Complainant

Respondent

Parties

Eugene  Ryan

Prosperous Area C.E. Project Co. Ltd.

Representatives

Kevin Kelly

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-00062643-001

04/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00062643-002

04/04/2024

The Complainant is employed by the Respondent scheme on a one year contract.

In March 2024 he was on certified sick leave for two weeks.

The Respondent paid the Complainant a mixture of sick leave, annual leave and TOIL for those two weeks. These entitlements did not cover the Complainant’s normal hours so they deducted €93.15 from his pay.

The Complainant attended the hearing. His representative made written and oral submissions on his behalf.

It was accepted that the Complainant was advancing no complaint under the Organisation of Working Time Act and that that complaint had been a mistake.

The Respondent attended the hearing. Ms Marie Finnegan made oral and written submission on their behalf.

The Complainant’s contract provides the following sick leave entitlements.

Sick Leave

7 days (56 hours) certified sick leave allowed in a 52 week period. For any sick leave taken over and above this the time lost will be taken from time worked up or deductions will made in pay the following week.

The Respondent applies a system where their CE workers accrue paid sick leave based on service. At the time the Complainant went on two weeks he had not yet accrued the required time to cover his leave. However, that policy is in no way reflected in the contract which simply provides for a set entitlement of 56 hours per year and if applied would have kept the Complainant on full salary for those two weeks.  

After the referral of these complaints the Respondent realised that their system was not in compliance with the new statutory sick pay entitlements which had increased in January 2024. They conducted a paper exercise to restore some of the Complainant’s annual leave entitlements which had been paid that week. This did not require them to back pay the Complainant any amount and his is still down €93 for that week.

I am of the view that the Complainant should have been entitled to his full sick leave entitlement provided for in his contract in March 2024. There was no clause in the contract that outlined that the entitlement would accrue over the course of the year.

Section 5(6)(a) of the 1991 Act provides:

“Where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act) . . . then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

As per the Complainant’s contract I am satisfied that €93.15 was properly payable to him but was not paid in contravention of the act.

CA-00062643-001

I find the complaint well founded and direct the Respondent to pay the Complainant €93.15.

CA-00062643-002

I find that the complaint is not well founded.