Complainant

Respondent

Anonymised Parties

An Employer

An Employee

Representatives

Niamh Ní Cheallaigh IBEC

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-00029774-001

19/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00029774-002

19/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00029774-003

19/07/2019

The employer is a large retail establishment based throughout the country. The complainant was out on long-term sick leave from February 2019 until his return to work in March 2020.

The complainant submitted that he was on long-term sick leave from 4 February 2019 until 1 March 2020. According to his contract he was entitled to 8 weeks sick each year which was not paid to him. He also submitted that he was entitled to holiday pay/annual leave payment for the period which was not paid to him. The complainant submitted that he was not paid for the Public Holidays which occurred during this time.

The respondent submitted that it has met all of its obligations in relation to these matters.   In terms of the sick leave to which the complainant suggests he was entitled, it outlined that the complainant was absent from work from 11 December 2018 until 3 January 2019. As a result of this absence, it undertook an investigation into the complainant’s unacceptable levels of absence.   As part of the investigation outcome, the complainant was advised that any further occasions of absence may lead to his removal from the Company sick pay scheme. Following his absence in February 2019 during ongoing correspondence between the complainant and his manager, the complainant was informed that his sick leave would be unpaid. As the amount which the complainant suggests he is owed was not properly payable to him and was not deducted, the respondent is not in breach of the Payment of Wages Act.

In relation to the complainant’s annual leave entitlement, this entitlement has rolled over from last year and can be availed of in accordance with its procedures for seeking annual leave. The appropriate legislation allows for this and accordingly, the respondent that it is not in breach of the Organisation of Working Time Act in this regard.

In relation to element of the complaint regarding Public Holiday payments, the respondent submitted that this entitlement is available to the complainant as leave-in-lieu. The appropriate legislation allows for this and accordingly, the respondent that it is not in breach of the Organisation of Working Time Act in this regard.

CA-00029774-001

The complainant was off on long-term sick leave and submitted that he was entitled to payment for the duration of his absence. The respondent submitted the employment contract together with correspondence relating to unacceptable levels of absence and other miscellaneous correspondence. Having regard to the written and oral submissions, I find that the complainant has not established that he was owed any amounts that were properly payable to him.

CA-00029774-002

Section 20 (1) of the Organisation of Working Time Act 1997 states that

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted —

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee —

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.

Having regard to the foregoing, and to the uncontradicted submission that the annual leave is available to the complainant within 15 months following his return to work, I find that the employer is not in breach of the provisions of the Act in regard to the provision of Holiday Pay/Annual Leave.

CA-00029774-003

Section 21 of the Organisation of Working Time Act, 1997

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Having regard to the foregoing, and to the uncontradicted submission that a day’s leave in the form of leave-in-lieu for each Public Holiday to which he is entitled is available to the complainant within 15 months following his return to work, I find that the employer is not in breach of the provisions of the Act in regard to the entitlement in respect of Public Holidays.

CA-00029774-001

As the complainant has not established that any amount that was properly payable to his has been denied or withheld, my decision is that this element of his complaint under the Payment of Wages Act, 1991 fails.

CA-00029774-002

As I have found that the employer is not in breach of the provisions of the Organisation of Working Time Act, 1997, this element of the complaint fails.

CA-00029774-003

As I have found that the employer is not in breach of the provisions of the Organisation of Working Time Act, 1997, this element of the complaint fails.

Sick Leave, Payment of Wages, Organisation of Working Time