ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00053813

Parties:

	Complainant	Respondent
Parties	Avia Gurman Murphy	East Clare Trading Post

Representatives

Self Represented

The Owner

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022	CA-00065780-003	04/09/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00065780-007	04/09/2024
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00065780-008	04/09/2024

Date of Adjudication Hearing: 06/11/2024

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

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

Background:

The Complainant was employed as a Café Worker from 6/9/21 to 4/7/24 and earned 130 Euros per week for a 12 hour week. The Complainant stated she was not paid statutory sick pay when out on certified sick leave for two weeks in May 2024 and she never received a written contract of employment.

Summary of Complainant’s Case:

The Complainant stated that when she was out sick she did not receive payment of statutory sick pay entitlement in breach of the Sick Leave Act 2022. The Complainant stated she was out sick for two weeks during May 2024 but received no pay at that time. The Complainant confirmed she submitted a medical certificate to the Respondent for the time she was out sick.

The Complainant stated she received no written contract of employment at any stage of her employment.

The Complainant did not present any complaint under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

The Complainant stated she was due some holiday pay.

Summary of Respondent’s Case:

The Respondent stated that the Complainant initially worked on a wage free basis in lieu of being able to sell her products through the Respondents business. The Respondent advised that the Complainant then started work on a two day week basis but was unsure of the start date. The Respondent accepted that the Complainant was not paid sick pay when out sick for a two week period in May 2024. The Respondent accepted the Complainant did not receive a written contract of employment. The Respondent stated there were difficulties at the time which led to her not dealing with issues properly.

Findings and Conclusions:

Terms of Employment (Information) Act complaint

It was accepted the Complainant did not a receive a written contract of employment.

The Law;

“Section 3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.”

4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

There is a requirement under the Workplace Relations Act to bring a compliant within 6 months of the breach or 12 months of the breach if reasonable cause for the delay exists. The exact start date of employment was not clear from either party but it was in or around 2022.

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a written statement of terms and condition of employment within two months of the start of the employment relationship.

Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) of the Act enables the Adjudication Officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress subject to a maximum of 4 weeks pay.

The contravention of section 3 is a subsisting (continuing) contravention that endures after the initial two-month period. If no statement is provided at any stage during the employment relationship and the employment relationship comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.

I find that an alleged breach of this Act is a subsisting and continuing breach and the complaint is within my jurisdiction from the point of view of time limits

Therefore, I find that this complaint is well founded and I award the Complainant the maximum compensation allowed (four weeks pay) amounting to 520 Euros.

Sick Leave Complaint

It was accepted that the Complainant was not paid statutory sick pay in May 2024.

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. This does not apply in this case.

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. None of these exemptions apply in this case.

The complainant advised the hearing that she generally worked 2 days a week and therefore while out on sick leave for two weeks was entitled to 4 days statutory sick leave. The maximum amount of statutory sick leave at the time of the sickness was 5 days per year. The maximum pay per day eligible for sick leave is 110 Euros per day and sick pay is paid at 70% of the daily rate. As the Complainant earned 130 per week for two days work her daily rate can be calculated as 65 Euros per day. Her eligible sick pay per day (70%) was 45.5 Euros. As the Complaint was eligible for 4 days sick leave she was entitled to receive 182 Euros statutory sick leave pay which she did not receive and I award the Complainant 182 Euros sick leave pay.

Regulation 18 Complaint

As there was no complaint under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 I deem that claim not well founded.

No complaint was before me for adjudication relating to holidays under the Organisation of Working Time Act 1997.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the complaint under the Sick Leave Act 2022 well founded and I award the Complainant 182 Euros. (CA-00065780-003)

I find the complaint under the Terms of Employment (Information) Act 1994 well founded and I award the Complainant 520 Euros. (CA-00065780-007)

I find the complaint under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 to be not well founded. (CA-00065780-008)

Dated: 19th of November 2024

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Complaint well founded