Respondent illegally rejecting force Majeure leave leads to Complainant receiving €2,500 compensation
Background
The Complainant’s wife had complications after giving birth and needed emergency surgery. She was sent home two days later, still very weak and needing a lot of help. This meant she couldn’t look after their children.
The Complainant told his boss he needed to take time off work to care for his wife and children. He asked for special leave called “force majeure” because it was an emergency. His boss said no, and told him to use his regular vacation time instead.
The Complainant’s wife became more ill and had to return to the hospital. He asked the Respondent again for special leave, but was refused again. He had no choice but to use his vacation time, even though he felt it was unfair.
Later, the man tried to get his vacation time back. He argued that his situation was a real emergency, and he had no other option but to stay home and care for his wife. The Respondent refused, saying it wasn’t a true emergency and he should have planned better. They said he was offered other types of leave, and what they did was legal and fair in accordance with legislation.
In simple terms
The Complainant needed time off to care for his sick wife and children. The Respondent would not give him special emergency leave, so he had to use his vacation time. He felt this was unfair because it was a true emergency.
Summary of the complainant’s Case
On May 25th, the Complainant’s wife gave birth but faced complications requiring emergency surgery. She was unexpectedly discharged from the hospital on May 27th, still needing significant care. The Complainant had no help to look after his wife and children, so he informed his manager that he couldn’t work his next three shifts to take care of them. This situation was unplanned, unlike their previous childbirth experience.
Given the urgency, the Complainant requested force majeure leave, as he was the only available caregiver. However, his manager said this did not qualify as force majeure leave and advised him to take annual leave instead. The Complainant disagreed, noting the unexpected nature of the situation, but the manager said HR would review the request. Later, he was told he wasn’t eligible for force majeure leave.
The day after his wife’s discharge, the Public Health Nurse referred her back to the hospital with a suspected spinal fluid leak. While at the A&E with his children, the Complainant contacted his manager again. His manager informed him that legal advice was being sought and that force majeure leave was still unlikely. The final response was that he could take unpaid leave for medical care but not force majeure leave. The Complainant argued that he had never used force majeure leave before and met the requirements, but his manager reiterated the options of annual or unpaid leave. With his wife unable to walk or care for the children, the Complainant chose annual leave, planning to contest this later.
His wife required daily monitoring by the hospital to avoid further complications. The Complainant kept his manager informed of her condition over the phone. In light of this and a similar case (Dean Hart v Komfort Kare ADJ00051923), the Complainant wants his situation reconsidered, as it parallels the precedent where force majeure leave was wrongly denied.
Under the Parental Leave Act 1998, employees must notify their employer as soon as possible for force majeure leave. Acting promptly, the Complainant informed his employer upon learning about his wife’s need for care. The surgery left her severely anaemic and at risk of sepsis, needing medication and close observation for symptoms that could require emergency hospital visits.
Given his usual night shifts, the Complainant couldn’t leave his incapacitated wife alone, as she needed assistance with basic tasks like dressing and caring for their newborn and 7-year-old. When he first requested force majeure leave, his manager expressed sympathy but denied the request, offering annual or unpaid medical leave instead.
As his wife’s condition worsened with a suspected spinal fluid leak, the Complainant updated his manager, who still denied force majeure leave. The Complainant pressed further, highlighting the severity of the situation, but received the same response. On May 28th, a day before his scheduled shift, he was under immense stress.
The Complainant believes he acted responsibly and in a timely manner. His wife’s condition was unforeseen, serious, and required his immediate care. Even if childcare had been available (which it wasn’t), his presence was necessary to assist her in emergencies, as seen on May 28th when she returned to the hospital. He contends that his support was essential, given the trauma his wife experienced and the lack of overnight care alternatives.
Summary of the respondent’s Case
Complainant’s Background
The Complainant began working as a Security Officer for the Respondent on October 30, 2018, earning a gross hourly wage of €17.33. He remains employed with the company.
Issue Background
On May 27, 2024, the Complainant requested three days of Force Majeure Leave (May 29-31) from Mr. Dalibor Ambrozic, Deputy Key Accounts Manager, via phone. Mr. Ambrozic denied this request, stating it did not qualify for Force Majeure Leave and promised to follow up with an email explaining why. Later, he sent an email with a link to an article clarifying the meaning of “immediate and indispensable presence” under Force Majeure Leave.
The Complainant replied, stating his wife had given birth on May 25, faced medical issues requiring surgery, and needed someone at home upon her discharge. He insisted his presence was urgent and renewed his request for Force Majeure Leave.
On May 28, 2024, Mr. Ambrozic responded, confirming that the situation did not qualify for Force Majeure Leave. However, he suggested the Complainant could apply for Medical Care Leave, which requires a minimum of five days but can be extended. The Complainant opted to take Annual Leave instead and indicated he would seek redress through the Workplace Relations Commission (WRC), filing a complaint on June 11, 2024.
Respondent’s Position
Under Section 13 (1) of the Parental Leave Act 1998, Force Majeure Leave is for urgent family reasons when an employee’s immediate presence is indispensable due to a sudden illness or injury of a family member. The Respondent argues that the Complainant’s case does not meet this definition. The delay in taking leave and the advanced notice given indicate the situation was not sudden or unforeseen. The Respondent believes the Complainant had sufficient time to arrange care for his wife and children or apply for another form of leave.
The Respondent also cites the case *McGahey v Liebherr Container Cranes Limited*, where the court ruled that the husband’s presence, while helpful, was not indispensable, setting a precedent that the necessity of immediate presence depends on specific circumstances. Furthermore, the Respondent referenced the *Thermo King v Nolan* case, reinforcing that all conditions of Section 13(1) must be met for Force Majeure Leave to apply.
In offering Annual Leave or Medical Care Leave (unpaid), the Respondent contends it acted reasonably. The Complainant chose Annual Leave but declined unpaid Medical Care Leave, which the Respondent deemed more suitable given the situation.
Conclusion
The Respondent maintains it acted lawfully in denying Force Majeure Leave and provided fair alternatives. The company believes its response was reasonable based on the statutory requirements and existing legal precedents.
Findings and Conclusion
The Parental Leave Act, 1998 states at section 13:
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 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.
13(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 and wife, …..
I Adjudicator found that the Complainant primarily took emergency leave to care for his wife who was quite ill following the birth of the child.
The position adopted by the Respondent caused some stress and anxiety to not only the Complainant but also to his family.
The Adjudicator found that the days in question should be viewed as force majeure leave and the Respondent’s records amended accordingly. The annual leave taken from the complainant’s entitlement should be restored and the Adjudicator also ordered that compensation in the amount of €2,500 be paid by the Respondent to the Complainant.
Decision
Section 41 of the Workplace Relations Act 2015 required the Adjudicator to make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Adjudicator found that the days in question should be viewed as force majeure leave and the Respondent’s records amended accordingly. The annual leave taken from the complainant’s entitlement should be restored and the Adjudicator also ordered that compensation in the amount of €2,500 be paid by the Respondent to the Complainant.
Our Commentary
When dealing with a situation of force majeure, it is best to:
Understanding Force Majeure Leave: Legal Framework and Practical Application
Under the Parental Leave Act of 1998, specifically Section 13, force majeure leave is a provision designed to accommodate situations where an employee’s immediate and urgent presence is required due to a sudden, unforeseeable illness or injury of a close family member. This leave is intended to address emergencies that demand the employee’s presence, such as medical crises involving a spouse, child, parent, or other close relatives. The purpose of force majeure leave is to provide employees with the flexibility to attend to these urgent, unexpected situations without prior notice or the usual leave request procedures.
Individual Case Assessment and Decision-Making Criteria
Each request for force majeure leave should be evaluated on a case-by-case basis, considering the specific circumstances surrounding the request. It is important to assess the urgency of the situation and the indispensability of the employee’s presence. For instance, if a family member has suffered a sudden health emergency or accident, the need for immediate leave may be warranted. The evaluation process should consider factors such as the nature of the illness or injury, the relationship between the employee and the affected family member, and whether the employee’s presence is crucial at that moment. employers must exercise discretion and sensitivity, acknowledging the unforeseen nature of such events, and ensure that decisions are made promptly to address the employee’s immediate needs.
Communication and Offering Alternatives in Case of Denial
In situations where a request for force majeure leave cannot be granted, it is essential for employers to provide clear and compassionate communication to the employee. The reasons for denying the leave request should be explained thoroughly, detailing why the specific circumstances do not meet the criteria for force majeure leave as outlined in the Parental Leave Act. In such cases, employers should also present alternative options to the employee, such as offering unpaid leave, annual leave, or compassionate leave. It is important, however, not to impose these alternatives as a mandatory substitute for force majeure leave but rather to suggest them as available options to support the employee during the emergency. This approach ensures that the employee feels supported and understands the reasoning behind the decision.
Seeking Legal and HR Guidance: Ensuring Compliance and Fairness
When faced with uncertainty regarding the application of force majeure leave, it is advisable for employers to consult with HR professionals or legal advisors to navigate the complexities of the Parental Leave Act. Reviewing relevant case precedents can also provide valuable insights into how similar situations have been handled in the past, aiding in making fair and consistent decisions. This proactive approach helps to ensure that the employer’s response aligns with legal requirements and best practices, minimizing the risk of disputes or non-compliance. By consulting experts and adhering to established precedents, employers can make informed, fair, and legally compliant decisions that respect both the needs of the employee and the obligations of the organisation.
Complainant receives €29,000 compensation for flawed unfair dismissal case
Background
The Complainant worked as a Brewery Operator for the Respondent from October 24, 2005, until October 6, 2022. His employment was terminated via summary dismissal on October 5, 2022, due to alleged gross misconduct. At the time, he earned €1381 gross (€895.92 net) per week for 39 hours of work. The Respondent cited two reasons for dismissal: (1) sharing confidential and commercially sensitive documents and (2) violating their Dignity at Work policy. They argue the dismissal was fair and complied with the Unfair Dismissals Act 1977.
The Complainant denies the allegations and claims the dismissal process lacked fair procedures and was disproportionate under the 1977 Act.
He also asserts he was not given the minimum notice required under the Minimum Notice and Terms of Employment Act 1973. The Respondent counters that notice is not required in cases of gross misconduct.
Additionally, the Complainant claims the Respondent unlawfully withheld sick pay for two weeks, violating the Payment of Wages Act 1991. The Respondent argues the deduction was in line with their contractual sick pay policy and therefore lawful under the 1991 Act.
Summary of the Respondent’s Case
CA-00054107-001: Unfair Dismissal
Two brewery operators, Mr. A and Mr. B, accused the Complainant of bullying and harassment. Mr. A alleged blame, undermining behavior, and derogatory remarks. Mr. B claimed the Complainant insulted him, made unfair accusations, and refused to help. Initially, Senior Manager Terence Collins led the investigation but was replaced by external investigator Michael Hegarty due to impartiality concerns. Hegarty’s expanded investigation confirmed the allegations and breaches of company policies, including derogatory comments about women.
Data Breach Investigation
The Complainant was also found to have sent confidential company data to his personal email from 2015 to 2018, including brewing processes and safety reports. This was investigated separately by Ms. Sarah Daly BL, who confirmed the data breach.
Disciplinary Action and Appeal
A disciplinary hearing on September 13, 2022, resulted in the Complainant’s dismissal on October 5, 2022, for gross misconduct. He received a final written warning for derogatory comments. Despite citing his long, unblemished work history, his appeal was rejected on November 28, 2022.
Key Witness Evidence
Michael Hegarty: Confirmed the complaints, based on his investigation, while admitting procedural gaps, such as missing transcripts.
Sarah Daly: Verified the data breach but found no intent to misuse the information.
Alfonso Garcia: HR Director deemed the misconduct severe and factored in the Complainant’s prior record before deciding on dismissal.
Conor Hyland: Financial Director upheld the dismissal after a thorough appeal process.
Legal Argument
Under the Unfair Dismissals Act 1977, dismissal is presumed unfair unless justified by significant misconduct. The Respondent argued that the Complainant’s breaches—bullying, harassment, and mishandling confidential data—met the standard for summary dismissal. Citing various legal precedents, the Respondent emphasized that fair procedures were followed, the dismissal was proportionate, and the Complainant failed to show accountability or remorse.
CA-00054107-003: Payment of Wages Complaint
The Complainant alleged unlawful withholding of sick pay. The Respondent cited its policy, allowing discretion during disciplinary processes, and relied on its GP’s opinion that the Complainant was fit to work.
Conclusion
The Respondent argued the dismissal was fair, reasonable, and justified, with all investigations and processes adhering to procedural fairness and proportionality.
Summary of the Complainant’s Case
CA-00054107-001: Unfair Dismissal
The Complainant described the brewhouse as a “man’s world” where banter and coarse language were common. He faced challenges training colleagues, particularly Mr. A and Mr. B, and reported a “toxic” work environment to management, requesting a transfer or pay reduction, both of which were denied. He eventually went on stress leave. Upon returning, HR presented him with three options: return with a clean slate, stay on long-term sick leave, or leave the company without a package.
On February 16, 2022, he was informed of bullying complaints by Mr. A and Mr. B, suspended, and escorted off-site. He received complaint details three weeks later and denied the allegations, citing workplace banter. During the investigation, his use of graphs to explain training issues led to a separate disciplinary investigation into alleged data breaches.
In cross-examination, the Complainant admitted to not filing formal grievances about the workplace environment or requesting access to his work computer during the investigation. He also acknowledged inappropriate comments about female colleagues warranted investigation and conceded the seriousness of a potential data breach, though he denied misconduct and showed no remorse.
Complainant’s Arguments
The Complainant claims the dismissal was unfair due to procedural flaws and lack of natural justice, such as:
- No opportunity to cross-examine accusers or access all evidence.
- Changing investigation terms without agreement.
- Failing to consider alternatives to dismissal.
He cited legal precedents, including “In re Haughey (1971)” and “Lyons v Longford Westmeath ETB (2017)”, to argue his procedural rights were violated, emphasizing the importance of fair investigations and the right to cross-examine in disciplinary cases. He also highlighted breaches of the Respondent’s own disciplinary policy, which guarantees access to witness statements and hearings.
Complainant’s Additional Claims
- Payment of Wages Act 1991: Claims non-payment of two weeks’ sick pay was an unlawful deduction under Section 5.
- Minimum Notice and Terms of Employment Act 1973: Alleges failure to provide statutory minimum notice.
Conclusion
The Complainant argues his dismissal was procedurally flawed, disproportionate, and violated principles of natural justice. He seeks remedies for unfair dismissal, unpaid wages, and lack of proper notice.
Findings and Conclusion
Unfair Dismissal Case CA-00054107-001
Unfair Dismissal Determination
Under Section 6(7) of the Unfair Dismissals Act 1977, an Employer’s dismissal decision must be based on reasonable grounds, fair procedures, and proportionality.
Bullying and Harassment Investigation:
The Employer failed to follow its Dignity at Work Policy (DWP). The investigator’s scope was limited to determining factual behaviours without deciding if bullying or harassment occurred. Cultural norms in the workplace, such as profane language, were ignored, which provided context to the alleged behaviours. HR improperly concluded bullying occurred, bypassing proper investigative procedures.
Data Investigation:
The investigator found no malicious intent in the complainant’s transfer of documents to a personal email. However, HR ignored this finding and concluded gross misconduct occurred. The process lacked an independent, fair evaluation, rendering the dismissal unreasonable.
Conclusion
The Employer’s actions breached Section 6(7) of the Act, and the dismissal was deemed unfair.
Redress:
Under Section 7, the complainant is entitled to compensation. After deducting €12,249 for insufficient job-seeking evidence and excluding bonuses, the loss was set at €60,000. A 70% contribution to dismissal was attributed to the complainant’s behavior, reducing compensation to €18,000.
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Payment of Wages Act Complaint (CA-00054107-003)
The complainant claimed unlawful deduction of wages for non-payment of sick pay. The Employer argued its discretionary sick pay scheme allowed for non-payment during disciplinary processes. The complaint was not upheld as no unlawful deduction occurred.
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Minimum Notice Act Complaint (CA-00054107-004)
As the dismissal was found unfair, the complainant is entitled to 8 weeks’ notice pay, amounting to €11,048.
Final Award:
- Unfair dismissal compensation: €18,000
- Minimum notice pay: €11,048
Decision
CA-00054107-001 UNFAIR DISMISSAL.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 required that the Adjudicator make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the reasons outlined above the Adjudicator found the Complainant was unfairly dismissed and I award him the compensatory sum of €18,000
Section 41 of the Workplace Relations Act 2015 required that the Adjudicator make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act
CA-00054107-003 PAYMENT OF WAGES 1991 ACT COMPLAINT:
For the reasons outlined above, the Adjudicator found the complaint was not well founded.
CA-00054107-004 MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT 1973:
The Adjudicator found the complaint was well founded. They made an award of €11,048 in respect of this complaint.
Our Commentary
Best Practices for Employers in Handling Workplace Disputes and Disciplinary Actions
Employers have a responsibility to create a safe and respectful work environment for all Employees. This includes taking appropriate steps to address and resolve workplace disputes and disciplinary issues fairly and effectively. Here are some key guidelines:
1. Ensure Policy Compliance
- Adherence to Internal Policies: Always adhere strictly to internal policies and procedures when handling any workplace dispute or disciplinary matter. This is crucial for consistency, fairness, and legal compliance.
- Dignity at Work Policy: Pay particular attention to your organization’s Dignity at Work Policy. This policy outlines the company’s stance on bullying, harassment, and discrimination, and provides a framework for addressing such complaints.
- Up-to-Date Policies: Ensure all policies are up-to-date and reflect current employment law and best practices. Regularly review and update policies as needed.
2. Conduct Thorough and Impartial Investigations
Comprehensive Scope:** Investigations should be thorough and cover all relevant aspects of the issue. This includes:
- Interviewing all parties involved.
- Gathering evidence such as emails, documents, and witness statements.
- Considering the wider workplace culture and context.
Objectivity: Appoint an impartial investigator who has no personal involvement in the situation. The investigator should be trained in conducting workplace investigations.
Bullying and Harassment: In cases of alleged bullying or harassment, the investigation should focus on determining whether the behavior in question genuinely constitutes bullying or harassment as defined by company policy and the law. Consider the impact of the behavior on the complainant, not just the intent of the alleged harasser.
3. Document All Steps and Decisions
Meticulous Record-Keeping: Maintain detailed records of every step of the investigation process, including:
- Dates and times of interviews.
- Copies of all evidence gathered.
- Notes from meetings and discussions.
- The investigator’s findings and recommendations.
Transparency: Keep the Employee involved informed about the progress of the investigation and provide them with copies of relevant documentation. This promotes transparency and trust.
4. Seek Intent in Data Breach Cases
Contextual Understanding: When investigating a data breach, go beyond simply establishing that a breach occurred. Investigate the intent behind the Employee’s actions and examine their past practices regarding data security.
Proportionate Response:** Consider factors such as:
- Was the breach intentional or accidental?
- What type of data was involved?
- Was the Employee aware of the company’s data security policies?
- What is the Employee’s overall disciplinary record?
This contextual understanding will help determine the severity of the breach and the appropriate disciplinary action.
5. Clarify Disciplinary and Procedural Rights
Clear Communication: Ensure the accused Employee fully understands their disciplinary and procedural rights throughout the process. This includes the right to:
- Be informed of the allegations against them.
- Respond to the allegations and provide their own evidence.
- Be accompanied by a representative.
- Appeal any disciplinary decision.
Access to Documentation: Provide the Employee with access to all relevant documentation, including witness statements and investigation reports.
Additional Considerations
- Confidentiality: Maintain confidentiality throughout the entire process to protect the privacy of all parties involved.
- Timeliness: Conduct investigations and disciplinary processes promptly to minimize stress and disruption for everyone involved.
- Support: Offer support to both the complainant and the accused Employee throughout the process. This may include access to counseling or other resources.
By following these guidelines, Employers can ensure that workplace disputes and disciplinary actions are handled fairly, effectively, and in compliance with the law.