken pox, as a routine illness was deemed not to fall under the criteria for force majeure leave. She was informed that there was no provision in the Policy for this absence.

The Complainant took external advice and requested the company to consider the

 “unforeseen “element of her leave through a grievance. She participated in this process.

She received a written response but was unsuccessful.

In the alternative, she was offered unpaid leave or a day’s annual leave.

The Complainant recalled that she had received “force majeure leave “in the past at this employment and expressed her opinion that the circumstances of April 20, 2023, fitted this special leave. She was aware that this was the first application she had made for force majeure leave to her newly appointed Manager.

During cross examination, the complainant confirmed that she had not secured a medical certificate as she had never been asked to link a medical cert to an application for Force Majeure then or now.

When the complainant was asked whether her presence was indispensable, the complainant was partially prompted by her husband, which I marked in dialogue.

She then sad that her presence at home on April 20, 2023, was necessary as her husband was curtailed in taking any further time off his work.

 The Complainant concluded by reflecting that she was managing two sick children on 20 April 2023, where her presence at home was indispensable.

The Respondent operates a Customer and Business Process Management Plant across Ireland. The Respondent through their Representatives has denied the claim and has submitted that the request for force majeure leave did not meet the definition within the meaning of Section 13 of the Act.

The Respondent contended that they acted reasonably and lawfully in not accepting the application.

It was common case that the complainant had been employed as an Advisor on Customer Accounts since 11 December 2012 to the present day.

The Respondent outlined by means of a written submission that the Respondent was aware of the Complainants request for force majeure leave from 21 April 2023.

An application was made by the complainant to her line manager, who in turn forwarded it to the Human Resource Dept, who then declined the leave.

The Complainant initially by passed the company internal procedures, but she subsequently agreed to process a grievance internally in the first instance.

The Complainant submitted that grievance on 28 April 2023

“ …. I want to point out that the decision I am appealing is not one made by my manager but by HR and relayed through my manager. To summarise, the day in question, where I requested force majeure leave was an unforeseen situation where my child was ill and needed my care “.

The grievance was heard on 11 May 2023 by Ms Aideen Mc Carthy in the company of the complainant’s representative.

On 19 May 2023 the Respondent refused the request for force majeure leave having had regard for

1The request

2 The grievance hearing

3 Force Majeure Policy and Legislation

4 The illness was not serious.

“Force Majeure is only applicable in urgent situations, where serious illness or injury has occurred and your child, in this scenario requires immediate medical attention or treatment.

Force Majeure is not applicable if you require leave because your child fell ill with a routine childhood illness, such as chicken pox. It would be expected that parents put provisions in place for non-emergent family situations ….”

An appeal followed a week later with Ms Laura Healy as the complainant’s representative and findings were issued on 19 June 2023.

1 routine and predictable illnesses will not be covered by force majeure leave entitlement. Neither the magnitude nor the severity of an illness warrants force majeure entitlement.

2 Absence in the case of child illness, not covered by force majeure would be treated in line with the attendance policy.

Arguments:

Ms Maloney argued that the absence at the centre of this case does not meet the definition as outlined in section 13(1) of the Parental Leave Act, 1998, as amended.

Leave on grounds of force majeure.

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

(f) a person other than one specified in any of paragraphs (a) to (e), who resides with the employee in a relationship of domestic dependency.

Force Majeure as a legal term carries a meaning” that some important and critical event has taken place, thereby releasing a party directly affected from its legal obligations in particular matter that would otherwise have applied.”

The Respondent contended that the illness relied on by the complainant was not validated through medical certificate.

The Complainant chose to stay home that day.

The Respondent was aware through the internal dispute resolution processes that the complainant was alerted to the outbreak of chicken pox through the children’s school which placed an obligation on her to have a contingency arrangement at hand.

In addition, chicken pox is routine and does not fall within the definition of urgent and requiring immediate presence.

The Respondent contended that there were alternative options open to the complainant in which to manage the situation which unfolded on April 20, 2023

1 alternative care arrangements

2 alternative leave

Ms Maloney submitted that the illness was not such that it required her immediate presence.

The Respondent expressed a sympathy for the Complainants situation, but expected employees to have a contingency arrangement in the face of “routine and predictable illnesses amongst immediate family members “

In reliance on Mc Galey v Liebherr Container Cranes ltd at the High Court in 2001, which carried a commentary by Mc Crcaken J in rejecting a claim for parental leave.

“… However, the question of whether the Appellants presence was indispensable is one which must depend on the facts of the individual case “

It followed in Giles v Outhaus Group Country Manor Bricks in ADJ 27631, which drew on MJER v Skibal [2018] IESC 68

The concept of force majeure had to be understood as referring to abnormal and unforeseeable circumstances which were outside the control of the parties by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due cause.

The respondent submitted that the Adjudicator pointed to the presence of “emergency “which gives rise to the absence.

In the instant case, the illness was routine and common for which the complainant’s presence was not indispensable. Force Majeure should not be recognised as a substitute for childcare. It was open to the complainant to organise a contingency on April 20, 2023. Wellman Int v Langtry PL1/2001

The Respondent offered unpaid or annual leave in support, which they believed was reasonable.

The Respondent requested that their case be upheld at Adjudication.

Evidence of Ms Aideen Mc Carthy, Human Resources Business Partner, May 2022.

Ms Mc Carthy told the hearing that she had processed the first grievance by the complainant. She had made best endeavours to ascertain the severity of the condition relied on by the complainant and had inquired into medical certification.

She did not establish that urgent care was needed, and the complainant had been offered annual leave or unpaid leave as a mechanism to cover her absence.

During cross examination, the complainant queried Ms Mc Carthys reliance on severity when she asked how can you anticipate chicken pox?

Ms Mc Carthy disputed the severity and replied that force majeure was not a substitute for a child-minding contingency in face of illness.

In clarifications, Ms Mc Carthy confirmed that she had not interviewed the initial decision maker as she was no longer at the business.

She had not applied any weighting to a lack of a written decision on the application for force majeure.

Evidence of Ms Ava Fitzgerald, Senior Human Resource Business Partner, 10 years.

Ms Fitzgerald confirmed that the grounds for Force Majeure were not met on appeal by the complainant.

The Company had not expected her to be in work, but she did not meet the criteria for force majeure leave and she had not submitted any supporting medical documents.

During cross examination by the complainant queried why she had not been requested to produce a medical certificate?

Ms Fitzgerald deferred to alternative arrangements for force majeure leave.

Ms Fitzgerald clarified that she had not considered speaking to the initial decision maker. She was aware that the decision was oral and not in writing and been communicated through a line manager.

I engaged in an exploratory exercise surrounding the foundation application form and the relevant policy on force majeure leave open and applicable at that time of the circumstances of this case.

The Respondent had submitted the presiding force Majeure Leave Policy prehearing. This was dated July 2021 hearing. They also submitted the revised application form for force majeure leave dated 6 June 2023.

The Respondent concluded that the circumstances relied on by the complainant were not unforeseen and the complainant had chosen to stay at home. These were not urgent circumstances and were not underwritten by medical certification or Hospital Intervention.

I have been requested to make a decision on whether the complainants working day April 20, 2023, should be recognised as a force majeure leave day for the purposes of Section 13(1) of the Parental Leave Act 1998-2023?

In reaching my decision, I have taken account of all oral and written submissions, in addition to the evidence adduced at hearing.

I have also had regard for the foundation document of application submitted by the complainant and the revised Policy submitted by the Respondent.

My jurisdiction in this case emerges from Section 13 (1) and Section 13(3) of the Parental Leave Act, 1998, as amended.

Leave on grounds of force majeure.

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

………

Access to force Majeure leave, which is time limited at a maximum of 3 days in a 12-month consecutive period or 5 days in a 36-month consecutive period is prefaced by an obligatory first course of action of notification “in the prescribed form” to the employer.

This is provided for in Section 13 (3) of the Act and set down by Statutory Instrument in

 Parental Leave (Notice of Force Majeure Leave) Regulations in SI 454/1998

(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.

The notification requirement lists.

Name, PPS number, Names and addresses of employer and the injured or ill person and their relationship to the applicant.

As I prepared for hearing, I noted that I lacked both the application form and the Company Policy on Force Majeure leave.

I am grateful to the Parties for supplying these at my request as it has enabled me to have a greater understanding of just what happened in this case.

At the very outset, I will remark that this is a successful and live employment which had supported the Complainant on 3 occasions by the granting of 3 separate occasions of force majeure leave since 2018.

Two occurrences strike me.

Firstly, this was the complainants first time application to a new Manager.

Secondly, the representative chosen by the Complainant did not demonstrate any advocacy on her behalf at the internal meetings. By choosing a representative, it is reasonable to assume this would have been someone with a working knowledge of “force majeure “to maximise the opportunity for both parties to arrive at a mutually acceptable resolution.

This may well be something the Parties may wish to reflect on.

I fully accept that the complainant permitted a step back from her claim to the WRC to accommodate the holding of a local grievance and appeal procedure. Regretfully, this was unsuccessful and the application for leave denied again.

However, this process did provide a degree of insight into the Respondents stated reasons for refusing the leave.

My role in this case is to decide whether a contravention has occurred in the application of Section 13.

Force Majeure Leave is a well-established paid leave in Irish workplaces. I appreciate that once granted, the employee is considered to have been at work in preservation of terms and conditions.

I appreciate that an Employer must have a thorough process open at base to ensure compliance with the Spirit of the Legislation. I also appreciate that the Employer must protect this much valued and supportive leave from overreach.

I also appreciate that an Employee must have a crystal-clear pathway, open to and understood by all if circumstances develop where this type of leave is required.

I am satisfied that the conflict that has emerged from the denial of this leave has rested uneasy on both parties’ shoulders in an otherwise optimal employment relationship.

The case is deserving of decision at third party.

That Respondent Policy is introduced in this case as Force Majeure Leave Policy, July 31, 2021.

I had some unease at the wording of the Purpose of the Policy as the statutory terms of unforeseen and indispensable presence were augmented by “unanticipated illness “.

The Policy provides for an application form, but on this occasion, the complainant filled in her own narrative .The Policy requires that she discuss the application in detail with her manager and only where her manager “ considers the employees request to fall under the Force Majeure Policy , the employee should then fill out the form which can be located ……”

This is a Filtering process not supported by the Regulations.

When I requested the form, the Respondent acknowledged that it had been revised from June 2023.

It goes to the root of this case, that the application for force majeure leave was not made as set down in the Statutory Instrument Regulations. This is a seismic omission from the company, and I can see it is one they have sought to rectify in the revised form from June 2023.

Neither Party has provided me with the application form relative to the April 20, 2024, time frame.

Instead, I have worked on the narrative of April 21, 2023, as scripted by the Complainant and for which she received an oral response of denial.

The Law does not stipulate provision of a Medical Cert but of course, if medical attention is a factor in the case, provision of medical evidence is bound to be helpful. Dublin Bus v Brazil PL/2/2009 The Policy mandated either a medical cert or a Hospital Letter, however, I accept the complainant evidence, she was not requested to provide either. She had not sought medical attention as the outbreak of chicken pox was managed by her alone at home, truly an arduous task.

By means of jurisprudence in this field, I wish to draw the party’s attention to the case of Carey v Penn Racquet Sports ltd 2001 3 IR at the High Court, Carroll J, Justice Mela Carroll remarked that the criteria of urgency and indispensability “should not be judged in hindsight.

This was a case involving a single mother and an eight-year-old child. Mother had taken days leave to look after a child who had woken with a rash on her legs.

Application for force majeure leave was denied as the GP did not deem the rash as serious.

Carroll J on appeal held.

“The matter should have been looked at from the plaintiff’s point of view at the time the decision was made not to go to work. Also, the plaintiff could not be assumed to have medical knowledge which she did not possess “

The Respondent has relied on Liebherr, However, Mc Cracken J cautioned against reliance the ultimate seriousness or otherwise of the illness as criteria for decision.

I accept that he focussed inquiry on the circumstances that were known at the time the employee decided to stay at home. Carey, approved.

In Quinn v Higgins Engineering Galway ltd [2000] 11ELR 102, the EAT grappled with an application for force majeure leave in the case of 3 ill children in 1999, where meningitis was suspected.

Meningitis was ruled out on the second day, but the EAT found that the complainant was “entitled to be alarmed by the illness and his concerns re meningitis was not unreasonable.

They reconciled one days force majeure with urgent family reasons.

I would query the application of Giles v Outhaus as it is distinguished on the facts as a trial of unfair dismissal as penalisation for having availed of force majeure.

I wish to acknowledge that many decision makers in whose shoes I now walk, have equally grappled with the parameters of what exactly amounts  to urgent family reasons owing to an illness of a person specified in Section 13(2) , in this case a child of the employee ,where the parents immediate presence at home was deemed by her to be  indispensable .

Justice Mela Carroll dictates in the application of Carey, that a compassionate consideration is applied to the version of events as unfolded by the complainant.

I was not encouraged by the respondents cross matching of chicken pox against a web site and ruling it out as a routine, non-severe illness.

I was further alarmed that the Respondent did not engage with the decision maker who refused the request first day during the grievance and appeal procedures.  They did not apply any weighting to the absence of this key detail. Surely this was the best placed person to engage with the complainant and subsequent look backs? yet no engagement occurred.

I believe that I am bound by the High Court in Carey

“The matter should have been looked at from the plaintiff’s point of view at the time the decision was made not to go to work. Also, the plaintiff could not be assumed to have medical knowledge which she did not possess “

On listening to the complainant’s evidence, I found a person who prioritised her presence at home for urgent family reasons due to an active chicken pox in a young child which made the child very ill. She made a measured decision that the normal child minding creche was not open to contagious disease and her husband had used up his sick leave and returned to work. She made an informed decision to stay where she believed that she was needed most, to care for a minor, unable to care for self and to monitor disease progression. I found the Complainants story compelling in that regard.

She rectified this the next day when she secured cover from a Family member and returned to work.

On listening to the respondent evidence, I fully accept that the Respondent had no desire to criticise the complainant for taking leave, only that they were not prepared to apply a company funded force majeure leave.

By departing from their own policy on absence of compliance with SI 454/98, application for Force Majeure leave Regulations, in addition to a variance in how force majeure was decided on this occasion via the newly appointed manager, I find that the force majeure leave was wrongly withheld from the complainant.

I found that the Respondent applied an overly subjective barrier to the complainants application when they minimised the child’s illness as routine and did not balance this with the sudden onset of illness in a young child and a parents clear and apparent deliberative process which concluded in her deciding to stay where she believed she was needed most on that day.

The application was not met by a written response. I found the disregard of this key omission to be plain and unreasonable.

Taking all of the above into consideration and mindful of the subsequent changes in the Respondent application process, I find that the respondent missed the opportunity as Carroll J set down in Carey to walk in the shoes of the complainant on April 20, 2023 so as to correctly assess urgent reasons and indispensable presence and to retain a compassion in what clearly was a worrying time.

I find that the complainant was wrongly denied force majeure leave on April 20, 2023.

I find the claim is well founded.

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 21 of the Parental Leave Act, 1998 requires that I make a decision in relation to this complaint in accordance with Section 13 of that Act.

Decision under section 41 or 44 of Workplace Relations Act 2015.

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.

I have considered all options of remedies open to me in this case, I find that as the complaint is well founded, I order the Respondent to grant the force majeure leave day from April 20, 2023.

 I also order €400.00 as just and equitable compensation in respect of the contravention of Section 13(1) and Section 13(3) of the Act

 This award amounts to compensation and is not in respect of remuneration including arrears of remuneration.

Application for Force Majeure Leave