ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025209
A passenger transport company.
Alastair Purdy, Alastair Purdy & Co. Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998
Date of Adjudication Hearing: 31/01/2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant has been employed by the Respondent since 12th July 2004.
This complaint was received by the Workplace Relations Commission on 5th November 2019.
Summary of Complainant’s Case:
The Complainant’s husband was not well and was admitted into hospital through A&E. As the days went by his condition deteriorated and he ended up in ICU. Neither the Complainant or the doctors were aware how ill he was until after a few days of scans and tests and the Complainant was not aware how long he was going to be in hospital for.
As her husband deteriorated after a few days in hospital and ended up in ICU. I then applied to take Force Majeure Leave as I had a really sick husband in hospital that I needed to be with. I have been refused this.
Summary of Respondent’s Case:
On 24th September 2019, the Complainant’s husband was admitted to hospital through Accident and Emergency due to a sustained illness. The date of discharge at this point was unknown as her husband’s condition was admitted to the Intensive Care Unit. The Complainant did not attend work during the period 30th September until 2nd October because of her husband’s ill health. On 7th October 2019 the Complainant applied for Force Majeure leave for the days in question, to which the request was refused on the basis that the illness was foreseen for the dates requested.
Force Majeure Leave is a form of special leave with pay to which an employee is entitled, where, for urgent family reasons, owing to an injury or illness of a family member, his/her immediate presence at home or elsewhere is indispensable. This is directly provided for under Section 13 of the Parental Leave Acts. Relevant family members is set out in Section 13 (1) whereby the family member must be a parent, adoptive parent, a spouse, a person with whom the employee is living as husband and wife, a brother or sister, a parent or grandparent, or a person to whom the employee is in loco parentis. Force majeure leave must not exceed 3 days in any 12 months or 5 days in any 36 consecutive months.
The issue of what constitutes urgent family reasons has been extensively litigated. It has been held that the urgency of a family situation cannot be judged in hindsight, nor can the question as to whether the employee’s presence was indispensable; the matter needs to be looked at from the employee’s point of view at the time the decision was made not to go to work: Carey v Penn Racquet Sports Ltd [2001 HC] 3 IR 32; [2001 HC] ELR27. The fact that an illness subsequently transpired to be non-serious is not relevant. Whether or not an employee’s presence is indispensable is a question of fact and not a question of law: McGaley v Liebherr Container Cranes Ltd [2001 HC] 3 IR 563; ELR 350. See Quinn v J Higgins Engineering Galway Ltd [2000 EAT ] ELR 102.
In determining whether or not an individual qualifies for such leave, there has been a number of decisions to provide guidance to same. In the case of David Quinn & Michael Quinn v J Higgins Engineering Galway Ltd v t/a APW Enclosure Systems, Mr David Quinn’s three children became ill on Monday 11th January 1999 and their condition subsequently deteriorated on 13th January 1999 and in addition, on the date his wife fell sick. At the time there was a meningitis scare in the area, and for that reason, he could not seek outside assistance. He felt there it was necessary for him to care for his family and did not attend work on Thursday 14th January. On that Thursday, the Doctor discounted meningitis as a cause of the illness but informed Mr Quinn that his family “needed minding” as they remained quite ill. Mr Quinn also remained absent the Friday 15th January. The Respondent contended that the Claimant’s case did not fall within the criteria for force majeure leave as set out in Section 13 of the Parental Leave Acts and therefore was not entitled to such leave.
The Court accepted that by the Claimant’s evidence that his wife and children were sick, and by the nature of the illness he was entitled to be alarmed and his concern about the possibility of meningitis was not unreasonable. By virtue of this, the court ruled he had no choice but to stay off work to get medical assistance for them, and for this reason, the applicant’s circumstances on Thursday 14th January 1999 were such as to constitute urgent family reasons for the purpose of Section 13 (1) of the Parental Leave Acts rendering his presence indispensable, especially as he could not ask anyone else to look after them due to the threat of exposing them to meningitis. Though the court found him entitled to Force Majeure leave with pay for the Thursday 14th January 1999, it felt that the circumstances on Friday 15th January 1999 did not satisfy the requirements set out in Section 13 (1) and determined that, as the scare of meningitis had been assuaged, he could have availed of other forms of leave available to him and thus was not entitled to Force Majeure leave on the Friday. Thus the requirements of “immediate” and “indispensable” must be present on each day of Force Majeure leave.
In the absence of any “objective rules” by the courts in granting Force Majeure leave, a rights commissioner in PL32/99/CW commented that he could only apply a “reasonable subjective test” to the circumstances before him, and that should the employee have sufficient advance notice, he or she should make alternative arrangements such as a day’s holiday to satisfy the “urgent” stipulation.
In the case of A Firefighter v A Local Authority, the complainant applied for Force Majeure leave for 7th September 2017 on the day his wife went into early labour as he felt due to the difficulties his wife was experiencing his presence was indispensable. The adjudication officer ruled that the decision to remain in hospital with his wife was justified and that the complainant was entitled to Force Majeure leave on that day.
In Carey v Penn Racquet Sports Ltd in 2001 Judge Carroll in the High Court emphasised that questions of urgency and indispensability should not be judged with hindsight. In the case the plaintiff was a single mother with an eight-year-old child who took a day’s leave to look after her child who had woken up with an unusual rash on her legs. The company refused to grant the leave as, following an examination by the applicant’s GP, the rash was diagnosed as not being serious. The EAT upheld the company’s decision but Judge Carroll felt the EAT had erred in law, and decided that the matter should be looked at from the plaintiff’s point of view at the time the decision was made not to attend work. Also the plaintiff could not be assumed to have medical knowledge which she did not possess. Judge McCracken in a further case ruled that the question of whether or not the employee’s immediate presence was indispensable was to be determined by looking at the circumstances that were known at the time the employee decided to stay at home.
In consideration of the above and in line with judicial opinion regarding what amounts “immediate” and “indispensable” we submit that the Complainant has failed to meet that threshold in this instance due to the foreseeable nature of her absence. On the basis of such, we respectively request that her case be dismissed herein.
Findings and Conclusions:
I note that the legal representative for the Respondent has provided an extensive summary of case law on this subject. I now refer to David Quinn and Michael Quinn v J. Higgins Engineering Galway Ltd t/a APW Enclosure Systems.
In the case of David Quinn & Michael Quinn v J Higgins Engineering Galway Ltd v t/a APW Enclosure Systems, Mr David Quinn’s three children became ill on Monday 11th January 1999 and their condition subsequently deteriorated on 13th January 1999 and in addition, on the date his wife fell sick. At the time there was a meningitis scare in the area, and for that reason, he could not seek outside assistance. He felt there it was necessary for him to care for his family and did not attend work on Thursday 14th January. On that Thursday, the Doctor discounted meningitis as a cause of the illness but informed Mr Quinn that his family “needed minding” as they remained quite ill. Mr Quinn also remained absent the Friday 15th January. The Respondent contended that the Claimant’s case did not fall within the criteria for force majeure leave as set out in Section 13 of the Parental Leave Acts and therefore was not entitled to such leave.
In the instant case I am sure that the Complainant felt that her presence with her husband was indispensable when he, the husband, was moved to the Intensive Care Unit, his condition was deteriorating, and they did not know why.
Unlike the Quinn case quoted above the Complainant was not informed that her husband’s illness was not serious, they simply did not know how ill he was and had been moved to ICU.
Under these circumstances it is for the Complainant to decide if her presence was indispensable and for how long.
I find the complaint well founded and now order the Respondent to pay the Complainant for the three days in question.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
As outlined above.
Dated: 25th February 2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Force Majeure Leave.