Complainant

Respondent

Anonymised Parties

A Business Manager

A Fast Food Restaurant

Representatives

Violet Behan BehanBarry Solicitors

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-00016053-001

29/11/2017

The Complainant is seeking wages which he says were unlawfully deducted from him. The Complainant had tendered his resignation whilst out on sick leave, and expected his accrued holiday pay would be paid to him together with the ongoing sick leave payment he had been receiving.

The Complainant gave evidence on his own behalf. I have seen the payslips and P40 associated with the last few weeks of the Complainant’s employment.

A company Director (AA) gave evidence on behalf of the Company. I was provided with the sick leave policy and was advised on what steps the company had taken once the Complainant had tendered his resignation.

I have carefully considered the evidence adduced by both parties herein. It is common case that the Complainant had commenced his employment with the Respondent Franchise restaurant in and around July of 2009. The Complainant was a good employee who worked steadily for upwards of eight years. The Complainant was paid fortnightly based on a four-day working week. The parties agreed that the Complainant was on a gross salary of €33,956.00.

Unfortunately, the Complainant was forced to go out sick on about the 29th of April of 2017. The Complainant’s prognosis was unclear and he came under the company sick pay policy which allowed him up to twenty days fully paid sick leave. It is a stipulation of the policy that the Employee must apply for Social Welfare and any sum received under that scheme would be reimbursed to the Employer.

The Complainant did not immediately seek Social Welfare and was therefore getting paid his full salary through the Company Sick Pay Policy for the first few weeks after going out sick on the 29th of April.

The Complainant met with the Company Director on the 30th of May 2017 regarding his ongoing sick leave. At that meeting the Complainant tendered his resignation.

In evidence the Company Director indicated that he intended to stop all payments to the Complainant on receiving his resignation and appeared to also want to backdate this cessation of pay to the last date from which pay was to be calculated i.e. the 22nd of May 2017. The Director did not say this to the Complainant at their meeting on the 30th of May and the Complainant expected to be paid in the ordinary way as he believed he would have the benefit of the Sick Pay Scheme in operation to the date of his resignation. Nothing in the policy presented to me contradicts this presumption.

The Complainant received a wage slip from the payroll department which set out his payment up to the 4th of June but he was never paid this money – due to be paid by cheque. The Complainant repeatedly tried to get satisfaction but to no avail.

I am satisfied that the Complainant was entitled to be paid his full salary up to and including the date of his resignation and in this regard, and based on the evidence provided I am satisfied that the Complainant should be paid for six working days between the 22nd and the 30th of May 2017. The parties agreed to a rate of €163.00 gross as the appropriate daily rate. The Complainant is therefore at a loss of €978.00.

The Complainant acknowledged that he had not applied for the Social Welfare entitlements for the period in question but that this still could and would be done. I accept that in any event, the Complainant would possibly not have received any Social Welfare for the first four weeks as an application, had it been submitted, would have taken some time to get through the system. Such a payment could have been backdated to the April 30th date

There is an additional issue in relation to Holiday Pay and I went through the figures and dates with the parties. I am satisfied that by the end of May 2017 the Complainant was entitled to 8.3 days paid leave of which he had already taken 4. The Complainant was therefore entitled to be paid in respect of the balance of those days at the rate of €163.00 gross per day. The Complainant was entitled to €700.00.

The Complainant herein has referred a complaint of a contravention of Section 5 of the Payment of Wages Act, 1991. The Redress permissible is set out in Section 6 of the said 1991 Payment of Wages Act.

I confirm that I deem the complaint herein to be well founded.

I award compensation in the sum of €1,678.00.