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-00018842-001

01/05/2018

On 14 November, 2017 an incident arose in the workplace involving the complainant and another employee, where a physical altercation took place between both of them. The complainant was suspended pending an investigation in relation to the matter. The complainant was invited to attend at an investigation meeting on the 29 November 2017. Following this meeting he began to submit sick certificates to the respondent. The certificates states that he was unfit for work. He was unfit due to the injury that he sustained in the altercation on 14 November. The complainant is alleging that the respondent has made illegal deductions from his salary amounting to €10,064.42. The deductions were made whilst the complainant was on sick leave.

Preliminary application.

The complainant in his complaint form appears to allege that the respondent made an unlawful deduction from his salary of €10,064.42 on 14 November 2017 although it is unclear how this alleged deduction has been calculated and precisely what it relates to. The respondent respectfully submits that the adjudication officer can only consider complaints relating to an alleged adoption within the six-month period immediately preceding the date the complaint was submitted to the WRC, in this instance on the 1st of May 2018. Any alleged contravention of the act must have occurred between the period 2nd November 2017 and 1st of May 2018.

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On 14 November 2017 an incident arose in the workplace involving the complainant and another chef, which resulted in a physical altercation between the complainant and a colleague. The complainant alleges that he sustained an injury to his shoulder during the incident and was subsequently on sick leave until he submitted his resignation in April 2018. Following the incident both the complainant and his colleague were immediately suspended with pay pending an investigation. This was notified to the complainant verbally by his unit manager on the same day of the incident. The complainant attended an investigation meeting on 29 November 2017 to provide his version of the events. Following this meeting, on 22 November 2017, the complainant submitted a medical certificate which deemed him unfit for work for a minimum of three weeks while his shoulder underwent medical testing. Upon receipt of his medical certificate the respondent transferred the complainant from suspension to sick leave in line with company policy. He received sick pay in accordance with his contract of employment which entitled him to two weeks’ paid sick leave following 3 unpaid waiting days. As it transpired an administrative error resulted in the complainant receiving 4 weeks paid sick leave which has not been recouped by the Respondent. The complainant submitted another medical certificate dated 11 December 2017 certifying him unfit for work for a further 8 weeks or until 5 February 2018. The complainant also attended an occupational health specialist on 16 January 2018 at the company's request. They certified him unfit for work for a further 4 to 6 weeks. Following a follow-up assessment 15 February 2018 he was deemed unfit for work for a further 2 to 3 months. In the intervening period the investigation and disciplinary process regarding the incident 14 November 2017 continued and the complainant was issued with a level 1 recorded warning on 9 February 2018 due to unacceptable verbal and physical behaviour towards a colleague. Following the conclusion of this process the complainant remained unfit for work and continued on unpaid sick leave until he submitted his resignation on 26 April 2018. On 6 February 2018, the respondent received a letter from the complainant’s solicitor alleging that the complainant had suffered a personal injury in the workplace and was not given any explanation as to why he was not being paid while the matter was being investigated. This is despite the complainant’s own acknowledgement at the disciplinary hearing on 15 January 2018 that he had received a copy of the employee handbook from his unit manager on the day of the incident and that he noted from this that sick pay override suspension.

Having looked into the complainant’s salary payment since the incident of 14 November 2017, the HR business partner responded to the complainant's solicitor on 13 February 2018 and explained the company's position that once a medical certificate had been provided, the complainant was transferred onto sick leave and was paid in accordance with the respondent’s sick pay scheme.

S5.—(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) 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 issue that needs to be established is, were the complainant’s ‘wages properly payable’ for the period in question. Was the complainant entitled to be paid his normally weekly salary when on sick leave? The complainant himself opted to alter his status from ‘suspension’ to ‘sick leave’. If he had remained on suspension he would have been paid his weekly salary until the end of the disciplinary process. The terms of the complainant’s employment expressly provide that if an employee notifies the respondent that they are unfit to work during a period of suspension then they will be transferred on to sick leave. The complainant transferred to sick leave on 22 November ,2017. Clause 7 of the complainant’s contract of employment states that he is entitled to “two weeks of paid sick leave following three unpaid waiting days.” In error,the complainant was paid four weeks. The respondent has not sought to recoup the overpayment.

I am satisfied that the respondent had no obligation in law to pay the complainant whilst he was on sick leave following the expiration of two weeks leave following three unpaid waiting days. Therefore, I conclude that the claim is not well founded.

The complaint is not well founded and fails.