Complainant

Respondent

Parties

Teresa  Kenny

Ballinasloe Co-operative Livestock Mart Limited

Representatives

Ms. Kate Kennedy BL, instructed by M.G. Ryan & Co. Solicitors

Ms. Sinead Finnerty, Peninsula Business Services (Ireland) Limited

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-00046608-001

11/10/2021

The Complainant commenced employment with the Respondent on 1st January 2002. At all times the Complainant’s role was described as that of “canteen manager”. Throughout her employment the Complainant received a set weekly payment of €250.

On 11th October 2021, the Complainant lodged the complaint with the Commission. Herein, she alleged that she did was not paid sick leave in contravention of an implied term of her contract. By response, the Respondent denied these allegations, submitting that the Complainant received a contract of employment at or near the commencement of her employment and that she had no contractual entitlement to sick pay.

A hearing in relation to this matterr was convened and finalised on 11th October 2021. This hearing was conducted by way of 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 technical issues were experienced by either side during the hearing.

This matter was heard alongside that bearing file reference ADJ-00033855, and concerned the same set of facts. The Complainant’s representative submitted the present complaint was submitted to cover the time period 16th June 2021 to the termination of the Complainant’s employment on 16th August 2021 only.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant was engaged as the Canteen Manager for the Respondent since 1st January 2002. The Complainant was not furnished with a contract of employment on the commencement of her employment. In or about 2010, some four years after her commencement, she asked to sign a contract of employment. The Complainant was not provided with a copy of this contract of employment and did not receive it subsequently when she requested the same.

The Complainant submitted that she was always paid whilst on sick leave with the Respondent. In particular, the Complainant referenced absences from 11th June 2014 to 20th July 2014, 8th April 2016 to 22nd April 2016 & 9th June to 23rd June 2016, all of which were due to sick and for all of which she received her full salary.

In August 2020, the Complainant was signed off as unfit to work by her GP. On meeting with her line manager, she was advised that she should apply for illness benefit, and that the Respondent would cover the shortfall of €91 per week of her wages. The Complainant continued to issue sick certs to her employer on the understanding that she would receive this payment in due course. On 17th December 2020, the Complainant was advised that the Respondent would not pay the agreed €91 per week. In this regard, it was advised that the Respondent’s employee handbook contained a provision that stated that they would not pay for sick leave after a period of two weeks.

By submission, the Complaint’s representative stated that a clear custom and practice had arisen whereby the Complainant would be paid whilst on sick leave. She stated that notwithstanding the same, the Complainant received an undertaking from her line manager that she would receive a “top up” of €91 per week whilst during the most recent period of sick leave. When the Complainant sought to rely on this agreement, the Respondent sought to resile from the same, on the basis of a term to which the Complainant did not agree and was not reflected in any express contractual arrangement. The Complainant limited her losses regarding this particular complaint to the period 16th June 2021 to 16th August 2021 and calculated that she was underpaid wages during this period to the value of €819.00.

The Respondent submitted that the Complainant was provided with a comprehensive contract in the course of her employment. While the Respondent accepts that this was not provided at or near the commencement of the Complainant’s employment, they submitted that she suffered no actual prejudice in relation to the same and as such the breach should attract minimal, or no, compensation.

The Respondent submitted that the Complainant’s contract of employment contained a clause to the effect that they would pay for two weeks and sick leave, after which the Complainant had no entitlement to any further payment. While it was accepted that the Complainant received sick pay previously, the Respondent submitted that this was in line with the sick pay policy.

In answer to a question, the Complainant’s line manager advised that she was not aware of any arrangement regarding a “top up” of the Complainant’s wages. She accepted that the contract produced by the Respondent was not signed by either party, dated and did not contain the Complainant’s particulars. Nonetheless, she submitted that this was the contract in effect for entirety of the Respondent’s staff. In answer to a further question, the Complainant’s line manager accepted that the Complainant did not receive payment for the first two weeks of her sick leave in contravention of the alleged contractual term.

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which if there is a deficiency in respect of those such payments”.

In the present case, the Complainant had submitted that a custom and practice had arisen that entitled her to be paid whilst out sick. She further submitted that an agreement was reached whereby she would receive a “top up” payment of €91 per week whilst out sick. As this payment constituted “wages” for the purpose of the present Act, the Complainant submitted that the non-payment of the same constituted a breach of the Payment of Wages Act. In denying this allegation, the Respondent submitted that no such agreement existed, and that the governing clause of the Complainant’s contract allowed for payment for two weeks of sick leave only. By this submission, the Complainant had no entitlement to the payment and consequently the non-payment of the same could not ground a claim under the Act.

While I note the applicability of the alleged contractual provision is strongly contested between the parties, the first point to be determined is whether the Respondent entered into an agreement to pay the Complainant the sum of €91 per week whilst on sick leave. Notwithstanding the contractual situation, an employee is entitled to enter into an arrangement with an employer to provide a benefit in excess of a contractual entitlement. In this regard, I note the conflict of evidence regarding this point. The Complainant, in evidence, stated that she clearly remembered the content and outcome of the conversation. This is reflected in the correspondence issued on her behalf following the conversation. On the other side, I note that the Complainant’s line manager could not recall the specifics of the conversation, but stated that she would not have agreed to such an arrangement as it was against company policy and she had not done so previously. I further note that on receipt of the Complainant’s correspondence her version of events was not immediately challenged, rather the Respondent sought to rely on the wording contained within the staff handbook to challenge the Complainant’s assertion. Having regard to the foregoing, I prefer the Complainant’s version of events. As a consequence of the same, I find that she entered into an agreement with the Respondent that she would be paid the sum of €91 whilst on sick leave. In such circumstances I find that the Complainant was underpaid by the sum of €819.00 during the consignable period of the complaint. As a consequence of the same, I find the complaint under the Payment of Wages Act is well-founded and consequently the Complainant’s application succeeds.

I find that the complaint is well-founded and consequently the Complainant’s application succeeds. Regarding redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed.

Having regard to the totality of the evidence presented, I award the Complainant the sum of €819.00 in compensation. This award should be subject to all usual deductions as income.

Contract, Non-Payment of Wages, Sick Leave