Complainant

Respondent

Anonymised Parties

Senior Quantity surveyor

Construction Company

Representatives

Penninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00012764-001

25/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00012764-002

25/07/2017

The Complainant, a Senior Quantity Surveyor, commenced employment with the Respondent, a construction company, on 27th March 2017. His monthly gross pay is €6,250.

There are three elements to the claim.

Firstly, the Complainant claims that he was not paid for the 1st, 2nd and 5th of June 2017 and is therefore owed €972.00.

Secondly, the Complainant claims that he was not paid for 6th June 2017 which he says he was granted as a paid sick day and is therefore owed €324. The Complainant referenced conversations with directors of the company and produced copies of emails to support this claim.

Thirdly, the Complainant contends that as he was granted a paid sick day on 6th June he should be entitled to sick pay for the period following the 6th June when he was unable to attend work due to an illness discovered on that day (he was admitted to hospital and underwent emergency surgery). It is his view that as the 6th of June was granted as a paid sick day the subsequent days of his absence should be treated in the same manner (he is still undergoing treatment and has not returned to work). The Complainant contends that nowhere in the Company Handbook does it state that sick pay will not be paid.   He also submits that he was not told until mid-July that he would not be paid.

The Respondent's representative pointed out that the company does not operate a paid sick pay scheme. The Representative pointed referred to the company's Employee Handbook which states, "You are entitled to State benefit during absence as a result of sickness or injury, provided you meet the criteria laid down in government regulations."

The Representative went out to say that the complainant had been contacted by letter twice during his absence pointing out that the company did not operate a paid sick pay scheme.

The Respondent submitted that as no sick pay scheme exists the Complainant is not owed anything by the Respondent for the period of his absence.

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides:

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The issue for decision is whether the Respondent made unlawful deductions from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991.

On the uncontested evidence of the Complainant I find that an unlawful deduction was made from the Complainant's wages for the dates of 1st, 2nd and 5th June, i.e. €972.00.

I also find that as the Complainant was granted permission to take a paid day's leave on 6th of June to attend hospital. He is therefore due a payment of €324.00 for that day.

It is clear to me that the Respondent does not operate a paid sick pay scheme and therefore the Complainant is not entitled to payment from the Respondent for the time after the 6th June when he was unable to attend work due to illness.

I find that the complaint made pursuant to the Payment of Wages Act is well-founded and the complainant is entitled to redress of €1,296.00, less all lawful deductions.   This amount to be paid within six weeks of the date of this Decision.

Sick Pay Scheme, Handbook, Illness