Complainant

Respondent

Anonymised Parties

A Healthcare Assistant

A Healthcare Employer

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-00066446-001

03/10/2024

The Complainant referred the matter to the Commission that she had been denied her entitlements under Section 18 of the Parental Leave Act 1998 in terms of being denied her application for parental leave to be granted on an  indefinite basis for her nephew for whom she was legal guardian in her preferred manner.

I have anonymised the names of the parties due to the sensitive nature of the complaint and its reference to minors.

The complainant and all witnesses gave testimony under affirmation and cross examination was afforded to both parties.

The Respondents provided a late submission to the Commission which they read into the record. This submission included a preliminary application that the complaint was out of time.

As the submissions arrived too late to be considered in ful,I decided to hear the matter in full before deciding on the preliminary matter.

The Complainant made a verbal submission to the hearing in line with their complaint form.

The Complainant was employed by the Respondent as a Healthcare Assistant from December 2015 to her resignation in August 2024.

On 20/01/2023 she was approved for Parental Leave regarding a family member by EB, the former Services Manager and a predecessor of SB. This was in writing for which the Complainant provided a copy to the hearing and in her complaint. The date was from the 28/10/2023 (this coincided with the Parental Leave ending for a different family member as he attained his 12th year, and was  to continue indefinitely.

SB took over from EB as Services Manager and then refused her two days a month parental leave. The Complainant was then offered a reduced hours contract, or, to take the leave in blocks of 6 weeks in line with the Act. This was not sustainable for the Complainant financially.

The Complainant then left the Respondents employment because of what she perceived as SB’s attitude towards her.

 The Complainant subsequently took up alternative employment.

In response to the Preliminary Submission by the Respondent

The Complainant gave evidence that her late application arose from her lack of knowledge of the law, that she made the complaint on the advice of the Citizens Information Centre who told her she had a case. Further to this, she had understood that the applicable date was six months from leaving the employment rather from the date of the arising issue.

Preliminary Issue

A preliminary issue was put forward by the Respondent regarding the time limits provided for filing claims at the WRC.

This complaint was submitted to the WRC on 03 October 2024. Therefore, the cognisable period for this complaint, as provided for in the Workplace Relations Act, 2015 is between 04 April 2024 and 03 October 2024. The last communication refusing an application for parental leave was issued to the Complainant by SB on 26 March 2024 which is outside the cognisable period.

I preferred to hear the whole case before making a decision on this submission.

Respondents Substantive Case

The Claimant requested Parental Leave to care for another family member for whom she was a legal guardian, from 27/10/2023 “indefinitely”.

It was the Respondent’s position that there was no agreed extension or indefinite leave for the claimant on file beyond the previous arrangement to 27/10/2023 and they provided guidelines from the company policy on parental leave; it was confirmed and agreed  these had been provided to the Claimant on joining the organisation.

Subsequentially, following a Data Access Request, it was confirmed to the Claimant, via emails shared between them, in November 2024 that the Parental Leave was approved by EB, but this was not consistent with that the organisational policy, nor the Act itself i.e. indefinitely and the application conjoined two separate requests.

Following this the Complainant made a renewed request for 1 day a week Parental Leave on the 22/01/2024 in line with the organisational policy and procedure. The Respondent replied to the effect that all similar requests were declined by the Respondent organisation as per the organisational policy.

 It was organisational policy that Parental Leave must be taken as one continuous block or two separate blocks of a minimum  of 6 weeks at a time.

 A further request was received and refused on the 26/03/2024. This refusal was on the part of the CEO, for operational requirements, and the Respondent was not in a position to create a precedent in accepting the application as it was for the Claimant or any other staff member.

Following this the Claimant resigned from the respondent company in August 2024 without having utilised the grievance procedure.

It is the Respondent’s position that it acted reasonably and lawfully in refusing the Claimant’s request for parental leave, and fairly in offering alternative options.

As such, the Respondent respectfully asked the Adjudication Officer to find that there was no breach of the act within the cognisable period and to find in favour of the Respondent in rejecting this claim.

Dealing with the Preliminary issue first.

As outlined by the Respondent there is significant case law on the matter of extensions, most notably Skanska V Carroll DWT0338.  This case sets out the limits of extension where reasonable cause can be shown and is largely dependent on the circumstances of the delay.

Section 41 (8) of Workplace Relations Act 2015 states:

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause:

In Skanska the Labour Court found:

“The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

The matters of health of the Claimant and her extended family would not have physically prevented the application within time and, as other cases have demonstrated, ignorance of the law is not an excuse and can’t be so for public policy reasons.

The Complainant states that she was not aware of the actual time limit leading to this complaint, thinking instead it was six months from leaving her employment rather than the cognisable dates. As is referred to in Minister for Finance v CPSU, PSEU and IMPACT [2006] IEHC  145 lacking knowledge is not a sufficient reason for not filing a claim in time.

In the circumstances of this case, I do not consider the claimant has a good arguable case in that she was not compliant with the policy and the Act does not allow for indefinite Parental Leave. Further, the reasons put forward for her delay, whilst extremely difficult for the Claimant and for which the Adjudicator has a great deal of personal sympathy, do not warrant an extension of time

It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.   The onus is on the applicant to establish a causal link between the reason proffered for the delay and their failure to present the complaint in time.  

An Adjudicator must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. 

This complaint was filed outside of the six-month time limit. The Complainant did not put forward an argument that could allow me to make a finding of reasonable cause pursuant to S41(8). Therefore, I have no option but to find that I do not have jurisdiction to hear this complaint.   

For reasons outlined above, I find that I do not have jurisdiction in the within matter and the Complaint fails.

Limitation Period. Reasonable Cause. Jurisdiction.