Complainant

Respondent

Anonymised Parties

A Team Leader

A Food Production Company

Representatives

Vadim Karpenko, First National Consulting and Legal Services

Managing Director 

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-00038384-001

26/06/2020

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

CA-00038384-002

26/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00038384-003

Withdrawn

26/06/2020

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

CA-00038384-004

26/06/2020

The complainant is a team leader in the respondent’s fresh foods business. She joined the company in October 2004 and, for a number of years, she worked 40 hours a week, and sometimes up to 48 hours. When she submitted this complaint in June 2020, her hourly rate of pay was €10.25.

In April 2018, the complainant was on holidays and she broke her ankle. She remained out of work for the remainder of 2018 and for all of 2019. In September 2019, she had a magnetic resonance imaging (MRI) scan on her leg in Connolly Hospital and the doctor there recommended that she would be able to return to work on light duties in January 2020. On January 30th, she attended a meeting with the company’s human resources (HR) manager to discuss her return to work. The HR manager asked the complainant to provide a note from her doctor saying that she was fit to return to work.

The complainant didn’t get a medical certificate from her doctor, but on February 10th 2020, she started back at work at 6.00am. The complainant was sent home and on February 12th, the HR manager gave the complainant a letter for her doctor, explaining the work she is required to do and seeking confirmation that she was capable of carrying out those duties. On February 20th, the complainant provided a letter from her doctor which stated that she was restricted in the type of work that she could do. She could only lift 5kg and stand for up to four hours at a maximum.

The company’s position is that there are no jobs in its production area where it is possible to facilitate a 5kg lifting limit. The complainant was advised that an appointment would be made with the company’s occupational doctor. The complainant was asked to bring her MRI scan and reports from Connolly Hospital to the consultation with the company doctor.

An appointment was arranged for March 5th 2020. The complainant did not provide a copy of the MRI scan and she refused to allow the doctor to contact Connolly Hospital or her own doctor.   By mid-May, despite some contacts between the HR manager and the complainant, the company doctor still did not have the medical reports he needed to recommend a course of action to the company regarding the complainant’s return to work.

On June 26th 2020, the complainant submitted this complaint to the WRC.

The complainant attended an online appointment with the company doctor on July 10th.   On July 14th, he wrote a report confirming that she was fit to return to work for four hours a day, five days a week for six weeks. The complainant returned to work on July 10th. On her return, she indicated a desire to work part-time on a permanent basis and, on the date of this hearing on December 2nd 2020, she was on a new, part-time contact, working three days a week, for approximately 24 hours each week.

These complaints are associated with the fact that the complainant was out of work and not in receipt of wages from February 10th until July 20th 2020. She also complains that she did not receive holiday pay when she was absent in 2019 and 2020 and that she was not paid for six public holidays from December 2019 until June 2020.

CA-00038384-001: Complaint under the Payment of Wages Act 1991

On February 10th 2020, the complainant returned to work after a long absence. It emerged that she was not medically fit to resume her duties and she was sent home.   The complainant was paid her wages for one week, to give her an opportunity to get a report from her doctor.   Due to the delay getting an appointment, she remained out of work but was paid for a further week. On February 20th, she provided a report indicating that she was not fit to carry out the full range of duties associated with her job and she remained out of work until July 20th 2020, a period of five months. She claims that she is entitled to be paid for this time.

CA-00038384-002: Complaint under the Organisation of Working Time Act 1997

The complainant claims that she is entitled to be paid for her holidays while she was out sick for the 12 months of 2019 and for the period from January 1st until July 20th 2020, when she returned to work.

CA-00038384-004: Complaint under the Organisation of Working Time Act 1997

The complainant is claiming an entitlement to be paid for six of the public holidays that fell from Christmas Day 2019 until the June public holiday in 2020. She said that she was paid for St Patrick’s Day.

CA-00038384-001: Complaint under the Payment of Wages Act 1991

It is the respondent’s case that the complainant did not co-operate with them or with their company doctor to facilitate her return to work. Following her return to work on February 10th 2020, the complainant’s doctor reported that she was not capable of doing all the aspects of her job and it took until July 14th to establish that she could return on reduced hours. The respondent’s case is that because the complainant was not at work, she is not entitled to be paid.

At the hearing, the company’s managing director said that, due to the outbreak of Covid 19 in March 2020, there was a delay in getting the complainant a final appointment with the company’s doctor and the complainant’s return to work was not resolved as quickly as it might have been otherwise.

CA-00038384-002: Complaint under the Organisation of Working Time Act 1997

At the hearing, the respondent’s managing director said that the company has no issue with paying the complainant her entitlement to holidays in 2019.

CA-00038384-004: Complaint under the Organisation of Working Time Act 1997

The respondent’s position with regard to public holidays is that the complainant’s entitlement to this benefit ceased after she was absent for more than 26 weeks.

CA-00038384-001: Complaint under the Payment of Wages Act 1991

Section 5(6) of the Payment of Wages Act 1991 addresses the issue of wages that are properly payable:

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 therefore 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 deductions as aforesaid) are paid to the employee,

then, except insofar 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 that occasion.

I have considered this complaint and I have listened to the evidence of both sides at the hearing. It is my view that, as the complainant’s doctor did not certify that she was completely fit to return to work in February 2020, the company would have been negligent to allow her to return. She was paid for two weeks while she remained out sick. During the period from March to July 2020, the complainant did not co-operate with the company doctor to assist her return.   The complainant returned to work when she was considered fit to do so and I find that no wages are properly payable for the period that she was absent.

CA-00038384-002: Complaint under the Organisation of Working Time Act 1997

Section 19 of the Organisation of Working Time Act 1997, at subsections (1A) and (2), addresses the entitlement of absent employees to the benefit of annual leave:

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was —

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

The complainant was absent for the whole of 2019 and, as this absence was certified by the complainant’s doctor, she is entitled to the benefit of the holidays that she could not take for that year. As she was a full-time employee before she was absent, she is entitled to payment for 20 days’ holidays.

As the complainant returned to work on July 20th 2020, there was time during 2020 for her to take her full annual leave entitlement, or, to carry over some untaken leave into 2021.

CA-00038384-004: Complaint under the Organisation of Working Time Act 1997

This complaint relates to the non-payment of public holiday pay for the public holidays that fell from Christmas Day 2019 until the June public holiday in 2020. The Third Schedule of the Organisation of Working Time Act provides that, where an employee is absent for more than 26 weeks, due to an illness or an accident outside the workplace, the entitlement to the benefit of a public holiday ceases. I find therefore, that the complainant is not entitled to be paid for these public holidays.

CA-00038384-001: Complaint under the Payment of Wages Act 1991

Having concluded that the respondent’s conduct in respect of this complainant was not a breach of the Payment of Wages Act 1991, I decide that this complaint is not upheld.

CA-00038384-002: Complaint under the Organisation of Working Time Act 1997

I decide that the complainant is entitled to pay for 20 days in respect of holidays not taken in 2019. At the hearing, I learned that the complainant’s net pay is €80 per day and I therefore decide that the respondent is to pay her compensation of €1,600.

CA-00038384-004: Complaint under the Organisation of Working Time Act 1997

I have concluded that the complainant is not entitled to the benefit of the public holidays from December 2019 until June 2020 and I decide therefore, that this complaint is not upheld.

Payment of wages, holidays, public holidays