ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046511

Parties:

	Complainant	Respondent
Parties	Cliona Holt	Veolia Energy Services Ireland Limited

Representatives

Terence O Sullivan TJOS Solicitors

Judy McNamara IBEC

Complaint(s):

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-00057016-001	07/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00057016-003	07/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00057016-004	07/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057392-001	28/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00057392-002	28/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00057392-003	28/06/2023

Date of Adjudication Hearing: 08/04/2024 &29/05/2024

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following 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.

Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant as well as two witnesses on behalf of the Respondent, namely Donna Marie Masterson, the Head of Human Resources and Gavin Swann, the Senior HR Business Partner, gave evidence on oath/affirmation and the opportunity for cross-examination was afforded to the parties.

This hearing was held in conjunction with ADJ 48216 and the decisions should be read in conjunction with one another.

Background:

The Complainant was employed as Group Commercial Accountant for the Respondent company with effect from 13 May 2019. She was suspended from her employment on 5 April 2023 and subsequently went on certified sick leave. She claims that during this time, her employer underpaid her wages and did not provide her full holiday entitlements.

Summary of Complainant’s Case:

See ADJ 48216

Summary of Respondent’s Case:

See ADJ 48216

Findings and Conclusions:

CA-00057016-001:

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as:

“…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”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated that a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.

The Complainant stated on her complaint form that she is seeking reimbursement of an amount of €264, allegedly unlawfully deducted from her wages on 25 April 2023. The Respondent stated that as she had moved from being on suspension to sick leave from 18 April 2023, the provisions of their Attendance and Sick Leave Procedure applied thereafter. Specifically, the procedure provides for payment of 20 sick days per year on a rolling year basis and the Respondent stated that the shortfall reflected the illness benefit payable by the Department of Social Protection that was deducted from her wages.

As it was not disputed that the Complainant was on certified sick leave from 18 April 2023 until the date of the alleged contravention, I find that the provisions of the Attendance and Sick Leave Procedure applied and that she was therefore not entitled to be paid in full by the Respondent. I therefore find that this complaint is not well founded.

CA-00057016-003:

As it was not disputed in evidence that the Complainant received her full outstanding holiday entitlements of 14.5 days in September 2023 after she left the Respondent’s employment, I find that this complaint is not well founded.

CA-00057016-004:

As it was not disputed in evidence that the Complainant received payment for the two public holidays on 10 April and 1 May 2023, which were the only two public holidays that fell in the cognisable period after her suspension, I find that this complaint is not well founded.

CA-00057392-001:

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as:

The Complainant stated on her complaint form that she is seeking reimbursement of an amount of €2,548.25 allegedly unlawfully deducted from her wages on 26 June 2023. The Respondent stated that she had moved from being on suspension to sick leave from 18 April 2023 and that the provisions of their Attendance and Sick Leave Procedure therefore applied. Specifically, this provides for payment of 20 sick days per year on a rolling year basis which the Complainant had exhausted in May 2023.

As it was not disputed that the Complainant was on certified sick leave from 18 April 2023 until the date of the alleged contravention, I find that the provisions of the Respondent’s Attendance and Sick Leave Procedure applied and that she was therefore not entitled to be paid in full by the Respondent. I therefore find that this complaint is not well founded.

CA-00057392-002:

As it was not disputed in evidence that the Complainant was paid for the public holiday on 5 June 2023, the only relevant public holiday between the referral of the two complaints, namely CA-00057016-004 and CA-00057392-002, I find that this complaint is not well founded.

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.

CA-00057016-001: