Complainant

Respondent

Parties

Brian  Kelleher

Irish Prison Service

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-00067206-001

06/11/2024

On September 28th, 2024, the complainant had to avail of a domestic leave day.

On October 2nd when returning to workhemetwithhisHRManager whose lineofquestioning he regarded as intrusive, and it madehimvery uncomfortable asthiswasanextremelysensitiveandprivatematter.

On November 11th he was notified by HR that domestic violence leave had not been granted, and he had to use annual leave.  No explanation or reasons were given to me as why this was declined.

He says that he falls within the terms of the provisions of Domestic Violence leave. The person he was supporting was a former partner. He confirmed to the Adjudicator that he did not share the specific information about the person and purpose of the leave with his manager.

He says the subsequent refusal of the leave constituted the act of penalisation.

The complainant is covered by the civil service policy on Domestic Violence and abuse, and the relevant circular sets out the entitlements to leave.

Specifically, it says that the leave can be availed of by a staff member or a staff member who is supporting a relevant person who has experienced in the past or is currently experiencing domestic violence.

It continues to define a relevant person as the spouse or civil partner of the employee, the cohabitant of the employee, a person with whom the employee is in an intimate relationship, or a child of the employee who has not attained full age, or a person who, in relation to the employee, is a dependent person.

The legislation goes further and specifies the purpose for which the leave may be taken.

This includes to seek medical attention, obtain services from a victim services organisation, obtain psychological or other professional counseling, relocate residence temporarily or permanently, obtain an order from a court, seek advice or assistance from a legal practitioner or seek assistance from the Garda Siochana.

The complainant was off on September 28th, 2024, and said he wished to avail of domestic violence leave upon return to duty he spoke to management regarding his application and was asked whether he himself was alright and whether he needed any support.

He was advised of the available supports and was asked whether the domestic violence leave was for himself or to support someone else.

He said that he was supporting his neighbour and friend. He was then asked to specify the purpose of the leave and was advised of the circumstances in which leave can be taken (as set out above) and whether the complainant needed the leave for any of those purposes.

The complainant confirmed that it was not to do with any of those and it was simply to stay at home to support his neighbor and friend.

Having considered what the complainant had to say management came to the conclusion that the supported person was not ‘a relevant person’ as provided for in the act and furthermore the purpose of the leave did not fall within the remit of the act and therefore domestic violence leave could not be granted.

However, he was granted annual leave for the day in question. On October the 10th 2024 confirmation of this decision was provided to the complainant in writing.

Statistics were provided on the application of these provisions by the respondent indicating that over fourteen hundred applications have been approved, including 51 in the complainant’s specific workplace.

The complainant did not apply for the leave before taking it and there was confusion about the person and purpose for whom it was intended. He did not initially share this information with his manager.

However, the application fails because neither the person nor the purpose for whom it was intended fall within the parameters of the Act.

A preliminary issue arises in this case.

In order for the complainant to make out a complaint of penalisation, he must first establish that it is in retaliation for the exercise of some right under the legislation. In this case, the complainant states that the act of penalisation was the decision not to grant him the day’s leave under the Domestic Violence provisions.

From this it must (can only) be deduced that the act in respect of which this is to be seen as retaliation was the act of applying for the leave in the first place.

This gives rise to the interesting conundrum that the act giving rise to the penalisation and the act of penalisation are, in fact, the same act, unless the act of the application itself can be severed from the denial of the application which is absurd.

The respondent’s position is as set out above, which is that the complainant did not meet the eligibility criteria to be covered by the scheme. He did little to help his application by not cooperating with his management in giving them straight and honest answers.

The respondent had a duty to establish whether or not he was covered by the scheme and was perfectly entitled to seek the information necessary to do so.

At the hearing, apart from simply insisting that he did meet the criteria, he made no actual argument to rebut the plain facts of the matter which indicate that he does not.

Therefore, the fact that his application for domestic leave was properly declined on the basis of a correct interpretation of the applicable regulation, cannot give rise, on these facts, to any penalisation.

The hearing was adjourned on the basis that the two elements of the case (did he satisfy the criteria and was there any penalisation) would be further considered and if this were to result in a decision in the complainant’s favour to resume the hearing.

It is abundantly clear that he does not satisfy those criteria and that the complaint is entirely misconceived.

The complainant is not well founded.

For the reasons set out above Complaint CA-00067205-001 is not well founded.

Domestic Violence Leave