Complainant

Respondent

Parties

Justyna  Kuzminska

United Drug

Representatives

Self-Represented

Self-Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00069640-001

28/02/2025

This matter came before the Workplace Relations Commission dated 28/02/2025.  The Complainant alleges a contravention by the Respondent of provisions of the above listed statute in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 29/08/2025. 

The Complainant commenced employment with the Respondent on 20/05/2015.  The Complainant at all material times is employed as a general operative.  The Complainant is paid €530.00 gross per week for which she works 37.5 hours.    

The Respondent is the leading pre-wholesaler and pharmaceutical distributor in Ireland. 

The Complainant in her WRC complaint form submits she was on sick leave for a few months and she got an email from HR that they will not pay her from 13 January and she submits she did not break any rules from the handbooks about sick payments policy.

The Complainant’s claim is denied by the Respondent.  It is the Respondent’s position that the obligations under the Act do not apply because their employees have access to a sick pay scheme which, on the whole, is more favourable than statutory sick leave.

The Respondent raised as a preliminary issue that the WRC has no jurisdiction to hear the within complaint under section 9 of the Sick Leave Act 2022 (“the 2022 Act”) on the basis that section 9 provides that the obligations under the 2022 Act shall not apply to an employer who provides their employees with a sick pay scheme where the terms of the scheme confer benefits that are, as a whole, more favourable to the employee than statutory sick leave. 

The Respondent submitted factual and legal submissions supported by relevant documentation. 

The Complainant relied on the narrative on her WRC complainant form together with email traffic exhibited and the operative sections of the Respondent sick pay policy as exhibited. 

CA-00069640-001

Overview of WRC complaint form

I am on sick leave from few months and I get email from Human Resources from my company that they will not pay me sick payments from 13 January but according to company handbook I should get payment for 9 weeks and in my opinion I did not break any rules from handbook about sick payments policy to stop paying me for sick leave.  I could not get back to work because I did not feel fully healed.  I have appointments with my GP doctor every few weeks and she is deciding if I am ready to go back to work or if I need to stay at home and get more recovery and another medical certificate.  And my GP doctor gave me a medical certificate for anther few weeks because of my medical conditions.  I can not take a risk to go back to work only because Occupational Doctor predict I should be okay.  Reasons I get by email from Human Resources why company stopped paying me: “I write to inform you that as you have not followed the advice of the Company Doctor to return to work on a phased basis effective today, 13/01/2025, the company will not be providing you with further sick pay for this absence.”  

CA-00069640-001

Overview of written submission

It is submitted the Complainant’s contention that she has been denied sick leaven in accordance with the scope of the Sick Leave Act 2022 is without foundation.  It is submitted the Respondent Sick Pay Policy confers benefits, that are, as a whole more favourable to the employee than statutory sick leave in accordance with section 9(1) of the Sick Leave Act, 2022. 

It is submitted the Complainant has received the equivalent of 20 days of paid sick leave in accordance with the Respondent Internal Sick Pay Policy in 2025.  It is submitted in this regard section 9(1) of the Sick Leave Act, 2022 states:

(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.

It is submitted this claim falls outside the jurisdiction of the Act and that no breach has occurred.  It is submitted the payments received by the Complainant exceed the minimum statutory entitlement provided for under the Act which entitlement remains at 5 paid sick leave for 2025.  It is submitted the Complainant has received all entitlements due and is not entitled to additional sick pay under the Act.  It is submitted the Complainant’s claim falls outside its scope and jurisdiction. 

It is submitted that where the employer’s scheme is, as a whole, more favourable that the Sick Leave Act, section 8(1) provides that a more favourable contractual provision operates “in substitution for, and not in addition to,” the statutory entitlement and section 9 disapplies the Act where, over the scheme’s reference period, the employer’s scheme confers overall superior benefits. 

CA-00069640-001

PRELIMINARY ISSUE – JURISDICTION

The Respondent submits that as a preliminary issue, the WRC has no jurisdiction to hear the Complaint under section 9 of the Sick Leave Act, 2022. 

I note this claim was filed with the WRC as a claim pursuant to the Sick Leave Act, 2022 (“the 2022 Act”) where the Complainant alleges “my employer has not paid me my paid sick leave.”

Section 8(1) of the 2022 Act provides that an employer may provide a benefit that is:-

(a) as favourable to an employee as, or

(b) more favourable to an employee than,

an entitlement to statutory sick leave in accordance with this Act, and any such provision shall be in substitution for, and not in addition to, that entitlement.  [emphasis added]

Section 9 of the 2022 Act provides:

(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. [emphasis added]

(2) In determining, for the purposes of subsection (1), whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, the following matters shall be taken into consideration:

(a) the period of service of an employee that is required before sick leave is payable;

(b) the number of days that an employee is absent before sick leave is payable;

(c) the period for which sick leave is payable;

(d) the amount of sick leave that is payable

(e) the reference period of the sick leave scheme.

I have carefully considered the benefits of the Respondent’s Sick Pay Scheme vis a vis the Statutory Sick Pay Scheme.

I note the Respondent Sick Pay Policy allows for up to five days uncertified absence in a calendar year. [emphasis added] I note medical certification is not required in respect of absence in these 5 days which are inclusive of the number of weeks entitlements based on length of service. 

I note the Statutory scheme provides a maximum of 5 days of paid leave in any calendar year for certified sick leave. [emphasis added] 

I note the duration of sick pay entitlement within a calendar year under the Respondent scheme depends on the employee’s length of service as follows:

1.       Those with 6 months to 5 years of service are entitled to 8 working weeks

2.       Those with 5 to 10 years receive 9 working weeks

3.       Employees with over 10 years of service are entitled to 10 working weeks.

I note the length of service under the Statutory scheme is 13 weeks. 

I note the benefit provided under the Respondent policy is equivalent to the employee’s normal take-home pay minus any Social Welfare payments.

I note sick pay in the Statutory scheme is calculated at a rate of 70% of normal pay up to a maximum of €110 per day for certified leave only. [emphasis added] 

I note medical benefit due to each employee will operate on a sick pay calendar year basis from the 1st January to the 31st December. 

Having carefully considered all of the above, I recognise the service requirement of 6 months may be considered a disadvantage but I am satisfied any perceived disadvantage is outweighed by the Respondent scheme paying between 8 to 10 weeks dependent on service in a rolling 12-month period as opposed to 5 days in any calendar year under the Statutory scheme.    

On a reasonable and objective analysis of the two schemes I am satisfied the Respondent’s scheme is overall more favourable than the entitlements provided for under the 2022 Act. 

I am satisfied that the obligations under the Act do not apply in the within case as the Complainant has access to and has benefited from a sick pay scheme which, on the whole, is more favourable than Statutory sick leave.

For the reasons set out above I find the Respondent scheme is encompassed by section 9(1) of the Act and that its benefits are, as a whole, more favourable to the employee than statutory sick leave. 

For the reasons set out above I conclude this complaint as presented is not-well founded.  The Sick Leave Act, 2022 does not apply where the Respondent’s Sick Pay Scheme is more favourable within the meaning of section 9 of the Act and, accordingly, I do not have jurisdiction to hear this complaint. 

Accordingly, I am precluded from determining on the substantive matter. 

CA-00069640-001

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

Statutory scheme; Respondent Sick Pay Scheme;