Complainant

Respondent

Parties

Isaac  Hayes

Ralerno Hotels Ltd

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00069850-001

07/03/2025

The complainant submits that the respondent had failed to pay him sick pay when he submitted his sick cert.

The complainant submits that he commenced employment on 31/07/2024 on an hourly rate of €16.  He was unwell on 12/02/2025 and 13/02/2025 and advised Mr Lowe of this and advised that he would submit a sick cert.  He noticed on his return to work on Tuesday 18/02/2025 that 2 accrued public holidays had been used to cover his wages without consent and he provided a hard copy of the sick cert to hr and asked why this had happened.  Mr Flynn of HR said they were unaware and asked Mr Lowe who said he did it to help the complainant.  Two weeks later the complainant still had not received the public holidays back or statutory sick pay and he handed in his notice formally on 04/03/2025 and worked his last day on the 06/03/2025 and that Mr Lowe had told other managers and the pay slips do not clearly set out what his pay was.  it was his expectation that he would receive the correct monies in his bank account on 27/02/2025 but it did not appear until 13/03/2025 after he had resigned his position. 

His evidence was that he did not receive acceptable terms and conditions of employment and no company handbook and returned his contract unsigned owing to this and he accepted that he did not expect sick pay until production of sick certs and that the earliest he would have received sick pay was 27/02/2025.  He accepted that he was not at the loss of pay as the respondent had used public holiday accrual and his evidence was that he did not request this, or want this to be used as he was utilising his statutory entitlement to sick pay and that the respondent should not have used public holiday accrual.

It was clear from his communication to Mr Lowe that it was sick leave he was availing of and he provided a sick cert on his return and it was not possible for him to issue the sick cert any earlier as he was unwell.  Mr Lowe demanded to know why he went to HR about it and that Mr Lowe said he was doing him a favour by putting the pay through as public holidays. 

Under cross examination he confirmed that he had been paid eventually his statutory entitlement and that sick certs were issued on his return to work.

The respondent submitted that the complainant had not been at the loss of pay and that the respondent through errors had failed to pay sick pay and that some employees prefer to utilise holiday pay for any absence due to sickness.  The respondent’s handbook outlines that:

“Employees are entitled to 3 days sick pay at 70% of their usual rate. A sick cert from a registered Doctor must be provided to qualify for sick pay. In the event of absence from work, you are required to contact the Manager on duty as soon as possible or at least 3 hours before your normal starting time on the first day of illness (it is not sufficient to send a text message or a message via a colleague). A certificate from a qualified Medical Practitioner must be submitted on the 2nd day of a continuous absence and on a weekly basis after that. Failure to provide a sick cert can result in disciplinary act”

The Evidence of Mr Flynn was that his role is that when he is advised of what monies are to be paid to employees, he signs off on this.  It was an oversight on his behalf not to ensure that the complainant’s sick pay was processed when the sick certs were received.  Pay roll is signed off on the Monday following the previous week and would appear in employees’ bank account normally the Thursday.  The sick cert was received on 19/02/2025 and therefore the earliest it could be processed through sick pay was for 24/02/2025 which would appear in complainant’s bank account around Thursday 27/02/2025.  Due to an error by Mr Flynn, this did not happen but Mr Hayes did get the benefit financially for his absence.

Under cross examination Mr Flynn confirmed that the complainant told him that his public holiday accrual had been used and that when the complainant left he was in a negative balance regarding public holidays.  The complainant was paid on 13/03/2025, 2 weeks later than he should have been but was not financially negatively impacted.  He denied that the complainant was punished by the manner in which the respondent dealt with the matter and that the respondent would have had to seek back payment from the complainant for the public holidays paid.  He denied that Mr Lowe is on a bonus based on the respondent’s wage costs.

Evidence of Mr Lowe was that he was informed by telephone messaging that the complainant was sick and that he would send a sick cert but did not get a sick cert that week.  Employees often ask him to use their holidays if they are out sick and he apologised to the complainant.  He does not have the complainant’s messages anymore as he deletes them as it is his personal phone and that sometimes employees send him photos of sick certs but the complainant did not.  The hotel does have a sick pay policy but he was not sure what it details in it.

Under cross examination Mr Lowe confirmed that he knew the complainant was sick on 12/02/2025 and 13/02/2025 and could not recall if the complainant said he wanted to use the sick pay entitlement.  He told the complainant that he could have gone to Mr Lowe initially as his line manager regarding the pay and that he did not think the complainant had a sick cert and processed it through public holiday accrual as sometimes that is what employees want.  He denied that the complainant repeatedly asked him to correct it and said he was asked once and that Mr Lowe then went to HR to resolve and denied he discussed the matter with other managers. 

The complainant submits that the respondent utilised public holiday accrual for sick pay and that this was a breach of the Act and the respondent failed to rectify this in a timely manner despite his repeated requests.  The respondents submits that the complainant was not financially negatively impacted and that the matter was rectified.

Under Section 11(2) the Act provides:

(2) Absence from employment while on statutory sick leave shall not be treated as part of any other leave from employment (including annual leave, maternity leave, additional maternity leave, leave under section 16 (1) and (4) of the Maternity Protection Act 1994 , adoptive leave within the meaning of the Adoptive Leave Act 1995 , additional adoptive leave within the meaning of the Adoptive Leave Act 1995 , paternity leave, transferred paternity leave and parent’s leave) to which the employee concerned is entitled.

Under Section 14 the Act provides:

14. (1) Where an employee believes that his or her employer has failed to comply with the provisions of this Act, the employee may make a complaint in accordance with Part 4 of the Act of 2015.

(2) A decision of an adjudication officer under section 41 of the Act of 2015 in relation to a complaint or dispute between an employee and an employer concerning the employee’s entitlement under this Act may include an award of compensation (in favour of the employee concerned to be paid by the employer concerned) of such amount, as the adjudication officer considers just and equitable having regard to all the circumstances but shall not exceed 4 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed.

The respondent accepted that the complainant’s absence while on sick leave was treated as other leave and I note that the complainant was not financially negatively impacted albeit there was a breach of the Act and it would appear that it caused some upset to the complainant.  In all the circumstances I find that the complaint is well founded and award the complainant €100 which I find to be just and equitable having regard to all the circumstances.

In all the circumstances I find that the complaint is well founded and award the complainant €100 which I find to be just and equitable having regard to all the circumstances.

Sick leave, pay and public holidays