Complainant

Respondent

Anonymised Parties

A Complainant

A Respondent hire company

Representatives

Conor Griffin DUNCAN GREHAN & PARTNERS

Rebecca De Groot Peninsula

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-00035177-001

11/03/2020

The respondent employed the respondent from 1 October 2014. The complainant was on certified sick leave from 7 January until 18 May 2020 when she became available to work for the company again. The complaint revolves around the company’s policy and procedures related to pay during sick leave. It was confirmed during the hearing that this complainant relates solely to a pay claim.

The complainant submitted that she signed a contract upon joining and that while she was out on Maternity leave, she received another contract with amended terms and conditions (including those regarding sick leave). She queried elements of the contract (although not the sick leave changes) but did not receive an answer to her queries. The complainant submitted that she returned to work on 6 January 2020 and was told that she was being made redundant. She went on certified sick leave for work-related sick leave from 7 January 2020 until 18 May when she was once again available to work but availed of the Government Covid payment scheme.

The complainant confirmed that she was on illness benefit from 10 February until 18 May and went onto this scheme when it became apparent at the end of January that she was not being paid sick pay from her employer.

The complainant submitted that although her original contract states that sick pay is discretionary, it has always been the practice to pay sick leave to staff who are out sick and that she should have been paid it in these circumstances.

The complainant does not accept that her contract changed during her maternity leave and accordingly seeks pay for the duration of the certified sick leave period.

The respondent denied that it was custom and practice to pay staff sick pay. The respondent accepted that it did not pay the complainant during her certified sick leave period but argued that under the revised contract, it was not required to pay for illness absences.

The respondent submitted that in the alternative, it was relying on the original contract signed by the complainant which included a term “It is entirely at the company’s discretion whether of not to make any payment to you while you are absent through illness. Accordingly, the company may after 3 days of sick leave stop your wages until your return to work and request that you claim your monies from the relevant state scheme”.

The respondent submitted that the complainant was aware that it was the company practice not to pay sick leave.

Both parties to the complaint brought witnesses in support of their position. The witnesses, the former founder and company director, Mr A, and the company accountant, Ms B, both gave evidence at the hearing.

Despite questioning from both parties and the Adjudication Officer, neither witness was able to establish that the company ever paid sick pay for periods other than up to two days. Evidence was given that the complainant herself had received pay for a period of illness of a week, however the complainant indicated that there were personal circumstances which affected her family situation at play and that the company would have been aware of these circumstances. Ms B gave evidence of working from home when she felt unwell (as she has an illness that strikes periodically) but that she continued to work remotely during such periods.

On the basis of the evidence of both parties and the two witnesses, I am satisfied that the complainant has not established that it was custom and practice to pay sick leave for extended periods of more than three days. I am satisfied, however, that it was custom and practice to cover periods up to three days, in accordance with the clause contained in the original contract.

I find that this complaint is well founded, and that the complainant has established facts from which that she was entitled to be paid for three days sick leave in accordance with her contract of employment.

Having considered all written and oral evidence presented to me, my decision is to award the complainant three days pay at €211.54 per day amounting to a total of €634.62

Pay, Sick Leave