ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050793
Parties:
| Complainant | Respondent |
Parties | Daniel Oltean | An Post |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
| John McCormack – Head of Employment Relations Sally Cullen – Employer Relations Catherine Murphy – HR Manager |
Complaint:
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-00062073-002 | 06/03/2024 |
Date of Adjudication Hearing: 20/06/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
The Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form herein was submitted on the 6th of March 2024. The cognizable period which I can consider therefore runs from the 7th of September 2023 to the 6th of March 2024. This is provided for in Section 41 of the Workplace Relations Act of 2015 which allows for a six-month period within which a Statutory contravention should be brought.
As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).
The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause
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. It should also be noted that the Complainant and Respondent witnesses were all agreeable to giving a formal affirmation that all evidence provided would be truthful. The giving of false statements or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant additionally relied on the extensive submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. All documentation (with the exception of one letter from the Department of Social Protection) had been sent to the WRC in advance of the hearing and was known to the Respondent. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Complainant alleges that his Employer has Unlawfully deducted his wages in circumstances where he says he was entitled to be paid for a period of time when he was out sick in February 2024. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof and the operation of law. 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. It should be noted that a query relating to a bonus Voucher which was to issue to all Employees has been resolved and the Complainant is not continuing with that aspect of his claim. |
Summary of Respondent’s Case:
The Respondent entity was represented by its Head of Employer Relations Mr. McC. Mr. McC attended together with two further witnesses from the HR Department. The Respondent had provided me with a written submissions dated the 19th of June 2024. I heard form one of the HR Managers in the course of the hearing. The evidence was given on Affirmation. The Respondent rejects that there has been a deduction in wages and has put forward the proposition that as its own sick pay scheme is far superior to any prescribed by Statute then it has no liability. 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 herein. Whilst the Complainant has brought this complaint as a Payment of Wages claim it might more correctly have been brought as a complaint under the Sick Leave Act 2022 as it is the provisions of that Act which the Complainant seeks to invoke. The Complainant asserts that when he was absent from work from the 7th to the 12th of February 2024 the Respondent was obliged to pay him sick pay in accordance with the 2022 Act.
Redress under the 2022 Act is set out at Section 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.
This 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. There are circumstances where redress under the Sick Leave Act will not be apply and these include:
The Respondent has defended its position not to pay the Complainant for the period from the 7th to 12th of February 2024 by reason of the fact that the Respondents own sick pay policy is much more favourable to its Employees. The An Post in-house sick pay policy allows for a paid absence through illness in the amount of 183 days over any rolling four year period. It was explained to me that the Complainant had in fact had 192 days paid sick leave in the previous three-to-four-year period. When he came looking for more days in February of 2024, he was found to have already far exceeded the allowance given to all Employees and his request for sick pay was denied. The Complainant had exhausted the Respondent’s sick pay scheme. I am satisfied that the Respondent’s sick pay policy was and is far more favourable to the Respondent Employees than the five days provided for under the Act and the Respondent was therefore entitled to refuse the Complainant’s demands in this regard. In the circumstances, I find that the non-payment of Statutory Sick Leave did not amount to a deduction of wages under the Payment of Wages Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00062073-002 -The Complaint herein is not well-founded and the complaint fails.
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Dated: 13th of August 2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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