An international security firm has been ordered to pay a worker €2,500 in compensation and give him back three days’ holidays for refusing him force majeure leave while his wife was left incapacitated from emergency surgery for complications during childbirth.
Security officer Lukasz Nowak secured the orders against his employer, the Irish arm of the multinational Securitas Group, on foot of a complaint under the Parental Leave Act 1998 at the Workplace Relations Commission (WRC).
In a decision published on Monday , the tribunal sided with Mr Nowak, who had said his wife needed him after suffering “extreme trauma”. The company took the stance that the situation was not “urgent” enough to meet the statutory definition of force majeure leave.
Giving evidence to the tribunal in September, Mr Nowak said his wife had emergency surgery following some complications with the birth of their second child on 25thMay this year.
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She was discharged from hospital sooner than expected and was “significantly incapacitated” on Monday, 27th May, he said.
Mr Nowak, who worked night shifts as a security guard earning €17.33 an hour, said he “could not leave his wife alone overnight” given her condition.
There was nobody available to provide childcare or to care for his wife overnight. He added that he needed to be there to support his wife after she suffered “extreme trauma”.
He said that when he asked on the day of his wife’s discharge to be granted paid leave later that week on force majeure grounds for his next three rostered shifts between Wednesday, 29th May and Friday 31st May, his manager, Dalibor Ambrozic, “sympathised” but said the complainant “was not entitled to it”.
Mr Nowak said his wife was seen by a public health nurse the following day and was sent back to A&E. He continued to engage with his manager on his need for time off, but the company’s position was that if he was to miss his shifts, he would either have to take unpaid carer’s leave or use his annual leave entitlements.
Mr Nowak told the tribunal that he “couldn’t believe” that he would not be entitled to force majeure in the circumstances. He said that because he was under “immense pressure”, he agreed to use his annual leave for the absence and seek redress later.
The tribunal recorded that Mr Nowak, who had spent over five years working for the multinational Securitas Group at the time of his wife’s illness, “believes he has acted reasonably, responsibly and in good time” in seeking the leave.
However, the company’s position was that because Mr Nowak was able to give two days’ notice, it meant the illness of his partner was not “sudden and immediate” enough to qualify for force majeure leave.
“He had ample time and ability to make alternative arrangements to arrange for care for his wife and children,” its representative, Irish Business and Employers Confederation (Ibec) official Andrea Tancred said in a legal submission – arguing that the situation did not amount to “urgent family reasons” as set out in legislation, Ms Tancred argued.
“Medical complications during pregnancy and birth, while acknowledging how distressing they can be for all involved, are medically associated risks with pregnancy,” she further submitted.
Ms Tancred added that the company’s position was that unpaid medical care leave “would have been the most appropriate statutory leave in the circumstances”, but that it had been “reasonable and fair” to Mr Nowak by allowing him to use his annual leave for the three days.
In his decision on the case, WRC adjudicator Jim Dolan found that Mr Nowak “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,” he added.
Mr Dolan found that the three days’ leave “should be viewed as force majeure leave”. Upholding the complaint, he directed Securitas to restore Mr Nowak’s annual leave, amend its records accordingly, and pay him €2,500 in compensation.
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