ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015545
| Complainant | Respondent |
Anonymised Parties | An Employee | A Unlimited Company |
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-00020192-001 | 03/07/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00020192-002 | 03/07/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998 | CA-00020192-003 | 03/07/2018 |
Date of Adjudication Hearing: 05/10/2018
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Withdrawal
The complainant withdrew CA 00020192-003 |
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 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.
Summary of Complainant’s Case:
CA 20192- 001 Payment of Wages. The complainant states that he was denied his entitlement to the sick pay scheme, leaving him out of pocket in the amount of €1,197.00. The complainant had a dental issue and he planned to travel back to his home country on the 15th January, 2018 to have surgery on his teeth. He told the respondent on Friday the 13th that he was travelling to his home Country on the Monday. Prior to travel he gave the responding to a letter from his GP which simply stated: “undergoing dental surgery due to loosening implants and has to travel to a clinic in x on the 15th of January.” When he returned home after the dental surgery, he produced a letter from his GP which stated “ x had to have dental implants surgery due to loosening implants placed in 2010 in Latvia and was unable to obtain social welfare certificates. We are issuing one for today. Could you please review the previous certification.“ On Friday 13th, the complainant was asked to show proof of flights, dates of flights booked and a certificate from the clinic, all of which he produced to the respondent. The complainant accepts that he knew sometime in June, 2017 that he was going to need this dental surgery. However, he did not know when that need would arise. He accepts that he did not put the respondent on notice of the issue. The complainant also states that in 2010 and 2011 when he returned home for dental surgery he was paid sick pay by the respondent. CA 20192 – 002 Organisation of Working Time Act. The complainant states that from March 2017 he has not been paid his proper holiday entitlement. Prior to March 2017 when he was working a 5 day week he got paid 50 hours holiday pay. Now he is getting paid less than the hours he works. In May of this year he worked an average of around 38 hours and only got paid for 35 hours. |
Summary of Respondent’s Case:
CA 20192- 001 The Employee hand book states: “If an employee wishes to attend a doctor in their own native country, that employee should be able to show evidence (medical certificates translated to English) that they have exhausted all possible medical treatments available within our medical service provided in Ireland. If having exhausted every possible avenue and the employees still request to attend the doctors in their native country we have to be responsible in allowing the employee to travel home, at their own expense. (time at own expense). It is not reasonable to expect foreign medical certificates if the employee cannot show evidence of being ill before travelling back to their own native country. Pre- planned sickness is not acceptable and will not be covered under a sick pay scheme. The one exception to this rule is if an employee while on holiday in their native country falls ill.” The respondent accepts that it has a discretion to play employees sick pay whilst they are in their home country for treatment. The issue in this case was that the respondent was giving no notice that the complainant intended to travel home for dental treatment. There was no consultation and no talks in relation to the matter. When the complainant was paid in the past for treatment received in his home Country, he had a consultation with the respondent and gave them ample notice. The respondent’s workforce is made up of about 80% Non- Nationals. They simply cannot allow a system where employees head home for treatment without prior consultation and notice to the respondent. CA 20192 -002 The respondent accepts that prior to 2017 there was a very crude manner for calculating holiday pay. Everybody was paid a flat rate of 10 hours. This calculation was unfair to certain employees depending on hours worked. In the interest of fairness to all employees, HR brought out a new system of calculation which specifically calculated the exact hours worked by each employee over the previous 13 full weeks worked. Since March, 2017 employees are now paid the exact amount due and owing to them, based on the hours worked. In May, 2018 the complainants was paid €5,794.00. His daily rate is €111.43. Therefore, for his 3 days holidays he was entitled to be paid €334.29. He was paid that amount. In March, 2017 the complainant requested that he be reduced to a 4 day week. As a result of that, the hours worked are less and therefore the holiday pay entitlement is less. |
Findings and Conclusions:
CA 20192- 001 Payment of Wages Act, 1991.
Section 5 (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it. (2) An employer shall not make a deduction from the wages of an employee in respect of— (a) any act or omission of the employee, or (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment. I am satisfied based on the evidence adduced at the hearing that the respondent has a discretion in relation to payment of sick pay in circumstances where an employee wishes to travel to their home Country for medical/ dental treatment. I am also satisfied that it requires employees to have a consultation with them in advance of making arrangements to travel. On the two previous occasions the complainant travelled home for treatment, he gave the respondent prior notice of his intention to travel and as a result they exercised their discretion in his favour. On this occasion he, despite knowing in June, 2017 that it was likely he would have to travel at some point in the future, gave the respondent no prior notice. He booked his flight on the 08.01.2018 and informed the respondent on the 13.01.2018. On that basis I find that the respondent was entitled to withhold payment under their discretionary sick pay scheme. The claim fails. CA 20192- 002 I am satisfied based on the documentary evidence produced during the hearing that the complainant has been paid all of the holiday pay that he is entitled to, based on the hours worked over the previous 13 full weeks. The complaint fails. |
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
CA 00020192-001 and 002 fail. |
Dated: 10.10.18
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly