Complainant

Respondent

Anonymised Parties

An Employee

A Bicycle Shop

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00010089-001

07/03/2017

The complainant is an employee in a bicycle shop.

 Following a period of sick leave absence he sought to return to work in January 2016.

Difficulties arose about his return to work and he did not do so until January 2017.

 His complaint relates to alleged deduction of wages in the interim period contrary to the provisions of the Payment of Wages Act, 1991 (hereafter ‘The Act’).

The complainant had a medical history of epilepsy but he has not had an episode since 2000.

However, in January 2016 he became aware of the onset of symptoms such as migraine and disorientation.

He went on sick leave, and in early February, on feeling better, he sought to return to work. He experienced difficulty in doing so; the respondent referring to insurance considerations and seeking medical certification of his fitness to return to work.

He submitted a medical report in March and had a brief period of hospitalisation while his medication was adjusted.

He made further efforts up to the month of June to return to work but says that the employer would not engage with him. He gave direct evidence of contacting the respondent by text message, and the first request he received for a medical report was in March. There was a delay in arranging an appointment with a consultant to get the certification required by the respondent in April.

In July he engaged a solicitor who wrote calling on the respondent to permit the complainant’s return to work.

Further correspondence ensued and the respondent sought confirmation of the complainant’s fitness to return to work and several reports were submitted.

Eventually, in November agreement was reached about a return to work in January 2017.

The complainant says that, having been refused permission to return to work he was essentially suspended. The respondent did not have a power to exclude the complainant from work for any period without pay.

The complainant relied on Flynn v Great Northern Rly Co (1950) 89 I.L.T.R 46 in which case a provision existed for the payment of ‘an ex gratia payment’ during illness. The High Court agreed that there was a ‘rebuttable common law entitlement to wages’, unless superseded by a contrary agreement.

In   Rooney v Ossie J Kilkenny High Court Unreported, 9^th March 2001 it was held that there was ‘a presumptive entitlement to be paid while ill’ unless sick pay is expressly excluded by an express term in the contract of employment.

The respondent makes a preliminary point that much of the complaint is ‘out of time’.

The complaint was received by the WRC on March 7^th, 2017, so even if there had been a deduction contrary to the Act, which it says there had not been, the claim could only apply to a period running from September 7^th 2016.

Noting that the complainant has accepted that the period after November 17^th, when it was agreed that he would return to work does not form part of the claim, this reduces the claim period to the absence between September 7^th and November 17^th; approximately nine weeks.

The respondent says that there were no unlawful deductions from the complainant’s wages, contrary to statute. The Payment of Wages Act only applies in a situation where wages were properly payable under the Act and as the complainant was on sick leave from January 27^th 2016 until January 2^nd 2017 there were no wages properly payable.

The nub of the issue is that the complainant did not supply acceptable medical certification of his fitness to return as requested by the respondent until September 12^th. This included a request for certification by a consultant which had, in fact, been given on August 4^th but not supplied to the respondent until September 12th.

Even then, that medical opinion was conditional and referred to a return to work ‘on a trial basis’.

Thereafter, a further delay ensued while the respondent‘s insurers considered this, and whether it would allow coverage of the complainant under the Employer’s and Public liability insurance.

The owner of the respondent company gave direct evidence that, from an early stage in the complainant’s absence he had been required to advise the insurance company of the position.

He told the complainant about this and even advised him to get legal advice on his position.

He also gave evidence of his own concerns about the possible impact of the complainant’s health condition on customer safety. This followed a particular incident in which there could have been a serious accident following the complainant’s failure to prepare a bicycle properly for a test run.

In respect of the earlier period between February and September, the respondent says that the complainant failed to provide the specific medical certification it had requested, as required by its insurers.

Certification received from a consultant on March 11^th was ambiguous, and did not confirm his fitness to return to work, and the required certification was not provided until September, following which events moved towards agreeing his return to work.

The respondent says that there is no entitlement to payment of wages while on sick leave unless this is expressly provided for in the contract of employment.

Regarding the time limits I find for the respondent in relation to what represents the cognisable period for the complaint.

Therefore, while that period is relatively short I must nonetheless consider the issue as to whether, in accordance with section 6(b) of the Act wages were ‘properly payable’ for its duration; a criterion accepted by the complainant as being necessary to ground his complaint, and then having done so, whether they were withheld, contrary to the Act.

It is worth noting that at no stage between the initial onset of his illness in January 2016 and March 2017 until the matter was referred to the WRC, (except perhaps in November 2016) did the complainant seek payment of his wages.

The complainant’s solicitor (in subsequent correspondence) accepted that this was the first occasion that the matter of wages was raised ‘explicitly’. There was a rather fanciful suggestion that because the complainant was seeking to return to work that this was somehow an implicit claim for payment for the duration of his absence.

It is nothing of the sort, of course. It should not be too much to expect that an employee would raise the matter of payment of any wages he considered due ‘explicitly’, and at an early stage.

He had been in receipt of illness benefit from the Department of Social Protection throughout the period. No reason was advanced as to why his complaint could not have been made at any time after it became apparent that he would not be in receipt of wages.

The complainant has submitted that there is a generalised, implied contractual term ruling payment in unless it is expressly ruled out.

As noted above he relied on Rooney v Ossie J Kilkenny High Court Unreported, 9^th March 2001

This was an application for injunctive relief in circumstances where the defendant in the case had already been paying sick pay ‘for a considerable period of time’, according to the case report, but was proposing to discontinue it.

An action was pending between the parties arising from alleged bullying of the plaintiff by one of the respondents and her condition was stated to be ‘work related stress’. The plaintiff in that case was seeking an injunction to maintain her sick pay ‘until further order or the trial of the action’.

Reference was made to an English case, Morrison v Bell 1939 2KB187, AER 745 in which the court states;

‘..under a contract of service irrespective of the question of the length of notice provided by that contract wages continue through sickness and incapacity to do the work contracted for until the contract is terminated by a notice’.

But the court in Rooney also considered Dix and Crump on Contracts of Employment, 6^th Edition where there is a clear requirement (at page 62) that this entitlement to wages during sick leave be ‘under the terms of his contract expressed or implied’ and Kinlen J in Rooney states that the authority for this is the Morrison case.

This is far from a generalised ‘common law’ entitlement and provides a clear indication that a claim for payment of wages while sick must be grounded in the contract of employment, whether as an implied term or explicitly.

I can find nothing in the submitted case note of Flynn v Great Northern Rly Co which supports the complainant‘s case. On the contrary, Budd J. held that ‘under the terms of his contract the plaintiff was not entitled to be paid wages during a period of incapacity by reason of temporary illness’. Again, the reference to the terms of the contract of employment is relevant here.

In seeking to shed light on what might constitute an implied term the Court also referred to the dicta of Maguire P in Reilly v The Irish Press Ltd ILTR 1971 194.

The learned judge went so far in that case as to say that;

‘a custom or usage ofany kind is a difficult thing to establish……I have to be satisfied that it is so notorious and well known and acquiesced in, that, in the absence of an agreement in writing it is to be taken as one of the terms of contract between the parties’.

It will be recalled that at the time of the application Ms Rooney had already been in receipt of sick pay, thereby constituting the necessary level of acquiescence by the employer.

Two leading Irish textbooks (‘Employment Law in Ireland’, Cox, Corbett Ryan, p 147, and ‘Employment Law’, eds Murphy, Regan 2^nd edition, 2017, p 57) both quote the following extract from Halsbury’s Laws of England;

Whether any such private sick pay is payable, its duration and its relationship with statutory sick pay or any other benefit depends entirely on the terms of the individual employee’s contract, since there is no rule of law that it either is, or is not payable. The relevant term may be expressed in the contract and this is common. If not so expressed a term may be implied It is rather a case of considering all the evidence in the particular case, including the normal method of remuneration, custom and practice and any pronouncement by the employee.

Halsbury’s Laws of England (4^th Ed, vol 16, 1998, paragraph 14.)

In Mullarkey v Irish National Stud Co Ltd (2004) 15 E.L.R 172 it was held that any implied right to paid sick leave will give rise to payment for a reasonable period only, although what will constitute a reasonable period will turn on the facts of a particular case. In Rooney, it will be recalled it was time limited by the hearing of the substantive action, or the plaintiff’s return to work if before that.

This further emphasises that there is no indefinite entitlement to payment even where a right to some payment has been established.

Therefore, I conclude that there is no presumptive entitlement to payment while on sick leave as submitted by the complainant unless it can be clearly implied into the terms of the contract of employment by reference to one of the criteria set out in the authorities above, or is expressly provided for in the contract of employment.

There was no firm evidence of any ‘custom and practice’ in the respondent’s business of examples of previous payment of sick pay.

And in respect of any ‘pronouncement by the employee’, the failure by the complainant to raise the matter at all for fifteen months after the commencement of the sick leave, or at any time during it must provide some insight as to his expectations and reflect adversely on them and on his understanding of the custom and practice in his own employment.

I find therefore that here was no entitlement to payment for sick leave, and accordingly it does not meet the requirement of the Act that it be ‘properly payable’.

Accordingly, while I find that the only period in respect of which a complaint can be validly considered is September 7^th to November 17^th 2016 I find that the complaint is not well founded under the Payment of Wages Act 1991 and it fails.

For the reasons set out above complaint CA-100010089 is not upheld and it is dismissed.

Payment of Wages, Sick leave, delay in making complaint.