ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00002285
Parties:
| Complainant | Respondent |
Anonymised Parties | Ground Handling Agent | Airline |
Hearing 14th March 2017
Hearing 5th October 2017
Representatives | Blazej Nowak, Monika Szajks | Frank Beatty SC, Mark Kelly McDowell Purcell, Leanne Morrissey, Lisa McCormack, Kiera O’Brien Stenographer |
Complaints:
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-00003039-001 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003039-002 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003039-003 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003039-004 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003039-005 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00003039-006 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003039-007 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003039-008 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003039-009 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003039-010 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003039-011 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003039-012 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003039-013 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003039-014 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003039-015 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003039-016 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003039-017 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003039-018 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003039-019 | 03/03/2016 |
These complaints were received on 3rd March 2016
Date of Adjudication Hearing: 12/06/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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.
Background:
The Complainant was employed as a Ground Handling Agent since 8th November 2008. He was paid €2,940.00 per month. He has claimed breaches of Terms of Employment (Information) Act, Payment of Wages Act and Organisation of Working Time Act. He has sought compensation. |
Preliminary Points Raised by Respondent
The Respondent stated that there has been an abuse of process in the manner in which the Complainant has filed the complaints and the actual complaints themselves. He cited Delaney & McGrath p 16-24 in support of his argument. These claims may be deemed frivolous where this may succeed but have no material value, where the Complainant has suffered no material loss or damage. The manner in which these claims have been presented to the Commission is a scattergun approach with a considerable number of individual complaints made under one Act. This is an abuse of process as these claims are frivolous and vexatious. It is incumbent on the claimant to have suffered some damage. There are five sets of proceedings and it is an abuse of process. The statutory regime is not in place for these types of claims.
The Complainant’s representative stated that Sec 42 of the Workplace Relations Act allows the Adjudication Officer to dismiss claims that are frivolous but he reminded the hearing that the law is there to protect employees.
The Adjudication Officer decided to hear all complaints as presented to the Commission.
Preliminary Points Raised by the Complainant
The Complainant’s representative objected to the stenographer being present. She was not an employee of the Respondent and she should not be in attendance as this was a private hearing.
The Adjudication Officer advised the hearing that permission had been sought and given for the stenographer to be utilised. This was on the understanding that this was the Respondent’s method of notetaking and no copy of these notes would be sought for any other party.
Terms of Employment (Information) Act
Summary of Complainant’s Case:
CA 3039- 005 Breach of Sec 5 claimed. The Company address changed. The Complainant was not notified in writing of this change within one month after this change. CA 3039- 012 Breach of Sec 3(g) is claimed. The Complainant was not notified of the pay reference period contained in the National Minimum Pay Act for the purposes of establishing his rate of pay. CA 3039- 013 Breach of Sec 3(i) is claimed. He stated that the contract of employment did not provide for the hours of work. He knew that he was full time but did not know the hours of work e.g. 39 hours or 37.5 hours. CA 3039 – 016 The contract failed to advise of the provisions of SI 49/1998 referring to Sec 11 of the organisation of Working Time Act. CA 3039 -017 A breach of Sec 3 (g)a) is claimed. This section provides for the Complainant under Sec 23 of the National Minimum Wage Act to request a written statement of his average hourly rate of pay.
CA 3039 -018 The contract failed to advise of the provisions of SI 49/1998 referring to Sec 12 of the organisation of Working Time Act. CA 3039- 019 The contract failed to advise of the provisions of SI 49/1998 referring to Sec 13 of the organisation of Working Time Act. Each breach a separate claim The Complainant stated that each and every complaint issued to the Workplace Relations Commission in relation to breach of Sec 3 and 5 constitutes a separate and distinct complaint for breach of which compensation of up to four weeks can be awarded. |
Summary of Respondent’s Case:
CA 3039- 005 The Company changed location of its registered address in January 2014. All employees were notified of this via noticeboards. Page 2 of this notice has the new address. This is rejected. CA 3039- 012 The Respondent stated that this information is given upon the making of a Sec 23 of the National Minimum Wage Act request. CA 3039-013 The Respondent stated that as per sec 7 of the contract it advised that monthly rosters are supplied setting out the actual hours of work. CA 3039 – 016 The Respondent stated that S.I. 21/98 excludes the Respondent company from the requirements of Sec 3. So, information regarding Sec 11, 12 and 13 of the Organisation of Working Time Act are not required in law because they are exempted. They relied upon Coastal Line Container v SIPTU ELR I 2000. While it is not specifically provided for in the contract of employment the monthly roster specifically states the hours of work, the breaks and rest periods. CA 3039 -017 The Respondent stated that this complaint had not been particularised. In view of the Complainant’s level of earnings this claim is irrelevant and should be dismissed. CA 3039 -018 The Respondent stated that S.I. 21/98 excludes the Respondent company from the requirements of Sec 3. So, information regarding Sec 11, 12 and 13 of the Organisation of Working Time Act are not required in law because they are exempted. They relied upon Coastal Line Container v SIPTU ELR I 2000.The Respondent stated that while it is not specifically provided for in the contract of employment the monthly roster specifically states the hours of work, the breaks and rest periods. CA 3039- 019 Th The Respondent stated that S.I. 21/98 excludes the Respondent company from the requirements of Sec 3. So, information regarding Sec 11, 12 and 13 of the Organisation of Working Time Act are not required in law because they are exempted. They relied upon Coastal Line Container v SIPTU ELR I 2000.e Respondent stated that while it is not specifically provided for in the contract of employment the monthly roster specifically states the hours of work, the breaks and rest periods. |
Findings and Conclusions:
CA 3039- 005 I find that this change took place in January 2014. This claim was presented to the Commission on 3rd March 2016. I find that according to Sec 41 (8) of the Workplace Relations Act it states, “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonablecause. However, I refer to the Labour Court decisions TED 187 Merchants Arch Restaurants Company Ltd v Felix Guerrero and TED1718 Morehampton Foods v Dean Gibbons in which the Court has taken the position that while the complaint was over 23 months and 15 months respectively after Sec 3 should have been complied with, it was not out of time. The Court has taken the position that the breach continues until the Act is complied with. Therefore, I have jurisdiction to deal with this complaint. I find that the Respondent had notified its employees of this change via the noticeboards it did not confirm in writing to the Complainant within one month after the change as is required by Sec 5. As this is an information act I find that the information was conveyed to the employees. Therefore, I find that it was at most a technical breach of Sec 5 of the Act.
CA 3039- 012 I find that the contract of employment does not expressly state that the employee may request a statement of his average earnings pursuant to s.23 of the Act of 2000. I note that the Complainant is paid €2,490 per month, €29,880 per annum = €574.61 per week = €14.73 per hour based on 39 hours per week. Section 23(2) of the National Minimum Wage Act 2000 provides: - An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20 , or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious. Labour Court Decision TED161 Patrick Hall V Irish Water stated, “in the circumstances of the Complainant’s employment (in which his salary was fixed at over 500% of the national minimum wage) this information, if furnished, could have no practical significance. The Complainant was precluded by s.2 of the Act of 2000 from seeking a statement pursuant to s.23 of that Act and any such request, if made, could only be frivolous or vexatious”. In this case I find that the Complainant’s rate of pay was in excess of 150 % of the national minimum wage. Therefore, this claim is precluded by Sec 23(2) of the National Minimum Wage Act 2000 and so it is frivolous and vexatious. CA 3039-013 I find that the contract of employment did not set out the actual hours of work e.g. full time 39 hours per week. However, I note that the practice is that a monthly roster is issued in advance with the actual hours of work. I find that he knew that he was a full time employee. I find that this is an information Act. I find that while the contract did not provide that information the monthly rosters did. I find that the Respondent has met its obligations and this claim is rejected. CA 3039 – 016 I find that SI 49/1998 is not referred to in the contract of employment. I note that the monthly rosters provide detailed information of actual hours of work, breaks and rest breaks. I find that this is an information Act. I find that while the contract did not provide that information the monthly rosters did. I find that the Respondent has met its obligations and this claim is rejected. CA 3039 -017 I note that Sec 3 g)a) states “an employee may under Sec 23 of the National Minimum Wage Act 200 request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section” . I refer to the findings in 013 above. In view that the Complainant’s rate of pay was 150 % of the minimum wage I find that this claim has no relevance to him. I find that the complaint is frivolous and vexatious. CA 3039 -018 I find that SI 49/1998 is not referred to in the contract of employment. I note that the monthly rosters provide detailed information of actual hours of work, breaks and rest breaks. I find that this is an information Act. I find that while the contract did not provide that information the monthly rosters did. I I find that the Respondent has met its obligations and this claim is rejected. CA 3039- 019 I find that SI 49/1998 is not referred to in the contract of employment. I note that the monthly rosters provide detailed information of actual hours of work, breaks and rest breaks. I find that this is an information Act. I find that while the contract did not provide that information the monthly rosters did. I find that the Respondent has met its obligations and this claim is rejected. Each breach a separate claim I note that the Complainant is seeking that each and every complaint issued to the Workplace Relations Commission in relation to breaches of subsections of Sec 3 and 5 constitutes separate and distinct complaints for breaches of which compensation of up to four weeks can be awarded. I refer to the Labour Court Determination TED1719 which stated,”The Complainant seeks to rely on each of those shortcomings as an individual cause of action. The Court does not accept that view. The requirement on an employer is to fully comply with section 3 of the Act and issue an employee with a contract of employment that meets all of the requirements of the section. Where it fails to do so, it infringes the Act. In this case the Respondent failed in a number of respects. However, it did not fail to issue the Complainant with 9 contracts of employment. It failed to provide him with one contract of employment that was deficient in respect of 9 requirements of the Act”. Therefore, I find that the maximum award of compensation is up to four weeks’ pay in total for breaches of Sec 3 of this Act. |
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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 3039- 005
In respect of this claim I have decided that the Respondent has breached Sec 5 of this Act.
As per Sec 7(2) (c) of the Terms of Employment (Information) Act 1994 I require the Respondent to give the Complainant a statement in writing containing the reference to the registered address of the Respondent.
This is to be done within six weeks of the date below.
In respect of the other complaints as set out above I have decided that they fail for the above stated reasons.
2)Organisation of Working Time Act
Complainant’s request to extend the time limit
The Complainant has been on sick leave since August 2015. The reason for this absence is work related depression. He was instructed by his Doctors not to contact the Company, not to think of it. His illness was so severe that he had problems getting from his bed. His flat mate assisted him to visit doctors and send e-mails, e-mails were written by his flat mate and sent by him to the Company. It was in February / early March 2016 and on his flat mate’s insistence he contacted his representative. Claims were lodged without delay on 3rd March 2016. He cited the Court of Appeal in support, Case 2014/1326. This is a case of reasonable cause which creates a bar not nearly as high as exceptional circumstances which existed in the case 2014/1326. His predicament was such that it prevented him from pressing his claims within the 6 months of the alleged breaches taking place. The rights stipulated in the Directive are fundamental social rights as well as health and safety provisions. He has called upon the Adjudicator to exercise his jurisdiction and entertain the complaints that were lodged within 12 months of the alleged breaches. He responded that he didn’t mention physical matters because they would not prevent the presentation of claims.
Respondents position on this request to extend the time limit
The Respondent stated that the Complainant didn’t establish when the Complainant went to a psychiatrist. The Adjudicator must be satisfied that the grounds were such that this alleged illness actually prevented him from presenting the claims. The Psychiatrist letter is not sustainable, there must be direct evidence given to the hearing. The 2015 letter referred to by the Complainant does not support his unavailability. He did not explain what occurred in February /March 2016 that allowed him to make the claims. On 27th September, the Complainant’s house mate e-mailed the company to advise that he was ill and depressed. On 8th October, he e-mailed the company enquiring about sick pay and medical certification. On 18th October, he emailed the company advising that he was unable to attend an in-house meeting but offered to meet in his home. No medical evidence was supplied to support his contention. On 28th October, he e-mailed the company requesting that they explain why he was not getting sick pay. On 25th January, he met with the company. On 22nd February 2016 he e-mailed the company and this continued after he lodged complaints in March with the WRC. A personal injury complaint was issued recently, there was no reference to depression. Was it a physical injury which caused the depression? There is contradictory evidence, physical injury versus mental issues. He has not explained that he had such a mental impairment that it prevented him presenting claims. No disability took place in Easter, May or June, July or August. So, he could have taken claims then but he didn’t. This request to extend the time limit is rejected.
Decision on request to extend the Time limit
I note that the Labour Court in the Cementation Skanska V Carroll DWT0342 regarding a request to extend the time limit stated, “ in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”
I note the Complainant first went to his doctor/psychiatrist on 15th August 2015.
I have considered the positions of both parties and the medical evidence.
I note that the Complainant communicated with the company regularly enquiring about his sick pay, from 27th September to beyond March 2016.
While I note that he failed to attend at four meetings arranged by the company he did meet up with them on 25th January 2016.
Under the circumstances, I see no evidence to support a request to extend the time limit as he had been in contact with the company and was using e-mail.
I see no reason why he could not have made an online claim to the WRC.
I find that he has failed to explain the delay and to give a satisfactory reason for it.
In view of this I have decided not to grant the extension.
These complaints were presented to the Commission on 3rd March 2016, therefore the period that may be investigated is 4th September 2015 to 3rd March 2016.
Summary of Complainant’s Case:
CA 3039 -002
The Complainant stated that he did not get compensated for the Public Holiday in October 2015. He accepts that he was paid for it at termination, but they were not paid when due. The economic value of the Public Holiday did not reflect the impact of the Sunday premium. If the Respondent adds Public Holidays to holidays, then there is no basis to this claim.
CA 3039-003
He has claimed a breach of Sec 21 and 22 in respect of Public Holidays March 17th; Easter Monday 2015; May 2015; June 2015 and August 2015. He accepts that he was paid for it at termination, but they were no paid when due. The economic value of the Public Holiday did not reflect the impact of the Sunday premium. If the Respondent adds Public Holidays to holidays, then there is no basis to this claim.
CA 3039 004
He has claimed a breach of Section 19 and 20 in respect of annual leave for the year 1st April 2015 to 31st March 2016. At the hearing, he withdrew the claim in respect of Sec 19. This claim is in respect of not being paid holiday pay in advance. He received 9 days’ holidays in July 2015 and was not paid in advance. He did not receive an element of pay that incorporated a premium for Sunday working.
CA 3039 007
The Complainant stated that between 4th March 2015 and August 2015 he worked the following Sundays; March 8, 29, April 5, 16, May 3,10,24,31, June 7,28, July 12, 26, August 2 and 9. He was not in receipt of a Sunday premium. Even if he was in receipt of a premium, which he says he was not it was not reasonable in the circumstances. While the contract states that he was in receipt of a premium but when a Sec 23 request was made, it makes no reference to a premium. Therefore, it was not paid.
CA 3039 008
The Complainant has claimed a breach of Sec 19 and 20 in respect of the leave year ending 31st March 2015. He was not given two weeks of unbroken annual leave.
CA 3039 009
He has claimed a breach of Sec 17. He stated that while his shifts were 6.00am to 2.30pm: 2.00pm to 10.30p: 3.30pm to 12.30am he never actually worked these shifts. In the less busy periods March to May 2015 at least once a week he had to stay longer. In the busy periods, June to mid-August his shifts changed up to three times a week. He did not get the required 24 hour notice.
CA 3039 010
He has claimed a breach of Sec 12. He stated that he was often required to work protracted periods of time in excess of 6 hours without allowing him a break provided for in this Section. Records were requested and no records showing compliance with the Act have been furnished. He stated that there were no scheduled breaks, when there was downtime he was told to grab something to eat. Downtime could last 10 minutes sometimes 40 minutes. He had to stay on the premises as he could be called upon and he often was.
CA 3039 011
The Complainant stated that he did not get compensated for the Public Holiday on December 25th 2015. He accepts that he was paid for it at termination, but they were no paid when due. The economic value of the Public Holiday did not reflect the impact of the Sunday premium. If the Respondent adds Public Holidays to holidays then there is no basis to this claim.
CA 3039 014
The Complainant stated that he did not get compensated for the Public Holiday on December 26th 2015. He accepts that he was paid for it at termination, but they were no paid when due. The economic value of the Public Holiday did not reflect the impact of the Sunday premium. If the Respondent adds Public Holidays to holidays then there is no basis to this claim.
CA 3039 015
The Complainant stated that he did not get compensated for the Public Holiday on 1st January 2016. He accepts that he was paid for it at termination, but they were no paid when due. The economic value of the Public Holiday did not reflect the impact of the Sunday premium. If the Respondent adds Public Holidays to holidays then there is no basis to this claim.
Summary of Respondent’s Case:
CA 3039 -002
This claim is statute barred. Public Holidays are added to holidays and so became due at cessation of employment. Also, the Public Holiday was paid upon termination of employment. The contract of employment states that “your salary has been calculated to take account of this and includes a premium for Sunday work”.
CA 3039-003
This claim is statute barred. Public Holidays are added to holidays and so became due at cessation of employment Also, the Public Holiday was paid upon termination of employment. The contract of employment states that “your salary has been calculated to take account of this and includes a premium for Sunday work”.
CA 3039 004
This claim is statute barred. The Complainant was paid monthly. No monthly staff receive payment is advance for holidays. This is rejected.
CA 3039 007
This claim is statute barred. He was paid an all-inclusive salary and the contract of employment stated; “your salary has been calculated to take account of this and includes a premium for Sunday work”. This is rejected.
CA 3039 008
This is statute barred. The Respondent stated that the Complainant requested and received a more favourable holiday treatment. There is no basis for this complaint.
CA 3039 009
This claim is statute barred.
The Respondent stated that his contract of employment provides for “irregular hours is a condition of employment”,” You must be prepared to work additional hours when requested, your salary has been calculated to take account of this”. This is the nature of this business. The claim is rejected.
CA 3039 010
This claim is statute barred.
The Respondent stated that the Respondent company is exempted by S.I.21/1998. They are not obliged to go beyond this. They don’t have actual records of breaks. Because of the uncertainty of flights breaks are exempted. However, all employees receive adequate breaks.
CA 3039 011
Public Holidays are added to holidays and so became due at cessation of employment. The Public Holiday was paid upon termination of employment. The contract of employment states that “your salary has been calculated to take account of this and includes a premium for Sunday work”.
CA 3039 014
Public Holidays are added to holidays and so became due at cessation of employment. The Public Holiday was paid upon termination of employment. The contract of employment states that “your salary has been calculated to take account of this and includes a premium for Sunday work”.
CA 3039 015
Public Holidays are added to holidays and so became due at cessation of employment. The Public Holiday was paid upon termination of employment. The contract of employment states that “your salary has been calculated to take account of this and includes a premium for Sunday work”.
Findings and Conclusions
CA 3039 -002
I find that this claim refers to the Public Holiday in October 2015. This claim is not statute barred.
I note the Respondent’s practice of adding Public Holidays to holidays and so became due at cessation of employment.
I note the Complainant’s acceptance that if this was the practice then there was no basis to this claim.
I note that this Public Holiday in October 2015 was compensated upon termination.
I also note that the contract provided for a salary that included a premium for working Sundays. Therefore, I find that the Complainant was properly compensated for the Public holiday.
I find that this part of the claim fails.
CA 3039-003
I find that this claim refers to the Public Holidays March 17th; Easter Monday 2015; May 2015; June 2015 and August 2015.
These complaints were presented to the Commission on 3rd March 2016, therefore the period that may be investigated is 4th September 2015 to 3rd March 2016.
I find that this part of the claim fails as it is outside the time limit and I do not have jurisdiction to deal with it.
CA 3039 004
I note that this complaint is in respect of holidays granted in July 2015.
This complaint was presented to the Commission on 3rd March 2016, therefore the period that may be investigated is 4th September 2015 to 3rd March 2016.
I find that this part of the claim fails as it is outside the time limit and I do not have jurisdiction to deal with it.
CA 3039 007
This complaint was presented to the Commission on 3rd March 2016, therefore the period that may be investigated is 4th September 2015 to 3rd March 2016.
I find that this part of the claim fails as it is outside the time limit and I do not have jurisdiction to deal with it.
CA 3039 008
I note that this complaint is in respect of the holiday year 1st April 2014 to 31st March 2015.
This complaint was presented to the Commission on 3rd March 2016, therefore the period that may be investigated is 4th September 2015 to 3rd March 2016.
I find that this part of the claim fails as it is outside the time limit and I do not have jurisdiction to deal with it.
CA 3039 009
This complaint was presented to the Commission on 3rd March 2016, therefore the period that may be investigated is 4th September 2015 to 3rd March 2016.
This complaint refers to a period up to mid-August 2015.
I find that this part of the claim fails as it is outside the time limit and I do not have jurisdiction to deal with it.
CA 3039 010
This complaint was presented to the Commission on 3rd March 2016, therefore the period that may be investigated is 4th September 2015 to 3rd March 2016.
This complaint refers to a period up to mid-August 2015.
I find that this part of the claim fails as it is outside the time limit and I do not have jurisdiction to deal with it.
CA 3039 011
I note the Respondent’s practice of adding Public Holidays to holidays and so became due at cessation of employment.
I note the Complainant’s acceptance that if this was the practice then there was no basis to this claim.
I note that this Public Holiday December 25th 2015 was compensated upon termination.
I also note that the contract of employment provided for a salary that included a premium for working Sundays. Therefore, I find that the Complainant was properly compensated for the Public holiday.
I find that this part of the claim fails.
CA 3039 014
I note the Respondent’s practice of adding Public Holidays to holidays and so became due at cessation of employment.
I note the Complainant’s acceptance that if this was the practice then there was no basis to this claim.
I note that this Public Holiday December 26th was compensated upon termination.
I also note that the contract of employment provided for a salary that included a premium for working Sundays. Therefore, I find that the Complainant was properly compensated for the Public holiday.
I find that this part of the claim fails.
CA 3039 015
I note the Respondent’s practice of adding Public Holidays to holidays and so became due at cessation of employment.
I note the Complainant’s acceptance that if this was the practice then there was no basis to this claim.
I note that this Public Holiday January 1st 2016 was compensated upon termination.
I also note that the contract of employment provided for a salary that included a premium for working Sundays. Therefore, I find that the Complainant was properly compensated for the Public holiday.
I find that this part of the claim 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.
For the above stated reasons, I have decided that these claims fail.
3)Payment of WagesSummary of Complainant’s Case:
CA 3039 001/006 The Complainant has claimed a breach of this Act. He stated that he is entitled to be paid during sick leave. He has been on sick leave since August 2015 and has not received sick pay. He has claimed €2,490 X 6 months = €14,940 gross or €2004.81 X 6 = €12,028.86 net. The sick pay scheme is referred to in the contract as non-contractual. He stated that there is a custom and practice to pay up to six months’ sick pay. On that basis, he is claiming that there was an illegal deduction of the amount claimed.
Summary of Respondent’s Case:CA 3039 001/006 The Respondent stated that this claim appears to be based on custom and practice rather than a contractual entitlement. They stated that all employees will receive up to 6 months’ sick pay subject complying with company requirements. The Complainant went out sick on 15th August 2015. He was paid up to 31st August 2015. He was then asked to attend the company doctor and a meeting was requested with the company but he did not attend and didn’t reply. The Respondent wrote to him on 20th August 2015 requesting him to attend the company doctor and he attended. On 9th September, the company invited him to an in-house meeting but he did not attend. On 15th September 2015, the company wrote to him again expressing concern at his non-attendance and set a date for 17th September meeting and clearly stated that the scheme was a discretionary scheme. He did not attend. On 27th September, a friend of his e-mailed the company to advise that he was ill and depressed. On 8th October, the Complainant wrote to the company enquiring about sick pay and medical certificates. On 15th October, the company replied to him explaining their position and referred to his “non- eligibility” and the rescheduled the meeting for 19th October 2015. On 18th October, he e-mailed the company that he was unable to attend an in-company meeting and asked management to come to his home if necessary. The company did not respond to that mail. On 28th October, he wrote again requesting an explanation why he was not getting sick pay. On 28th October, the Respondent replied to him and advised that he had failed to attend at three in house meetings, which were called to ascertain whether he was entitled to sick pay. They rescheduled the meeting for 2nd November 2015. On 30th October, he emailed to advise that he was unable to attend and requested them to meet him in his home on 2nd November. On 2nd November, the Respondent wrote to the Complainant to advise him that the sick pay had been stopped because he had failed to attend the arranged meetings, they repeated their position in writing. They confirmed that his sick pay was stopped with effect from 1st September because he failed to attend at meetings. The company do not carry out home visits. No medical evidence was supplied that he couldn’t attend an in-house meeting. The Complainant didn’t adhere to company requirements so they used their discretion not to pay sick pay. On 21st January 2016, the Respondent wrote to the Complainant and restated their position. On 25th January, the Complainant met with the company at an independent venue. At this meeting the Complainant was very vague with his answers. He requested the Respondent to supply a list of questions. The Respondent wrote to him on 17th February 2016 setting out its position and commented on his concerns. On 22nd February 2016 the Complainant emailed the company and this exchange continued beyond the submitting of claims in March 2016 to the WRC. The Respondent had been anxious to investigate the medical certificate referring to workplace depression but they were prevented from doing so because he would not cooperate with the investigation. This claim is rejected because the Complainant does not have a contractual entitlement to sick pay. They reject that he has workplace depression. He failed to attend four meetings requested by the company. They eventually met outside the business premises and he gave no satisfactory evidence to support his opposition. They decided to stop the sick pay because he refused to engage with them. They cited the company policy on absence “Fact Sheet 3 Absence from work”, it states, NB you cannot be considered for discretionary sickness benefits if: you fail to attend meetings.
Findings and ConclusionsI note that both CA 3039 001 and 006 are the same in respect of sick pay. I note that the Complainant went out sick in August 2015 and he was paid to the end of the month. I note that in keeping with company policy the company scheduled meetings with him to ascertain his eligibility for the sick pay scheme. I note that he failed to attend the company doctor once and failed to meet with the company on four occasions. I note the policy as set out in the Absence from Work Fact Sheet NB you cannot be considered for discretionary sickness benefits if: you fail to attend meetings. I find that the Complainant failed to attend meetings with the company and so failed to adhere to company policy. In order to succeed with a claim under the Payment of Wages Act you have to establish a contractual entitlement to the monies claimed. I find that the Complainant has not established that right. I note that this is a discretionary scheme and is subject to adherence to company policy. I find that the Complainant has failed to adhere to company policy and was uncooperative with the company. I find that he has not established a right to sick pay.
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. For the above stated reasons, I have decided that the Complainant was not entitled to sick pay. I have decided that the Respondent did not make illegal deductions from the Complainant’s wages. I have decided that this complaint fails. |
Dated: 4th September 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
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