Complainant

Respondent

Anonymised Parties

Sales Assistant

Petrol Station

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-00021334-001

26/08/2018

The Complainant started his employment with the Respondent on 2nd October 1995.

He claims that the Respondent has not paid him his entitlements under the sick pay scheme.

The Respondent rejects the claim.

The Complainant submits that he fractured his ankle while walking on holidays. He believes the sick leave resulting from the injury is covered under the sick leave scheme.

The Complainant submits that he expected a payment of €885 in respect of the sick leave.

The Complainant argues that his Terms of Employment provide for three weeks sick pay when an employee has over two years’ service. However, he submits that no payment was made to him. He claims that, following his enquiry he received a letter on 11th July 2018 signed by Ms H of the respondent’s accounts/payroll department stating that he is not due sick pay “due to the nature of his injury”.

The Complainant claims that he is due two days’ pay for the first week of absence (€218.80) plus two weeks wage at €547.50 excluding any payment received form the Department of Employment Affairs and Social Protection (€429), totalling €885 gross.  

The Respondent does not dispute that the Terms of Employment provide for a sick pay. However, the Respondent submits that, on this occasion it felt that the Complainant did not qualify. The Respondent submits that it advised the Complainant to utilise the grievance procedure if he is not satisfied with this decision.

The Respondent submits that the Complainant was on annual leave when the injury occurred. The Respondent submits that it did not know what state the Complainant was in when the injury happened.

The Respondent relies on the clause of the Terms of Employment which stipulates as follows:

“The following rules apply to the Scheme:

….

“The sick pay scheme will not cover absences relating to traffic accidents, substance abuse, sporting accidents, injuries occurred in another employment or while carrying out work elsewhere (e.g. family farm, home DYI etc.).”

The Respondent relies on www.thefreedictonary.com definition of “pedestrian traffic” and claims that a traffic accident includes a pedestrian traffic and is not covered by the scheme.

Section 1 of the Payment of Wages Act, 1991 defines “wages” as follows:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise…

Section 5(6) of the Act states as follows:

(6) Where—

(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 Parties agreed that the sick pay scheme applies to the Complainant. However, the dispute relates to whether or not an injury sustained while walking falls within the definition of “traffic accident”, which is not covered under the sick pay scheme of the Respondent.

I note the Respondent assertion that “pedestrian traffic” falls within this definition. However, it is my view that the ordinary meaning of a traffic accident, in general is classified as any accident involving motor vehicles, which results in an event that is considered to be in contrast to expected, intended, or routine operation. The Respondent included detailed rules of the Scheme in the Terms of Employment issued to the Complainant. I find that, if the Respondent intended to exclude walking accidents from the scope of the Scheme it should be clearly outlined in the rule of the scheme.

In all of the circumstances of this case, I find that the complaint made pursuant to the Payment of Wages Act, 1991 is well-founded and the Complainant is entitled to redress of €885, less any deductions made in accordance with law.

Sick pay-traffic accident-pedestrian accident