ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047574
Parties:
| Complainant | Respondent |
Parties | Henryk Miszka | Tesco Ireland Limited |
Representatives |
| Niamh Ní Cheallaigh |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058576-001 | 30/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058576-002 | 30/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022 | CA-00058576-003 | 30/08/2023 |
Date of Adjudication Hearing: 04/04/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered.
In particular, the Complainant herein has referred three complaints, two of which amount to the same issue:
Two of the Complaints herein relate to a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
Section 86(1) of the Workplace Relations Act of 2015 amended Section 19 of the OWT Act (Section 1A) and provides that where an employee is absent from work by reason of certified illness then Annual leave continues to accrue as if the Employee was at the place of work and at the Employer’s disposal.
Section 20 of the OWT Act has been amended to ensure that leave should ordinarily be granted within the leave year to which it relates (this can extended to a further six month period after the end of the leave year where the employee has so consented).
Where an Employee has been ill and unable to take annual leave by reason of the certified illness during the leave year or the six months thereafter then the leave can be taken within the 15-month period after the end of the leave year (Section (20)(1)(c) of the OWT Act)
A third complaint of a contravention by the employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 has also been made to the Director General.
The Sick Leave Act, 2022 provides for a statutory sick pay scheme for all employees. For 2023 the entitlement was 3 days paid sick leave. From 1 January 2024 the entitlement is 5 days paid sick leave.
Any decision will be in accordance with the relevant redress provisions which are highlighted in part 1 of Schedule 6 of the 2015 Act and in this instance are set out in Section 14 of the Sick Leave Act of 2022. A decision may include an award of compensation in favour of the Employee of such an amount which I might consider just and equitable having regard to all the circumstances. The award will not exceed four weeks remuneration.
There is a complaint that the Employer has not given the Complainant his paid sick leave in accordance with the Sick Leave Act of 2022.
Employees who have been in continuous service for thirteen weeks and more may avail of a Statutory right to a payment from the Employer where the Employee has been absent by reason of a certified sick leave. The medical certificate must state that the employee is unfit to work due to their illness or injury.
The sick pay will be paid by the employer at a rate of 70% of the employee’s wage, subject to a daily maximum threshold of €110.00.
As of 2024 the Employee is entitled to have 5 (consecutive or non-consecutive days covered) days of paid sick leave. In 2023 only 3 days were covered.
The entitlement is triggered by the employee’s first statutory sick leave day. The leave must be in relation to a day or days when an employee would ordinarily work but is incapable of doing so due to illness or injury. The leave can be taken on consecutive or non-consecutive days.
Any unused sick leave expires at the end of a calendar year.
There are circumstances where Statutory Sick Leave does not Apply. These are limited as follows:
An employment contract may provide for more favourable sick leave provisions.
Where an employer provides employees with a sick leave scheme the benefits of which are more favourable.
An employer whose business is experiencing severe financial difficulties may apply to the Labour Court for an exemption to pay sick leave. If an exemption is granted, it will be for a minimum of three months and up to one year.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 30th of August 2023. In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the Complaints being made by the Complainant in his preferred language. The interpreter did not guide or assist the person for whom the interpreter was sought, the Complainant herein. in line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, do swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence. The interpreter was invited to make an affirmation to well and truly interpret. I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. The Complainant was provided with an interpreter. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. These comprised payslips - copies of which were shared with the other side. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent. The Complainant alleges that he was not paid his full Annual leave entitlements when he terminated his employment following a long period of absence through illness. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Summary of Respondent’s Case:
The Respondent had full representation at this hearing. The Respondent provided me with a written submission dated 21st of March 2024. I have additionally heard from a witnesses for the Respondent a Ms. Floody. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent rejects that there has been any shortfall and indeed contends that the complainant was overpaid. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully listened to the evidence adduced by the parties herein. The Complainant joined the Respondent workforce in and around May of 2008. The Complainant worked a 37.5-hour week and for the purpose of this decision he was getting paid at an hourly rate of €17.55. Unfortunately, the Complainant became seriously ill and was forced to stop working on the 7th of July 2021 at which time the Complainant was placed onto the company sick pay scheme which lasted for an extended period of sixteen weeks. After this the Complainant was acknowledged to be out on long term illness. This was periodically certified as such. The Complainant has provided me with a payslip dated the week ending the 31st of July 2021 which notes that the Complainant, at the commencement of his sick leave, had outstanding holiday hours of 61.64. This calculation had accrued in the course of leave year starting on the 1st of April 2021. It was explained to me by the Respondent that when the Complainant initially went out sick, he was entitled to 22 days of annual leave. However, once the Complainant was out sick and accruing sick leave, the Employer automatically calculates his annual leave entitlements in accordance with the Statutory allowance which in this instance would be 4 working weeks where the Complainant clearly works more than 1365 hours in a year. I think that this two-day reduction from 22 days to 20 days might account for some of the discrepancy which was perceived by the Complainant to have arisen. The Complainant was out of work for a total of 86 weeks or 20 months. The Complainant tendered his resignation in May of 2023 with his Notice terminating on the 4th of July 2023. The leave year as defined in the Organisation of Working Time Act operates from the 1st of April in a given year to the 31st of March the next year. Ordinarily annual leave is granted within the leave year to which it relates. This can be pushed out with an employee’s consent to being taken within six months after the end of the leave year. If, however there has been a delay in taking annual leave by reason of certified illness then the Employee can take the annual leave within 15 months of the end of that leave year. This is all set out in Section 20 of the Organisation of Working Time Act, 1997 which reads: 20.—(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject— (a) to the employer taking into account— (i) the need for the employee to reconcile work and any family responsibilities, (ii) the opportunities for rest and recreation available to the employee, (b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and F19[(c) to the leave being granted— (i) within the leave year to which it relates, (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or (iii) where the employee— (I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.] The first relevant leave year for the Complainant is the year commencing April 1st 2021 to March 31st 2022. The Complainant’s statutory right to claim for annual leave entitlements for that year expired on the 30th of June 2023 which was 15 months after the end of that leave year. The second relevant leave year is April 1st 2022 to March 31st 2023. The Complainant was out on certified sick leave for this entire leave year. The third relevant leave year is from April 1st 2023 to March 31st 2024. The Complainant’s employment ended in the July of 2023. The Complainant had therefore worked somewhat less than half of that leave year. Section 23 Organisation of Working Time Act, 1997 provides that on termination of the employment an employee is entitled to be paid all accrued leave. The employer must compensate the employee for unused annual leave that accrued during the leave year that the employee finishes with the employer. If the employment ends in the first half of the leave year, the employee should be compensated for any annual leave in that leave year and the previous leave year. On termination of employment, payment in lieu of untaken accrued annual leave will apply to leave which was untaken as a result of illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the leave year during which the statutory leave entitlement accrued. This is all set out in Section 23 Organisation of Working Time Act, 1997: 23.—F20[(1) (a) Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave. (b) In this subsection— "relevant period" means— (i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year, (ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year— (I) the current leave year, and (II) the leave year immediately preceding the current leave year, (iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the leave year immediately preceding the current leave year, or (iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the 2 leave years immediately preceding the current leave year.] In these circumstances it seems that the Complainant is therefore entitled to his full Statutory annual leave (or compensation for loss) for the year that ended March 31st 2023 year which amounts to four weeks. He is also entitled to whatever annual leave accrued to him for the period between April 1st 2023 and the 4th of July 2023. The Respondent undertook the calculations and I note from the Complainant’s last pay check dated the 15th of July 2023 (as adjusted) the Complainant’s unpaid holiday pay was calculated at 254 hours which amounted to 6.7 weeks (where 37.5 hours is one week). The gross figure paid was €4,559.00. The Respondent has suggested that it in fact overpaid the Complainant and looking at the figures I think this might be correct. I am satisfied that the Respondent has complied with its Statutory obligation under the Organisation of Working Time Act, 1997 Concerning the claim under the Sick Leave Act 2022 : Section 9 (1) of the Sick Leave Act 2022 outlines the following: The obligations under this Act shall not apply to an employer who provides his or her employees a sick leave scheme where the terms of the scheme confer, over the course of a reference period set out in the scheme, benefits that are, as a whole, more favourable to the employee than statutory sick leave. It has been submitted by the Respondent’s that the obligations under the Sick Leave Act 2022 do not apply as the Complainant had access to a sick pay scheme that as a whole, is much more favourable than what is provided for under the Act. I understand that the Respondent’s sick pay scheme provides many benefits. These include warehousing of employees, 8 weeks’ full pay etc. The Complainant had exhausted the Respondent’s sick pay scheme, it should also be noted that the Respondent’s sick pay scheme provides 8 weeks paid sick leave, however, due to the nature of the Complainant’s illness the Respondent at its discretion provided the Complainant with an additional 8 weeks of sick pay (16 weeks in total) during his certified sick leave. The Respondent has cited the helpful decision of Karolina Leszczynska v Musgrave Operating Partners Ireland ADJ-00044889 :- In this decision, the Adjudication Officer found that: ‘There can be no arguing that eight weeks’ paid sick leave is more beneficial than three days and pay at 100% of wages is more beneficial than 70%. With the respondent’s scheme, the policy of not paying sick pay for the first three days of absence is a disadvantage for an employee who is absent for a maximum of three days once in 12 months. It is my view that this is outweighed by the policy of waiting until the fourth day, and paying sick pay to employees who are absent for up to eight weeks in 12 months. I find also that the eight weeks’ sick pay outweighs the requirement to have six months’ continuous service, compared to the 13 weeks required under the Act’. ‘I have considered the employer’s scheme and I have compared its benefits with those of the Sick Leave Act. It is my view that the duration of paid sick leave in the employer’s scheme, the amount of sick pay, the 26 weeks’ service requirement and the three-day waiting period combine to provide benefits that, on the whole, are more favourable to employees than the benefits provided in the Act. In summary, while the complainant’s case is not unreasonable, and her claim raises an important legal point, I find that the respondent’s scheme is encompassed by section 9(1) of the Act and that its benefits are, as a whole, more favourable to the employee than statutory sick leave’. This amounts to a subjective assessment of the how the benefit of one scheme operating in the workplace might outweigh the benefit of the Statutory scheme. To my mind there can be no doubt that the sickness pay scheme operating in this workplace is vastly better than that provided for by Statute. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00058576-001 - This claim is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00058576-002 - This claim is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022 CA-00058576-003 - This claim is not well founded and fails.
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Dated: 23rd April 2024.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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