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Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00061390-001

05/02/2024

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

CA-00061390-002

05/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00061390-003

05/02/2024

The complainant submitted claim in respect of pay under the Sick Leave Act 2022 as well as a claim as well as claims under section 6 of the Payment of Wages Act, 1991 and a claim of Penalisation under the under Sick Leave Act 2022 on 5th of February 2023.

The complainant under a separate Adj submitted a claim in respect of an entitlement to a redundancy payment on the 13th of December 2023.

All claims were heard together on 11th of March 2024.

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00061390-001

05/02/2024

The complainant submits that her employer has not paid her sick leave.

She further submits that from July/August 2023 to the end of September 2023 she was signed off work for mental ill health by her doctor.

During this time illness benefit payments were being made into thenamed respondent bank account. The total amount of money paid to thenamed respondent was €2,310, of which the complainant received only €1,500.

There was no Appearance by or on behalf of the Respondent at the Adjudication hearing.

The Sick Leave Act, 2022 provides for a statutory sick pay scheme for all employees.

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.

For 2023 the statutory entitlement to sick leave was 3 days paid sick leave. From 1 January 2024 the entitlement is 5 days paid sick leave. 

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.  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.  This is provided for in Section 9(1) outlined above.

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.

The complainant advised the hearing that she had been on sick leave for a number of weeks during the period from 19th of July to September 2023 and had been paid her full wages by her employer for the first two months while on sick leave by way of her salary payments.  However, on 18th of September she received a letter from the respondent stating that she had exhausted the  company’s sick pay scheme of 30 days on full pay. 

The complainant advised the hearing that the company handbook specifies a limit of 30 days paid sick leave which it also states that this can be extended at the discretion of the CEO. 

The complainant stated that she had received 30 days sick pay but that she had not been aware of the clause in the handbook at the time until she looked it up.  The complainant states that it came as a shock to her to be left with no wages after receiving sick pay for the previous two months of her sick leave.  She returned to work and payroll on 1st of October 2023.

The complainant also advised the hearing that the amount claimed under this claim refers to illness benefit paid into the respondent’s bank account in respect of the complainant’s sick leave. The complainant stated that an amount of €2,310 was paid into the respondent bank account in respect of illness benefit of which €1,500 was then forwarded to the complainant by the respondent.    The complainant advised the hearing that this left a sum of €810 in illness benefit received by the respondent which was not transferred to the complainant.   The complainant advised the hearing that she had an expectation that the sums received by the respondent in respect of the illness benefit would then be paid to her by the respondent and she stated that the respondent had never clarified that this would be retained by them.    

 I note that this claim was lodged under the Sick Leave Act and refers to an entitlement to statutory sick pay.   I note from the evidence provided  by the Complainant that the Respondent did have a more favourable sick leave provision than that of statutory sick leave and that the complainant had received the equivalent of 30 days’ pay under that sick pay scheme for July and August 2023.

I am satisfied from all of the evidence adduced that the respondent’s sick pay scheme is encompassed by section 9(1) of the Act and that its benefits are  more favourable to the employee than statutory sick leave. 

Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

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

CA-00061390-002

05/02/2024

My employer has not paid me or has paid me less than the amount due to me.

The complaint form states that the amount was due on 26/09/2023.

The complainant states that the total amount owed in respect of this claim under the Payment of Wages Act is made up of wages/pay not received of € 2,750.00.

Holiday pay not received of €3, 300.00 and notice pay not received of € 1,375.00

There was no Appearance by or on behalf of the Respondent at the Adjudication hearing.

The complaint form states that an amount of €7,425 was due to the complainant on 26/09/2023.

The complainant states that the total amount owed in respect of this claim under the Payment of Wages Act is comprised of the following:

Wages/pay not received of € 2,750.00.

Holiday pay not received of €3, 300.00 and

Notice pay not received of € 1,375.00 (2 weeks)

The complainant advised the hearing that the amount of €2,750 is equivalent to wages for the month of September during which she was off on sick leave and for which she received a payslip at the start of the month in respect of wages usually paid at the end of the month, but no wages went into her account.  The complainant advised the hearing that the reason given by the respondent for non- payment was that she had exhausted the limit for paid sick leave of 30 days.

The complainant advised the hearing that she received a payslip on the 5th of September in respect of wages to be paid on the 24th of September.   The complainant stated that she was paid monthly usually around the 24th of the month.   She stated that she had been off work on sick leave since July but had been receiving full pay under the respondent’s sick pay scheme until September when she received further communication from the respondent advising her that she had exceeded the respondents sick pay allocation of 30 days and stating that she would not be paid for any additional sick leave.

The complainant also advised the hearing that an amount of €2,310 was paid into the respondent bank account in respect of illness benefit of which €1,500 was later forwarded to the complainant by the respondent.    The complainant advised the hearing that this left a sum of €810 in illness benefit received by the respondent which was not transferred to the complainant. This is the subject of a separate claim.  The complainant advised the hearing that she had an expectation that the sums received by the respondent in respect of the illness benefit would then be paid to her by the respondent and she stated that the respondent had never clarified that this would be retained by them.   

The complainant at the hearing acknowledged that the company handbook does specify a limit of 30 days paid sick leave, but it also states that this can be extended at the discretion of the CEO.  The complaiant stated that she had received her full salary from the respondent in July and August while on sick leave and had not been aware of the 30-day clause in the handbook at the time until she looked it up.  The complainant states that it came as a shock to her to be left with no wages after receiving pay for the previous two months of her sick leave.

I note that the named respondent had  a sick leave policy which allowed for 30 days sick pay in one year and that the company position was that the complainant had exhausted the 30-day level and so was no longer entitled to be paid while on sick leave.  The complainant did not dispute this but stated that there was some discretion to pay more than the 30 days which she would have expected given her good working relationship with the CEO.  The complainant at the hearing acknowledged that she was not aware at the time that the company was in financial difficulty and so the fact that her sick pay was cut off after 30 days came as a shock to her.

Having considered the evidence adduced, I am satisfied that the amount of €2,750.00 in respect of this aspect of the claim does not amount to an unlawful deduction under the Act and accordingly does not fall to be paid to the complainant.

As regards the amount of €3, 300.00 holiday pay, the complainant advised the hearing that she had accrued 24 days holidays for which she was entitled to an amount of €3,300 in holiday pay.  The complainant in support of this produced a document from the respondent HR system which indicated that she had accrued 24 days holiday pay. 

Based on the uncontested evidence of the complainant I am satisfied that this amount is properly payable to the complainant and accordingly I declare this aspect of the claim to be well founded and I direct the respondent to pay the complainant €3,300 in respect of the outstanding holiday pay.

The complainant has also lodged a claim of € 1,375 in respect of 2 weeks’ notice pay not received.  The complainant advised the hearing that she had worked for the respondent for almost 3 years and had not received notice pay upon termination of her employment.  She went on to state that the staff were paid for the first two weeks of October but that the remainder of the month is still owed.

I am satisfied from the evidence adduced that the complainant’s entitlement to notice pay under the Minimum Notice and Terms of Employment Act 1973 amounts to 2 weeks’ pay.

I am thus satisfied that this amount of €1,375 in respect of pay in lieu of notice is properly payable to the complainant and I direct the respondent to pay the complainant that amount in respect of notice pay.

Accordingly, I declare this claim to be well founded, in part, and I order the respondent to pay the complainant a total of €4, 675 (made up of €1,375 notice pay plus €3,300 holiday pay) in respect of this claim.

Accordingly, I declare this claim to be well founded, in part and I order the respondent to pay the complainant a total of €4, 675 (made up of €1,375 plus €3,300) in respect of this claim.

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00061390-003

05/02/2024

The complainant submits that she was penalised for having exercised her rights under the Sick Leave Act 2022.

There was no Appearance by or on behalf of the Respondent at the Adjudication hearing.

12. (1) An employer shall not penalise or threaten penalisation of an employee for proposing to exercise or having exercised his or her entitlement to statutory sick leave.

The complainant submits that she was notified by the respondent of a complaint against her on 10 August 2023 while she was out on sick leave.

The complainant advised the hearing that the complaint related to an incident between her and colleague which happened before the complainant went on sick leave and following which she sent  an apology to the colleague in question.  The complainant stated that it was following this incident which occurred in July 2023 that she attended her doctor and was certified as unfit for work.  

The complainant advised the hearing that the respondent decided to engage an external investigator to deal with the matter instead of going through any internal process.  The complaiant advised the hearing that this left her in a position where she felt she needed to engage some external help or representation as there was no offer of any representation or support from within the company.  The complainant advised the hearing that she engaged an external HR service to assist and support her in this process and that this cost her €550.  The complaiant is seeking a decision that the respondent reimburse her this €550 and has lodged a claim of penalisation under the Sick Leave Act in tis regard.

In examining this claim, I must first look towards what amounts to an Act of Penalisation under the Act.  The Act sets out the following as acts of penalisation.

(3) In this section, “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand, or other penalty (including a financial penalty), and

(e) coercion or intimidation.

I am satisfied from the evidence adduced that the complainant has not demonstrated that ‘but for’ having exercised her rights under the sick leave acts this sequence of events would not have occurred.   Accordingly, I find no evidence of penalisation on the part of the respondent.

I am satisfied from the evidence adduced that this claim is not well founded.

I declare this claim to be not well founded.