Complainant

Respondent

Parties

Lukasz  Nowak

Securitas

Complainant

Respondent

Anonymised Parties

Representatives

  In person

Andrea Tancred Ibec

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-00064044-001

11/06/2024

This complaint was received by the Workplace Relations Commission on 11th June 2024.

The Complainant commenced employment with the Respondent company on 30th October 2018 and is engaged as a Security Officer. At the time, the Complainant earned a gross hourly wage of €17.33. The Complainant continues to be employed by the Respondent.

On the 25th of May the Complainant’s wife gave birth, suffered some complications and had to undergo emergency surgery to rectify the issue. Despite this his wife was discharged on the 27th of May, unanticipatedly early and in need of significant care and rest rendering her unable to care for the children. Without anyone available to care for his wife and children at this time the Complainant contacted his manager to advise that he would not be able to attend work for his next 3 shifts as his wife required a significant level of care and there was no one to care for the children on these particular days. The Complainant’s wife had not been so incapacitated following the birth of their first child and the issues that arose post-delivery had not been anticipated.

The Complainant had no one immediately available to support and care for his family other than himself and so his presence at home at this time was indispensable. This could not have reasonably been foreseen as it was not a standard issue following delivery. On this basis the Complainant requested this as force majeure leave.

The Complainant was advised that this would not qualify as force majeure and that if he wasn’t attending work that he would need to take another form of leave, namely, annual leave. Having contested this on the basis of the unforeseeable nature of the situation and that his presence in the given circumstance was indispensable, he was advised that HR advice would be sought. Following this he was advised that he was not eligible for force majeure leave.

On the day following his wife’s discharge from hospital he had attempted to contact his manager again. This same morning his wife was referred back to the hospital by the PHN with a suspected spinal fluid leak. While in the hospital A&E minding his children awaiting diagnosis for his wife, he was contacted by his manager by message to advise that he would seek advice from the legal team. On speaking with his manager later that afternoon he was advised that he would likely not be entitled to force majeure leave but that he would let me know once he had heard back from the legal team.

When the response came through, the Complainant was advised that he would not qualify for force majeure, but he could avail of unpaid leave for medical care. The Complainant contacted his manager to query this as the requirements to qualify were much the same as force majeure and as he had not exhausted or in fact not ever used force majeure leave that this type of leave was not required in this circumstance. The Complainant was again advised he could take either annual leave or unpaid medical care leave. At this point his wife was unable to walk unassisted or care for the children unaided, so the Complainant agreed to take annual leave and advised that he would seek redress later. The Complainant’s wife’s condition had to be monitored daily by the hospital from home to attempt to avoid further hospitalisation and his wife required support and care at home for this period. The Complainant’s manager was made aware of this over the phone also.

In follow up to the above and in consideration of communication received on behalf of Securitas on the 17th of September 2024, the Complainant would like to have the following case considered for the upcoming adjudication meeting Dean Hart v Komfort Kare ADJ00051923 whereby it was found that the employer had wrongly denied force majeure leave to an employee. This case mirrors the Complainant’s case to a large extent.

The Complainant’s wife had to undergo emergency surgery for related complications post-delivery. This was sudden and unplanned. Subsequently to this his wife was discharged sooner than anticipated from the hospital in a significantly incapacitated state. Under the Parental Leave Act 1998 an employee who takes force majeure leave is required to notify his or her employer as soon as is reasonably practicable, this is why; acting as a reasonable and responsible employee, the Complainant contacted his employer on the day they were advised of the impending discharge and the level of care his wife would require.

Due to the nature of the second surgery his wife was left severely anaemic and at high risk of sepsis and was to come home on medication with a number of signs and symptoms to watch for that would mean an urgent return to the hospital A&E.

On return home his wife was extremely incapacitated and required a high level of care.

The Complainant’s usual shifts are overnight and he could not leave his wife alone overnight as it was possible that she may suffer further complications.

During this time the Complainant’s wife needed assistance in caring for the newborn child and in looking after their 7 year old daughter. She also needed assistance in dressing herself and in bathing as she could not do either alone at that time. 

When the Complainant initially contacted his manager requesting force majeure he was advised that while they sympathised with his circumstances, he was not entitled to it and that he would need to take annual leave. This was followed up with an email to state that he could take unpaid medical care leave if he so wished.

When the Complainant next spoke with his manager his wife had returned to the A&E now with a potential spinal fluid leak, which he advised his manager of. He was still advised that he would not qualify for force majeure leave. The Complainant followed up with an email pressing the request as he couldn’t believe that he was not entitled to this leave even now with this further issue unfolding. This was on the 28th of May, the day before he was due to take up his shifts and he was now under immense pressure.

The Complainant believes he has acted reasonably, responsibly and in good time. His wife’s illness was unanticipated, serious enough to require monitoring, she was incapacitated to the point of requiring care for herself directly and even if they had been able to obtain childcare (which was not accessible to them) his wife required his indispensable presence to assist her in an emergency situation such as her return to the A&E on the 28th in recognising the signs given by the hospital, getting her dressed and mobilised into the car and into the hospital. They had no one who could do this overnight. The Complainant’s wife had also experienced extreme trauma and as such the support of her husband was indispensable.

Background to the Respondent

The Respondent is part of the multinational Securitas Group, one of the world's largest security supplier's, headquartered in Sweden with over 300,000 employees across 53 countries worldwide.

In Ireland, the Respondent is one of the leading providers of Security Solutions to a wide range of customers in a variety of industries and customer segments. The size of the customers varies from the "shop on the corner" to global multi-billion-euro industries.

Securitas Ireland offers the full range of Security Solutions, Technical and Physical Security Solutions as well as blended Security Services Solution’s called as Protective Services. The Respondent currently employs over 1200 people across Ireland.

Background to the Complainant.

The Complainant commenced employment with the Respondent company on 30th October 2018 and is engaged as a Security Officer. At the time, the Complainant earned a gross hourly wage of €17.33. The Complainant continues to be employed by the Respondent.

Background to the issue.

On Monday the 27th of May 2024, the Complainant requested to book three days Force Majeure Leave from Wednesday the 29th of May to Friday the 31st of May 2024, inclusive. This request was made to Mr Dalibor Ambrozic, Deputy Key Accounts Manager via phone. During this call, Mr Ambrozic advised the Claimant that this would not be approved as Force Majeure leave and that he would follow up with an email to outline the reasons why. On the same day Mr Ambrozic emailed the Complainant in response to his request with a hyper link to an article that provides clarification on what immediate and indispensable presence is under Force Majeure Leave. The Complainant replied to Mr Ambrozic to advise that his wife had given birth on Saturday the 25th of May 2024, she encountered medical issues that required her to have surgery and as she was being discharged from hospital and required someone to be at home with her, the Complainant advised that he would be unable to attend his shifts on the above mentioned dates that he was due to fulfil later that week. The Complainant argued that his presence at home was immediate and indispensable and made a further request to take Force Majeure Leave on these dates.

On the 28th of May 2024, Mr Ambrozic responded to the Claimant to advise that his situation does not qualify him for Force Majeure Leave, however, he advised in this instance that his situation would entitle him to apply for Leave for medical care purposes and explained this is a minimum for 5 days in any 12 consecutive months however, more time could be approved if he needed it. The Complainant responded to Mr Ambrozic to advise that he would take the time off as Annual Leave but would seek redress in the Workplace Relations Commission.

The Claimant submitted his complaint to the WRC on 11th June 2024.

Respondent’s position.

Section 13 (1) of the Parental Leave Act 1998 (as amended) sets out the definition of Force Majeure Leave as follows: 

“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.”

It is the Respondent’s position that the Claimant’s absence from work from Wednesday the 29th of May to Friday the 31st of May 2024 does not meet the definition as outlined about and as interpreted by the Tribunal and the Courts in previous cases. Force Majeure is a particular legal term meaning that some important and critical event has taken place, thereby releasing a party directly affected from its legal obligations in a particular matter that would otherwise have applied.

Force Majeure Leave, by definition, relates to illnesses/injuries with a sudden and immediate onset which could not be foreseen. The Claimant’s absence from work did not take place until two days after he sent the request to take Force Majeure Leave. As such, he had ample time and ability to make alternative arrangements to arrange for care for his wife and children or to request an alternative form of Leave from the company, which he did avail of after his request to take Force Majeure Leave was declined.

The company believes it is unreasonable to suggest that the Claimant was not aware of the circumstances well in advance of his absence. The illness was not unforeseen nor sudden as he made this request at two days’ notice, and as such did not constitute “urgent family reasons” which made the Claimant’s “immediate presence […] indispensable”.

While the Respondent sympathises with the Claimant’s situation, the Respondent believes that it is incumbent upon all employees to have in place appropriate arrangements to take care of contingencies involving routine and predictable illness amongst immediate family members. The Respondent respectfully submits that medical complications during pregnancy and birth, while acknowledging how distressing they can be for all involved, are medically associated risks with pregnancy. Considering this and irrespective of any subsequent surgery, the Claimant still needed to put appropriate arrangements in place to have his children looked after while his wife was in hospital, which is routine after giving birth.

In McGahey v Liebherr Container Cranes Limited, High Court, 19 October 2001, McCracken J., stated: “Undoubtedly the Appellant’s wife suffered a very unpleasant, and probably debilitating, experience, and undoubtedly it was of great assistance to her to have her husband present. However, the question of whether the Appellant’s presence was indispensable is one which must depend on the facts of the individual case.”

The Claimant’s appeal in that case was rejected, and the decision of the Tribunal to reject the claim for parental Leave was upheld. It is the Respondent’s position in this case that given that the Complainant was aware in advance of the potential requirement of care for his wife post-surgery, and that he had ample time to make alternative arrangements either for care or for alternative Leave that the Claimant’s immediate presence was not indispensable.

The Respondent submits that the essential requirements as provided for in Section 13(1) of the Act which a person must satisfy in order to qualify for force majeure leave are:

1) that the absence is urgent and

2) the immediate presence of the employee is indispensable.

In the case of Thermo King -v- Nolan PLD171 the Labour Court held

“that the Act can only have application on a day when all the circumstances set out in Section 13(1) are present.”

Force Majeure Leave is not a substitute for childcare arrangements, and whilst the Respondent understands the Complainant’s position that his children were also in need of care, Force Majeure Leave is not appropriate to cover situations where appropriate childcare is not available. This position has been upheld in cases such as Wellman Int. v Langtry, PL1/2001 In that case the Claimant was absent from work because the primary care giver, his wife, was ill and unable to look after his children. The Tribunal found that the claim for Force Majeure Leave did not meet the requirements of the Act as the claimant failed to show that his immediate presence was indispensable.

The Respondent offered the Complainant alternative forms of Leave of, Annual Leave, Unpaid Medical Care Leave. The Complainant  availed of Annual Leave for this period of time, as he did not want to avail of his entitlement to unpaid medical leave, which the Respondent submits would have been the most appropriate statutory leave given the circumstances. 

The Respondent believes it was reasonable and fair in seeking to accommodate the Complainant’s circumstances in this respect. 

Conclusion

It is the Respondent’s position that it acted reasonably and lawfully in refusing the Complainant's request for Force Majeure Leave, and fairly in offering alternative options.

The Parental Leave Act, 1998 states at section 13:

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 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.

13(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 and wife, …..

I find that the Complainant primarily took emergency leave to care for his wife who was quite ill following the birth of the child.

The position adopted by the Respondent caused some stress and anxiety to not only the Complainant but also to his family.

I find that the days in question should be viewed as force majeure leave and the Respondent’s records amended accordingly. The annual leave taken from the complainant’s entitlement should be restored and I also order that compensation in the amount of €2,500 be paid by the Respondent to the Complainant.

I find that the days in question should be viewed as force majeure leave and the Respondent’s records amended accordingly. The annual leave taken from the complainant’s entitlement should be restored and I also order that compensation in the amount of €2,500 be paid by the Respondent to the Complainant.

Force Majeure Leave