Complainant

Respondent

Parties

Beata Deginder

Bidvest Noonan (ROI) Limited

Representatives

Boino Solicitors

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042228-001

29/01/2021

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

CA-00042228-002

29/01/2021

The complainant is a cleaner and was engaged by the respondent to work on a named site. The complainant was taken off the client site and suspended. These complaints relate to the pay the complainant was due during the period of suspension, as well as her entitlements to public holiday and annual leave. The respondent denies the claim, albeit paid the complainant €720.30 net on the day of the hearing.

Having been sworn, the complainant outlined that she commenced working for the respondent on the 20th May 2019. She worked four hours per day over five days, adding up to 20 hours per week. She was paid every 2 weeks so was paid for 40 hours. She was suspended from work on the 7th April 2020 and was certified as sick for all of May 2020. She outlined that she was only on sick leave for four weeks. There was a second suspension between the 1st June to 8th November 2020 when she started work at a different location.

The complainant outlined that she was underpaid over 27 weeks and for 176 hours. She outlined that her Payment of Wages claim was for €1,900.98 and the respondent had paid monies on the day of the hearing. The pay slip was dated the 1st August 2021.

The complainant outlined that the additional payments made in September 2020 were for wages due in April 2020. Her sick cert covered the period of the 1st to the 31st May 2020. She had asked her GP for a letter to say that she was okay to participate in the disciplinary process. She obtained this on the 9th July, and it was submitted on the 10th July.

The complainant referred to the respondent’s return to work policy. As the complainant was then suspended, she had not been required to provide a return to work cert as she was not going back to work. Towards the end of June, the complainant was emailed to say that she had to provide a cert and she replied that she was not sick. The manager who was investigating the complaint left the company and there was delay. The complainant had been waiting on developments and asked what to do next. She was also waiting to be paid for June 2020.

The complainant outlined that she was underpaid in April 2020. She took no annual leave in 2020 and was due the full year.

In cross-examination, the complainant said that she asked to take annual leave through a named supervisor or on Whatsapp. She had contacted the respondent in July 2020 regarding the fitness to return cert. She was waiting on instructions after her sick leave had ended. She did not know whether a certificate was needed. She did not think that there would be an obstacle to her returning or that she needed to tell the employer.

In closing, the complainant referred to her submissions. She outlined that the net Payment of Wages issue was whether the complainant had continued on sick leave in June 2020. There was no document indicating the position either from the employer or the employee. There was no procedure in place regarding her obligation to engage with the employer while coming off sick leave while being suspended. Nothing happened in the disciplinary investigation in the month of June. In respect of annual leave, an employee was not obliged to ask for leave to have the entitlement and it was an employer obligation to provide leave. The complainant was suspended during 2020 and was told that she must be available for the disciplinary process.

The respondent outlined that it had paid €720.30 on the day of the hearing, netted from €734.40. The spreadsheet submitted by the respondent indicated that this was made up of 56 hours at €10.80 and three public holiday days. 80 hours were also paid in week 41. It submitted that no monies were due for June as the complainant had been on sick leave.

The amount stated in the amount of €604.80 stated in the spreadsheet incorporated the overpayment of four hours, which was the pay for one extra day when she was on sick leave on the 9th July; one day being four hours. The respondent outlined that public holidays were paid during the period of suspension as she was being paid her normal wage.

The witness was affirmed and outlined that they received the complainant’s fitness to work certificate on the 9th July 2020 and she was then placed back on suspension and back on pay roll. A colleague had informed the witness that she had previously reached out to the complainant, who was told to submit a cert. The complainant was then paid for seven days instead of six. There were three fortnights in which the complainant was not paid. She was paid for pay periods 33 and 35 and this was indicated on the pay slip for pay period 39.

The complainant was offered an alternative position, which she accepted and started on the 9th November 2020. The complainant would normally apply for annual leave via a portal or directly through her manager. She did not apply for annual leave. The complainant had not worked since the 2nd December 2020 as she had sought an accommodation. She had been offered two alternative roles, which she had declined. The records showed that the complainant was entitled to 68 hours of annual leave for 2020. In cross-examination, the witness outlined that the process of applying for annual leave was site specific but that employees generally applied for annual leave.

In closing, the respondent outlined that the annual leave remained for the complainant to take, and this could be addressed. There is an obligation for the employee to ask for leave and the complainant was aware of the process. Any outstanding wages hinged on the question of the sick leave, but this was out of time. It was unreasonable to expect the employer to resume the disciplinary process especially when the complainant was on sick leave due to stress.

The complainant was a contract cleaner who worked part-time for the respondent. The matters at the centre of these complaints arose in 2020 at the client site to which the complainant was assigned. Issues were raised about the complainant’s work, and on the 7th April 2020, she was suspended by the respondent and not permitted to attend the client site. The complainant submitted a bullying complaint to the respondent. The complainant resumed a role at a different client site on the 9th November 2020.

The complainant’s employment falls within the ambit of the Contract Cleaning Employment Regulation Order (the one then in force being S.I. 548/2016).

Suspension and sick leave

As noted, on the 7th April 2020, the complainant was placed on paid suspension. While she was paid in full for the pay period encompassing the first few days of the suspension (fortnight 15), she was paid less in the following weeks. The complainant was on certified sick leave for May 2020 and accepts that she did not have an entitlement to be paid in May. The respondent made payments to address the reduced pay across this entire period but asserts that the complainant’s sick leave continued until the 9th July 2020, so she had no right to be paid from the 1st June to the 9th July 2020.

The respondent outlined that the complainant ought to have completed a return to work form in order to be restored to pay roll in June 2020. The respondent outlined that a colleague had reached out to the complainant at this time, although this colleague did not attend the adjudication and there was nothing in writing about this reaching out.

I note that the attendance and absence from work policy does not specifically address what a suspended employee should do on their return from sick leave. The policy refers to returning to work and is very specific about what is required of an employee resuming their duties. The complainant was not returning to work but continuing on paid suspension. It was not clear that the obligations in the policy applied to the complainant as she was not resuming her duties. Because of this and because the complainant had provided a time-limited certificate of absence (until the 31st May 2020), I find that the complainant’s wages became properly payable on the 1st June 2020.

It follows that the complainant is owed five weeks’ wages for the period of the 1st June to the 5th July, i.e. the equivalent of 100 hours. The complainant’s then rate of pay was €10.80 per hour, so the complainant is owed wages of €1,080.

Pay due during a paid suspension

Leaving aside the public holiday hours (addressed below), the pay slips illustrate that the complainant was paid for 320 hours between the 13th April and 8th November 2020. On the day of the adjudication, the complainant was paid for a further 56 hours (again leaving aside the public holiday pay).

The complainant was not due pay in May 2020 as she was on sick leave. The period of the 1st June to the 5th July 2020 is addressed above. Other than the period of the 1st May to the 5th July 2020, the period of suspension lasted 21 weeks, i.e. three weeks in April 2020 and 18 weeks from 6th July to the 8th November 2020. The complainant ought to have been on full pay, i.e. 20 hours per week, for these 21 weeks. My calculation is that the complainant was paid for 320 hours (as set out in the pay slips) and for 56 hours (paid on the day of the adjudication). The complainant was, therefore, paid 376 hours of the 420 due. The complainant is due an additional 44 hours of pay, i.e. €475.20.

Payment of Wages / cognisable period

I note that this relates to the pay of an employee paid ERO rates in part-time employment. The complainant was placed on paid suspension but not paid her regular wages. While the respondent made up a good deal of the shortfall, there were monies outstanding. There was protracted engagement between the parties on several issues, e.g. the complainant’s time at the client site, her own bullying complaint, the complainant’s sick leave, the circumstances around her return to work, the investigation and suggested new roles. During all this, there was the ongoing issue of the complainant’s pay.

I find that the Payment of Wages complaint is within time as the outstanding monies now owed relate to the shortfall in wages for the weeks within the cognisable period. The additional monies paid by the respondent (for example paid in fortnight 39 and 41) should be set against the wages due in the early weeks of the suspension (April 2020 and the early part of June 2020) so that the monies now due fall within the cognisable period of six months. This approach is in keeping with the wording used in the Payment of Wages Act and its purpose of providing ‘further protection’ to employees and their entitlement to wages (as set out in the Title of the Act]. This ‘further protection’ has particular importance for a low-paid worker on an ERO rate of pay.

Organisation of Working Time Act

This claim relates to the complainant’s pay during the period she was suspended from work on full pay, albeit including the month of May 2020 when she was certified as sick. I address the complainant’s public holiday and annual leave entitlements over this period pursuant to the Organisation of Working Time Act. Holiday pay is cited in the complaint form (albeit in respect of complaint reference 001), and it is appropriate for me to address this within the Organisation of Working Time Act complaint.

Public holidays

In respect of public holidays, I note that the complainant was paid for the April 2020 public holiday as well as the ones falling in December 2020 and January 2021. There is no record of a separate payment for the May, August and October 2020 public holidays. The May 2020 public holiday would be payable as it fell within the first 13 weeks of sick leave (Schedule 3), but no award is made here as it is out of time. The June public holiday is also out of time. An additional day’s pay is, however, due for August and October 2020 (€43.20 x 2).

Annual leave

In respect of annual leave, I note that, as of the adjudication hearing, the complainant had not taken, nor been paid annual leave for the leave year of 1st April 2020 to the 31st March 2021. This claim only relates to the period of suspension, i.e. 7th April to the 8th November 2020. Annual leave accrued over this period, including when she was suspended and on certified sick leave. I note that statutory annual leave accrues during the leave year and reflects a right pursuant to the Charter of Fundamental Rights. It also has a Directive underpinning. I, therefore, set out the annual leave entitlement accrued by the complainant over this period. I note that the respondent indicated that it wished to resolve this issue. I set out what accrued during this time, and it will be for the parties to determine what requires enforcement, if anything. This period relates to six months, i.e. two weeks of annual leave. In pay terms, this amounts to €432.

Outcome

In light of the above, I award €1,552.20 pursuant to the Payment of Wages Act (CA-00042228-001). This is the sum of €1,080 and €475.20. I award €518.40 in respect of the Organisation of Working Time Act complaint, made up of €86.40 and €432 (CA-00042228-002).

CA-00042228-001

I decide that this complaint pursuant to the Payment of Wages Act is well-founded and I award compensation of €1,552.20.

CA-00042228-002

I decide that this complaint pursuant to the Organisation of Working Time Act is well-founded and I award redress of €518.40.

Contract cleaner / Wages during suspension / Payment of Wages / Annual leave