Complainant

Respondent

Parties

Nese Burcu  Teke

Emagine

Representatives

  Self- represented

Maguire O' Halloran Solicitors

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-00058731-001

08/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00058731-002

08/09/2023

The complainant has submitted a complaint that she was refused parental leave contrary to the provisions of the Parental Leave Act 1998. She further submits that she was denied parent’s leave.

The complainant was employed as a Service Lead with the respondent IT service provider from 1 July 2022 to 26 May 2023.

She was assigned to one of the respondent’s clients to provide IT services.

She earned €5833 gross per month.

The complainant lodged her complaint with the WRC on 8/09/2023.

The respondent’s correct title is Emagine (formerly Aspira), and the title was changed by agreement.

 CA-00058731-001. Complaint under Section 18 of the Parental Leave Act 1998

The complainant commenced employment on 1 July 2022. Her employment ended on 26 May 2023 due to the unavailability of work.

The complainant had sought parent’s leave for the period 12-28 June. The complainant was not refused this leave but was unable to exercise her right to take this parent’s leave as, by that stage, her employment had ended.

The respondent submits that the WRC does not have jurisdiction to hear this complaint as the complaint referral form to the WRC, concerning the denial of parent’s leave, was not submitted under the Parents Leave and Benefit Act, 2019, but was submitted under the Parental Leave Act, 1998.

CA-00058731-002. Complaint under Section 18 of the Parental leave Act.

The complainant’s employment ended prior to the statutory requirement to have one year’s service with the employer in order to avail of parental leave. Therefore, the WRC does not have jurisdiction to hear the complaint.

The complainant commenced employment in 1 July 2022 and her employment ended on 26 May 2023 due to the unavailability of work.

Without prejudice to this jurisdictional point, the respondent adds that section 18 of the Parental Leave Act, 1998 excludes dismissal from employment as a matter for referral to the WRC.

CA-00058731-001.Complaint under Section 18 of the Parental Leave Act 1998.

Evidence of the complainant given under affirmation.

The complainant successfully completed her probation on 17 February 2023.

The complainant applied for two weeks’ parent’s leave on 21 March for the period 12-28 June 23. Initially her application was refused. Subsequently she was offered the option of two weeks’ leave to be taken between the 1 June and the 28 July. The complainant was to identify whether she wished these two weeks’ leave to be considered as parental leave or as parent’s leave.

On 19 April she was brought to a meeting with the respondent HR executives to be told, without any advance notice, that the client was unhappy with her work and wished to end her contract. She was advised that her contract would end on 26 May and that the respondent would seek other work for her with another of its clients.

 The complainant states that in exercising her right to take parent’s leave she was penalised by way of being dismissed on 26 May 2023. Prior to requesting parent’s leave, she had never been advised of any difficulty.

She asks that her complaint be upheld.

A-00058731-002. Complaint under Section 18 of the Parental leave Act., 1998.

 The complainant was employed on a permanent contract. She had passed her probation successfully with the client stating they were happy with her performance.

She advised the respondent on 21 March 2023 that she intended to take parental leave in either late June, July or August. By July she would have had the required 12 months to take the parental leave.

With regard to the respondent’s preliminary point about the requirement for an employee to have 12 months continuous service before eligibility to take parental leave  arises, the complainant stated that she would have had 12 months by 6 July had she been retained in employment. Her employment was ended as a result of her request to take parental leave and for no other reason. She asks the adjudicator to  consider the respondent’s actions in denying her the option to acquire the 12 months service. She submits that this was  an act of penalisation.

CA-00058731-001. Complaint under Section 18 of the Parental Leave Act,1998.

There are two complaints requiring a decision:

A refusal to provide parents’ leave for the period 12-28 June 2023.

A refusal to provide parental leave for the period 28 June to 28 July.

Request for Parent’s leave.

The respondent asks me to accept that the WRC does not have jurisdiction to hear this complaint as the complaint concerning the request for parent’s leave was not submitted under the Parent’s Leave and Benefit Act, 2019, but was submitted under the Parental Leave Act, 1998.

The WRC complaint referral form is not a statutory form. The narrative in the WRC complaint referral  form identifies her complaint to be  the refusal to allow  her to take  parent’s leave in addition to the refusal to grant her parental leave. The matter of changing a complaint form was addressed in County Louth Vocational Education Committee v The Equality Tribunal [2009] IEHC 370.

where McGovern J held as follows:

”'I accept the submission on behalf of the respondent that the Form EEl was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EEl, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.'

The principle of ‘where the justice of the case requires it’ should be the deciding factor.

The complaint is the same so no surprise arises for the respondent in the instant case.

Therefore, I am prepared to confer jurisdiction on the complaint and to amend the form to examine this complaint under the Parent’s Leave and Benefit Act. 2019 (as amended).

I will proceed to hear the substantive complaint.

CA-00058731-002. Complaint under Section 18 of the Parental leave Act.

Relevant Law concerning entitlement to parental leave.

Section 6(3) states

“ A period of parental leave shall not commence before a time when the employee concerned has completed one year's continuous employment with the employer from whose employment the leave is taken.”

That is the bar which must be met to consider the substantive complaint. I explained this to the complainant who was unrepresented.

The first problem that the complainant has is that at the date of refusal of the parental leave and at the date on which her employment terminated, the complainant did not have the requisite statutory one   year’s continuous employment with the employer. The complainant asked me to consider the scenario where but for her dismissal she would have been eligible. But the statutory provision at section 6(3) above does not contain any qualifiers.

The complainant contends that her request for parental leave, followed by her dismissal is evidence of penalisation for having exercised her right to request this leave. 

Such a scenario is addressed in section 6A of the Act of 1998.

“(1) An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or his or her entitlement to make a request referred to in section 13B(1) or 15A(2)

(2) Penalisation of an employee includes—

(a) dismissal of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

(c)n/a.

(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in subsection (2)(a), the employee may institute proceedings under the Unfair Dismissals Acts 1977 to 2005 in respect of that dismissal and such dismissal may not be referred to a rights commissioner under Part IV.”

Part 1V addresses the referral of disputes under the Act of 1998.

“Reference of disputes to rights commissioner.

18.—(1) This Part does not apply to a member of the Defence Forces.

        (2) This Part does not apply to a dispute—

(a) relating to a dismissal from employment, including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007”.

It is clear that the only statutory route for securing a remedy for a complaint of penalisation for having exercised a right to seek parent’s leave is located in the Unfair Dismissals Act, 1977. The complaint did not refer to or make out that case under section 6(2)(h) of the Act of 1977 as amended.

The statutory restrictions on the adjudication on this complaint are inescapable.

I have to accept that I do not have jurisdiction to hear this complaint.

CA-00058731-001. Complaint under Section 23 of the Parent’s Leave and Benefit Act 2019 ( as amended)

Evidence of the complainant given under affirmation.

The complainant applied for two weeks’ parent’s leave on 21 March for the period 12-28 June 23. Her son’s date of birth is 28/06/2021. The respondent offered her 2 weeks to be taken between the 1 June and 28 July 2027. It was left to the complainant to decide if it was to be parental or parent’s leave.

The respondent was slow to respond to her request for clarity as whether they were granting her the leave.

She clarified that she was told at the end of March 2023 that her employment was ending.

The respondent responded to her request for parent’s leave by dismissing her.

 Despite passing her six-month probation in 17 February 2023, and without any concerns ever having been notified to her, she was brought to a meeting on 19 April with the respondent HR to be told, without any advance notice, that the client was unhappy with her work and wished to end her contract. She was advised that her contract would end on 26 May 23 and that the respondent would seek other work for her with another of its clients.

 The complainant states that in exercising her right to seek parent’s leave she was penalised by way of being dismissed on 26 May. Prior to requesting parent’s leave, she had never been advised of any difficulty.

The respondent told her on 12 May 2023 that they had been unable to source alternative roles for her and that she would be finishing on the 26 May.

Cross examination of complainant.

The complainant confirmed that the respondent allowed her to take 2 weeks’ leave but asked her to postpone the remainder of the leave. She does not accept that it was a postponement as the respondent did not give her alternative dates on which she could take the remainder.

 When she advised the respondent in late March that 2 weeks was insufficient, the respondent invited her to a meeting 2 weeks later at which she was told she would be dismissed.

The complainant stated that she asked the respondent to postpone her end date of employment so she could then take the two weeks’ leave which she had been offered in June. She was paid up until the 26/5/23. Her last day in work was on the 3 May 2023.

She confirmed that she was not in employment with the respondent during June, July or August 2023

CA-00058731-001. Complaint under Section 23 of the Parent’s Leave and Benefit Act 2019 (as amended).

Evidence of respondent HR Generalist given under affirmation.

The witness stated that upon receiving the complainant’s request for parental leave and parent’s leave in March 2023, she contacted the client with whom the complainant was working. They told the witness that they could accommodate two weeks leave in June. That is the system; the client has to approve the leave.

The complainant was never refused leave. She made it clear to the complainant that the remaining weeks available to her were to be postponed.

The client approached the respondent in April or May and told the respondent that the role was too big for the complainant and that she was not able to deliver the services required of the role and needed by them.

The respondent in turn notified the complainant of this on 19 April 2023.

The respondent was unable to find alternative employment for her.

CA-00058731-001. Complaint under Section 23 of the Parent’s Leave and Benefit Act 2019 ( as amended).

Request for Parent’s Leave.

I must decide if the complainant was penalised for having sought parent’s leave.

Relevant Law

Section 5 of the Parent’s Leave and Benefit Act 2019 ( as amended) provides as follows:

(1) Subject to this Part, an employee who is a relevant parent in relation to a child shall be entitled to leave from his or her employment for a period of 7 weeks, to be known (and referred to in this Act) as “parent’s leave”, to enable him or her to provide, or assist in the provision of, care to the child. (2) Other than where section 14 applies, the period of leave referred to in subsection (1) may comprise— (a) a continuous period, or (b) periods each consisting of not less than one week”.

Protection of employees from penalisation

Section 19. (1) of the Act of 2019 (as amended) provides as follows:

“An employer shall not penalise, or threaten penalisation of, an employee for proposing to exercise or having exercised his or her entitlement to parent’s leave. (2) For the purposes of this section, penalisation of an employee includes—

 (a) dismissal, or the threat of dismissal, of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

 (c) an unfavourable change in the terms or conditions of employment of the employee.

 (3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee, as referred to in subsection (2)(a), the employee may institute proceedings under the Act of 1977 in respect of that dismissal.”

It is hard to escape the glaring facts that the complainant had never been advised of any difficulty prior to her requesting this leave. The complainant’s focus in the hearing was on the act of penalisation. She barely addressed the lead up to her dismissal or the process employed in her dismissal. But documentary evidence reveals that she had a permanent contract, she passed her 6 months’ probation. Other than for the HR Generalist’s evidence, there was no record of the client raising any concerns with the complainant nor of the complainant having  been given an opportunity to respond to these concerns or to develop whatever competencies were lacking. The respondent supplied no evidence  of having made any serious efforts to find alternative employment for her.

The respondent offered an inadequate explanation for all the gaps that lay between passing her probation, seeking the protected leave and being dismissed.

It is hard to avoid the conclusion that the dismissal was not unconnected to the request for leave.

However, the difficulty for the complaint is that the complaint is taken under the Act of 2019 and her focus was on penalisation.

PART 4 of the Act of 2019 deals with the resolution of disputes.

Disputes regarding entitlements.

Section 23 provides that:

(1) This Part does not apply—

(a) to a dispute relating to the dismissal of an employee,

or (b) to a person who is employed as a member of the Defence Forces.

While the Act provides protection against penalisation, Section 23 and 25 of this Act make it clear that the statutory route for seeking redress for penalisation for the proposed exercise of the entitlement under this Act lies in the Unfair Dismissals Act., 1977.

This Act of 2019 cannot provide a remedy.

I do not find this complaint to be well founded.

CA-00058731-001. Complaint under Section 23 of the Parent’s Leave and Benefit Act 2019 (as amended). 

As a remedy for dismissal is not found in this Act, I do not find this complaint to be well founded.

CA-00058731-002. Complaint under Section 18 of the Parental leave Act, 1998.

I decide that I do not have jurisdiction to hear this complaint

Parental leave and parent’s leave. Incorrect statutory route for redress