PWD2524

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046976 (CA-00057800-003)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The Appeal was heard by the Labour Court on May 28th, 2025, in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court’s Decision.

DECISION:

1 Background to the Appeal

 This is an appeal by Ms Daramola (the Complainant) against Adjudication Officer’s Decision ADJ-00045976 CA-00057800-003 given under the Payment of Wages Act,1991(the Act) in a claim against her previous employer Blue Space Business Management Ltd (the Respondent) that she had not received payment that were due in respect of annual leave, public holidays, notice period and working a Saturday. She was also seeking payment for a period of sick leave. The Adjudication Officer held that her complaint was not well founded noting that the Complainant did not attend the hearing. There is a linked case UD/24/36. At the commencement of the hearing the Complainant confirmed that she was withdrawing her Equality complaint ADE/24/33.

The complaint was lodged with the WRC on 19 July 2023, appealed to the Labour Court 6 March 2024 and a hearing was held on 28 May 2025.  The Complainant commenced work with the Respondent in April 2022 as an Accounts Assistant and her employment ended on 15 June 2023.  At the commencement of the hearing Mr Paul Gough for the Respondent confirmed that the Respondent would pay the sum of €1,009.73 in respect of outstanding Annual leave, €134.61 in respect of a Public Holiday and €134.63 in respect of a Saturday worked.

2 Summary of Complainants submission

The Complainant submitted that she was not given a contract or a statement of her terms and conditions of employment while working for the Respondent. It was her clear understanding that she was employed in a permanent post. At the time HR matters were dealt with by one of the Directors. After the Finance Director left in January 2023 she was on her own in the Financial Department from January to March 2023. In February 2023 she was instructed to come into work on a public holiday and a Saturday for which she was not paid. In March 2023 a new Finance Manager commenced.  She was ordered to train him on the accounts system unaware that he would ultimately take over her duties. It is the Complaints submission that she was summarily dismissed on 25 April 2023 without warning. She also submitted that she was extremely shocked at the turn of events and her doctor certified her unfit for work. She understood she was to be paid three months’ notice which was later reduce to one month, but she did not receive that either. She was called to a meeting on 25 April 2023 where she was told that it had been the intention of the Company to employ her on a fixed term contract and that she was being made redundant effective immediately. It was said that she would be paid for three months but did not have to work that period. The Complainant submitted that she was told to leave her work laptop along with her digital login on her desk on her way out of the building.  She was visibly upset and requested that she be allowed take three days annual leave to process what had occurred. She was also asked to return the office keys. She was due to return to work on 2 May 2023, but her doctor certified her unfit for work.  The Complainant submitted that she should have been paid for her sick leave as she had been paid previously. She also believed that she had been told that she would be paid three months’ notice without the requirement to work same.

3 Complainant’s witness

Ms Carmel Ramsey informed the Court that she was employed by the Respondent as Finance Director which was a fulltime permanent position from November 2021 to March 2023. She confirmed that she never received a contract or terms and conditions of employment while working for the Respondent. She confirmed that contrary to what the Respondent was stating she was not responsible for HR in the company.  It was her evidence that all staff were paid their full wages while on sick leave regardless of how long they had been in the employment. She confirmed that she was no longer an employee when the Complainant was out sick.

Under cross examination she confirmed that part-time and hourly paid staff never received sick pay as they were paid for the hours they worked. She stated that she does not recall docking anyone’s pay for hours they had not worked. She accepts that there was discretion in respect of sick leave payments and that there was no written policy. It was her evidence that she was not given any instruction in respect of statutory sick pay entitlements.

4 Summary of Respondents submission

Mr Paul Gough on behalf of the Respondent submitted that the Complainant’s dismissal arose from a decision to outsource the company’s accounting and payroll systems. The Respondent’s Financial Director had resigned in early 2023 leaving the financial department with just one member, the Complainant. On 17 April 2023 after consulting with external financial consultants and considering the best structure for the organisation the Company directors decided to outsource the finance activities to an external consultant. On 25 April 2023 one of the Directors met the Complainant to communicate to her that the finance department was going to be outsourced and consequently her role was to be made redundant. At that point in time the Respondent understood that the Complainant was on a one-year fixed term contract that was due to end on 25 April 2023. The Respondent accepted that the Complainant had not been issued with a contract or a statement of her terms and conditions of work. When the Complainant raised the fact that she was employed in a full-time permanent role, the Respondent accepted that and instead of providing her with minimum notice offered her one months’ notice and suggested that she could remain working for three months while taking time off to source other employment.  The Complainant asked for some days off to process what she had just been told and was granted same. She was not asked to leave her laptop and login details. On 2 May the Complainant sent in a medical certificate stating that she was unable to work from 2 May to 15 May 2023 due to stress.

On 10 May the Employer sent a letter stating that that they were giving her a months’ notice of redundancy but that she did not have to work the notice period, and her redundancy would be effective from 15 June 2023.  It is the Respondent’s position that sick pay is discretionary, and that the Complainant is seeking to be paid notice pay and sick pay for the same period of time. The offer by the Respondent to pay one months’ notice pay is in excess of her statutory entitlement of one week.

5 Respondent’s witnesses

Mr Michael Dawson Director was the first witness for the Respondent. It was his evidence that there was no written sick leave policy and that it was discretionary. He tried to be flexible if someone was out sick for a short period and had previously paid the Complainant for time off, she had taken off. He confirmed that he had also docked people’s pay and not paid them sick leave. In terms of Senior staff, they always paid three days before statutory sick leave was introduced. In terms of the Complainant, she had asked for and had been approved for three days annual leave. They were expecting her back in work on the following Monday. It was their intention to let her work for three months while she was looking for alternative employment. There was never any commitment to pay three months’ notice. Her legal entitlement was to one weeks’ notice, but they had agreed to pay her one months’ notice pay. Under cross examination he confirmed that he probably had not told the Complainant that sick pay was discretionary, and she probably was not aware that she was not going to be paid. He accepted she was due the statutory payment of five days.

The next witness for the Respondent was Ms Maria Escriva Director. It was her evidence that she met with the Complainant on 25 April 2023. She confirmed that she had told her that they could provide her with a job for another three months and that during that period they would facilitate her looking for another job. However, the Complainant went out sick on the following Monday and never returned to work. She tried to contact the Complainant during that period but got no response to her phone calls or text messages.

It was her understanding that the Complainant had been paid her statutory sick leave, but she would check the records when she returned to the office and if it had not been paid, she would ensure it was paid. She confirmed that she wrote the letter of 26 June 2023 confirming that the Respondent would pay one month’s notice but that had not been paid.

6 Relevant Law

Section 1 of the Act states:

wages”, in relation to an employee, means 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, and

( b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section 5(6) states.

“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,

5 Discussion and Decision

 The Respondent does not dispute that they undertook to pay the Complainant one month’s notice pay and had not done so. The Court finds that amount is properly payable. In respect of paid sick leave, it was not disputed that there was no contractual obligation to pay and having heard the evidence of the witnesses the Court finds as it was discretionary it was not properly payable.   However, the statutory sick leave payment was properly payable and if it has not been paid to date falls to be paid. Having considered all the submissions and evidence before it, the Court determines that one months’ notice pay was properly payable and fell due to be paid at the commencement of the notice period 16 May 2023. It was not disputed that it was not paid and therefore there was a breach of the Act. The Court determines that the Complaint should be paid compensation equal to four weeks gross salary being the amount that was promised and not paid.

The appeal is upheld. The decision of the Adjudication Officer is set aside

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
FC	______________________
20 June 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Fiona Corcoran, Court Secretary.