Complainant

Respondent

Parties

Beata  Kowalska

Securispeed Logistics Limited

Representatives

Eamonn O'Hanrahan, E.M. O'Hanrahan Solicitors.

Dylan Nolan, Ibec.

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-00067965-001

09/12/2024

The Complainant has worked as a Site Supervisor / Warehouse Operative for the Respondent since 18 April 2022. She works approximately 40 hours per week and earns approximately €673 gross per week. The Complainant alleges that she was not paid for one week of sick leave taken in October 2024, amounting to €673 gross, in breach of the Payment of Wags Act 1991, as amended. The Respondent denies the allegations in full.

The Complainant provided written and oral submissions.

The Complainant submitted that this is a straightforward matter. The Complainant referred to her Contract of Employment dated April 2022, which states, inter alia:

“A total of ten (10) paid sick days will be permitted per year at the discretion of the Company. Payment for any additional sick leave will be at the discretion of your manager. Sick pay will not be paid during probation period.”

The Complainant submitted that the contra proferentem rule requires that “where a contract clause is unclear or open to multiple interpretations, it should be read in a way that disfavours the party responsible for its creation, introduction or insistence”.

In short, the Complainant submitted that the above clause provides that the initial 10 days of sick leave is a contractual entitlement and that further paid sick leave beyond 10 days is subject to a manager’s discretion.

Complainant’s Evidence:

The Complainant outlined that she was formally a Supervisor but, over time, she was demoted to the role of General Operative. She said that her pay and title remained the same. She said that her tasks involved loading and unloading trucks; putting together orders; and receiving goods.

The Complainant referred to her Contract of Employment dated 14 April 2022. She stated that her understanding of her sick leave entitlement was that she gets 10 days of paid sick leave; that she has to inform the manager; and that she has to submit a sick leave cert.

The Complainant submitted that she has taken sick leave every year but cannot say for certain how many days she has taken. She stated that in 2023, she went on sick leave for half a year, following an accident. She stated that the Respondent paid her for 15 days of sick leave that year.

She stated that she had not before encountered a situation where a manager would investigate a sick leave application before arriving at a decision. She said that she was not informed that the Respondent would decide on sick leave applications on a case-by-case basis.

The Complainant submitted that she emailed her Manager to state that there must have been an error as she was not paid for her sick leave. She said that she was told that they could discuss the matter when she returned to work. She said that she had provided the necessary sick cert. She stated that when she returned to work, she completed a Return to Work Form.

The Complainant outlined that she took five days of sick leave in March 2024, for which she was paid. She is now seeking pay for five of a further six days of sick leave which she took in October 2024.

The Complainant stated that she did recall receiving a Performance Improvement Plan (a “PIP”).

Cross-Examination:

The Complainant confirmed that when she received her Contract of Employment, she had time to review and understand it. She stated that she understood what she was signing.

The Complainant was asked if she understood that paid sick leave was at the discretion of the Respondent and not always applicable. The Complainant stated that the Respondent Director told her that ten days of sick leave would be paid, so long as he had a letter from her G.P.. She said that he told her this when she was made Supervisor.

The Complainant was referred to a letter dated 4 October 2024 regarding the Complainant being placed on a PIP. The Complainant was asked if she remembered getting this. She said “perhaps, but lately we have been getting loads of papers”.

The Respondent provided written and oral submissions.

The Respondent submitted that it is a wholly-owned Irish company in the distribution sector, employing over 160 members of staff. The Respondent disputes the complaint in its entirety. The Respondent submitted that it exercised its right to apply discretion in relation to the Complainant’s sick leave application. The Respondent submitted that the complaint is without merit.

Witness Evidence – Mr. Gareth Dunne:

Mr. Dunne outlined that the Respondent’s business concerns supply chains and logistics. The Respondent picks, packs and delivers consumer goods.

Mr. Dunne stated that he has been employed by the Respondent for seven years. He has been the Head of Solutions since 2019. In this role, he supports various sites of operations; engages with managers; meets with customers; reviews performance and KPIs etc. .

Mr. Dunne outlined that sick pay is determined on a discretionary basis. He said that each case is determined on an individual basis and all factors are taken into account. He said that when an employee submits a sick leave application, it is reviewed by the General Manager and the Respondent Director. He said that they have applied discretion in the past. He said that they have refused sick pay in the past.

Mr. Dunne outlined that after holding a meeting with the Complainant about placing her on a PIP due to misconduct, she went on sick leave for six days. He outlined that the Complainant’s sick pay application was refused due to her absenteeism and as she was on a PIP. He said that the Respondent does this where there is repeated absenteeism and misconduct.

Mr. Dunne outlined that the Respondent Director has since retired and that he told Mr. Dunne, the witness, that no one was guaranteed any form of sick pay.

Mr. Dunne outlined that there has been no other incident like this regarding the Respondent’s approximately 160 members of staff.

Cross-Examination:

Mr. Dunne accepted that the General Manager and the Respondent Director made the decision regarding the Complainant’s sick pay application, not him.

Mr. Dunne accepted that affording ten days of sick pay exceeds the statutory minimum.

Mr. Dunne did not accept that the Respondent had the option not to include a clause which provided for more than the statutory minimum. Mr. Dunne stated that the clause was in favour of the employee. Mr. Dunne accepted that “deviation” was at the Respondent’s discretion. Mr. Dunne said that the discretion is within the ten days “to begin with”.

The Law:

Under the Payment of Wages Act 1991 as amended (the “PWA”), “wages” 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

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”.

Section 5 of the PWA further provides as follows:

“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.”

And

“5(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment”.

And

“5(6) 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) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

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.”

Section 5(6) of the PWA was considered in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the PWA has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful.

Findings and Conclusion:

I note that the Complainant had already received five days of paid sick leave in early 2024. This complaint concerns the payment of five further days of sick leave in October 2024.

In order to determine what is properly payable as regards sick leave, I must consider the Complainant’s Contract of Employment dated April 2022 which states:

“A total of ten (10) paid sick days will be permitted per year at the discretion of the Company. Payment for any additional sick leave will be at the discretion of your manager. Sick pay will not be paid during probation period.”

It is clear from a plain reading of the above clause, that payment for up to ten days of sick leave is at the discretion of the Respondent and that the Complainant does not have an unfettered contractual entitlement to the same. In the circumstances, I find that there has been no unlawful deduction from wages due and owing to the Complainant. Therefore, this complaint is not well founded.

For the reasons set out above, this complaint is not well founded.

Payment of Wages Act, 1991. Paid Sick Leave.