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Complainant Fails in Unfair Dismissal Claim For Having Availed of Force Majeure Leave

In the recent WRC case of Caroline Giles v Outhaus Group Country Manor Bricks, ADJ-00027631, the Complainant brought a claim under the Unfair Dismissals Act alleging that she was dismissed due to her availing of force majeure leave under the Parental Leave Act. The Adjudication Officer determined that the Complainant’s three day absence following her child’s sudden hospitalisation did not constitute force majeure leave and as such her dismissal on the day she returned to work could not amount to penalisation for having availed of force majeure leave. The claim failed.

Facts – The Complainant was a design assistant working at Outhaus Group, a building products supplier. She began working for the firm in mid-January 2019 and was dismissed on 7th November 2019.

Between January and October 2019 her employer, the Respondent, had recorded 7 incidences of her being late to work or absent from her desk without explanation. These incidences involved a wide range of times, from five minutes in once case to an hour and a half in another.

These issues of time-keeping and unexplained absences were raised with the Complainant by Management on a number of occasions and she was referred to the relevant company policies and procedures. The Complainant and her colleagues were reminded in a sales meeting in late October 2019 of the correct protocol when delayed or running late.

On Sunday 3rd November 2019, the Complainant’s child, a Type-1 diabetic, became unconscious at home. The child was rushed to the hospital and while at the hospital the Complainant texted her duty manager to let her know what happened and to inform her employer that she would not be in work the following Monday or Tuesday. The text accompanied a picture of her child in hospital as the Complainant was concerned that she might not be believed.

Later in the day the duty manager sent a text to the Complainant asking her to phone her senior manager as required by the protocol which the Complainant did the following morning.

The Complainant’s child recovered in hospital over the following day and was discharged Tuesday. On Wednesday 6th November 2019, the Complainant rang and said she would be returning to work the following day, Thursday 7th November 2019.

The Complainant returned to work that day extremely upset that in the mist of her child’s health crisis on Sunday her duty manager had contacted her to remind her of the company procedures on absences. She felt that this was unnecessary in the context of what was an extremely traumatic event and on the day of her return to work she met with a senior manager to raise this.

That afternoon, 7th November 2019, the Complainant was dismissed. The Respondent stated the reason for her dismissal was for failing repeatedly to follow Company procedures.

Force Majeure Leave and Dismissal –The Complainant did not have the minimum 12 months’ service required to bring a case under the Unfair Dismissals Act and as such she sought to come in under the Unfair Dismissals Act on the basis that her dismissal was due to her availing of force majeure leave in breach of Section 16A of the Parental Leave Act. There is no minimum service requirement for an employee to avail of force majeure leave or the associated protection from penalisation.

As such the Adjudication Officer was required to decide on whether the three days absence from work on Monday the 4th, Tuesday the 5th and Wednesday the 6th of November constituted force majeure leave, and if so, whether the Respondent dismissed her as a result of this leave.

Force Majeure Leave is defined in Section 13 of the Parental Leave Act as paid leave where the immediate presence of an employee is indispensable due to an injury or illness of a family member. When determining the meaning of “indispensable”, the Adjudication Officer referred to the Supreme Court decision in Minister for Justice and Equality v. Skibal [2018] IESC 68 which contains the following definition (although not a workplace case) – the concept of ‘force majeur’ had to be understood as

“…referring to abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care.”

The Adjudication Officer had no issue in finding that if the Complainant’s child had been suddenly hospitalised during a working day then the Complainant’s absence from work to bring her child to hospital would constitute force majeure leave.

However, the hospitalisation of the Complainant’s child occurred on a Sunday and the Complainant was claiming the following three days as force majeure leave. The Adjudication Officer took issue with this. He was clear that if force majeure leave was to apply then it must result from an unforeseeable emergency which the employee, and no other person, must attend on a family member.

This issue of the Complainant’s indispensability resulted in the Adjudication Officer finding that the second day of hospitalisation, being Monday the 4th, was not in fact force majeure leave. In making this decision the Adjudication Officer went on to state that following the child’s admission to hospital “A parent’s presence is surely important to a sick child, but the abnormal and unforeseen element of the situation has probably diminished by then and the child is in the care, in this case, of one of the best children’s hospitals anywhere.”

This view was taken regardless of the fact that the Complainant was a single mother.

The Complainant’s child was discharged on Tuesday 5th November and the Complainant stayed at home with her on Wednesday 6th November. The Adjudication Officer considered both the discharge and subsequent care foreseeable events and as such not within the scope of force majeure leave.

An employee who takes force majeure leave is also required under the legislation to give notice of the leave to their employer via a specific form, which should be submitted as soon as reasonably practicable after the leave. Even though the Complainant was dismissed on the day she returned to work the Adjudication Officer noted that she had nearly the full day in which to submit this form and failed to do so.

The Respondent argued that the dismissal was entirely related to the Complainant’s punctuality and pattern of ‘lates’ and was not in any way related to the absence arising from her daughter’s hospitalisation. The Adjudication Officer did not accept this and was in fact quite critical of the Respondent’s conduct towards the Complainant.

Decision – The Adjudication Officer ultimately concluded that the three days leave taken together was not force majeure leave and as such the Complainant was not able to come within the scope of the Unfair Dismissals Act.

Key Takeaways for Employers

This decision illustrates the importance of knowing what actually amounts to force majeure leave and what does not. Employers should ensure that its policies and managers are clear in respect of what amounts for force majeure leave and to ensure that it does not penalise its employees for availing of such leave.

Link  –  https://www.workplacerelations.ie/en/cases/2021/july/adj-00027631.html

Authors – David Murphy and Anne O’Connell

27th  July 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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