PWD2037

1. Appeal of Adjudication Officer Decision No:ADJ-000217122 CA-00028584-001

BACKGROUND:

2. 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 27 November 2020 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-





DETERMINATION :

This is an appeal by PMPD Foods LTD T/A Toffee &Thyme against an Adjudication Officer’s Decision ADJ-00021722 given under the Payment of Wages Act 1991(the Act) in a claim by Mr Ken Banville that he suffered an unlawful deduction from his wages when he was not paid for annual leave and public holidays that accrued while he was on sick leave. The Adjudication officer found in favour of Ms Banville’s claim and awarded € 3,467.81 in total which included €400 in respect of public holidays.

In this determination the parties are referred to as they were at first instance. Hence PMPD Foods LTD T/A Toffee &Thyme is referred to as ‘the Respondent’ and Mr Banville as ‘the Complainant’.

The complaint was received by the WRC on the 21^st May 2019. Therefore, the reckonable period in which the money must have been properly payable in accordance with the Act is 22^nd November 2018 to the 21^st May 2019

Background

The Complainant commenced employment with the Respondent on the 16^th of January 2017 and resigned from his employment on the 30^th November 2018. He was employed as a chef. It is his claim that he was on certified sick leave for the duration of his absence. This is disputed by the Respondent.

Complainant’s case

The Complainant submitted that he was on certified sick leave from the 28^th August 2017 until he resigned on the 30^th November 2018. It is his submission that he submitted medical certificates initially on a weekly basis then on a monthly basis. While some of the medical certificates were hand delivered in the main, he submitted them by post. He was not aware that the Respondent was not in receipt of his medical certification until the hearing before the Adjudication Officer. Following on from that hearing as directed by the Adjudication Officer he provided the Respondent with a letter from his Doctor confirming that he had been on certified sick leave for the period in question. The Complainant is claiming the following:

Public holidays in respect of the period 28^th August 2017 to the 25^th February 2018.

Annual leave in respect of the following periods;

1^st April 2017 to 31^st March 2018 14 days.

1^st April 2018 to 30^th November 13.33 days. It is the Complainants submission that his daily rate of pay was €97.50. The Complainant agrees that he received the sum of €62.19 representing pay in lieu of holidays with a payslip on the 5^th December 2018.

The Complainant submitted that under section 20 (1) (c ) of the Organisation of Working Time Act 1997 annual leave that accumulated during a period of certified sick leave can be granted for a period of 15 months after the end of the annual leave year in which it accrued.

Respondent’s case

It is the Respondent’s submission that it received three medical certificates from the Complainant the last of which was dated 26^th September 2017. The Respondent submitted in their submission to the Court that a manager of the Respondent had telephone contact with the Complainant after that date but did not advise him that the Respondent had not received medical certificates in respect of his absence after the expiry of the medical certificate dated 26^th September 2017. The Respondent confirmed to the Court that following the Adjudication Officer’s hearing it had received a letter on headed paper from the Complainant’s GP confirming that the Complainant had been on certified sick leave for the period in question. The Respondent did not submit a copy of that correspondence nor was it made available to the Court on the day of the hearing the Respondent expressed surprise at receiving such a letter as it was aware that the Complainant had been playing golf during the period. The Respondent sought clarification from the GP and had sought access to the Complainant’s medical files but had not received a response from the Complainant’s GP.

The applicable law.

Section 1 of the Act defines wages as:

• 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

• 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)…
  
  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.

• (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—
  (a) to the employer taking into account—
  (i) the need for the employee to reconcile work and any family responsibilities,
  (ii) the opportunities for rest and recreation available to the employee,
  (b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and
  [(c) to the leave being granted—
  (i) within the leave year to which it relates,
  (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or
  (iii) where the employee—
  (I) is, due to illness, unable take all or part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and
  (II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,
  within the period of 15 months after the end of that leave year].
  

In respect of the accrual of annual leave for the annual leave years 2017 and 2018, in accordance with section 20 (1) of the Organisation of Working Time Act 1997 set out above the annual leave accrued could be properly payable within the reckonable period set out. The Complainant had left the employment and was therefore in a position to request payment in respect of accrued annual leave.

The question for the Court to decide is whether the absence was a certified absence due to illness and whether the Complainant as required by the Act provided to the Respondent a registered medical certificate in respect of that illness. On the day of the hearing neither party opted to go into evidence therefore the case was heard on the basis of submissions by both parties. The Respondent did not dispute that it had received some medical certificates at the time of the absence and received a letter from the GP confirming that the Complainant was medically certified for the period in question. On that basis it appears to the Court that the absence was medically certified. The second requirement is that such certification be provided to the employer. It is not disputed by the Respondent that it received medical certificates in the initial period. The Respondent in their submission acknowledged that it had been contacted by the Complainant in September and November 2017 to assist him claim social welfare benefits as he was not in receipt of any payment from the Respondent. It is not clear to the Court why the Respondent would not have at that time raised with the Complainant the fact that it had not received medical certificates covering the period. The Court having considered the submissions made finds on the balance of probabilities that medical certificates were provided to the employer in respect of the illness.

The Court determines that the complaint in respect of public holidays must fail as it relates to a period of time outside of the reckonable period.

The Court determines that in respect of the annual leave claim, the Complainant had at the time his employment ended accrued 27.33 days annual leave. It was not disputed that his daily rate of pay at the time was €97.50 giving a total of €2,664.67 less €62.19 which he received with his payslip on the 5^th December 2017 giving a figure due of €2,602.48.
The Court Determines that the Complainant should be paid €2,602.48 in respect of accrued annual leave.
The Decision of the Adjudication Officer is varied accordingly.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
MK	______________________
16 December 2020	Deputy Chairman