PWD202

Summary of Respondent’s Case:

The Respondent was represented by Mr Mathew Jolley, B.L., instructed by Bowler Geraghty & Co. Solicitors. Mr Jolley contended that there was no basis for a referral by the Complainant under the Act. He said that the Complainant had no entitlement to payment of any wages for days he did not attend work while on medically certified sick leave. Counsel said that the Complainant had no entitlement to the payment of wages prior to his return to work, under the Act or otherwise. The Respondent was entitled to ensure it had the Complainant independently medically assessed prior to his return to work and was entitled to await such assessment and expert advice particularly where the Complainant had had a very considerable period of absence. The Complainant had exhausted his entitlement under the Sick Pay Scheme and thereafter was receiving 75% of his salary from Income Protection Insurance insured by the Respondent. This benefit could only have been paid to him if he was certified as being unfit to work.

Mr Jolley stated that the Complainant did not return to his employment until 23rd October 2018, on a phased basis. He said that while the reasons why the Complainant did not return to his employment are disputed; it remains a fact that he had no entitlement to payment of wages until and unless he returned to provide a service to the Respondent.

In any event, Mr Jolley argued that his claim for redress was time barred. The Complainant commenced his period of sick leave on 23rd May 2015. He exhausted the contractual sick pay scheme on 30th November 2015. He contended that any claim for alleged unpaid wages was out of time as it expired six months after the cessation of the contractual sick pay scheme.

The Law Applicable

The Complainant is contending that wages properly due to him were not paid and that this failure constituted a deduction in accordance with Section 5 of the Act. He contends that, as set out in the Act at Section 5(6)(a), the wages paid to him were less than the wages that were properly payable to him. The Complainant further contends that this deduction was unlawful having regard to Section 5 of the Act.

The Act at Section 5(6) provides as follows:

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.

Amount Properly Payable

The Complainant is claiming that he was not paid his full wages when he was certified by his GP as being fit to return to work on 13th March 2018, as he was not permitted to return to work until 23rd October 2018, during which period he was only paid 75% of his wages. Mr Ryan submitted that the Respondent failed to pay the Complainant the sum of €7,540.00, i.e. 25% of his remaining wages due to him pursuant to his contract of employment. Accordingly, this Court must decide whether the claimed monies were “properly payable” to the Complainant by the Respondent.

Findings of the Court

Where a deduction is made in an employee’s salary it is incumbent on the employer making the deduction to identify the statutory or contractual provision under which that deduction is authorised. The Respondent referred the Court to the provision of its contract of employment which provide for income continuance payment in the event of the long-term illness of an employee and maintained that the Complainant was paid in accordance with its policy.

The Court is satisfied that the amount “properly payable” to an employee on long term illness is in accordance the Respondent’s Income Continuance Policy, i.e. 75% of normal wages, less Social Welfare Benefits. However, the argument put forward in this case was that the Complainant was willing and certified fit to return to work from 13th March 2018 but was not permitted to do so until 23rd October 2018.

The Complainant returned to work on 23rd October 2018, working two days for the first week and one day the following week. He then went out again on sick leave until the termination of his employment by voluntary redundancy on 31^stDecember 2018.

Having reviewed the Complainant’s contract of employment, the Court is satisfied that there is no provision therein which entitles him to be paid over and above his entitlements under the Income Continuance Policy during his absence on the grounds of illness and there is no dispute that this has been paid. The Complainant’s entitlement to full pay only arises on his return to work. The fact that the Complainant may have been fit to return to work sooner than his actual return date does not give him a cause of action under section 5(6) of the Act.

DETERMINATION

Based on the findings as set out above, the Decision of the Adjudicator is accordingly upheld and the Complainant’s appeal fails.

The Court so Determines.

Signed on behalf of the Labour Court



Caroline Jenkinson
TH______________________
13 January 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.