ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00055134

Parties:

	Complainant	Respondent
Parties	Kaspars Orlovs	Tiergaul Limited t/a Extraspace Solutions

	Complainant	Respondent
Representatives	Self- Represented	Anna Rosa Raso of ESA Consultants

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022	CA-00067191-001	06/11/2024

Date of Adjudication Hearing: 26/02/2025

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and the Sick Leave Act, 2022following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Affirmation or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Oath / Affirmation was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.

No issue regarding confidentiality arose.

Background:

The issue in contention was the alleged refusal of the Respondent employer to pay a full five-day sick payment to the Complainant arising from an absence due to an alleged workplace accident on the 11th October 2024.

The employment had begun on the 3rd March 2014 and had ended voluntarily at Christmas 2024 as the Complaint was moving to another position closer to home.

The rate of pay was stated to have been €1,125 for an average 44-hour week. (39 basic and 5 OT)

1: Summary of Complainant’s Case:

The Complainant, who was self-represented, cited Section 5 of the Sick Leave Act, 2022 and maintained that he should have been paid Statutory Sick Pay as provided for in the Act, from day one – Monday the 14th October with no waiting days.

The Respondent positon, which relied on the Construction Industry Pension Scheme, had a three-day waiting period which was to his considerable disadvantage in the particular circumstances of this case.

2: Summary of Respondent’s Case:

The Responder Employer, represented by Ms Raso of ESA Consultants, while clearly sympathetic to the Complainant, was a member of the Construction Industry Pension (CWPS) Scheme which it was stated provides Sick Pay benefits for 50 days per annum with €125 per day for the first 5 days, albeit with a three-day waiting period. It is absolutely more favourable than the Statutory Sick pay Scheme which at the time was limited to three days’ pay per annum.

The Respondent cited Section 9 of the Sick Pay Act ,2022 in support of their positon and cited Adj -00050138 and ADJ -0004489 as recent relevant decisions.

Non-Applications of Obligations under Act

9. (1) The obligations under this Act shall not apply to an employer who provides his or her employees a sick leave scheme where the terms of the scheme confer, over the course of a reference period set out in the scheme, benefits that are, as a whole, more favourable to the employee than statutory sick leave.

3: Findings and Conclusions:

3:1 Legal Considerations

The Sick Leave Act,2022 was enacted by the Oireachtas to provide Sick Pay Benefits to workers who up to that time had no entitlements or very minimal entitlements to Sick Pay of any description.

Where an employer had a more favourable Scheme in place, Section 9 quoted above, provided that it would remain as the applicable Sick Pay Scheme.

The Respondent operated the Construction Industry Scheme which is, without any doubt, far superior to the Statutory Scheme albeit with a waiting time of three days.

In the circumstances of this case the waiting time was to the Employee’s immediate short-term disadvantage but on balance the membership of the Construction Scheme was overwhelmingly to his long-term benefit.

3:2 Adjudication Conclusion.

Section 9 of the Sick Leave Act 2022 has to apply. The Complaint cannot be seen as Well Founded.

4: Decision:

Section 41 of the Workplace Relations Act 2015 and the Sick leave Act, 2022 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the cited Acts.

CA: 00067191-001

The complaint is deemed to be legally Not Well Founded.

It fails.

Dated: 07-05-2025

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words:

Sick Leave Act,2022