ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037284
Parties:
| Complainant | Respondent |
Parties | Huan Zhang | Delforno Limited |
Representatives | Alice Kavanagh, North Dublin Citizens Information Service CLG | Andrea Montanelli, Peninsula Business Services (Ireland) Limited |
Complaint:
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-00048586-001 | 11/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00048586-002 | 11/02/2022 |
Date of Adjudication Hearing: 16/09/2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015, these complaints were assigned to me by the Director General. I conducted a hearing on September 22nd 2022, at which I inquired into the complaints and gave the parties an opportunity to be heard and to present evidence relevant to the complaints. The complainant, Ms Zhang, gave evidence at the hearing and was represented by Ms Alice Kavanagh of the Citizens Information Centres. The respondent, Delforno Limited, was represented by Ms Andrea Montanelli of Peninsula. Ms Montanelli was accompanied by a director of the company, Mr James O’Sullivan, who gave evidence in support of the respondent’s position. While the parties are named in this decision, for the remainder of this document, I will refer to Ms Zhang as “the complainant” and to Delforno Limited as “the respondent.”
Background:
The respondent is a tiles, timber and bathroom business and the complainant commenced working there as a sales executive on November 25th 2019. She resigned around 22 months later, on September 15th 2021 and she finished up on September 25th. She has submitted two complaints under the Payment of Wages Act 1991; the first related to how her Covid-19 sickness benefit was treated in July 2021, and the second in relation to pay for holidays not taken at the time of her resignation. |
Summary of Complainant’s Case:
CA-00048586-001: Complaint about the Treatment of Covid-19 Sickness Benefit The complainant was on sick leave due to Covid-19 for three consecutive weeks from June 28th until July 16th. Although the company does not pay employees while they are out sick, the complainant received her wages for the first two weeks of her absence. In the book of documents Ms Kavanagh submitted in advance of the hearing, she provided evidence that the complainant returned €700 to her employer, which was equivalent to two weeks’ enhanced Covid-19 illness benefit that she received from the Department of Social Protection. While the complainant was not paid any wages for the third week of her absence, she received a payslip, with details of wages, as if she had been paid. The complainant’s case is that she was issued a payslip which is incorrect. It is apparent that the information on this payslip has been submitted to Revenue as if the wages were paid, with the result that the complainant has paid too much tax and USC in 2021. Secondly, she complains that the fact that she returned €700 to her employer should have been reflected in her payslip, so that her gross wages were reduced. CA-00048586-002: Complaint about Non-payment of Holiday Pay Following some investigation at the hearing, Ms Kavanagh submitted that the complainant was not paid for four days’ holidays when she left her job with the respondent on September 25th 2021. |
Summary of Respondent’s Case:
CA-00048586-001: Complaint about the Treatment of Covid-19 Sickness Benefit The complainant was issued with a payslip in error on July 16th 2021. As this complaint was submitted to the WRC on February 11th 2022, Ms Montanelli argued that it is outside the time limits at section 6(4) of the Payment of Wages Act 1991 and section 41(6) of the Workplace Relations Act 2015. CA-00048586-002: Complaint about Non-payment of Holiday Pay On behalf of the respondent, Ms Montanelli disagreed with the complainant’s case that she is owed holiday pay for 2021. She said that the complainant requested some days when she was absent due to illness to be taken as holidays. Mr O’Sullivan was unequivocal in his evidence that the complainant contacted him when she was ill and that he agreed that she could take holidays, rather than having no wages. He referred specifically to August 6th and 7th 2021, but he said that this was the pattern also in 2020. He said that he agreed with the complainant that she could take holidays instead of sick leave and that he did this for her benefit. |
Findings and Conclusions:
CA-00048586-001: Complaint about the Treatment of Covid-19 Sickness Benefit I have considered the complainant’s submission on this matter and it is apparent that the complaint regarding the payslip issued on July 16th 2021 is outside the time limit set out in the legislation. Having reached this conclusion, it is my view that there would be very little inconvenience to the respondent’s accountant to re-run the complainant’s payslip for the period in question, to take account of the fact that she got no sick pay from her employer for the week-ending July 16th, and also, that she remitted her social welfare benefit of €700 to her employer. CA-00048586-002: Complaint about Non-payment of Holiday Pay The intention of the Organisation of Working Time Act 1997 is to provide for holidays for the purpose of rest and relaxation and there is no provision in the legislation to substitute holidays for sick leave, even at the request of an employee. I am satisfied that the complainant was entitled to pay for four days’ holidays when she left her job on September 25th 2021. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00048586-001: Complaint about the Treatment of Covid-19 Sickness Benefit Aside from the recommendation I have suggested above, I have concluded that I have no jurisdiction to adjudicate on this complaint because it has been submitted outside the statutory time limit. CA-00048586-002: Complaint about Non-payment of Holiday Pay I have concluded that, at the termination of her employment, the complainant was entitled to four days’ holiday pay. I order redress of €930, comprising €465 as cessor pay, which is arrears of pay, and €465 for breach of a statutory right, which does not constitute arrears of pay. |
Dated: September 27th 2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Covid-19 sickness benefit, pay for holidays at the date of termination |