ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011893
A Local Authority
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998
Date of Adjudication Hearing: 16/08/2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant commenced his employment with the Respondent on 1st January 2016. He claims that he has applied for the granting of force majeure leave on two separate dates, 7th September 2017 (CA-00015780-001) and 11th March 2018 (CA-00019456-001). He claims that these applications were declined by the Respondent.
Summary of Complainant’s Case:
SIPTU on behalf of the Complaint submits that on 7th September 2017 the Complainant was due to commence a 15-hours shift at 6.30pm to 9.30am the following morning, The Complainant’s wife, Ms A, was heavily pregnant and due to give birth the following week. The Complainant had pre-booked leave to coincide with the anticipated delivery date. However, in the afternoon of the 7th September Ms A went into early labour requiring the Complainant to rush her to the hospital. Ms A had experienced a difficult pregnancy and as such the Complainant due to the concerns relating to the pregnancy determined that his presence during the course of his wife’s labour and the delivery of their baby was indispensable. SIPTU submits that the Complainant followed normal protocol and contacted the Fire Station to advise that he would not be attending work for his rostered shift due to the circumstances. The Complainant subsequently applied for the granting of force majeure leave to cover his absence. The application was denied by Ms K of HR. SIPTU claims that using the internal procedures the Complainant appealed the decision to the Senior Executive Officer, Ms D. SIPTU exhibited a letter rejecting the appeal issued by Ms D in which she stated: “I would describe Force Majeure as the immediate presence of an employee being required unexpectedly with a very ill, seriously injured or dying close relative”. SIPTU argues that this definition of Force Majeure is not contained in the legislation and it should be noted that this approach to granting force majeureby the Respondent signified a dramatic change in the Respondent’s approach. SIPTU submits that previously the Respondent had approved applications for force majeure leave to staff whose applications related to early births. SIPTU argues that the Respondent is aware that Mr X, a fellow firefighter applied for and was granted force majeure leave for 24th April 2015 due to the premature birth of his child and his application was approved without any question at the time.
SIPTU on behalf of the Complainant submits that on 11th March 2018 the Complainant was due to attend work at 6.30pm to 9.30am the following morning. In the afternoon of 11th March, the Complainant’s wife, Ms A and two of his children became ill unexpectantly. SIPTU submits that such was the condition of his wife and children that the Complainant determined that it would be unsafe to leave them as his wife was incapable of properly tending to her own needs and to those of their children. SIPTU argues that the Complainant followed a normal protocol and contacted the Fire Station to advise that he would not be attending work due to the circumstance. The Complainant subsequently applied for the granting of force majeure leave. SIPTU submits that this application was rejected on the basis that the Respondent was not prepared to grant some unless the Complainant divulged information in relation to the illness that had affected his family. The Complainant advised that in consultation with his wife he was not prepared to divulge sensitive personal data relating to either his wife or his children and that the requested information was not required under the Parental Leave Act. The Complainant did indicate that he was prepared to disclose same to a medical practitioner but the Respondent was not satisfied with this position and rejected the application.
In support of CA-00015780-001 and CA-00019456-001 as outlined below SIPTU cited Ann Carey v Penn Racquet Sports Ltd. and argued that, based on the principle established under this ruling it is not within the gift of an employer to reject an application for force majeure on the basis of a lack of information relating to the illness of the individual cared for. The prime factor is the due consideration of the perspective of the applicant at the time of the decision taken not to attend work.
SIPTU also relies on the Office of the Data Protection Commissioner case study 11-2012 confirming that a medical condition is considered as sensitive personal data under the Data Protection Acts and the requirement to provide such data compromises the rights of an individual under that legislation. In case study 11-2016 the Data Commissioner advised that the processing of personal information can only be undertaken with the direct consent of the data subject. SIPTU therefore contends that the Respondent was not entitled to access the sensitive personal data relating the Complainant’s family and was not entitled to require the Complainant to release sensitive personal data relevant to his family members in order to be granted force majeure leave.
Summary of Respondent’s Case:
CA-00015780-001 The Respondent submits that the Complainant had applied and was granted paternity leave to commence on 11th September 2017 until 24th September 2017. The Respondent argues that following the early birth of his child the Complainant should have requested for his paternity leave to be amended accordingly rather than applying for force majeure leave. The Respondent confirmed that force majeure leave was granted to Mr X in 2015 in respect of his prematurely born baby. However, the Respondent submits that it was granted in error.
The Respondent submits that the application for force majeure leave was received by the HR Department on 27th March 2018 in respect of 11th March 2018. On 29th March 2018 Ms K of HR wrote to the Complainant seeking more information on the illness/emergency that occurred on 11th March and also seeking information on why the Complainant’s presence was required on that day. The Respondent claims that a number of email followed between the Complainant and the Respondent between 6th and 16th April 2018, wherein the Complainant informed that it was an illness that affected his family but he did not want to divulge any further personal and confidential information especially in relation to his children who are minors. The Complainant sought a copy of circular that entitles the Respondent to request specific medical or personal data in relation to kids. On 30th April 2018 Ms D, Senior Executive Offices of HR wrote to the Complainant confirming that, as far as she was aware, there was no circular that gives the entitlement to request the information referred to by the Complainant. She reiterated the Respondent’s position that without the Complainant giving details of the illness that his application could not be processed. The Respondent submits that further correspondence via email followed between 1st and 28th May 2018. The Complainant stated on 1st May that the illness was of a personal nature and due to the nature of the illness his immediate presence was required and invaluable to his family at the time as his wife was not in a position to carry out any parental duties and he had to be present to tend to the three of them. The Respondent contends that Ms D as decision maker informed the Complainant that in order to make a decision she required the full facts and in a bid to resolve the matter suggested she meet with the Complainant at which the Complainant could verbally, in a strict confidence indicate the circumstances to her. Ms K said that she would give her word that she would not discuss the nature of the issue the Complainant reports nor would she formally record the nature of the issue where the processing of further paperwork was required. Ms D requested the Complainant to give consideration to the proposal and revert to her. The Respondent submits that the Complainant did not take up Ms D’s offer to meeting with her. The Complainant stated that in email of 8th May 2018 he submitted all information required. The Respondent agreed that the Complainant stated that he had no issue giving private and confidential medical data to a registered GP. The Respondent submits that the Complainant stated that should the information he had supplied not suffice he would take the matter to third party. The Respondent submits that Ms D responded confirming that more information was required and the Respondent would have to record the leave as unpaid. She again offered to meet with the Complainant. The Respondent claims that on 11th May 2018 the Complainant informed Ms D by email of 11th May 2018 that he had requested SIPTU to refer the matter to third party and requested that the day in question not be recorded as unpaid leave until the outcome of the case. The Respondent agreed to this by email of 28th May 2018.
The Respondent submits that in order for the Respondent to process an application for force majeure leave, in accordance with paragraph 3 of Section 13 of the Parental Leave Act, 1998, a statement of the facts entitling the employee to force majeure leave is required. In relation to the Complainant’s application full facts were not established and therefore the application could not be processed. The Respondent accepts that the Complainant is fully within his right to decline to submit personal and confidential information. However, force majeure leave cannot be processed when exercising this right. The Respondent submits that it operates the provisions of the Parental Leave Act, 1998 as it pertains to force majeure leave in a compassionate manner in accordance with the terms of the act. With over 1,200 employees, the decision as to whether or not force majeure leave applies cannot be left to individuals to determine. In order to comply with the Act and be consistent and fair in decision making for all employees in this matter, details of the illness/injury needs to be established.
The Respondent submits that an advice was sought from the Data Protection Commission in relation to employees submitting details of illness/injury of a specified person in the context of application for force majeure leave. The Information & Assessment Unit of the Commission stated on 30th May 2018 that the Act “allows for the employer to be informed by the employee of the facts of the force majeure leave. It would appear that you have a legitimate interest in obtaining this information as per statutory requirements of Section 13 of the Parental Leave Act 1998 and therefore does not appear to be a breach of Data Protection Acts.”
In conclusion the Respondent argues that it does not accept the Complainant’s claim that he was refused force majeure leave. Sufficient information was not submitted to allow for an informed decision to be made and therefore the Complainant’s application for force majeure was not processed. The Respondent contends that Section 13(3) of the Act is very clear in that it states that a statement of the facts entitling an employee to force majeure leave must be specified. Moreover, the Respondent submits that the Data Protection Commission advised that the Respondent has a legitimate interest in obtaining facts of the force majeure leave as per requirements of Section 13 of the Act and therefore does not appear to be in breach of the Data Protection Acts.
Findings and Conclusions:
Section 13 of the Parental Leave Act, 1998 stipulates as follows: “Leave on grounds of force majeure
(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.
(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.”
An employee who takes force majeure leave is required to notify his or her employer, as soon as reasonably practicable, by notice in the prescribed form. The prescribed form for such notification is set out in S.I. 454 of 1998 Parental Leave (Notice of Force Majeure Leave) Regulations. This form, or a form to the like effect must contain the following information:
· Name of the employee
· RSI Number
· Name and address of employer
· Injured / Ill person during force majeure leave
· Relationship to the employee
· Nature of injury / illness
· Date(s) of force majeure leave
The Act lays down no rules or guidance in interpreting the criteria for the granting of force majeure leave and therefore a reasonable subjective test need to be applied to the circumstances. However, the stipulation that the need must be “urgent” suggests that the employee did not have sufficient advance notice in order to make alternative arrangements such as taking annual leave.
There is no dispute that the Complainant’s wife and his children fall within the category of persons specified in subsection (2).
In relation to CA-00015780-001 I find as follows.
The Complainant applied for force majeure leave for 7th September 2017. There was no dispute that the Complainant’s wife was due to have a baby some days later but went into an early labour in the afternoon on 7th September 2017. The Complainant noted that due to the difficulties his wife experienced during the pregnancy and due to medical concerns, his presence during the labour was indispensable. The parties confirmed at the hearing that on previous occasion the Respondent approved an application for force majeure leave in similar circumstance. I find that Section 13 of the Act provides for the entitlement of employees to limited leave with pay for family emergencies in cases where a family member is ill or injured. I note the Respondent’s position as outlined in Ms D letter of 23rd October 2017 “I would describe Force Majeure as the immediate presence of an employee being required unexpectedly with a very ill, seriously injured or dying close relative. The birth of a child, regardless of the circumstances, is not included in the Act as a reason for Force Majeure leave.” I respectfully disagree with Ms D’s opinion in that regard. Although, it could be argued that delivery of a baby does not constitute “urgent family reasons, owing to an injury to or the illness” it could equally be argued that any health complications related to same do. I am therefore of the view that the Complainant’s decision to remain in hospital with his wife, taking the difficulties she experienced during the pregnancy into consideration was justified.
In relation to CA-00019456-001 I find as follows.
The Complainant applied for force majeure leave for 11th March 2018 in respect of his wife and two children. In his application the Complainant stated: “1. Details of Illness / Injury: Sudden occurrence of injury/illness affecting my wife and children (both of a young age).
2. Indicate why your immediate presence with your family member was required: An injury/illness affecting my wife and children, which was of such nature to constitute an emergency and my presence at the time was indispensable.”
The Complainant was requested to provide more information on the illness/injury as to why his presence was required on the day. The Complainant refused to divulge any further information in respect of the alleged injury / illness. The Respondent confirmed at the hearing that it is positively predisposed to granting the leave and emphasized that it is not its role to decide whether or not the illness/injury was of sufficiently serious nature. However, it is not in a position to process the application without details of the nature of illness/injury.
I find that the Complainant, in line with Section 13 of the Acts must “…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 applicable form, as prescribed by S.I. 454 of 1998 clearly requires the employee to outline the “nature of illness/injury”. I find that it is reasonable for an employer to request an employee to provide supporting evidence to support the application. The Complainant did not supply supporting documentation or evidence to his employer or to the hearing to support his application.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
In respect of force majeure leave on 7th September 2017 I declare this complaint is well founded. The Complainant is entitled to a day of force majeure for the day of the 7th September 2017, subject to Section13(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.”
In respect of force majeure leave of 11th March 2018 I declare this complaint is not well founded.
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Force majeure leave-parental leave