Soldier loses parental leave law challenge

The High Court has dismissed a soldier' challenge to laws restraining a Rights Commissioner dealing with his complaint about being refused parental leave.

Today Mr Justice John Hedigan said that Private Brian McMonagle's application must fail on the grounds that it was "misconceived".

Pvt McMonagle, Leck, Letterkenny, Donegal, brought judicial review proceedings against a Rights Commissioner, Ireland and the Attorney General over the Commissioner's refusal to deal with his complaint he was entitled to "force majeure" (act of God) leave under the Parental Leave Act 1998.

The case arose after he was marked absent from duty on October 5, 2007 after he sought to avail of one day's 'force majeure' leave to tend to his sick mother.

With the support of the soldier's representative group, PDFORRA, he brought a complaint to a Rights Commissioner who decided on January 29, 2009 the terminology of the 1998 Act was "unequivocal" and she had no jurisdiction to investigate the complaint.

He was seeking an order quashing the decision not to investigate his complaint. He also claimed the State had failed to properly transpose the 1996 EU Directive which gave rise to the 1998 Act and that Directive required all disputes to be dealt with under national law.

He also claimed that the State is not entitled to exclude members of the Defence Forces from those dispute procedures.

Such exclusion amounted to discrimination and an interference with his livelihood and/or family entitlements, he claimed.

The State denied his claims and argued the Commissioner's decision was correct. The Rights Commissioner, Emer O'Shea, had said she was not permitted to deal with the complaint on grounds a different dispute resolution procedure applied to Defence Force members.

In his judgment Mr Justice Hedigan noted that Pt McMonagle had been marked absent from duty on an internal army document called a AF120 form. Pvt McMonagle subsequently applied for one day's force majeure leave in respect of that date.

The Judge said that leave was then granted by the Minister for Defence and the recording of absent without leave was expunged from Pvt. McMonagle's record.

Evidence was given that the AF120 form was then destroyed. However Pvt McMonage took issue that he was recorded as being absent without leave and referred the matter to a rights commissioner.

The Judge said that at the times the complaint was made to the rights commissioner Pvt McMonagle who was unaware the form AF120 had been destroyed, already had his leave approved. The court was satisfied that Pvt. McMonagle has no 'locus standi' (standing) in this application.

The Judge said that this is because when Pvt McMonagle applied to the Commissioner he had no dispute to which she could adjudicate.

Therefore the Judge concluded his case must fail.