ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046135

Parties:

	Complainant	Respondent
Parties	Ann Dennehy	Alps Electric (Ireland) Limited

Representatives

Whelehan Solicitor

O'Flynn Exhams LLP

Complaints:

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-00056933-001	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-002	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-003	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-004	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-005	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-006	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-007	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-008	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-009	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-010	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-011	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-012	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-013	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-014	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-015	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-016	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-017	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-018	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-019	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-020	31/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056933-021	31/05/2023

Date of Adjudication Hearing: 14/12/2023

Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

Background:

The Complainant swore an affirmation at the outset of the hearing. Submissions were received and exchange between the parties in advance of the hearing.

The HR Manager, Noreen Dineen, Operation Manager, Peter Creagh, Operation Supervisor, Siobhan O’Riordan and Purchasing Manager, Con Buckley, all gave evidence on affirmation on behalf of the Respondent. Submissions were received and exchange between the parties in advance of the hearing.

Summary of Complainant’s Case:

The Complainant commenced employment on 31 October 1991 as a Production Operative. She works 39 hours per week and is paid €488.67 gross/ €366.55 net per week .

It is the Complainant’s complaint that she is entitled to benefit from the paid sick leave. It was her evidence she was excluded from the payment previously and therefore was not covered for an operation in August 2022. In total, she had been excluded from paid sick leave for a total of 16 years following a disciplinary sanction in December 2007.

It was the Complainant’s evidence that she ought to have received a total of €2,237.82 due to non-payment of sick leave which forms part of her contractual entitlements 27 December 2022 to 17 May 2023.

Summary of Respondent’s Case:

Preliminary Objection

The Respondent objected to the introduction of the complaint relating to the period from 17 August 2022 to 14 December 2022 in the Complainant’s submissions of 1 December 2023.

It was the evidence of the Respondent’s witnesses that that Complainant failed to reach the required level of attendance of 97.5% per year to be readmitted to the Sick Pay Scheme. Evidence of the Working Time and Attendance Policy was given along with her application to the Sick Pay Review Board and subsequent report along with her attendance record were provided in evidence.

Findings and Conclusions:

Wages is defined within Section 1 of the Payment of Wages Act 1991:

“wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) 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, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”

A contract of employment means:-

“(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,

whether the contract is express or implied and if express, whether it is oral or in writing;”

Section 4 of the Act places on onus on the employer to set out in writing to detail the nature and amount of any deductions:-

“4.—(1) An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees.”

Section 5 sets out the regulation of where a deduction is made by employers:-

“5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Both parties presented the Complainant’s contract of employment, dated 31 October 1999. I find sick pay does form part of the Complainant’s wage for the purposes of the 1991 Act. There is an express term at paragraph 8 Sick Pay which sets out the procedure reporting of absences from work at paragraph 8.1. At paragraph 8.2 it states:

“You are covered by the Company’s Sickness Payment Scheme. You will receive 90% of your normal net earnings less social welfare payments for absence during a medically certified illness or injury for a maximum of six months. Payment will not be made for the first two days of illness.”

Para. 14.1 is also of note:

“Changes in the terms of this contract or in other terms, conditions or rules of employment will be notified to you in writing and will have effect with your acceptance hereof.”

It is helpful to consider Section 3(k) of the Terms of Employment (Information) Act 1994:-

“3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,”

The Complainant's contract is clear in paragraph 8 that for every period of medically certified illness or injury, she is entitled to 90% of her normal net earnings less social welfare payments for a maximum of six months. Other than the notification procedure, there are no other conditions attached to this term in her contract, nor is there any express reference to a specific policy.

Despite it being referred to as a controlled document, there is no date stamp on the Working Time and Attendance Policy the Respondent relied upon. However, based on the contents of this policy, it is reasonable to assume that it was implemented after November 1999 when the Complainant signed her contract of employment. It is also noteworthy that there is no reference to an employee handbook or the contents thereof forming part of the Complainant's contract. There is no reference to the HR-01 Working Time & Attendance Policy relied upon by the Respondent. Note Mr. Buckley’s evidence that he believed the sick pay scheme only commenced in 2010. Consequently, it does not apply to the Complainant unless she was provided with an amended contract of employment with "any term or condition" relating to paid sick leave and accepted it as required by paragraph 14.1 of her own contract of employment. This differs from an employee simply being aware of the policy. It is noted that the Complainant requested a copy of the policy from HR in or around May 2023, but none was forthcoming.

In conclusion, there is no evidence before me of any amended contract of employment accepted by the Complainant.

For these reasons , I find each of the Complainant’s complaints are well founded.

CA-00056933-001

The Complainant states she should have received payment of €109.87 on 27 December 2022.