Complainant

Respondent

Parties

Michael Lucey

Access Engineering Ltd

Representatives

In person

Raymond McGee

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00064173-001

19/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064173-002

19/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00064173-003

19/06/2024

The complainant has submitted three complaints to the Workplace Relations Commission (WRC). The complainant clarified at the adjudication hearing on 17th April 2025 that his complaints relate to:

a)       Holiday pay while absent on sick leave in 2021,

b)      equal pay, and

c)       not receiving his minimum notice entitlements in respect of the termination of his employment in November 2022

The complainant represented himself at adjudication. The respondent was professionally represented. Both sides provided written submissions which were read at the hearing. Issues such as the cognisable period of the complaints as well as the burden of proof were explained to the complainant and both sides were satisfied that all issues were raised at the adjudication hearing.

In respect of the complaints relating to annual leave entitlements in 2021 and minimum notice entitlements in 2022, the respondent representative contends that the complaints are out of time. The respondent stated that the statutory time limit for the referral of each of the complaints is six months with a possibility of an extension of time for a further six months if reasonable causes can be shown for the delay in submitting the complaint. Given that the complaints were submitted in June 2024 and relate to alleged breaches of the legislation in 2021 and 2022, the complaints are manifestly out of time.

Nothwithstanding the respondent’s submission in respect of the statutory time limits for the referral of the complaints, the complainant is seeking that he be paid his outstanding entitlements. Specifically, the complainant is seeking payment of annual leave entitlements which he says accrued during a period of certified sick leave in 2021. The complainant is also seeking that he be paid his notice entitlements with respect to the end of his employment in November 2022.

CA-00064173-001 – Annual Leave

The complaint is submitted under the Sick Leave Act, 2022. The subject of the complaint, however, relates to annual leave entitlements while on certified sick leave. The complainant is seeking that he be paid his outstanding annual leave entitlements which he says accrued to him while he was absent on sick leave following a road traffic accident in 2021.

The respondent clarified at the adjudication hearing that the complainant was absent on certified sick leave but did not submit medical certificates beyond February 2022 as it was not anticipated that he would return to work. It is accepted that the complainant returned to work briefly from June 2023 until May 2024and there is no dispute in relation to the complainant’s annual leave entitlements within that period.

Supplemental submissions

The respondent submitted the complainant’s attendance records which were copied to the complainant for comment. The complainant, in supplemental submissions received on 1st September 2025, and in addition to the claims already submitted, sought his entitlements in respect of public holidays. The complainant stated that he was entitled to 17 days public holidays from 25th December 2021 to 22nd June 2023 which amounts to €2,145. Firstly, on this issue, there is no claim in respect of public holidays. Secondly, the claim would be outside of the statutory time limit for the referral of complaints to the WRC. As I have no jurisdiction to consider specific complaints that have not been referred to the WRC, this matter will not be addressed further.

Annual Leave entitlements while absent on sick leave

The Applicable Law

Section 86(1) of the Workplace Relations Act, 2015, amends the Organsiation of Working Time Act, 1997 as follows:

86. (1) The Organisation of Working Time Act, 1997 is amended—

(a) in section 19, by the insertion of the following subsection:

“(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”,

(b) in section 20, by the substitution of the following paragraph for paragraph (c) of subsection (1):

“(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.”,

In relation to the period prior to June 2023, there were no medical certificates furnished to the respondent since February 2022. Accordingly, I find that the complainant was not entitled to accrue annual leave in accordance with the provisions of Section 86 of the Workplace Relations Act, 2015 which amended Sections 19 and 20 of the Organisation of Working Time Act, 1997.

I further find that the period from the complainants certified sick leave absence commencing in November 2021 until February 2022 is out of time in respect of claiming accrued annual leave.

CA-00064173-003 – Minimum Notice entitlements

This complaint relates to the complainant’s notice entitlements in November 2022 when a period of employment with the respondent ended.

The respondent argued that the complaint on this issue submitted in June 2024 was out of time.

 The Applicable Law

Section 41(6) and (8) of the Workplace Relations Act, 2015 provides as follows:

(6) Subject to subsection (8), 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.

(8) 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 reasonable cause.

The complaint relates only to the complainant’s initial termination of employment in November 2022. As the complaint was submitted on 19th June 2024, it is outside of the provisions of Section 41(6) and 41(8) of the Workplace Relations Act, 2015 in respect of the referral of complaints and is therefore out of time.

CA-00064173-001 – Annual Leave

For the reasons stated above, I find that the complaint is not well founded.

CA-00064173-003 – Minimum Notice

For the reasons stated above, I find that the complaint is out of time and statute barred.

The complainant alleges that he did not receive equal pay in comparison to a colleague. The complaint form alleges that the complainant’s age was the reason he was paid less than the comparator who was also employed by the respondent as a General Operative but paid more than the complainant. As regards his experience, the complainant contends he was more experienced and was more skilled than the comparator.

The respondent refutes that the complainant was discriminated against on the age ground in respect of his rate of pay. The respondent’s position was that the comparator had more experience than the complainant and was willing to work outside of Dublin and was also willing to work overtime which the complainant was not.

The complainant alleges that he was paid less than a comparator of the basis of his age. The complainant does not accept the argument put forward by the respondent that the comparator was more experienced than the complainant and paid a higher rate of pay as result.

Burden of Proof

The complainant bears the burden of proof in establishing facts from which an inference of discrimination can be drawn.

Section 85A of the Employment Equality Acts, 1998 -2015 provides as follows:

85A (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

Conclusion

Having considered the submissions of both parties, firstly, I am satisfied that the complaint is in time. I am not satisfied that the complainant has established facts from which an inference of discrimination can be drawn. The complainant did not establish that his age was a factor in receiving a lower hourly rate of pay than the comparator. I accept the reasons put forward by the respondent in respect of the differences in pay, and while the complainant was of the view that he was equally if not more experienced than the comparator, the complainant must prove that his age (as the stated ground) was the reason for the alleged discrimination which he has not done. Accordingly, I find that the complainant has not established a prim facie case of discrimination.

For the reasons stated above, I find that the complaint is not well founded.

Annual Leave entitlements, minimum notice, equal pay