Complainant

Respondent

Parties

Geraldine  Fitzgerald

Galway Hospice Foundation

Representatives

Self-represented

Ibec

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991

CA-00063240-001

01/05/2024

The complaint is of unlawful deductions from wages in 4 pay periods contrary to the Payment of Wages Act 1991.  The wages the subject matter of the complaint concerned sick pay.

The respondent refuted the complaint; it paid sick pay in accordance with the applicable sick pay policy and the complainant’s terms and conditions of employment. 

The respondent’s policy is to pay sick pay with a top-up scheme less illness benefit.  The complainant is not eligible for illness benefit yet this has been deducted from her salary on 4 occasions.

The deductions the subject matter of the complaint occurred on 30 March 2023, 27 April 2023, 26 October 2023 and 29 February 2024.

Supporting documentation submitted included emails between the complainant and respondent in relation to the deductions from salary.

The respondent is a charitable organisation providing palliative care services to persons with cancer and other life-limiting illnesses. The respondent was funded under section 39 of the Health Act 2004 until its redesignation as a section 38 organisation with effect from 1 February 2024.

The complainant is employed with the respondent as a healthcare assistant.  Her salary is linked to the HSE consolidated pay scales. 

A preliminary issue concerned the statutory time limits applicable to a case under the Payment of Wages Act 1991.    The complaint under the 1991 Act was referred to the Commission on 1 May 2024.  In consequence, the Commission’s jurisdiction is in respect of the period from 2 November 2023 to 1 May 2024.  Complaints referable to March 2023, April 2023 and October 2023 are outside the statutory time limits for adjudication.  Reasonable cause cannot be established so as to entertain the October 2023 complaint as the complainant was aware of the respondent’s policy on the deduction of illness benefit from as early as May 2023 and did not pursue a complaint in respect of the October pay period in good time. 

Without prejudice to the foregoing, the complainant has at all times been paid sick pay for any period of sick leave absence in line with the respondent’s sick leave policy.  The respondent operated a discretionary sick pay policy as a section 39 organisation.  The policy provided for up to 24 weeks “topped up” sick pay for eligible employees with over 1 year’s continuous service.  The top up scheme meant that an eligible employee retained their social welfare payment, and the respondent paid a top up in sick pay so that the employee received normal pay for the duration of their absence.    Where an eligible employee was not entitled to social welfare benefit payments, an adjustment was made to ensure the employee received the topped-up benefit, less an appropriate social welfare benefit amount.    The complainant was not eligible for illness benefit or any similar social welfare payment therefore the respondent subtracted an amount equivalent to what she would have received had she been entitled to illness benefit and the complainant was paid the top up amount. 

The respondent’s sick pay policy changed with effect from 1 February 2024 on the respondent’s redesignation as a section 38 organisation.  Under the new sick pay scheme, staff who are not eligible for illness benefit and who provide appropriate confirmation of this, are eligible for sick pay without deduction.  The complainant received full pay in sick pay for absence from 1 February 2024.

There are time limits applicable to the presentation of complaints under the Payment of Wages Act 1991 (the “1991 Act”). 

The relevant provisions are in section 41 of the Workplace Relations Act 2015 (the “2015 Act”) as follows:

“(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.

(7) …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

This complaint was presented for adjudication under section 41 of the 2015 Act on 1 May 2024.  In accordance with section 41(6) of the 2015 Act, as set out above, the period that may be investigated is 2 November 2023 to 1 May 2024 unless an extension of time is granted.  I may extend the six-month period up to 12 months if the complainant can show that failure to present the complaint within the first six-month period was due to reasonable cause.  The 12-month period is the outer limit in respect of my jurisdiction.

Accordingly, I do not have jurisdiction to entertain complaints of deductions from pay on 30 March 2023 and 27 April 2023.

The established test for reasonable cause for the purpose of granting an extension of time is that formulated by the Labour Court in Cementation Skanska v Carroll DWT0338 where the Court stated:-

“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.”

It is clear therefore that the onus is on the complainant to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the delay. 

I have considered the communications between the parties and am satisfied that the respondent explained its sick pay policy to the complainant in May 2023, including how the respondent applied its policy to those who were not eligible for the relevant social welfare benefits.  The complainant was therefore in possession of the relevant information to enable submission of a complaint within 6-months of the contravention complained of.  I acknowledge that the complainant was reluctant to escalate her grievance and that she was hoping that the respondent would resolve her issues without recourse to the WRC.  However, in circumstances where the processing of an internal grievance has not been accepted as good reason for an extension of the statutory time limits, it follows that a desire to avoid conflict and hope to resolve issues at local level does not constitute reasonable cause for not presenting a complaint within the statutory time limits.  Accordingly, I find that a complaint in respect of the October 2023 payment was presented outside of the time limits set out in section 41(6) of the 2015 Act and I am not satisfied that the failure to present the complaint within time was due to reasonable cause.

In relation to sick pay during the cognisable period, the facts were not in dispute.  For the complainant’s sick leave absence from 24 January 2024 to 1 February 2024, the complainant was paid a top up between an adjustment amount for social welfare illness benefit and her normal pay.  The complainant received full pay in sick pay from 1 February 2024.

Section 5 of the 1991 Act prohibits the making of deductions from wages save in certain circumstances.  Section 5(6) of the 1991 Act provides that where on any occasion an employee is paid less than the total amount of wages that is properly payable to the employee on that occasion, the amount of the deficiency or non-payment is to be treated as a deduction. 

For completeness, the text of section 5(6) of the 1991 Act is as follows:-

“Where-

(a)   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), or

(b)   none of the wages that are properly payable to an employee by an employer on any occasion after making any such deductions as aforesaid) are paid to the employee,

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. “

The complainant’s contract of employment referred to the application of the respondent’s sickness benefit scheme.  Section 6 of the scheme addressed payment during sick leave absence.  The relevant provisions in relation to this complaint are:-

“6.1 The Foundation’s Sickness Benefit Scheme is currently a ‘topping up’ scheme, whereby the eligible employee retains their social welfare payment(s) and the Foundation tops up this amount so the employee receives their normal pay for the duration of their absence, in line with the policy.

…

6.3 Where an eligible employee is not entitled to benefit payments from the Department of Social Protection (DEASP), the Accounts Manager will make the necessary adjustments to ensure the employee receives the topped up benefit, less an appropriate DEASP benefit amount.”

The sick pay scheme was one whereby the respondent paid employees eligible to benefit under the scheme top-up pay during sick leave.  The respondent was aware that the complainant was not entitled to illness benefit.   The respondent’s policy on payment during sick leave at the relevant time meant that an amount was deducted or adjusted for illness benefit, irrespective of whether an employee was eligible to receive illness benefit.  The complainant’s payslip for 29 February 2024 details the adjustment for a social welfare benefit amount and provides payment of the top up amount for the relevant period from 24 January to 1 February 2024. 

The respondent’s sick pay policy changed from 1 February 2024 on its redesignation as a section 38 organisation.  From 1 February 2024, upon the production of relevant documentation, eligible employees who are not entitled to social welfare payments are paid full pay during certified sick leave in accordance with the respondent’s revised sick leave policy and procedure.  The complainant was paid full pay in sick pay from 1 February 2024.

The goodwill between the parties was evident.  This complaint stemmed from the complainant’s perception that she was being treated differently and/or unfairly in and around a deduction being made for a benefit that she was not eligible to receive.  However, my jurisdiction is not to assess the fairness or unfairness of a sick pay policy.  On the evidence before me, I find that the complainant was paid the wages properly payable to her in February 2024 in accordance with the relevant sick leave schemes operated by the respondent.

For the reasons set out above, I find that this complaint is not well founded.

Payment of Wages – Sick pay – Deductions – Properly payable