ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000312

Complaint for Resolution:

Date of Adjudication Hearing: 20/01/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

This complaint is a claim for the payment of sick pay for the period July 14^th to September 18^th 2015.

A similar claim has already been heard by the Rights Commissioner service on September 14^th 2015 on identical facts in respect of an earlier period July 2^nd to July 13^th. The Right’s Commissioner found in the complainant’s favour.

The Complainant is employed as a Sales Executive having previously worked with a company which was taken over by the current respondent on a transfer of undertakings in 2003. He says that paid sick leave was part of his conditions at the first company and that this part of his conditions of employment transferred with all other conditions.

However, he submits that while he was off work recuperating in 2015 from a very serious eye operation wages were not paid, despite having been paid to him on two  previous occasions since his transfer to the respondent. One of these was for a period of six weeks.

He submitted documentary evidence from a former Managing Director and Financial Controller to the effect that paid sick leave did form part of the conditions at the transferring company.

Respondent’s Submission and Presentation:

The respondent says that it does not pay sick pay and that this has never been part of its conditions of employment.

It also says that in the course of the transfer of undertakings it was not identified as one of the conditions of employment of the transferor employees as part of a comprehensive due diligence process at the time of the transfer.

It has also failed to establish from its own records any documentary basis for the claim and noted that the complainant had failed to do so either.

It denies that sick leave was paid to the complainant on the earlier occasion as submitted by him and said that this was payment for annual leave.

Finding and conclusions

I have carefully considered all of the evidence, oral and written that was laid before me prior to and in the course of the hearing.

There was not so much a conflict in the evidence in this case as an absence of written material to support the position advanced by either party. Neither side was in a position to produce documentation to support its case, and in particular there was nothing advanced to rebut the complainant’s claim. Some weight can be attached to the material in the form of statements from the previous Managing Director and Financial Controller of the transferor company supporting the complainant’s case.

However the complainant himself was a credible and honest witness. I see no reason to doubt his claim and I find that his entitlement to sick pay is part of his wages for the purposes of the Payment of Wages Act.

There was a difference between the parties as to whether the sum due, after allowance was made for social welfare payments was €4427 (complainant) or €3843 (respondent).

I find in favour of the latter.

While aware of the Rights Commissioner decision on the previous claim I have independently reviewed the evidence before me and I reach the same conclusion.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I uphold the claim and award the complainant €3843.

Dated:   2 March 2016