A home care provider has been ordered to pay a manager €7,000 after a tribunal found it was “totally unreasonable” to suggest he would be back in the office the morning after his wife suffered a miscarriage.
The Workplace Relations Commission heard that the business, Komfort Kare, refused to grant the employee a second day of force majeure leave even after he told his boss that his wife was “still haemorrhaging heavily” following the loss of the pregnancy.
The business was directed by the WRC to pay the compensation on foot of a complaint under the Parental Leave Act, 1998, by one of its managers in a decision published on Friday.
The complainant left work early on Tuesday, May 21st, this year to collect his children and bring his wife to the Rotunda Hospital after she told him at lunchtime that she was bleeding and “extremely worried” about childcare arrangements, the WRC heard.
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At 7pm he told his boss, Komfort Kare chief executive officer Brenda Kavanagh, that his wife was still in the emergency department at the Rotunda Hospital in Dublin, and expressed uncertainty about making it to work the following day. The loss of the pregnancy was confirmed to the couple later that evening, and the employee informed the CEO by text when she asked for an update.
The following morning, he emailed the CEO and said: “Unfortunately and sadly my wife suffered a difficult miscarriage yesterday and I have been unable to attend work. I must thank you for your support this far and your understanding and your kind words,” according to an email thread opened to the tribunal in evidence.
Requesting that his continued absence be treated as force majeure leave in the email, he told his boss his wife was still “quite unwell” and “in the midst of medical examinations and requires several visits to the hospital” which he hoped would be concluded by Friday, May 24th.
The tribunal was told that by reply, his boss, Ms Kavanagh, expressed sympathy – and then told him: “Force majeure is only for one day.”
The company’s position, after taking advice from human resources consultancy Peninsula Business Services Ireland, was that force majeure leave is “only granted three times a year for separate occasions”, Ms Kavanagh wrote in her email.
The CEO suggested the complainant treat his absence as carer’s leave instead, which the employee turned down – telling the tribunal that having to take unpaid leave instead of paid leave would put him under financial pressure.
The employee told the WRC in his evidence that having looked at the legislation he believed he “clearly” had a statutory entitlement to up to three days’ force majeure leave in one year at full pay in the circumstances and that there was nothing in the law to suggest these days could not be taken consecutively.
As they continued to exchange emails, the WRC was told, Ms Kavanagh said that the company would consider the employee’s application for force majeure “as a gesture of goodwill” – but only if he provided a letter from the Rotunda “which supports the maternity issues you have outlined, including care instructions and support required”.
The employee told the WRC he considered this request “invasive”. He told the tribunal he put in a sick cert the following day and that he was still out on sick leave at the time of a hearing on July 12th this year.
Denying the statutory breach alleged, Komfort Kare, which was represented by Roberta Urbon from Peninsula, argued that force majeure leave was only for “exceptional circumstances where the immediate presence of the employee is required”.
Adjudicator David James Murphy said the company’s arguments on why the employee was not due force majeure leave were “not entirely clear” and “certainly not consistent”. He noted an initial assertion that it was impossible to take the leave for more than one day at a time, which he said “is obviously not the case” but he said “clearly continued to be a consideration” for the CEO, Ms Kavanagh.
The adjudicator said it was open to an employer to try to verify reasons for taking leave – but his view was that Komfort Kare went beyond this. “They appear to have wanted details of his wife’s care plan so they could make their own evaluation.” He considered it an inappropriate request and said the employee was “entirely reasonable in refusing it”.
Noting that the employee had complied with the statutory notice requirements in his correspondence with Ms Kavanagh, the adjudicator ruled that the complainant had been entitled to force majeure leave he was refused on the two days after his wife miscarried. He upheld the complaint.
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