Complainant

Respondent

Anonymised Parties

Fire Engineer

Safety Company

Representatives

Self-Represented

Ms. Zoe O'Sullivan, IBEC

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-00068992-001

01/02/2025

The Complainant commenced employment with the Respondent on 2nd September 2013. At all relevant times, the Complainant’s role was described as that of “fire engineer”. The Complainant was a full-time, permanent employee. The contract of employment terminated on 31st May 2025.

On 1st February 2025, the Complainant refereed the present complaint to the Commission. Herein, he alleged that the Respondent penalized him for seeking to enforce his rights under the impleaded Act. In particular, the Complainant submitted that the Respondent threatened disciplinary sanction against him for declining to cover an on-call shift while he was caring for an ill, dependent, child. By response, the Respondent initially submitted that the present complaint is not actionable under the present legislation, in that the Complainant did not seek to enforce his rights under the Act. They further submitted that the Complainant did not suffer any detriment as defined by the Act.

A hearing in relation to this matter was convened for, and finalised on, 19th May 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in support of their respective positions. Said submissions were expanded upon and contested in the course of the hearing.

While the Respondent raised a preliminary issue as to jurisdiction, namely that the Complainant did not enforce or propose to enforce his rights under the Act, this application will be considered as part of the substantive outcome.

The Complainant commenced employment with the Respondent on 2nd September 2013. At all relevant times the Complainant’s role was described as that of “fire engineer”.  The Complainant’s service remained without incident for several years until 2024.

Within his submission, the Complainant stated that his child developed a significant medical issue which necessitated several months of hospitalisation. Consequently, throughout most of the year 2024, the Complainant was required to attend the hospital from Friday evening until Sunday evening on a rotational basis with his wife, who attended during the week to allow him to fulfil his professional obligations. The Complainant raised these issues with his employer well in advance of the same, and an understanding existed to the effect the Complainant would not be obliged to work or be placed on-call at the weekends.

In early September 2024, the Complainant was rostered for an on call-shift on a Saturday evening. Upon being scheduled, the Complainant advised that he was unable to attend and confirmed that efforts should be made to secure alternative cover. Following this correspondence, the Complainant received a hostile email, on which several colleagues were copied, informing him that the Respondent intended to initiate disciplinary proceedings due to his perceived unwillingness to work the shift in question.

The Complainant replied promptly to enquire as to whether a formal contractual obligation existed regarding the on-call shift, as it was his position that he could not be penalised for failing to complete a shift he was not mandated to work. In this respect, the Complainant confirmed that he continued to fulfil all other on call duties required of the role, but that he had arranged with the Respondent that he could not work weekends, as a consequence of his parental responsibilities. Having received no reply, the Complainant issued a follow up enquiry on 5th September 2024, which also went unacknowledged.

As a direct result of the heightened stress caused by the Respondent’s conduct, the Complainant commenced a period of certified sick leave. It is noted that cover for the shift in question was eventually secured. Following the commencement of his leave, the Complainant lost two weeks of pay as a direct consequence of the Respondent’s actions.

The Complainant subsequently initiated an internal grievance procedure. While the Respondent eventually acknowledged that there was no contractual liability or requirement for the Complainant to complete the shift, they continue to deny any wrongdoing on their part regarding their behaviour at that time. The Complainant submitted that, in the absence of a contractual obligation, he should not have been threatened with disciplinary action. He contended that the Respondent’s actions effectively forced him to take medical leave due to the resulting stress during a period when his family required his support.

Having regard to the forgoing sequence of events, the Complainant submitted that he had been penalised for exercising his parental duties and, as a consequence of the same, he requested that his complaints be deemed to be well founded.

By submission, the Respondent accepted that the Complainant’s employment commenced on 2nd September 2013 and that, at all material times, his role was defined as a “fire engineer”.

The Respondent submitted that on Monday 2nd September 2024, a request was made for the Complainant to cover an on-call shift at a client site for the following Saturday. On 5th September 2024, the Complainant contacted the Respondent to advise that he would be unable to attend the scheduled on-call shift due to limited availability arising from medical circumstances. At that time, the Complainant also directly informed the onsite client that he would be unable to attend the shift.

On 10th September 2024, the Respondent informed the Complainant that his actions, specifically the direct contact with the client, may constitute a disciplinary matter and that a formal investigation would be initiated in respect to the same. The Complainant responded by stating that he did not believe the Respondent’s actions met the required duty of care to their employee. He further requested clarification as to the express contractual provision regarding his responsibility to meet such on-call requirements.

Thereafter, the Complainant was absent for a period of two weeks due to certified illness, with the shift in question being covered by another employee. During this period of absence, the Respondent’s management elected not to proceed with disciplinary action and, at this point, they considered the matter to be closed.

The Complainant then initiated an internal grievance procedure in accordance with the relevant internal policy. During this process, the Complainant requested a written apology regarding the request to work the shift, a formal acknowledgement that he held no contractual responsibility to meet specific on call hours, and full pay for the two weeks of sick leave.

Following an investigation and an internal appeal, the Respondent acknowledged that no contractual obligation existed to fulfil all such conditions, and this element of the Complainant’s appeal was upheld. The Respondent recommended a further investigation to ensure that the contractual position regarding on call duties is clearly defined in future contracts.

By submission, the Respondent argued that the present complaint is not actionable under the relevant legislation. The Respondent stated that the Complainant made no attempt to exercise an entitlement to parental leave or any other matters protected by the impleaded legislation. Consequently, the Respondent submitted that the Complainant could not have been penalised for seeking to exercise rights that had never been invoked.

Without prejudice to the foregoing, the Respondent submitted that the Complainant had not suffered any form of adverse treatment within the cognisable period. In this respect, it was noted that although it was proposed by the Respondent that he attend the shift in question, he did not do so and suffered no adverse consequences as a consequence of the same. In consideration of the foregoing, the Respondent submitted that the Complainant’s claim should be deemed not well founded.

Regarding the present case, the Complainant submitted that he had been penalised for exercising his rights under the Parental Leave Act. In this regard, he submitted that as a consequence of the serious illness of one of his children, he could not work at the weekends. He submitted that he entered into an agreement with the Respondent in respect of the same, and an understanding arose to the effect that he would not be rostered for shists, or placed “on-call” at the weekends. Notwithstanding the same, he submitted that he was rostered to work a Saturday shift, and when he stated that he could not complete same, he was threatened with disciplinary sanction. He submitted that these threats had the effect of directly causing the Complainant to miss two weeks of work and caused his numerous difficulties in his employment thereafter.

In denying this allegation, the Respondent firstly submitted that the Complainant did not seek to exercise his rights under the Act prior to any purported detriment suffered by him. In addition to the same, they submitted that the Complainant suffered no detriment as defined by the Act.

In this regard, Section 16A(1) of the Parental Leave Act provides as follows,

“An employer shall not penalise an employee for proposing to exercise or having exercised his or her entitlement to parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or his or her entitlement to make a request referred to in section 13B(1) or 15A(2).”

Subsection 2 of that section goes on to define “penalisation” in the following terms,

“Penalisation of an employee includes—

(a) dismissal of the employee,

(b) unfair treatment of the employee, including selection for redundancy, and

(c) an unfavourable change in the conditions of employment of the employee.”

In the matter of O’Neill v. Toni and Guy Blackrock Limited [ELR21], the Labour Court considered the test regarding the establishment of a finding of such penalisation, albeit in relation to a complaint under the Safety, Health and Welfare at Work Act 2005. In this regard, the Court held as follows,

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3.  Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act.  This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the claimant having committed the protected act he or she would not have suffered the detriment.  This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent”. 

The first point to consider is whether the Complainant sought to exercise or proposed to exercise his entitlements under the Act as required by Section 16A(1). Regarding this aspect of the test, the Respondent submitted that the Complainant did not seek to exercise any of these rights and, as a consequence of the same, it cannot be determined that he was penalised as envisioned by the provision cited above.

By response, the Complainant submitted that the leave in question related to “leave for medical care purposes” and that he sought to rely on his statutory entitlements in this regard.

In this regard, Section 13(1) of the Act defines such an entitlement as,

“…leave without pay from his or her employment, to be known and referred to in this Act as leave for medical care purposes, for the purposes of providing personal care or support to a person to whom this subsection applies.”

Subsection 2 then goes on to list the persons to whom the entitlement applies, which includes dependent children.

Section 13 goes on to provide that,

“(5) When an employee takes or intends to take leave under this section, he or she shall, as soon as reasonably practicable, confirm in the prescribed form given to his or her employer, that he or she has taken or intends to take, as the case may be, such leave.

(6) A confirmation under subsection (5) shall—

(a) specify the date of commencement of the leave for medical care purposes and its duration,

(b) contain a statement of the facts entitling the employee to the leave, and

(c) be signed by the employee concerned.

(7) On receipt of a confirmation under subsection (5), an employer shall retain the confirmation and shall provide the employee with a written acknowledgment of the receipt of the confirmation, which shall be retained by the employee.”

Regarding the instant case, it is apparent that the Complainant had come to an arrangement regarding his caring obligations towards his child. In this respect, it was understood that the Complainant would not be rostered for on-call shifts at the weekend in order to facilitate the same. The current set of issues arose when the Respondent breached that understanding, and proceeded to roster the Complainant for such a shift. Naturally, the Complainant took extreme exception to this development, and he submitted that the threat of disciplinary sanction that followed directly caused him a significant degree of distress.

In consideration of the foregoing, it is apparent that while the Complainant had come to an arrangement with the Respondent as regards his commitments, the same does not constitute the exercise, or the proposed exercise, of his rights under Section 13. As outlined above, Section 13 mandates that an application make a written application for such leave, which must then be considered by their employer. Having regard to the present factual matrix, no such application was made by the Complainant, and it cannot be said that he sought to exercise his rights under the provision, and by extension, the Act. Rather, it is apparent that the Complainant came to an arrangement with the Respondent that he would not be rostered to work on the weekends and that he would fulfil his contractual hours during the normal working week. From the factual matrix presented by the parties, it is apparent that the Complainant was no “on leave” on these occasions as defined by Section 13.

Having regard to the foregoing, I find that the Complainant did not seek to enforce or propose to enforce his rights under the Act prior the acts of penalisation alleged. In such circumstances, I find that the complaint is not well-founded.

I find that the complaint is not well-founded.

Parental Leave, Medical Care, Penalisation