Background
The case of Dean Hart v Komfort Kare (ADJ00051923) examines the circumstances under which a request for time off, by a parent, from their employer, must be given due consideration.
Dean Hart (the Complainant) brought a complaint under Section 18 of the Parental Leave Act 1998 against Komfort Kare (the Respondent) to the Workplace Relations Commission (WRC), alleging that they denied him the right to take force majeure despite extenuating circumstances.
The Complainant informed his employer that his wife had miscarried and, on that basis, he was granted a day off per the company force majeure policy. However, when he requested a second day of force majeure leave, the Respondent was resistant to grant him any additional time off. In an email to the Respondent, the Complainant set out:
“My wife is still haemorrhaging heavily and passing clots and is unable to take care of our very active 3 year old bot who doesn’t start naionra until this coming term. Hence my application for force majeure statutory entitlement of 3 days.”
The Respondent replied later that morning:
“Please note ‘Force Majeure means urgent family reasons where, owing to an injury or to the illness of an immediate relative the presence in the same place is indispensable. As a gesture of good will The company will take your application into consideration if you furnish us with a letter from the maternity hospital which supports the issues you have outlined, including care instructions and support required, appointment dates. I look forward to hearing from you.”
The Complainant considered the above request invasive. He responded outlining the sequence of events and that there was ongoing requirement for him to be at home. Ultimately, he submitted a sick certificate the next day and he remained on sick leave since then.
Legislation and Case Law – Parental Leave Act
Section 13(1) of the Parental Leave Act, 1998, as amended, sets out:
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 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.
In the case of Julie Murphy v Abtran (ADJ-00045486) the adjudication officer described force majeure as a legal term carries a meaning” that some important and critical event has taken place, thereby releasing a party directly affected from its legal obligations in particular matter that would otherwise have applied.”
In that case, Ms. Murphy argued that she could not attend work as her child had chickenpox.
A number of cases were cited in the decision of that case, including Mc Galey v Liebherr Container Cranes Ltd, at the High Court in 2001, which carried a commentary by Mc Crcaken J in rejecting a claim for parental leave.
“… However, the question of whether the Appellants presence was indispensable is one which must depend on the facts of the individual case “
It followed in Giles v Outhaus Group Country Manor Bricks in ADJ 27631, which drew on MJER v Skibal [2018] IESC 68
The concept of force majeure had to be understood as referring to abnormal and unforeseeable circumstances which were outside the control of the parties by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due cause.
The respondent submitted that the adjudicator pointed to the presence of “emergency “which gives rise to the absence.
In the the case of Ms. Murphy the illness was routine and common for which the complainant’s presence was not indispensable. Force majeure, it was argued, should not be recognised as a substitute for childcare. It was open to the complainant to organise a contingency.
Abtran offered unpaid or annual leave in support, which they believed was reasonable.
In respect of the request for a medical certificate, the law does not stipulate provision of a medical certificate but of course, if medical attention is a factor in the case, provision of medical evidence is bound to be helpful (per Dublin Bus v Brazil PL/2/2009).
By means of jurisprudence in this field, in the case of Carey v Penn Racquet Sports ltd 2001 3 IR at the High Court, Carroll J, Justice Mela Carroll remarked that the criteria of urgency and indispensability “should not be judged in hindsight.
This was a case involving a single mother and an eight-year-old child. Mother had taken days leave to look after a child who had woken with a rash on her legs.
Application for force majeure leave was denied as the GP did not deem the rash as serious.
Carroll J on appeal held.
“The matter should have been looked at from the plaintiff’s point of view at the time the decision was made not to go to work. Also, the plaintiff could not be assumed to have medical knowledge which she did not possess.”
In Quinn v Higgins Engineering Galway ltd [2000] 11ELR 102, the Employment Appeals Tribunal (EAT) grappled with an application for force majeure leave in the case of three ill children in 1999, where meningitis was suspected.
Meningitis was ruled out on the second day, but the EAT found that the complainant was “entitled to be alarmed by the illness and his concerns re meningitis was not unreasonable.”
Decision
Ultimately, the Adjudication Officer decided that the Complainant was entitled to take force majeure and that the failure of the Respondent to grant same was in breach of the Parental Leave Act, 1998.
The Adjudication Officer determined that, given the particular circumstances and a maximum award would not be appropriate.
“The Complainant is paid €35,000 per annum. The maximum award that can be made in this case is €13,425. While the above legislation gives me broad discretion as to what is just and equitable I would note that this legislation does not just cover entitlements to certain kinds of leave but protection from penalisation resulting from taking parental leave. I am of the view that the maximum 20 weeks should be reserved for those kinds of cases.
The Complainant has put forward the case that his prolonged sick leave is due to the refusal of the Respondent to accept his entitlement to force majeure leave. I do not think this is a conclusion I can reasonably come to without expert medical evidence. However, I do accept that the Respondent’s refusal of the Complainant’s reasonable request came at very difficult time for the Complainant and his family. Their approach clearly damaged the employment relationship and I am satisfied that it caused him significant upset.
In the circumstances I believe an award of €7000 is warranted.”
Takeaway
The takeaway for employees considering bringing a complaint under the Parental Leave Act, 1998 is to determine whether the circumstances leading to the application could be understood to be abnormal, exceptional or unforeseeable.
For employers, it will be necessary to consider the particular circumstances of each request, balancing the extenuating circumstances of the employee with the concurrent needs of the business.
It is also worth considering the exceptional reputational damage that can arise to an organisation if a complaint of a comparable nature is brought before the WRC and subsequently reported on. Although all requests for force majeure may not perfectly align with the legislative expectations and developed case law, a prudent employer may consider granting such leave, in any event. A failure to do so may cause irreparable harm to the relationship with the employee, as evidenced by this case wherein the employee remained on sick leave indefinitely.
Further information
This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@wordpress-576593-6594403.cloudwaysapps.com or contact the offices of Crushell & Co Solicitors.
