ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016519

Parties:

	Complainant	Respondent
Anonymised Parties	A Tutor	A Health Care provider.

Representatives

Jill Griffin, Solicitor of Farrell McElwee Solicitors

Deborah Delahunt, Solicitor of Arthur Cox Solicitors.

Complaint(s):

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-00021537-001	29/08/2018

Date of Adjudication Hearing: 10/12/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The issues in contention concern the alleged non-payment of Sick Pay to the Complainant by a Health Care provider.

1: Summary of Complainant’s Case:

The Complainant commenced employment with the Respondent in October 2003 as a “Sessional Worker.” She secured a permanent contract by way of a Legal undertaking from the employer to her Solicitors on the 22/03/2016.

She took Sick Leave for two days in March 2017 for which she was paid and for four days in March 2018 for which she was not paid. This latter period of non-payment is the nub of her complaint.

As she was recognised as a Permanent Employee in March 2016 it follows that the relevant Public Service and Health Care Sick Pay directives (Circular 5/2014 and SI No.124 of 2014) should apply to her.

The Complainant cited as favourable precedent McGoldrick v HSE r -133206-pw-13. In this case the Rights Commissioner recommended that a Sessional Worker be paid Sick Pay. The Complainant cited the very obvious parallels with the case in hand.

In Oral evidence the Complainant acknowledged that negotiations were still ongoing arising from the 22/03/2016 legal undertaking. However, this did not amount to sufficient or reasonable employer cause to refuse to apply the relevant circulars to her while negotiations were ongoing.

2: Summary of Respondent’s Case:

In Oral and Written evidence, the Respondent pointed to the fact that the Complainant had not as of the date of the Oral Hearing actually secured a finalised Permanent contract.

The Respondent pointed to the terms of the 22nd March 2016 letter

We refer to the above matter and write to confirm that our client (the employer) accepts that your client is employed on a permanent contract of employment on terms to be agreed between the parties.” Highlighted text by Respondent.

As the Legal status of the Complainant as of the date of the Hearing and certainly in March 2018 was still that of a Sessional Worker (the necessary “terms” referred to in March 2016 not having reached finality) the original contract of employment still applied. This precluded Sick pay.

The payment of the two days in March 2017 was a genuine error on the part of the Respondent and could not be taken as the basis of any right or entailment to ongoing Sick Pay.

In summary until the new contract of employment was agreed the old contract applied and this precluded Sick Pay.

3: Findings and Conclusions:

At the Oral Hearing it was immediately apparent that there was considerable frustration on both sides regarding the now protracted discussions regarding the finalisation of the 22nd March 2016 letter.

The letter was a commitment entered into the steps of the Labour Court and was a clear acceptance of the position as being of a permanent status albeit with some clarification required.

An entitlement to Sick Pay is set out in the relevant Circulars and Directives (Circular 5/2014 and SI No.124 of 2014) and the precedent of the cited McGoldrick case must be given due weight.

It is reasonable to assume that the authors of the 22nd March 2016 letter never intended that it would still be unfinished business by December 2018. Why this was the case was completely unclear to me.

Accordingly, I came to the view that the Respondent decision to deny Sick Pay in 2018 (two years after the letter of undertaking) was an unreasonable position. Sick pay is an integral part of a permanent contract. Negotiations on “Terms” as provided for were never going, in any reasonable interpretation, to change this fact. A further reasonable interpretation of an implementation date would suggest sometime in mid-2016. Delays to 2018 seem inexplicable and should not be to the detriment of the Complainant.

As a consequence of the arguments put forward and a consideration of the evidence presented I have decided, under the powers of Section 6 of the Payment of Wages Act, 1991 that the Complainant be paid Sick Pay for the period from 26th March to the 30th March 2018 inclusive.

The Non-payment was an improper Deduction.

4: Decision:

Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Act	Complaint/Dispute Reference No.	Summary decision /Please refer to Section Three above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00021537-001	Claim is well founded, and Sick pay must be paid for the period 26th March to 30th March 2018 inclusive.

Dated: 18-02-2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

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