PLD242

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00051923 (CA-00063715-001).

BACKGROUND:

The Claimant appealed the Decision of the Adjudication Officer to the Labour Court on 26 August 2024, in accordance with Section 19(1) of the Parental Leave Acts, 1998 and 2006. A Labour Court hearing took place on 13 December 2024.

The following is the Determination of the Court:

DECISION:

This is an appeal by Komfort Kare against the Decision of an Adjudication Officer in relation to a complaint by Dean Hart made under the Parental Leave Act, 1998 (“the Act”).

The complaint to the Workplace Relations Commission was made on 25 May 2024. The Adjudication Officer held that the claim was well-founded and directed Komfort Kare to pay €7,000 in compensation.

Background – Factual matrix

The Complainant is employed as a HR Manager. On 21 May 2024, the Complainant left his place of work because his wife was suffering a miscarriage. He was granted force majeure leave for his absence that day. The Complainant sought force majeure leave for the two subsequent days, 22 and 23 May 2024. That request was denied. He lodged a complaint under the Act to the WRC on 25 May 2024.

Summary Position of the Complainant

On 21 May 2024, the Complainant had to leave work unexpectedly around 2pm due to a developing emergency at home which resulted in him taking his wife to the emergency department of the Rotunda Hospital. At 10pm the Complainant notified the CEO that his wife was suffering a miscarriage and that he doubted his presence at work the next morning. His wife was discharged after midnight. The Complainant and his wife were advised of certain signs to look out for and were directed to return to the hospital should any of these signs present themselves.

At 9am on 22 May 2024 the Complainant notified the Respondent that he would not be at work. Later that day he emailed the CEO to request force majeure leave. His application was rejected on the grounds that force majeure leave days cannot be taken consecutively.

Having sought advice the Complainant requested the CEO to reconsider her decision, on the basis that the Act does not state that leave cannot be taken consecutively. That application was rejected on the ground that the Complainant had “prior knowledge” of the absence. The CEO was incorrect in her understanding of the timeline of events, as he was unsure about attending work until after midnight when tests were concluded.

The Complainant rejected an offer from the CEO to avail of a day’s annual leave and take the remainder as unpaid carers leave. He was advised that if he did not avail of carers leave his leave would be deemed unauthorized, which he perceived as a threat of disciplinary action. The CEO then proposed that the Complainant work evenings, weekends, and bank holidays as overtime. Finally, the CEO said that she would reconsider the application if he could furnish a letter from the hospital outlining the care instructions and appointment dates for his spouse. This was a gross attempt to violate his wife’s right to privacy.

When the Complainant advised the CEO that he was seeking an appointment with his GP and subsequently submitted a medical certificate for stress and anxiety, she sought confirmation that he was withdrawing his request for force majeure. When he advised her that he was suffering stress because of the rejected application for force majeure leave, the CEO sought confirmation that if he intended to provide a medical letter from the hospital. He viewed that matter as an invasion of privacy.

The Complainant submits that he left work in an emergency. The continuation of the initial emergency required the Complainant’s indispensable presence with his ill spouse. The CEO’s timeline of events was skewed and misrepresented to block the payment of force majeure leave. Different reasons were given for rejecting his application. The request to furnish detailed medical records for his wife was a gross attempt to violate her privacy.

The Complainant continues to experience a high level of stress and anxiety and has remained out of work since the incident occurred on 21/22 May 2024. The Complainant has suffered large financial losses and medical expenses. His quality of living, and that of his family, has been depleted.

Summary Position of the Respondent

The Complainant failed to exhaust internal procedures prior to lodging his complaint under the Act, and on that ground alone his claim must fail. He did not raise a formal or informal grievance. The claim is pre-lodged, as an ongoing conversation was taking place about granting further force majeure leave when the Complainant lodged the claim.

The Complainant was granted force majeure leave in accordance with the Act. Force majeure leave can only be taken in exceptional circumstances where an immediate presence is warranted. The Complainant’s immediate presence was only required on 21 May 2024 and force majeure was granted.

Carers leave and other types of leave were offered to the Complainant for the following days. The Complainant is aware of his contractual obligations and policies relating to various types of leaves available. Alternative leave options were open to him regarding the after care of his wife.

The Respondent retained compassion and sympathised with the Complainant on 21 May 2024 by granting force majeure leave. The request for further force majeure leave could not be decided as a medical letter was awaited to support that the Complainant was indispensable and other care for the child could have been arranged; as it has been for the 21 May 2024. The Complainant failed to provide any information that his care was indispensable after his wife was discharged from the hospital even though he had a medical letter in his possession (dated 24 May 2024).

Relevant Law

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.

(2A) For the purposes of subsection (2)(f)—

 (a) a person who resides with an employee is taken to be in a relationship of domestic dependency with the employee if, in the event of injury or illness, one reasonably relies on the other to make arrangements for the provision of care, and

(b) the sexual orientation of the persons concerned is immaterial

(2B) Paragraph (b) of subsection (2A) is not to be taken to limit in any way the classes of persons in respect of whom an employee is entitled to force majeure leave by virtue of subsection (2)(f).

(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.

Deliberations and Conclusions

The Respondent contends that the Court should not entertain the complaint as the Complainant failed to exhaust internal procedures before submitting his complaint under the Act to the Workplace Relations Commission (WRC). While it may be good practice, there is no requirement that an employee utilise internal dispute resolution mechanisms before lodging a complaint under the Act and the Court finds that no jurisdictional matter arises to prevent the Complainant pursuing his complaint.

The Respondent further submits that a conversation was ongoing with the Complainant about granting him additional force majeure leave when he lodged his complaint to the WRC, and had they been in receipt of a letter from the hospital confirming his wife’s medical condition, which was subsequently produced by the Complainant, they may have viewed the application differently. Notwithstanding that submission, the Respondent confirmed that its position was that no contravention of the Act occurred.

An entitlement to force majeure leave arises where the reason for leave is urgent and the immediate presence of an employee at the place where the injured or ill family member is indispensable.

The Court is satisfied that the Complainant complied with the notification provisions set out at s.13(3) of the Act insofar as he confirmed to his employer by email as soon as was reasonably practicable that he had taken leave and set out a statement of facts supporting his application for force majeure leave.

On 21 May 2024, the Complainant left work for an urgent family reason, owing to the illness of his wife who was suffering a miscarriage after 5 weeks of pregnancy, and his presence was required at home. There is no dispute that he was entitled to force majeure leave for his absence from work on that date.

The Complainant contends that he was entitled to force majeure leave on the following two days, 22 May, and 23 May 2024. As a result, the Court must consider whether his absence on those two days continued to be for an ongoing urgent family reason, where his immediate presence was indispensable due to the illness of his wife.

The Respondent’s position is that by 22 May 2024 the urgent family reason was over as the Complainant’s wife was discharged from hospital the night before and the Complainant had texted the CEO to say that he would not be in work the following day. As the Complainant had expressed his intention not to attend work on 22 May 2024, the Respondent contends that the matter was no longer urgent and, instead, was foreseen.

The Complainant’s position is that the emergency was very much ongoing. He contends that his wife was not discharged until after midnight and he could not attend work as she was still hemorrhaging, and he was under instructions to monitor her for medical complications.

An extensive chain of email correspondence exchanged between the Complainant and the CEO over 22 May 2024 and 23 May 2024 was opened to the Court. Despite the extensive nature of that engagement (22 emails), during what was clearly a stressful time for the Complainant, it appears that much of the correspondence was misconstrued with incorrect assumptions made by both sides. Unfortunately, those matters were not clarified before the Complainant progressed his complaint under the Act.

In reply to questions from the Court, the Respondent said that it assumed that the leave application related primarily to childcare duties rather than attending to a sick family member. In that regard, the Respondent assumed that the Complainant’s mother-in-law was available to assist with childcare, because she had stepped in to help on the first day of absence on 21 May 2024. The Respondent further assumed that the Complainant, who had made reference his own medical issues, had planned to take sick leave.

For his part, the Complainant understood that the offer of an additional day’s annual leave would be deducted from his following years annual leave entitlement. The Complainant secured a letter from the hospital confirming that his presence was required to provide additional support/medical care to his wife on the relevant dates, however, that letter was not made available to the Respondent until the WRC process.

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

The question of whether the Complainant’s immediate and indispensable presence was required on 22 and 23 May 2024 is a matter of fact that can only be determined by looking at the circumstances that were known at the time that the Complainant decided to stay at home.

In 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:

“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. “

Having regard to the oral and written submissions made the Court is satisfied that on 22 May 2024, the Complainant’s immediate presence was required with his wife due to her ongoing medical situation and that his presence with her was indispensable as she required additional support and medical care. As a result, the Court finds that the Complainant was entitled to force majeure leave on 22 May 2024.

The Court is further satisfied that the urgent family reasons continued and were ongoing on 23 May 2024, which meant that the Complainant’s presence was also required on that date. As a result, the Court finds that the Complainant was entitled to force majeure leave on 23 May 2024.

Redress

The Act provides at s.21(2) as follows:

“(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 Act entitles parents to avail of up to 26 weeks of unpaidparental leave. The Act further provides for limited paid force majeure leave to enable employees deal with family emergencies resulting from injury or illness of a family member, up to a maximum of three days in any twelve consecutive months or five days in any thirty-six consecutive months.

The complaint before the Court relates solely to the Complainant’s entitlement to force majeure leave.

The maximum award that the Court can award for a breach of the Act is twenty weeks’ remuneration, which in this case amounts to €13,425. The Court has discretion to award compensation as is just and equitable.

The Court acknowledges the difficult circumstances encountered by the Complainant and his family in May 2024. The Court notes that the Complainant has remained out of work since that time and contends that his large financial losses and medical expenses are a result of the Respondent’s failure to grant him force majeure leave. The Court makes no comment on that assertion other than to say that it has no remit to award compensation for such matters.

In this case the Complainant was granted one days force majeure leave and his application for two subsequent days of force majeure leave denied. Having regard to the oral and written submissions made the Court and taking account of all of the circumstances of this case, the Court deems that an award of €2,500 is just and equitable.

Decision

The Court directs that the Respondent pay the sum of €2,500 as just and equitable in compensation to the Complainant.

The Complaint is well founded. The decision of the Adjudication officer is varied accordingly.

The Court so decides

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
8th January 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.