Complainant

Respondent

Anonymised Parties

An Employee

A Government Body

Representatives

Ms. M P Guinness, BL instructed by Ms. J Murray, Chief State Solicitors

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-00065134-001

01/08/2024

The Complainant, an employee of the Respondent contended that the Respondent had not paid him or had paid him less than the amount due to him in relation to his application for Domestic Violence leave on 28 January 2024.

The Respondent is a public service organisation who refuted the complaint and who instead contended that the Complainant was correctly paid.

In his complaint form, the Complainant stated that he had to take a domestic violence leave day on 28 January 2024.  He stated that the legislation under the procedure includes that all Sunday allowances be included in the pay.  He further stated that the Work Life Balance and Miscellaneous Provisions Act 2023, SI 574, section 7, subsection 6 (c) states that “subject to the maximum daily amount specified in accordance with paragraph (a), specify basic pay and any pay in excess of basic pay in respect of shift work, piece work, unsocial hours worked or hours worked on a Sunday, allowances, emoluments, premium pay (or its equivalent), or any other payment as the Minister considers appropriate, that are to be taken into account in the calculation of domestic violence leave pay”.  He stated that the Respondent published the policy on this leave and in that policy it stated that “during an absence on domestic violence leave, an officer is deemed for all purposes to be in employment”. 

The Complainant stated that he was seeking pay for the allowances that were held back in relation to that day.  He stated that holding back such allowances were not within the spirit of Statutory Incident 574.  He stated that he appealed the decision of HR in his workplace and was asked for the reasons why it was not being paid.  However he stated that the Respondent would not engage with him and had not answered his queries thus far.  In that context he was now making application for the non-payment of his day and he stated that he acknowledged that this was outside of the six month for decision or investigation.  He noted that the money was payable to him on 21 February 2024 and that he submitted his complaint on 3 July 2024.  He stated that in error when submitting his complaint, he had clicked on the section to submit his complaint to the Inspector of Investigations instead of Adjudication.  He stated that in that context he had to resubmit this complaint under the correct heading of Section 6 of the Payment of Wages Act.  He stated that he was not trained in WRC relations or disputes and he apologised for the error.  He stated that the Inspector wrote to him on 19 July to his place of work, but that the letter did not reach him until the date on which he submitted his complaint which was 1 August 2024. 

In his submission the Complainant outlined that he was seeking adjudication by the Workplace Relations Commissions under Section 6 of the Payment of Wages Act, 1991, where the amounts he believed payable and due to him as a result of the allowances in relation to the recently taken special leave application.  He submitted that in relation to the days leave taken, that basic pay only was paid, allowances and relevant pay was not, and as a result adjudication in the matter. 

The Complainant drew attention to three documents as follows:

1.      The primary legislation – the Work Life Balance and Miscellaneous Provisions act, 2023

2.      The Statutory Instrument SI 574/2003 Parental Leave Act, 1998 (section 13AA) (prescribed daily rate of domestic violence leave pay) Regulation 2023

3.      The relevant circular to employees of the Minister … Domestic Violence Leave published 22 September 2023

In relation to the Work Life Balance and Miscellaneous Provisions Act, 2023, the Complainant drew attention to section 7 of the Act, which states “An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as ‘domestic violence leave’”.  He also drew attention to Statutory Instrument SI 574/2003 Parental Leave Act, 1998, (section 13AA) (prescribed daily rate of domestic violence leave pay) Regulation 2023, which stated that the Minister may make regulations for the purpose of prescribing the daily rate of domestic violence leave pay, which may – subject to the maximum daily amount specified, in accordance with paragraph (a) specify basic pay and any pay in excess of basic pay in respect of shift work, piece work, unsocial hours worked or hours worked on a Sunday, allowances, emoluments, premium pay (or its equivalent), or any other payment as the Minister considers appropriate, that are to be taken into account in the calculation of domestic violence leave pay”. 

The Complainant submitted that the Minister made regulations as mandated by the Act and set out in Statutory Instrument 574/2003, Section 2(ii) (a) as follows: “the gross amount payable in respect of any day on which the employee is absent from work on domestic violence leave shall be the sum that is equal to 100% of the average hourly rate of pay (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime or commission) paid to the employee in respect of the normal daily hours last worked by him or her before the day on which the employee was so absent.”

The Complainant also noted the governing circular and the policy document which states that: “during an absence on domestic violence leave, an officer is deemed for all purposes to be in employment”. 

The Complainant submitted that in the circumstances, the mandated language used in both the primary act and the regulations that the Employer must provide that 100% of the allowances for the day when the leave was taken and recognised by the Minister as such, that all allowances payable be paid.  In those circumstances the Complainant submitted that the Respondent had erred in their interpretation of the Act and the regulations and he submitted that the only interpretation that can be made from the legislation, regulations and the published policy documents of the Employer, is that all allowances shall be paid when an employee exercises his leave day(s).  The Complainant appended the relevant legislation and documents to his submission. 

Complainant’s evidence at hearing:

The Complainant gave evidence that he applied for a domestic violence leave day on 28 January 2024 and that he would have been due to have been paid for that leave on 21 February 2024.  His evidence was that he was paid the basic rate for the day only.  He confirmed that this a Sunday and that he should have received a Sunday premium payment.  He submitted that the spirit of the law was that wages would not change in circumstances where an individual claimed a domestic violence leave day. 

At hearing he confirmed that he worked a set roster and that as part of that roster, he works one Sunday in every two weeks.  He acknowledged that in circumstances where an individual was on sick leave, they would not get paid as it is only an allowance paid when in attendance, however, he stated that domestic violence leave was entirely different. 

Under cross examination the Complainant confirmed that he had phoned the person on duty on the day to advise them that he was taking domestic violence leave and he confirmed that the phone call took place in or around 09:45am.  In response to a question put by the Respondent representative, he confirmed that he did receive a welfare check later that morning and that when he picked up the message he then rang back.  He indicated that this was his second phone call made on the same morning.  He confirmed that there was a visit to a doctor on a Sunday and he confirmed that domestic violence could be taken not just for himself, but for a dependent person.  He confirmed that he did not give that information on the phone call on the day. 

Complainant’s Supplemental Submission

The Complainant provided a supplemental submission to the WRC on 21 July 2025, having received the Respondent’s written submission. He outlined that his claim submitted was made on the net point that an allowance (in this instance a Sunday allowance) was payable under the Act and the Regulations.

He further submitted that the Respondent had raised matters not relevant to the claim, particularly those points in relation to his eligibility for receipt of the Domestic Violence Leave pay.  He submitted that the application was already accepted and signed by a Human Resources Officer on 29.01.24 and was paid a standard rate of pay. He submitted that if it was the case that the Respondent was seeking to resile from the position of acceptance 15 months after processing and accepting a claim under the legislation on the morning of a hearing where the approach that seemed to be adopted was one where the Respondent was attempting to resile from their acceptance and approval with no notice to the Claimant and attempt to cause maximum embarrassment for the claimant.

The Complainant submitted that the Respondent was not entitled to make out that case and call evidence as to the entitlement to the leave. It had already accepted and approved and the Respondent had never communicated in correspondence or otherwise to that effect. In such circumstances he submitted that the Respondent was prevented or estopped from so doing.

The Complainant confirmed that he was applying for this hearing in relation to the 1 leave application made on the 29th of January 2024 for the date of the 28th of January 2024. He submitted that the leave had been legislated and regulated and that it was a matter for the WRC to adjudicate on in relation to whether an allowance was payable and nothing further is for determination.

Anonymisation of the Decision

The Complainant submitted that the confidentiality and anonymisation in relation to this hearing, given the nature of the leave applied for and in the spirit of the legislation and the reasons for its passage by the Oireachtas, should be granted.

He appended copies of the Law Library guidance in relation to Domestic Violence Leave, the WRC published guidelines in relation to Domestic Violence Leave, and the Data Protection policy extract in relation to Domestic Violence in support of his position.

In its’ submission, the Respondent noted that by complaint form received on 01/08/2024 the Complainant had lodged a complaint under Section 6 of the Payment of Wages Act and that he had confirmed that the date on which he should have received the disputed payment was 21/02/2024. It was further noted that he had to take a domestic violence leave day on 28/01/2024 and that it was his case that he has not been paid the correct amount in respect of that date.

The Respondent noted that in the last 12 months it had lost 1564 days to Domestic Violence leave.

The Respondent further noted as follows:

·       That on Sunday the 28th January 2024, the Complainant did not report for work. The Chief Officer, who was on duty, reported this to the Duty Officer. When he had still not appeared by 10am, the Chief Officer telephoned him as a welfare check and to inform him that as it was past 10am and he had not reported in his post and that his post had therefore been filled. As a result, he should not now report for duty. The Complainant, having not reported for duty and being informed his post was filled, then phoned the Duty Officer between 11.30 and 12.30 and informed him that he would be availing of Domestic Violence leave. When he was next on duty, he completed the relevant form and gave no further information.

·       That there was no dispute surrounding the fact that the Complainant applied for domestic violence leave pay. As the Applicant provided no information or details, while the application was processed at the time, the Respondent submitted that this processing was not an acceptance that the Applicant met legislative criterion to be entitled to Domestic Leave Pay. Nor did the Respondent reject the proposition that the Applicant met the criterion to be entitled to Domestic Leave Pay. It remained unclear to the Respondent and in those circumstances the Respondent submitted that the Applicant must establish his entitlement per the legislation before the issue of pay could be considered.

·       That the day in which he took the special leave was 28/01/2024 and this was processed on 29/01/2024.  The Respondent noted that the relevant legislation was as set out in the Complainant’s own submissions and that what was at issue was the pay applicable to the Complainant absent on domestic violence leave.  

That this is governed by Section 13AA(5) of the Parental Leave Act 1998, as amended which requires the employer to pay “a prescribed rate of pay”. The relevant definition of prescribed pay is set out in S1274 of 2023 Parental Leave Act 1998 (Prescribed Daily Rate of Domestic Violence Leave Pay) Regulations 2023. The relevant definition of prescribed pay is set out in SI274 of 2023 in the following terms:

(a)    If the employee’s pay is calculated by reference to:

(i)                  A fixed wage, salary, allowance or bonus for each week, month or any other fixed period, or

(ii)                A fixed hourly or other time rate for a set number of hours (or other period of time) per week, month or any other fixed period, the gross amount payable in respect of any day on which the employee is absent from work on domestic leave shall be 100% of the sum (including any regular bonus or allowance, the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime or commission) paid to the employee in respect of the normal daily hours last worked by him or her before the day on which the employee was so absent.

(b) The specific elements of pay are namely:

§  Basic pay which is clearly envisaged in the definition of prescribed pay.

§  Additional hours which is a contractual obligation and therefore it is submitted is included in prescribed pay.

§  Situational allowances which are regular allowances and therefore included in prescribed pay.

§  Random variable shift allowances.

The Respondent submitted that these random variable shift allowances are not guaranteed and depend on the variability of rosters and how rosters work out at any period of time. In order to be paid for a Sunday Allowance you must be at work on the relevant Sunday.

The Respondent further submitted that even if the Complainant satisfied the Adjudication Officer that he was entitled to the Domestic Leave the Sunday allowance was not properly payable.

Respondent Representative Concluding Remarks: 

Ms. Guinness confirmed that the Respondent was initially unclear in relation to the Complainant’s eligibility for the domestic violence leave as he had not provided evidence of his eligibility with his complaint.  She confirmed that the Complainant had been paid for the day’s leave and that he had now, at the hearing, provided clarity on his eligibility criteria and that the Respondent considered that matter closed. 

She confirmed that the only issue therefore for consideration was the question of the random, variable shift allowance and whether or not it is payable in circumstances where the employee is not in attendance.  She further confirmed that the Respondent was happy for the decision in the matter to be anonymised. 

In conclusion she drew attention to the relevant circular which stated “during an absence …. For all purposes in employment”.  She stated that in that context the Respondent believed that the payment for the domestic violence leave day was in the same spirit as maternity leave or sick leave, and in those circumstances, it had not been paid. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties, as well as information provided at hearing by the parties and their representatives. 

Preliminary Issue – Time limit

I noted that the Complainant took a Domestic Violence Day on 28 January 2024 and that he was due to be paid for that leave on 21 February 2024.  His complaint relates to the non-payment of a Sunday premium which he contends should have been paid to him on that date.  Therefore, his complaint relates to a breach of the Payment of Wages Act which he alleges occurred on 21 February 2024.  The Complainant lodged his complaint with the WRC adjudication service on 1 August 2024.

I noted the Complainant position that the complaint was late and I noted his explanation for that delay.

The Law

Section 41(6) of the Act provides that “An Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 Months, beginning on the date of the contravention to which the complaint relates.”

While the Respondent did not raise any issue in relation to the timeline for this complaint, for the avoidance of doubt, I confirm that the complaint is within time.

The Substantive Issue

Following cross examination of the Complainant at hearing I noted that the Complainant had provided clarity on his eligibility criteria for Domestic Violence Leave and that the Respondent considered that matter closed.  In those circumstances the only matter to be adjudicated upon is whether or not the Complainant was entitled to be paid a Sunday Premium in relation to that day.

It was common case that the Complainant availed of a Domestic Violence Leave day on Sunday 28 January 2024, that he completed the relevant application form, which was signed off by the HR Officer and processed for payment on 21 February 2024.

I noted the Complainant position that he worked a recurring roster, whereby he worked every second Sunday and that, based on the provision of the legislation, he was entitled to receive payment for his normal Sunday Premium allowance.

I noted the Respondent alternative position, that Sunday premium did not form part of the normal payment applicable to the employee, but was only applicable in circumstances where he was in attendance at work.

In this regard I noted the provisions of SI 574/2023 Section 2(ii) (a) which states as follows: “the gross amount payable in respect of any day on which the employee is absent from work on domestic violence leave shall be the sum that is equal to 100% of the average hourly rate of pay (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime or commission) paid to the employee in respect of the normal daily hours last worked by him or her before the day on which the employee was so absent.”

It is evident from the provisions of the legislation and from the Government guidance information that while an employee is on domestic violence leave, they must be regarded for all purposes relating to their employment as still working.  This is reflected in the organisations own policy where it states “During an absence on domestic violence leave, an officer is deemed for all purposes to be in employment.”

The Government Guidelines also refer to the importance of the pay for domestic violence leave not being separately identifiable on payslips through surveillance of their finances.  The guidelines rightly identify the risk of raising awareness that a victim/survivor had sought assistance should this occur.  It seems to me that the measure to ensure that 100% of normal pay is made would have the same effect and any noticeable change in pay could have a detrimental outcome.  In these circumstances I am satisfied that the principles governing the legislation point towards the processing of full pay in the circumstances.

The language of the legislation is also clear: it states that the gross amount payable for a day of domestic violence leave “shall be the sum that is equal to 100% of the average hourly rate of pay (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee…)  In the instant case the Complainant was in receipt of an allowance for Sunday working and this was not an ad hoc payment but rather was paid in relation to his regular, rostered and recurring attendance at work on every second Sunday.  When considered in conjunction with the principle that an employee must be regarded as still working, or as set out in the Respondent policy as “deemed for all purposes to be in employment” I must conclude that the Complainant was entitled to receive payment of his Sunday premium allowance.

In these circumstance, I find that the monetary value of the allowance, €325.31 is properly payable to the Complainant in accordance with the provisions of the Payment of Wages Act, 1991.

Anonymisation of the Decision

The Complainant had asked for this decision to be anonymised, and the Respondent put forward no objection to that course of action.

In view of the sensitivity giving rise to an application for Domestic Violence Leave I consider it to be, not just appropriate to accede to that request, but necessary to do so.  In these circumstances I have used my discretion to anonymise the decision.

I have found that the monetary value of the allowance, €325.31 is properly payable to the Complainant in accordance with the provisions of the Payment of Wages Act, 1991 and in those circumstances it is my decision that this complaint is well founded. Consequently, I direct the Respondent to make payment of that amount to the Complainant and to amend their processes accordingly.

Domestic violence leave, allowances, payment of wages