Employee

Employer

Anonymised Parties

An Occupational Care Assistant

A Service for People with Intellectual Disabilities

Representatives

Ger Malone, SIPTU

Sarah Conroy, Beale & Company

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

19/11/2020

The employer is a company limited by guarantee that owns and operates residential communities for people with intellectual disabilities.  It receives funding from the HSE to carry out this work.  On October 31st 2018, the employee commenced working as a tutor in organic gardening at the employer’s day service.  She was contracted to work for 19 hours a week at an hourly rate of €15.00.  She was paid €570 every fortnight.  The employee resigned on November 10th 2020.

This dispute is about deductions in the employee’s wages while she was absent due to illness for three months from February until May 2020.

The employee was absent from work due to illness from February 3rd until May 3rd 2020.  At the hearing, she said that, although she was contracted to work for 19 hours a week, she often worked 23 or 24 hours.  When she was out sick, she expected to be paid her normal wages; however, she said that she was paid for 10 hours a week.

Following the hearing on November 26th 2020, on behalf of the employer, Ms Conroy sent me copies of the employee’s payslips from January 31st 2020 until June 19th 2020.  The payslips were copied to Ms Malone of SIPTU on behalf of the employee.  On November 30th 2021, Ms Malone wrote to me and pointed out that deductions were made from the employee’s wages from February 28th 2020, before the commencement of the first Covid-19 lock-down.  Ms Malone said that the deductions from six fortnightly payslips were made without speaking to the employee and in the knowledge that she was a lone parent and in receipt of lone parent’s social welfare benefit and not eligible for any other social welfare benefit.  Ms Malone said that the weekly amount deducted of €131.40 is the amount of illness benefit payable to a full-time employee and not a part-time employee.

At the hearing, the CEO said that it is her understanding that the employee was paid for 19 hours a week when she was out sick from February to May 2020.  Following the hearing, Ms Conroy provided me with payslips from January 31st until June 19th 2020, which includes the period of 12 weeks during which the employee was absent as a result of an injury.

Ms Conroy pointed to the provision in the employee’s contract that an employee may be paid sick pay “at the sole discretion of management.”  The employee was paid her wages while she was out sick, less an amount that she may have been entitled to claim from the Department of Employment Affairs and Social Protection (DEASP).  For part of the time she was absent, she may have been able to claim the pandemic unemployment payment (PUP).

In my enquiries regarding this dispute, I checked the website of the DEASP and I note that, as she earned €285 per week in 2020, the employee would have been entitled to a reduced rate of illness benefit of €159 per week, plus additional payments for children.  (The highest rate was €203 per week).  I note that the employer deducted €131.40 per week for 11 weeks of the employee’s absence between February and May 2020.  The employee provided no evidence from DEASP that she was not eligible for or that she did not receive this benefit.

It is a general practice that an employee being paid wages while they are absent due to illness or injury has an amount deducted in respect of illness or disability benefits paid by DEASP.  If a deduction was not taken, the employee would be better off while out sick compared to when they are at work.  This makes no sense and would act as a disincentive to an employee returning to work after an illness.

I have a concern that, if the employer had not deducted an amount for social welfare injury benefit, the employee may have been better off while she was out sick compared to when she was at work.  In the absence of any evidence that she did not receive the social welfare injury benefit, I do not accept her argument that the deductions should not have been made.

I recommend that the employer takes no action in response to this dispute.

Social welfare injury benefit, deduction from wages