ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046405

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-00057143-001	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-002	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-003	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-004	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-005	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-006	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-007	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-008	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-009	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-010	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-011	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-012	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-013	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-014	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-015	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-016	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-017	15/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057143-018	15/06/2023

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, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

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 €1,918.99 for non-payment of sick leave from 17 August 2022 to 14 December 2022 and sought an extension of time.

Summary of Respondent’s Case:

The Respondent objected to extension of time for the period from 17 August 2022 to 14 December 2022 on the basis it was outside the 6 month period provided for in the Act.

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:

Extension of Time

Section 41 (6) of the Workplace Relations Commission 2015 which applies to the Payment of Wages Act 1991 under Schedule 5 provides for a time limit:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

A Complaint Form was received by the Workplace Relations Commission on 15 June 2023 with 18 complaints seeking adjudication pursuant to the Payment of Wages Act 1991. There is a connected case, ADJ-00046405, with 21 complaints arising out of the same set of facts but relating to a different time period.

The Complainant sought an extension of time for the complaints from 17 August 2022 to 14 December 2022. Section 41(8) permits that, “for reasonable cause” the time may be extended to 12 months.

The Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) Limited v CarrollDWT0338

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The Complainant sought an extension of time based on health difficulties. On the same day as she referred her complaint to the WRC, she submitted a medical report dated 23 June 2023 from her GP, noting her long-term illness and her inability to address her sick pay issues. A further report dated 23 November 2023 provided a summary of the reasons the Complainant was unfit for work from 5 August 2022 up to the date of the report.

In allowing the extension of the delay, I have considered the Complainant’s undisputed evidence, medical certificates, and the operation and recovery time detailed in the medical report of November 2023. It is appreciated that the Complainant is several months outside the 6-month time limit, but her GP noted that recovery from her operation could take up to 4 months, covering the period outside the 6-month time limit. I am satisfied that the certified health grounds, on the balance of probabilities, meet the threshold of "reasonable cause."

It is now necessary to consider if the Respondent would suffer any prejudice due to the delay. The Respondent argued that it would be prejudiced because there is a procedure to follow, and it is entitled to know the complaint it has to meet.

In considering the Respondent's argument, its submissions and evidence are of particular relevance as there was a detailed account of the Complainant’s entire attendance history presented. It is also noted that the Complainant raised an internal grievance on 23 May 2023, relating to the entire period she had been excluded from the sick leave scheme since July 2022 while referring the matter to the WRC on 15 June 2023. The day after she referred her complaint to the WRC, an email was sent with a medical report from her GP detailing a summary of her medical history and the impact of dealing with her sick leave issues.

Consequently, I find that the Respondent was aware that the Complainant had raised concerns about her exclusion from the sick leave scheme for many years prior to her complaint being referred to the WRC and does not suffer any prejudice due to the delay. The final question to consider is whether the Complainant has a good arguable case. On the basis the Complainant has initiated separate complaints under ADJ-00046135 , all of which are within time and arising out of the same set of circumstances , I am satisfied there is a good arguable case.

In light of the above I am willing to exercise my discretion and grant an extension of time.

Substantive Case

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.”

Paragraph 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 it was not 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-00057143-001

The Complainant states she should have received payment of €109.87 on 17 August 2023.