ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00033720

Parties:

Complaint(s):

Procedure:

In accordance with Section 41 of the Workplace Relations Act,] following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

No objections were raised to the remote hearing.

Background

The complainant was employed by the respondent (now in receivership) from the 10th of January 2012, in 2015 he was promoted to position as Manager of the Meat Department. He worked 45 hours per week, and he was paid a salary of €653.85 gross (€580 nett per week) The complainant is claiming that he was entitled to payment of €4450 when he was out on sick leave.

The respondent denies the claim that he was never a manager.

Complainant’s Position

He was out on sick leave from the 26th April to the 12th June 2021 and he was owed €4450.90 gross

The respondent /receiver/ manager has refused to pay him

The Union submitted that the complainant was out on sick leave in December 2017 for 4 days and he was paid his full wages. It was further submitted that the complainant covered for other staff when they were out, and he was not paid as this was part of the arrangement with the owner

The union submitted additional correspondence dated the 1st February 2021 which listed a number of employees as Managers of their respective department including the complainant who is named as Head Butcher/fresh Food Manager. This letter was signed by the store Manager who was appointed by the respondent.  

Respondent’s position

The respondent stated that the complainant was employed on the 10th January 2012 as butcher he was paid an hourly rate and that no sick scheme was in operation within the store and the claimant while he may have got payment for a few days in December 2017 this did not create a precedent.

The respondent stated that no sick policy was in place and that the complainant was not entitled to get paid. The contract of employment was signed in 2014 and there was no stipulation to pay sick pay. It was further submitted that wages were for hours worked only.

It was further submitted that 2 employees were currently out on sick leave, and they were claiming social welfare payments

The respondent submitted a supplemental submission dated the 27th August 2021 where it states in the point 3 first sentence in the second paragraph

“Firstly, the respondent wishes to clarify that the complainant is not a Manager and the first time that he asserted that he was a manager was following his return to work from sick leave”

Findings

I find that the complaint was received by the WRC on the 12th June 2021

I find based on the evidence that no sick pay scheme applies to hourly based staff.

A contract of employment was issued in 2014 at the time the claimant was paid €10.60 per hour working 45 hours per week.

In 2015 the complainant was made Manager of the meat department; he was not provided with a contract of employment for that position but based on records his salary was increased.

The complainant was out sick in December 2017 for a number of days, and he was paid his full salary for the period.

I find based on the evidence as presented at the hearing the complainant covered for other employees when they were absent including a driver who was absent for 13 weeks i.e., January to March 2021 where he did not receive any additional pay.

I also find that the complainant was a key holder and he responded to callouts without any additional payment.

I find based on the information as while no contract of employment was issued for the new position however the former owner and the complainant had an arrangement whereby the complainant was paid a salary for each week regardless of hours of work or if the complainant was out on sick leave.

The complainant stated that he was appointed a Manager of the Meat counter in 2015 . In correspondence dated the 1st February 2021 by the respondents own appointed Store Manager which confirmed his position as Manager along with other persons who were also named as managers in the store.

I find that this correspondence of the 1st February 2021 contradicts the respondent’s statement that the complainant was not a Manager.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Based on the above I have decided that the complaint to be well founded, and I award him €4450.90 gross

Dated:   13 October 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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