The High Court yesterday granted a challenge by a woman to an Employment Appeals Tribunal (EAT) decision which upheld the "docking" of a day's pay from her when she missed work to look after her sick daughter.
In an unprecedented decision, Ms Justice Carroll overturned the tribunal's finding and directed that Ms Ann Carey, of Baskin, Drumraney, Athlone, be paid a day's pay by her employer, Penn Racquet Sports, of Lynn Road, Mullingar.
The company did not contest the court proceedings.
Under the 1998 Parental Leave Act, a person is entitled to up to three days force majeure paid leave (leave for irresistible or compulsive reasons) a year, subject to a maximum five days over three years, where their presence is deemed indispensable in the case of a family member who is ill or injured.
Yesterday's case was the first time a decision under Section 13 of the Act upholding the refusal of leave has been successfully challenged.
According to Mr Donal Taaffe, of Taaffe and Co, solicitors, Dublin, who represented Ms Carey, other determinations by the EAT under Section 13 would now be appealed.
The EAT had ruled by a two to one majority that while Ms Carey was concerned about her daughter's health on June 11th, 1999, the day she failed to turn up for work, her presence by her child was neither urgent, immediate nor indispensable as required by the Parental Leave Act.
The company had argued that a rash on the child's body did not require the immediate or indispensable presence of the parent, adding that it was a normal condition in the rearing of children.
In the minority EAT opinion it was pointed out that Ms Carey was a single parent living alone with her young daughter. The company's refusal to pay her was based on the fact that her child, following examination by her GP, was found to have a rash which was not serious. However, this was tantamount to saying that parents must be equipped with the same medical knowledge as a medically qualified person before making a decision to stay with a sick child.
Mr Ercus Stewart SC, for Ms Carey, said the majority EAT decision was an overly restrictive view. There was no assessment of whether it was reasonable for Ms Carey to take the view that her immediate presence was indispensable to her daughter's condition.
Ms Justice Carroll said she would give her reasons in a detailed judgment later. SIPTU welcomed the decision. Mr Seamus McNamee, branch secretary in Mullingar and Longford, said the trade union was "very pleased" as it believed decisions taken by the rights commissioners and the EAT were "not within the spirit of the Parental Leave Act 1998".
"The whole idea of force majeure leave was to help families in times of crises - not to place roadblocks in their way," said Mr McNamee.
The union now "looks forward to a more sensitive approach in the future", he said.
He gave Ms Carey the result yesterday morning. "Of course she was delighted," he said.
"At this stage, she has forgotten about the day's pay - but she was very hurt at the time."