Complainant

Respondent

Parties

Olaf  Zukowski

OCS Ireland

Representatives

self

Hannah Rowe IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00074455-001

17/08/2025

The Complainant worked as a security guard. He was employed by the Respondent from March 2023 to the end of July 2025. He was certified as unfit for work from 13 June 2025 to 20 June 2025. He was rostered to work on 14 June 2025, a 13-hour shift, and on 15 June 2025, an 8 hour shift. He told his employer as soon as he received his certificate and he sent the certificate to the employer. The Respondent did not pay him statutory sick pay. It told him that it would apply waiting days in line with the Security Industry Employment Regulation Order. The Complainant is rostered for 21 hours over two shifts each week.

The Sick Leave Act 2022 provides a statutory sick leave scheme for employees who have at least 13 weeks service with their employer. Since 1 January 2024 the number of statutory sick leave days is 5. An employee must be certified by a medical practitioner as unfit for work and is covered from the first day of sick leave. There are no waiting days. Statutory sick leave is paid at the employee’s normal daily rate, being 70 per cent of normal pay up to a limit of €110 a day.

The Security Industry Employment Regulation Order provides a sick pay scheme. The scheme is non-contributory. No payment is made for the first three days of any absence. After 18 months service a worker is entitled to three weeks benefit, after 30 months service to four weeks benefit, and after 42 months service to five weeks benefit. The benefit is €120 for each rostered week, or pro rata. The worker keeps any social welfare payment and is responsible for applying for it. Benefit does not carry over from one year to the next.

The Complainant stated that he was certified unfit for work in June 2025 and that he was rostered to work two shifts during that absence. He stated that the Respondent refused to pay him statutory sick pay and instead applied the three waiting days in its Security Industry ERO scheme, so he received nothing. He says the statutory sick pay scheme is more favourable to him than the ERO scheme, because the statutory scheme pays from the first day and the ERO scheme does not.

The Respondent stated that it operates a sick pay scheme under the Security Industry ERO and that this scheme is, as a whole, more favourable to the employee than statutory sick leave, so that the exemption in section 9 of the Sick Leave Act 2022 applies and it has no obligation to pay statutory sick pay. It relies on the decision of the Labour Court in SK Biotek Ireland Ltd v Shannon Reina, SL/25/3, which it says shows that section 9(1) is an absolute exemption and that access to an employer scheme can be subject to conditions. It points to the use of the plural word employees in section 9 and says that the fact the Complainant did not qualify for a payment on this occasion does not make the scheme less favourable. It accepts that the Complainant has the 18 months continuous service required to be within the scheme.

The complaint is made under section 14 of the Sick Leave Act 2022. The Complainant was certified unfit for work from 13 June 2025 to 20 June 2025. He was rostered to work two shifts in that period, 13 hours on 14 June and 8 hours on 15 June. The Respondent did not pay him statutory sick pay. It applied the waiting days in its sick pay scheme under the Security Industry Employment Regulation Order, S.I. No. 326 of 2025, so he received no payment from the Respondent for that absence.

The Respondent relies on section 9 of the Act. Section 9(1) provides that the obligations under the Act do 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. The question I have to decide is whether the Respondent’s scheme under the Security Industry ERO is more favourable to this employee than statutory sick leave. If it is, the Respondent is exempt and the complaint fails. If it is not, the statutory scheme applied to the Complainant and the complaint succeeds.

Section 9(2) sets out the matters I must take into consideration, and it frames them by reference to an employee. It provides as follows.

(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.

And section 9(3) brings the ERO under my jurisdiction as an enactment is specifically referenced relating to the definition of what constitutes a sick leave scheme, it also clearly references the employee in the singular when assessing if a sick leave scheme is more favourable.

“sick leave scheme” means a scheme that provides for the payment of remuneration that an employee will be entitled to receive during a period of illness or injury according to the circumstances and subject to the conditions of the scheme under—

(a) a contract of employment,

(b) an enactment,

(c) a collective agreement negotiated with a recognised trade union or staff association, or

(d) any individual or other group arrangement.

Section 9(1) of the Act states:

 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.

The wording at section 9(1) when read with the preceding section 9(2) along with section 9(3) and the reference to employee when assessing the whether the scheme benefits are more favourable as a whole must mean to this employee and not to employees. The language is as whole more favourable to the employee not employees. The scheme year runs for 12 months independent of the benefit entitlement that is determined by actual service. No carry over of entitlement is provided for, other than during each 12-month period. Service dictates what benefit is payable over the 12 months period.  The comparison is carried out by reference to an employee, in the singular, in 9(2) (a) and (b), and the favourability test in section 9(1) is expressed as being to the employee. So the comparison is made for this Complainant and not for a notional worker with different service with longer service.

The Respondent relies on the decision of the Labour Court in SK Biotek Ireland Ltd v Shannon Reina, SL/25/3. That decision held that the words of section 9(1) are clear, that the subsection exempts an employer of the obligation to pay statutory sick leave where it has a scheme that is, as a whole, more favourable, and that access to such a scheme can be subject to conditions. The Respondent also relies on the plural word employees in section 9(1) and argues that an individual not qualifying for a payment at a particular time does not make the scheme less favourable.

I do not think that line of argument decides this case. The point about access conditions, and about an employee not yet qualifying, goes to whether a worker is within the scheme at all. The Complainant is within the scheme. The Respondent accepts that he has the 18 months continuous service the scheme requires, so he is not shut out by any service condition. The question is not whether he qualifies, but whether the benefits he qualifies for, once within the scheme, are as a whole more favourable to him than statutory sick leave. The plural word employees in section 9(1) describes the provision of a scheme to a workforce. The favourability test in the same subsection is expressed by reference to the employee, and section 9(2) frames its factors by reference to an employee. The comparison is made for this Complainant.

The figures that follow are the figures the Respondent provided at the hearing, and they reflect what the Respondent pays under its scheme. The Complainant is rostered for 21 hours over two shifts each week. The full benefit under the scheme is €120 for a rostered week. Because the Complainant works two shifts, his agreed pro rata benefit is €60 a week. On his service he is on the three-week benefit tier, which applies from 18 months service.

The two schemes compare as follows against the matters in section 9(2).

On the agreed figures, and on the three-week benefit tier that applies to the Complainant, the two schemes pay as follows.

The full benefit under the ERO scheme is €120 for a rostered week. The Complainant works two shifts, so his agreed pro rata benefit is €60 a week. His benefit period is three weeks, the tier that applies from 18 months service. The first week is unpaid under the waiting days rule, so the €60 is paid in the second and third weeks. From the fourth week he is on social welfare alone, the same as under the Act.

Taking the section 9(2) factors for the Complainant, the statutory scheme is more favourable on service in subsection 9(2) (a) and on waiting days at 9(2) (b), the ERO scheme is more favourable on the period of payment at 9(2) (c) because it pays for three weeks against five days, and the amount and reference period at 9(2) (d) and (e) are shown in the figures. Over three weeks the Complainant receives €660 under the statutory scheme and €594 under the Respondent’s scheme, and over five weeks he receives €1,168 and €1,102. The statutory scheme is more favourable by €66. The advantage comes from the opening week, where the statutory scheme pays from the first day and the Respondent’s scheme pays nothing because of the three waiting days. The Respondent’s scheme does not make that up within the three-week benefit period that the Complainant is entitled to.

I have also considered the position at the higher benefit tiers. A worker with 42 months service would be entitled to five weeks of benefit and would receive the €60 pro rata payment for four weeks rather than two. On the same figures that worker would receive the following. This scenario is hypothetical.

This scenario is hypothetical. It applies only to a worker with 42 months service, who would receive the €60 pro rata payment for four weeks rather than two. At that tier the Respondent’s scheme comes to €1,222 against the statutory €1,168, so for that worker the ERO scheme would be the more favourable one. The Complainant did not have that service. He had about 27 months service at the time of his absence, and he left at about 28 months, so he could not have reached the five-week tier. More to the point, section 9 requires me to assess the scheme by reference to the employee and over the reference period set out in the scheme. The scheme’s reference period is 12 months. Over the 12-month reference period that applied to the Complainant his entitlement was the three-week benefit. The four- and five-week benefits arise only at 30 and 42 months. I therefore assess the scheme on the three-week entitlement that actually applied to the Complainant, and not on a benefit he had not earned and could not receive.

I find that the Respondent’s sick pay scheme under the Security Industry ERO is not, as a whole, more favourable to this Complainant than statutory sick leave. Because it is not more favourable as a whole, the exemption in section 9 does not apply. It follows that the statutory sick leave scheme applied to the Complainant. The Respondent should have paid him statutory sick pay for the two days he was rostered to work and was certified unfit. It did not. The complaint is well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons set out above I find that the Respondent’s sick pay scheme is not, as a whole, more favourable to the Complainant than statutory sick leave. The exemption in section 9 of the Sick Leave Act 2022 does not apply and the statutory scheme applied to the Complainant. The Respondent did not pay him statutory sick pay for the two days he was rostered and certified unfit in June 2025.

I find that the complaint is well founded. Under section 14 of the Act I award the Complainant compensation of €220, which I consider just and equitable having regard to all the circumstances, including the statutory sick pay he was refused for the two days he was rostered and certified unfit.

Sick Leave Act 2022-Statutory sick leave-Section 9 exemption- Employment Regulation Order-Security Industry-Waiting days