ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00015287
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 03/01/2019
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 13 of the Industrial Relations Acts 1969 andfollowing the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Complainant has been employed as a General Operative from 11th May 2015. He is paid €568.00 gross per week and he works 39 hours a week. He referred a dispute to the Workplace Relations Commission on 20th June 2018 under the Industrial Relations Act, 1969, in relation to a request for Force Majeure Leave which was refused by the Respondent.
Summary of Complainant’s Case:
On 1st February 2018 the Complainant’s wife was admitted to Hospital and a procedure was carried out on 2nd February 2018. The Complainant finished work on 1st February 2018 and he was not scheduled to work on 2nd February 2018. The Complainant’s normal working week is Monday, Tuesday and Wednesday for 12 hours each day. The Complainant’s wife was advised medically to take a number of weeks off.
The Complainant phoned a named HR employee on Monday 5th February 2018 to inform them he would be taking a week (three days) off due to his wife being in Hospital. He was requested to attend work on Thursday 8th February 2018 to complete a Force Majeure Form. He completed it on 6th February 2018 and gave it to HR. The reason specified for the Leave was that his wife could not drive, walk or look after their 4 children.
The Complainant was advised on 12th February 2018 that his request for Force Majeure Leave had been refused and the reason was this was not unplanned. The Respondent did not accept the Medical Letter and he was requested to obtain a further letter to state his wife’s condition had been an emergency. The Surgeon issued a letter dated 22nd February 2018 setting out the medical condition of the Complainant’s wife. The Complainant was again refused Force Majeure Leave. The Complainant lodged a Grievance but this was unsuccessful. The Complainant therefore was forced to take annual leave for the week.
The Complainant is seeking a recommendation that he be granted Force Majeure Leave.
Summary of Respondent’s Case:
The Complainant’s request for Force Majeure Leave was refused as it did not meet the definition as set out under Section 13 of the Parental Leave Act, 1998. The Complainant is employed to work three days a week, Monday, Tuesday and Wednesday from 7.30am to 7.30 pm. The Complainant was provided with a written Statement of His Terms and Conditions of Employment – copy provided to the Hearing.
The Complainant attended at the HR Office on site on 1st February 2018 and advised the named HR person that he would be seeking Force Majeure Leave for the following week as his wife was going into Hospital and he was required to look after their children. He also explained that as he was going to Manchester at the Weekend he just wished to have it sorted before he went. HR explained to the Complainant that Force Majeure Leave was granted for unplanned situations. The Complainant rang the Respondent on 5th February 2018 to inform them he would not be at work that week as his wife had been taken to Hospital. On 7th February 2018 he rang the Respondent and informed them that he would be applying for Force Majeure Leave and would provide a letter from the Hospital. The Complainant attended the Site on 8th February 2018 and completed the Force Majeure Form, including a letter from the Hospital which confirms the Complainant’s wife was admitted to Hospital on 1st February 2018 and discharged on 6th February 2018.
The Complainant did not attend work the following Monday 12th February but phoned his Line Manager who informed him that his request for Force Majeure Leave had been refused and advised him to take annual leave for the previous week. The Complainant agreed but stated he would lodge a Grievance. The Complainant returned to work on Tuesday 13th February 2018 and had a meeting with a named Operations Manager and a named HR employee in relation to his appeal. The Complainant advised that his sister in laws child had been hospitalised with meningitis on Saturday 3rd February 2018 and he had nobody to look after his children. He was requested to provide evidence of this and that he may be entitled to Force Majeure on 5th February 2018.
By letter dated 7th March 2018 the Complainant lodged a formal Grievance. Following a further meeting on 7th March 2018 it was again explained to the Complainant the purpose of Force Majeure Leave and this was confirmed in a letter dated 15th March 2018.
The Respondent set out Section 13(1) of the Parental Leave Act, 1998 and the definition of Force Majeure Leave and that the Complainant’s absence from work on 6th, 7th and 8th February 2018 cannot meet the definition of the Act.
There were some contradictions in the Complainant’s case. The Complainant did voluntary overtime on 1st February 2018 on the day his wife was admitted to Hospital. The Complainant had applied for Force Majeure Leave to cover 5th February but his appeal of 7th March 2018 refers to Force Majeure Leave for 6th, 7th and 8th February 2018. The Complainant originally informed the Respondent on 1st February 2018 that he would be seeking Force Majeure Leave for the following week as his wife was going into Hospital, that he was going to Manchester for the weekend and that he needed to have it sorted before he went.
Findings and Conclusions:
This is a dispute that was referred under the Industrial Relations Act, 1969 and not the Parental Leave Act, 1998 which sets out the conditions for Force Majeure Leave as follows – Section 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 to 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”.
This section of the Act of 1998 refers to “immediate” and “urgent” which would indicate that Force Majeure Leave would be applied for retrospectively. This issue has been addressed by the High Court in McMonagle v O’Shea (2010) IEHC 180.
In the current case the Complainant had applied on 1st February 2018 for Force Majeure Leave for the following week – the Complainant wife had been admitted to Hospital on 1st February 2018 and was discharged on 6th February 2018. The Complainant had informed the Respondent that he was applying on 1st February 2018 as he was going to Manchester for the weekend and wanted t have things sorted before he went for the following week.
This does not meet the definition of immediate and urgent as set out in the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
On the basis of the evidence from both Parties I do not find in favour of the Complainant in relation to this dispute. The Complainant has not met the requirements of Section 13(1) of the Parental Leave Act, 1998.
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Industrial Relations Act, 1969 – dispute in relation to Force Majeure Leave – governed by Section 13(1) of the Parental Leave Act, 1998 – does not met the criteria for Force Majeure Leave as defined by the Act.