THE HIGH Court has reserved judgment on a challenge by a soldier to laws restraining a rights commissioner from dealing with his complaint about being refused parental leave.
Pte Brian McMonagle, Leck, Letterkenny, Donegal, brought his judicial review proceedings against a Rights Commissioner, Ireland and the Attorney General over the commissioner’s refusal to deal with his complaint – that he was entitled to force majeure (act of God) leave under the Parental Leave Act 1998.
Pte McMonagle claimed the State had failed to properly transpose the 1996 EU directive which gave rise to the 1998 Act. He claimed the directive required all disputes to be dealt with under national law and argued that the State was not entitled to exclude members of the Defence Forces from those procedures.
Michael Howard, for Pte McMonagle, said the case arose after his client was marked absent from duty on October 5th, 2007, after he sought to avail of one day’s force majeure leave to tend to his sick mother.
With the support of soldiers representative group PDforra, he brought a complaint to a rights commissioner who decided on January 29th, 2009, that the terminology of the 1998 Act was “unequivocal” and she had no jurisdiction to investigate the complaint.
Anthony Collins, for the State, said the rights commissioner had “no alternative” but to decline to deal with the matter.
The Parental Leave Act stated its provisions on dispute resolution did not apply to members of the Defence Forces.
The State argued that Pte McMonagle should have availed of the Redress of Wrongs procedure under the Defence Act 1954, and had access to the Ombudsman for the Defence Forces.