Force Majeure acceptable?

needhelpguy · 24-04-2014 9:54am #1

Quick question on force majeure leave:

My grandfather is in a hospital dying of cancer at the moment. It has been touch and go but he took a turn for the worse last night and I called in to work today asking to take leave. I need to be here with him. He could go at any minute.

Is force majeure leave acceptable in this instance? I am aware of the wording around the legislation, that you can only take it if your presence is indispensable. As far as I am concerned it is indispensable, because this might be the last time we spend together

However where I work is not exactly known for how well it treats its employees and I have a feeling they will not allow force majeure in this instance. The word indispensable is not defined in the legislation it seems.

Would this instance fall under force majeure?

bmwguy · 24-04-2014 9:57am

http://www.equality.ie/en/Information/Force-Majeure-Leave/

Summary of Force Majeure Leave
Summary:
An employee is entitled to leave with pay from his or her employment for urgent family reasons, owing to the injury or illness of any of the persons listed below.
a child or adoptive child of the employee;
the spouse of the employee, or a person with whom the employee is living as husband or wife;
a person to whom the employee is in loco parentis;
a brother or sister of the employee;
a parent or grandparent of the employee;
persons in a relationship of domestic dependency , including same-sex partners.
Entitlement to force majeure leave is limited to circumstances where the immediate presence of the employee, at the place where the ill or injured person is situated, is indispensable.
During an absence on force majeure leave an employee is regarded as being in the employment of the employer, and retains all of his or her employment rights.
Force majeure leave is paid leave. It cannot be treated as part of any other leave [s.14(5)] (e.g. sick leave, adoptive leave, maternity leave, annual leave or parental leave) to which the employee is entitled.
Notification of Force Majeure Leave
As soon as reasonably practicable after his or her return to work after an absence on force majeure leave, an employee must confirm to his or her employer that he or she has taken the leave. The notice must specify the information contained in the Form at Appendix B of the Parental Leave Information Booklet, which can be downloaded at the bottom of this webpage.
Maximum Entitlement
An employee may not be absent on force majeure leave [s.13(5)] for more than 3 days in any 12 consecutive months, or 5 days in any 36 consecutive months. Absence for part of a day is counted as one day of force majeure leave.
Disputes
Disputes are heard by the Rights Commissioner Service.
Further information on dispute procedures and complaint forms are available from the Rights Commissioner Website

needhelpguy · 24-04-2014 10:08am

I'm aware of the wording of the legislation, however I am wondering if this particular circumstance would be acceptable.

The word "indispensable" is not defined and I know that my work place will fight me on it.

Sheeps · 24-04-2014 10:13am

"a parent or grandparent of the employee;"

Plain as day. If they try and give you **** about it say you are entitled to it, and that they're terrible people for giving you **** about taking an entitlement to see a dying grandparent.

Bandana boy · 24-04-2014 10:18am

I do not think being present at the death of your grandparent counts as indispensable.
FM relates to the wellbeing of an indivudual being at risk if you cannot leave to care for them.Think sick child having to stay at home etc.

I would ask for a days annual leave and go be with your Grandpa

Rose35 · 24-04-2014 10:29am

It is Force Majeure, had a similiar experience in my job, and there was no problem.

Mrs OBumble · 24-04-2014 10:32am

Are there other family memebers who could be with your grandfather today, or are you the only one?

If the latter then you are indispensible, IMHO.

If not, then either take annual leave - or go to work, do your shift knowing that there are others caring for him at that time, and go to the hospital and take your turn beforehand or afterwards.

Rose35 · 24-04-2014 10:34am

Mrs OBumble wrote: »

Are there other family memebers who could be with your grandfather today, or are you the only one?

If the latter then you are indispensible, IMHO.

If not, then either take annual leave - or go to work, do your shift knowing that there are others caring for him at that time, and go to the hospital and take your turn beforehand or afterwards.

It's only natural he wants to be present by his grandfathers side, it's not always about who is indispensible or not, your job should understand this, it's not always easy working when there are personal things going on like a grandparent dying, it is force majeure and he is entitled to it.

Cyrus · 24-04-2014 10:36am

Rose35 wrote: »

It's only natural he wants to be present by his grandfathers side, it's not always about who is indispensible or not, your job should understand this, it's not always easy working when there are personal things going on like a grandparent dying, it is force majeure and he is entitled to it.

It isnt and he/she isnt unfortunately.

If you really want to be there just take a days leave.

Mrs OBumble · 24-04-2014 12:11pm

Rose35 wrote: »

it's not always about who is indispensible or not, ... it is force majeure and he is entitled to it.

Ahh, I'm pretty sure that the definition of force majeure says that it is about being indispensible.

I can totally understand why the OP wants to be there. But unless there are absolutely no other family members able to take a turn, then I cannot see it being indispensible, and therefore an entitlement of top of his/her annual leave.

But a decent employer will allow annual leave at short notice in this sort of situation. To me, that sounds like a more reasonable ask.

Rose35 · 24-04-2014 1:21pm

Any decent employer would see that this is unforseen circumstances, he took a turn for the worst during the
night, and it is a close family member, he didn't know this before he left work the day before so was left with no
choice but to ring in this morning..Force Majeure, anyway it is always at the employers discretion in how they want to
view it, as I said I was in similiar circumstances and took my leave as Force Majeure. OP sorry to hear your grandfather is poorly, take care.

Bandana boy · 24-04-2014 1:28pm

Rose35 wrote: »

anyway it is always at the employers discretion in how they want to
view it,

There is nobody doubting that an employer can give compasionate leave and maybe should in this case ,but FM is not at the discretion of the employer ,it is a set of circumstances ,which when filled is FM.
A relative dying in hospital does not fall under FM

pow wow · 24-04-2014 2:00pm

Bandana boy wrote: »

There is nobody doubting that an employer can give compasionate leave and maybe should in this case ,but FM is not at the discretion of the employer ,it is a set of circumstances ,which when filled is FM.
A relative dying in hospital does not fall under FM

The fact is employers do often allow force majeure leave in circumstances such as these, though they are under no obligation to. Whether it's due to a mis-understanding of the requirements or just being nice, I've encountered several people who have been granted FM in instances similar to this.

I've been granted it previously in the civil service when my father was in a similar situation to the OP's grandfather.

OP - short answer - strictly speaking it doesn't qualify but many employers make a judgment call that it does qualify and thus will grant force majeure leave.

_Brian · 24-04-2014 2:25pm

Mrs OBumble wrote: »

Ahh, I'm pretty sure that the definition of force majeure says that it is about being indispensible.

I can totally understand why the OP wants to be there. But unless there are absolutely no other family members able to take a turn, then I cannot see it being indispensible, and therefore an entitlement of top of his/her annual leave.

But a decent employer will allow annual leave at short notice in this sort of situation. To me, that sounds like a more reasonable ask.

I think your on the money there..
Many employees think FM can be used when something unexpected comes up they haddent planned for. But the reality is very different indeed, it is only for instances when you and only your presence is acceptable at some unforseen emergency..

Look at it this way, say OP gets FM today, and good old grandad goes on for a few more days.. What is OP expecting to get from work ?? Ongoing FM ??

Ask for leave, explain your case.
This is exactly why EE's need to be in with the company and playing their part all along, its much easier as a good employee asking for leave at short notice than if you've been an ongoing knob, I know I show the latter less compassion!!

Rose35 · 24-04-2014 2:37pm

_Brian wrote: »

I think your on the money there..
Many employees think FM can be used when something unexpected comes up they haddent planned for. But the reality is very different indeed, it is only for instances when you and only your presence is acceptable at some unforseen emergency..

Look at it this way, say OP gets FM today, and good old grandad goes on for a few more days.. What is OP expecting to get from work ?? Ongoing FM ??

Ask for leave, explain your case.
This is exactly why EE's need to be in with the company and playing their part all along, its much easier as a good employee asking for leave at short notice than if you've been an ongoing knob, I know I show the latter less compassion!!

How patronising!!!!! Don't think the OP is expecting ongoing Force Majeure, but a bit of respect here would cost nothing

Glinda · 24-04-2014 2:48pm

Sorry to hear about your Grandad OP. Unfortunately this does not strictly qualify as force majeure since your Grandad is being cared for by others (i.e. hospital staff) and (presumably) there are other members of his family who can be with him at this time. So, you are not indispensable.

FM is designed to cover situations where you called on at the last minute and are the only one who can provide care for the person (so for instance if your Grandad was taken ill at home and there was no other person who could care for him that day). It has to be an unforseen event, so can't usually be used for a number of days in a row (as they will feel you should have used the first day to make arrangements). It also can't be used for predictable things.

A rotten situation for you, and maybe you'll be lucky and your employer will grant the leave (or possibly some other form of compassionate leave). Can you ring HR and enquire?

Otherwise, I'd just take the time to be with him if that's what you need to do and use your holidays to do it if necessary.

I hope you get sorted.

Mrs OBumble · 24-04-2014 6:16pm

Rose35 wrote: »

How patronising!!!!! Don't think the OP is expecting ongoing Force Majeure, but a bit of respect here would cost nothing

It happens more often than you'd think: elderly/sick relative takes a turn for the worse, everyone rushes to the bedside, relative is so cheered by the interest shown that they perk up and the doctor's forecasts are revised.

I've been in a situaiton where the doctor said "She might go tonight, or we could go on like this for a month or more".

_Brian · 25-04-2014 11:28am

Rose35 wrote: »

How patronising!!!!! Don't think the OP is expecting ongoing Force Majeure, but a bit of respect here would cost nothing

I don't mean any disrespect..
I'm just saying Grandad isn't on any particular schedule and FM isn't applicable.

Neyite · 25-04-2014 2:03pm

Bandana boy wrote: »

I do not think being present at the death of your grandparent counts as indispensable.
FM relates to the wellbeing of an indivudual being at risk if you cannot leave to care for them.Think sick child having to stay at home etc.

I would ask for a days annual leave and go be with your Grandpa

I was turned down for FM when the creche called and wanted me to pick up my sick child. My partner was the other side of the country and I have no family nearby that could do it. I was told I could either use my annual leave or take unpaid leave, but that FM was not applicable.

I was under the impression that FM related not specifically to illness, but rather relating to the care of a sick relative. So a hospitalised relative is receiving care, so FM does not apply. However if the relative was at home, then it would, if the worker was the only person that could look after the sick relative.

The one time I applied for, and was given FM was with another company and it was to care for a relative at home when the carer took ill themselves.

Sala · 26-04-2014 12:19pm

Check your contract to see if there is is any reference to compassionate leave. I worked in a large organisation (public service, so probably had better treated than you, as you say it's not great) and I recall they had compassionate leave. I don't know what if anything was written into my contract but when my grandparent died I was given the day off for funeral for "free" (i.e. not annual)

CBCTer · 29-04-2014 11:02pm

As per citizen advice:
If you have a family crisis the Parental Leave Acts 1998 and 2006 give an employee a limited right to leave from work. This is known as force majeure leave. It arises where, for urgent family reasons, the immediate presence of the employee is indispensable owing to an injury or illness of a close family member.

Therefore for me the op is entitled to force majeure maybe his presence is indispensable for the grandfather who wish to see his grandson before dying, who know.

beanie10 · 29-04-2014 11:30pm

Op seems to be more worried about being down wages than his grandparent dying. I'm not being harsh just saying it as I see it!
You should be grateful that an employer will give you leave but dont pull the piss by demanding payment for it.
You are not indispensable in this situation. Talk to your employer, let them know your grandparent will pass shortly and you expect a call soon and you will have to go.

thomur · 29-04-2014 11:41pm

beanie10 wrote: »

Op seems to be more worried about being down wages than his grandparent dying. I'm not being harsh just saying it as I see it!
You should be grateful that an employer will give you leave but dont pull the piss by demanding payment for it.
You are not indispensable in this situation. Talk to your employer, let them know your grandparent will pass shortly and you expect a call soon and you will have to go.

Dont agree. I have 60 people reporting to me and have this question asked to me 1-2 times a year(Paid 4 days in 4 years). This is the reason FM is in place. Who can ever clarify indispensable. Its up to the employer/employee relationship. In fairness something like the OPs issue is not going to happen very often.

extra gravy · 29-04-2014 11:46pm

beanie10 wrote: »

Op seems to be more worried about being down wages than his grandparent dying

You're making that assumption without knowing him or what his circumstances are. The illness or death of a family member is difficult but it doesn't change the fact that bills still have to be paid and food has to be put on the table.

beanie10 · 30-04-2014 9:04am

extra gravy wrote: »

You're making that assumption without knowing him or what his circumstances are. The illness or death of a family member is difficult but it doesn't change the fact that bills still have to be paid and food has to be put on the table.

Unfortunately this Iis not your employers responsibility. He has 21 days holidays in any given year to take. Seeing as its nearly May I doubt hw has them all used up by now.

Mrs OBumble · 30-04-2014 10:45am

May be worth noting that the difference between FM and AL is that the employer's permission prior is needed for the timing of AL.

Normally, your own sickness is the only acceptable reason for being AWOL (ie not be at work at short notice, without prior agreement). FM extends this - and lets you get paid for it.

In this sort of situation, though, many employers allow AL, even though it wasn't pre-arranged.

Force Majeure acceptable?

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