Complainant

Respondent

Parties

Caroline  Ingram

Gaeltec Utilities Limited

Representatives

Self-represented

Anne Lyne, Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00068967-001

31/01/2025

The Complainant contends she did not receive statutory sick pay for her absence from 6th to 10th January 2025.  The Respondent submits the Complainant is not entitled to statutory sick leave for this period of certified absence.   

The Complainant outlined that she was on certified sick leave in November 2024 due to a workplace accident (“medical certificate 1”).  She was paid in full during this absence.  The Complainant was immediately certified as unfit for work after this period from 2nd December 2024 until 13th December 2024 owing to surgery (“medical certificate 2”).  The Complainant contends she continued to be certified as unfit for work from 16th December 2024 to 27th December 2024 due to complications arising from the surgery (“medical certificate 3”).  She thought she had sent this certificate to the Respondent but acknowledged to the hearing that she omitted to do so.  The Complainant submitted that she assumed she was on holidays from 30th December 2024 until 6th January 2025.  The Complainant was certified as unfit for work from 6th January 2025 until 10th January 2025 (“medical certificate 4”) again due to complications arising from the surgery.  The Complainant contends that she is entitled to statutory sick pay of 5 days for the absence covered by medical certificate 4.   The Complainant confirmed to the hearing that she was in receipt of illness benefit during her certified absences.

In cross-examination the Complainant was asked why she assumed she was on annual leave from 30th December 2024 until 5th January 2025 when she had not applied for or been approved for annual leave.  The Complainant responded: “I can’t answer that – ignorance and stupidity. They would have been rolling certs”.  It was put to the Complainant that in her email of 6th January 2025 (opened to the hearing) she stated - “Please find attached my final cert” – and based on this, it was reasonable for the Respondent to believe that she had been on a continuous period of sick leave, especially as there was no mention of annual leave in between medical certificates.  Another email from the Complainant dated 21st January 2025 was opened to the hearing.  It was put to the Complainant that the opening paragraph which read: “Thank you for your email and letter extending my [probation] review period for 8 weeks based on my illness absence due to medical complications to date” – was further confirmation that the Complainant was absent on a continuous period of sick leave.  The Complainant responded: “my wording may have been incorrect; that’s just a wording issue”.  It was put to the Complainant that the Respondent, in good faith, believed she was on sick leave from November 2024 until 6th January 2025 inclusive, and that it was reasonable for it to hold that view.

The Complainant confirmed to the hearing that she was in receipt of illness benefit from 1st January 2025.  She also confirmed that she thought nothing of it when she was not paid for annual leave from 30th December 2024 to 5th January 2025.

Ms Buckett outlined that the Department of Social Protection wrote to the Respondent to confirm the dates the Complainant was absent for illness benefit purposes, and she outlined to the hearing the dates illness benefit was claimed for by the Complainant. 

The Complainant was on certified sick leave from 25th November 2024 until 29th November 2024 (medical certificate 1).  She was paid statutory sick leave in accordance with the Sick Leave Act, 2022.  She submitted a medical certificate for pre-planned surgery covering the period 2nd December 2024 to 13th December 2024 (medical certificate 2).  The Complainant  did not return to work on 16th December 2024.  On 16th December she emailed her manager to  say she would send in a medical certificate.  None was received by the Respondent.  However, the Complainant remained on leave.  She did not apply for annual leave at any time during her absence.  The Complainant submitted a medical certificate for the period 6th January 2025 to 10th January 2025.  She resigned on 21st January 2025. 

The Complainant was paid 5 days statutory sick leave in 2024.  The Sick Leave Act, 2022 Act provides that where an employee continues sick leave from one calendar year to the next, their statutory sick leave entitlement does not reset until they return to work.  This is to prevent an employee from being entitled to statutory sick leave on more than one occasion in respect of the same sick leave absence.        

In closing it was submitted on behalf of the Respondent, that the Respondent understood that the Complainant continued to be on sick leave from November 2024 until January 2025.  As per the Act, because the Complainant was on sick leave from one calendar year to the next and did not return to work, she is not entitled to statutory sick leave for the period of certified sick leave taken in January 2025.  Further, she confirmed in evidence she was in receipt of illness benefit since 1st January 2025 and so is precluded from receiving statutory sick pay for her absence from 6th to 10th January 2025.  

Relevant Law

The Sick Leave Act, 2022 (as amended) (“the Act”) defines at s. 2(1) ‘statutory sick leave’ as meaning the entitlement of an employee to be paid ‘statutory sick leave payment’ by his or her employer in respect of a ‘statutory sick leave day’.  Section 2(1) of the Act defines ‘statutory sick leave day’ as having the meaning given to it by s. 5 of the Act, and ‘statutory sick leave payment’ has the meaning given to it by s. 7 of the Act.

Section 5 of the Act provides:

“(1) Subject to this Act, an employee shall, in respect of a day on which he or she would ordinarily work but is incapable of doing so due to illness or injury (in this Act referred to as a “statutory sick leave day”), be entitled to statutory sick leave.

(3) Statutory sick leave days may be consecutive days or non-consecutive days.

(4) Subject to subsection (4A), the first day in a year that an employee is incapable of working due to illness or injury shall be the employee's first statutory sick leave day, and any subsequent statutory sick leave days shall be construed accordingly.

(4A) An employee shall not be entitled to statutory sick leave where, on the immediately preceding normal working day, that employee was on sick leave—

(a)    constituting statutory sick leave in the immediately previous calendar year, or

(b)    for which the employee was entitled to illness benefit or injury benefit . . .

(8) Subject to subsection (9), an employee shall be entitled to statutory sick leave payment from his or her employer in accordance with section 7 in respect of each statutory sick leave day.

(9) An employee shall, in respect of a statutory sick leave day, provide his or her employer with a medical certificate in an official language of the State signed by a registered medical practitioner stating that the employee named in the certificate is unable to work.”

Section 7(1) of the Act provides with respect to statutory sick leave payment:

“An employer shall pay an employee a prescribed daily rate of payment (in this Act referred to as “statutory sick leave payment”) in respect of each statutory sick leave day”.

Findings

The Complainant received 5 days statutory sick pay from Monday 25th November until Friday 29th November 2024 for a period of certified sick leave owing to an alleged workplace injury (medical certificate 1). The Complainant remained on certified sick leave, albeit due to a separate medical condition, from Monday 2nd December to Friday 13th December 2024 (medical certificate 2).  The Complainant did not return to work on Monday 16th December 2024, but she did contact her manager to state she remained unfit for work, and she committed to providing a medical certificate.  The Complainant told the hearing that she obtained a further medical certificate dating to 29th December 2024 (medical certificate 3) but omitted to furnish it to the Respondent.  The Complainant states that she then took a period of annual leave between 30th December 2024 until 5th January 2025.  The Complainant provided the Respondent with a fourth medical certificate covering the period 6th to 10th January 2025.  She claims she is entitled to statutory sick leave for this period as she had effectively returned to work on 30th December 2024 when she took annual leave, thereby breaking her period of sick leave. It is the Respondent’s position that the Complainant remained on sick leave from 25th November 2024 until January 2025, notwithstanding that she did not comply with the company policy of providing a medical certificate to cover the full period. 

The question that arises for consideration is whether the Complainant is entitled to statutory sick leave for her absence between 6th and 10th January 2025 (i.e., the period of leave covered by medical certificate 4).  Section 5(4A)(a) provides that an employee is not entitled to ‘statutory sick leave’ where, on the immediately preceding normal working day that employee was on sick leave constituting ‘statutory sick leave’ in the immediate previous calendar year.  This provision clarifies that the statutory sick leave entitlement for a new calendar year is not available until the employee has returned to work from the previous period of illness.  Section 5(4A)(b) provides that an employee shall not be entitled to statutory sick leave where, on the immediately preceding normal working day, that employee was on sick leave for which the employee was entitled to illness or injury benefit.  The Complainant confirmed to the hearing that she was in receipt of illness benefit from 1st January 2025. 

I found the evidence of the Complainant to be inconsistent and lacking cogency.  I do not accept the Complainant’s submission that she was on annual leave between 30th December 2024 until 5th January 2025 (i.e., between medical certificate 3 and medical certificate 4).  It was common case she did not apply for, nor was she approved to take, annual leave between 30th December 2024 and 5th January 2025.  Further, it is clear from the text in her emails (opened to the hearing by the Respondent), that she herself believed she was unfit for work for a continuous period from November 2024 until January 2025.  

I find the Complainant is not entitled to statutory sick pay for the period 6th January to 10th January 2025.  I am satisfied the Complainant commenced sick leave on 25th November 2024 and she did not return to work prior to submitting medical certificate 4.  It is common case she received 5 days statutory sick leave for the period 25th November to 29th November 2024.  Therefore, in accordance with s. 5(4A)(a) of the Act, she is not entitled to statutory sick leave for her absence from 6th to 10th January 2025 as she had not returned to work from the previous period of illness constituting statutory sick leave for the purposes of the Act.  The fact that two different illness were encompassed within her leave from November 2024 to January 2025 is of no significance for the purposes of the Act.  Further, the Complainant confirmed in evidence that she was in receipt of  illness benefit from 1st January 2025.  Accordingly, I am also satisfied that, in line with s.5(4A)(b) of the Act, the Complainant is not entitled to statutory sick leave for her absence commencing 6th January 2025.

I decide this complaint under the Sick Leave Act, 2022 (as amended) is not well-founded.

Sick pay.  Absence extending over two calendar years.