by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.
Generally, an employee needs at least one years’ service with their employer to bring an unfair dismissal claim to the Workplace Relations Commission (“WRC“). However, there are exceptions to this general rule.
One exception is if, for example, the WRC finds that an employee was in fact penalised and dismissed as a result of the employee having exercised his/her right to a protective leave. In those circumstances, a WRC Adjudicator in unfair dismissal proceedings will not seek for the employee to have had one years’ service with the employer.Recent WRC case
In a recent WRC decision (ADJ-00027631), the Complainant employee brought a unfair dismissals claim alleging that she was dismissed as an act of penalisation because she availed of force majeure leave. She did not have one years’ service but submitted that this was not required as her dismissal was linked to her having requested force majeure leave, which is a protective leave. The WRC agreed and considered the substantive claim.
Facts
The employee began working for the respondent employer in January 2019 and was dismissed in November 2019. During that time, the employer had recorded seven occurrences of her allegedly arriving late to work and/or failing to follow company reporting procedures.
On a Sunday, the employee’s child who was a Type-1 diabetic was brought to hospital. The employee informed her duty manager by text, explaining the situation and indicating she would not be in work the following Monday or Tuesday. She in fact returned to work on Thursday, after which she was dismissed for repeatedly failing to follow the company’s internal procedures.
Force Majeure Leave
Force Majeure Leave is defined as paid leave where the immediate presence of an employee is indispensable due to an injury or illness of a family member. Employees are entitled to take three days of such force majeure leave in a consecutive 12 month period or five days in a consecutive 36 month period.
“Indispensable”
In deciding the case, the WRC noted the Supreme Court decision in Minister for Justice and Equality v. Skibal[i], which described force majeure as:
“…abnormal and unforeseeable circumstances … outside the control of the party … the consequences of which could not have been avoided in spite of the exercise of all due care.”
The WRC accepted that the employee’s circumstances relating to her sick child resulted in her presence being indispensable for one day of child’s illness. However, the Adjudication Officer took issue with the employee having claimed all three days as force majeure leave and determined that
“on a second day of hospitalisation the imperative of indispensability is less clear. 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…”
WRC Conclusion
In conclusion, the WRC Adjudicator decided that the three days leave taken together by the employee did “not fall within the requirements of an indispensable presence” and the leave taken could not be regarded as force majeure leave.
For this reason, the Adjudicator said he could not “provide a remedy under the Unfair Dismissals Act” as the employee did not fall under the protective leave penalisation exception explained above.
In essence, this meant that the employee did not have the usual one years’ service as required under the Unfair Dismissal Act nor did she fall under any exception which allowed her to avoid the one years’ service requirement under the Act. Her claim failed.
Commentary
As stated above, where certain exceptions apply, an employee will not need one years’ service to bring an unfair dismissal claim.
However, when looking at the substantive case, the WRC assessed each of the three days taken by the employee – in isolation. Ultimately, the WRC found that only one of the days “perhaps” satisfied the criteria of force majeure leave but this was insufficient to bring the three days’ absence in its entirety within the definition of force majeure leave.
The case serves as an important reminder to employers to ensure that management in their organisations are clear on what exactly amounts, and does not amount, to a force majeure situation.
Interestingly, in another recent WRC case (ADJ-00027537), the employee submitted that he had a “flat tyre” and he claimed force majeure leave for this day in circumstances where he was 20 minutes late. The WRC in that case found that a flat tyre did not come within the definition of force majeure and dismissed the claim.
[i][2018] IESC 68
About the author
Barry Walsh is Partner and Head of the Employment Team at Fieldfisher. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.
