Workplace Relations Commission (WRC) - RECENT Decisions & judgements
ADJ-00018628
Employee fails in bid to claim additional redundancy payment
The Complainant commenced employment with the Respondent Company (Company B) on the 1st of June 2010. The Respondent Company provided professional, scientific and technical services and the Complainants role involved support services. The Complainants gross pay was €1,381.84 per month.
The Complainant was made redundant on the 11th October 2018 by the Respondent Company. The Complainant received two payments separately of €3,000.00 and €3,221.43. The latter included her final months’ salary and holiday pay. The total redundancy pay was €5,567.73. The Complainant believes she is entitled to a redundancy payment of €6,881.43 and therefore a difference of €1,313.70. She contends she was in continuous employment since 30th June 2008 with effectively the same employer.
The Complainant contacted her Employer to dispute the amount and was informed that she had been paid for 8 years and not 10 as she had worked for Company A from the 30th June 2008 until the 14th May 2010. Company A and Company B were owned by the same individual. The Complainant was informed that Company A went into liquidation and ceased trading in May 2010 and accordingly this period of employment was not factored into her redundancy payment.
The Complainant believed her employment was continuous as she continued to work for the same Employer. Her role did not change and her salary was continuous. Accordingly, the Complainant contends she was in continuous employment for ten years and is entitled to the appropriate redundancy payment for that time period.
The Complainant advised she did not receive a P45 from Company A. However, the Complainant did acknowledge in the course of her email dated the 26th March 2019 that the Revenue advised that a P45 was issued on her behalf and her period of employment with Company A was from the 30th June 2008 to the 14th May 2010.
The Respondent Company confirmed in evidence and in previous correspondence that the Complainants employment commenced with Company B on the 1st June 2010. They advised this can be confirmed by the Revenue record of the Complainant. Prior to this period of employment, the Complainant was employed by Company A (in liquidation) which ceased trading in May 2010. Company B purchased the assets of Company A in August 2010. All the Employees, of Company A, received the required P45’s at this time. The staff from Company A, where appropriate, received the statutory redundancy payments which were arranged by the liquidator.
A number of the Employees who were made redundant from Company A were offered a position by Company B but it was made absolutely clear that this was not a continuation of their previous employment. In that respect two emails were provided from two current Employees of Company B. They both confirmed that they had received their P45 and statutory redundancy in relation to Company A. They both were offered a new contract of employment with Company B and were informed that this was a separate entity from Company A and not a continuation of their former employment.
Accordingly, the Respondent Company submits that the Complainant was paid the appropriate redundancy as per their employment from the 1st June 2010 to the 11th October 2018 and was not entitled to any redundancy payment from the 30th June 2008 to the 14th May 2010.
Section 7 (1) of the Redundancy Payments Acts 1967-2012 states:
“(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided:
(a) he has been employed for the requisite period, and
(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.”
Section 7(2) of the Redundancy Payments Act, 1967-2012, states:
“For the purposes of subsection (1), an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to:
(a) The fact that his employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed, or
(b) The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish…”
Section 7(5) of the Redundancy Payments Act 1967 -2012, states-
“(5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.”
Based on the evidence provided and in light of the acknowledged confirmation from the Revenue that the Complainants period of employment with Company A was from the 30th June 2008 to the 14th May 2010, it was found that the Complainants employment with Company A terminated on the 14th May 2010. It was found that the Complainants employment with Company B (the Respondent Company) commenced on the 1st June 2010. It was found that Companies A and B are separate and distinct legal entities. Accordingly, the complaint under Section 39 of the Redundancy Payments Acts, 1967-2012 is not well founded and fails.
ADJ-00019066
Complainant fails in case of alleged Sick Pay Entitlements
The Complainant was employed by the Respondent charity as a Project Worker from October 2013 until her resignation in October 2018. She was appointed as Project Leader on July 27th 2015. For the last 12 months of her employment, she was absent due to work-related stress and spent some of that time in Poland. This is a complaint about the fact that she was not paid what she said was her contractual entitlement to four weeks’ sick pay in 2018.
The Complainant outlined she was on certified sick leave from October 10th 2017 until October 9th 2018.
In December 2017, she went to Poland for treatment. In 2017, the complainant received four weeks’ pay while she was out sick, and she expected to be paid another for another four weeks in January 2018. When she didn’t receive any sick pay in January, the Complainant submitted a grievance which was decided-on in March 2018. The management confirmed that the Complainant was not entitled to sick pay until the anniversary date of the signing of her contract, which was July 27th 2018. However, up to the date of her resignation on October 9th 2018, she received no further sick pay.
Upon resignation, the Complainant received her annual leave and public holiday pay for the entire time that she was on sick leave. It is the Complainant’s case that annual leave and public holiday entitlements only accrue to Employees on “recognised” sick leave. She now claims that, in accordance with her contract, she is entitled to four weeks’ sick pay to which she was entitled on July 27th 2018.
The Respondent’s representatives said that the Complainant was paid for 20 days’ sick leave in respect of her absence from October 10th to November 6th 2017. For the duration of this absence, the Complainant sent medical certificates which outlined the reason for her absence, the date of absence, the possible return-to-work date and the doctor’s name, address and contact details. Although the Charity’s policy is to deduct social welfare illness benefit from sick pay, the Complainant received her full salary for four weeks.
In December 2017, the Complainant said that her doctor recommended that she continue her treatment in Poland. No evidence was provided by the Complainant of her doctor’s opinion in this regard. Medical certificates that she submitted from December 6th onwards were not acceptable to the Respondent because they were not legible, the contact information was unclear, they were undated and could not be verified. Evidence was submitted at the hearing of the certs sent in the by the Complainant, which were on plain, un-headed paper with no doctor’s name legible and a blurred company stamp.
The Complainant expected to be paid sick pay for a further 20 days in January 2018, but it was explained to her that her entitlement to sick pay would be due again on July 27th 2018, on the anniversary of the start date of her contract.
In March 2018, she appealed against this decision to the Company Secretary, but she refused to meet him to advance her grievance. When she was asked by the Company Secretary to provide her postal address in Poland, the Complainant refused. She said that her permanent address was in Dublin. She was then asked to provide medical certs from a doctor in Dublin, but she refused this request.
Following a consultation with the Respondent’s occupational health consultant in February 2018, the consultant recommended that the Complainant engage with her Employer to discuss a return to work. At a meeting on March 12th, she informed the Chief Executive and the Operations Manager that she would not contemplate returning to work until a separate complainant was investigated at the WRC.
In May 2018, the Respondent’s Operations Manager contacted the Complainant on a weekly basis by e-mail to request certs from a Dublin-based doctor and she was advised that her certs were not in compliance with the Organisation’s policy. The Operations Manager also attempted to contact the doctor in Poland who issued the certs, but the phone was not answered and it was apparent that the phone number was not the number of a medical clinic. An e-mail address was not provided. The Complainant was asked to get her doctor to contact the Employer, but the doctor did not get in touch. At the hearing, the Chief Executive said that they wrote to the doctor at the address provided on the letters, but they got no reply.
The Respondent Organisation is a small charity working with homeless people. The charity’s core values are compassion and respect and that they made every effort, over the course of her 12 months of absence, to accommodate the Complainant. They said that she failed to provide proper medical certificates while out sick from December 2017 until October 2018. The certs provided could not be verified, despite the best efforts of the management and requests to the Complainant to address the problem. The Complainant made no effort to procure the certs that were required. It is the Respondent’s case that they were acting reasonably by ensuring that the entitlement to sick pay is paid in a fair and impartial manner and in cases of demonstrable illness.
Section 5(6) of the Payment of Wages Act 1991 (“the Act”), deals with the circumstances in which wages which are properly payable to an employee are not paid:
“(6) Where:
(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or
(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”
In respect of this complaint, the failure of the Employer to pay the Complainant sick pay in 2018 is regarded as a deduction from wages. Details of the Respondent’s sick pay policy are set out on the contract of employment issued to the Complainant on October 12th 2015. Employees with 0-6 months’ service receive no benefit. Employees with 6 months – 1 year service receive 5 days per annum. Employees with 1 – 2 years service receive 10 days per annum. Employees with 2 - 3 years service receive 15 days per annum and Employees with 3 years and onwards receive 20 days per annum.
The first three days of any sick period are unpaid; payments are made from the fourth consecutive day of illness. Employees are paid in full less Social Welfare entitlement which can be claimed whilst on sick leave. Payments of sick pay are dependent upon the receipt of the appropriate Medical Certificates.
It is apparent that the Respondent has made it a condition of the payment of sick pay that “appropriate medical certificates” are provided. Appropriate certificates require certain basic information such as the name and address of the doctor and a phone number at which the doctor can be contacted.
It was found that the requirement of the Respondent with regard to medical certificates is not unreasonable or unusual. The Respondent communicated clearly with the Complainant and informed her that the certs she submitted were not acceptable. The Complainant did not comply with the requirement to submit proper and detailed certs. She also provided no medical evidence in December 2017, of her doctor’s opinion that she should be treated in Poland. Sick pay in respect of the Complainant’s absence in 2018 does not quality as wages that are “properly payable” under Section 6(5) of the Act.
It was found that the Respondent’s decision not to pay the Complainant sick pay in 2018 was not an illegal deduction from her wages, and thus the complaint under the Payment of Wages Act 1991 is not upheld.
Employee fails in bid to claim additional redundancy payment
The Complainant commenced employment with the Respondent Company (Company B) on the 1st of June 2010. The Respondent Company provided professional, scientific and technical services and the Complainants role involved support services. The Complainants gross pay was €1,381.84 per month.
The Complainant was made redundant on the 11th October 2018 by the Respondent Company. The Complainant received two payments separately of €3,000.00 and €3,221.43. The latter included her final months’ salary and holiday pay. The total redundancy pay was €5,567.73. The Complainant believes she is entitled to a redundancy payment of €6,881.43 and therefore a difference of €1,313.70. She contends she was in continuous employment since 30th June 2008 with effectively the same employer.
The Complainant contacted her Employer to dispute the amount and was informed that she had been paid for 8 years and not 10 as she had worked for Company A from the 30th June 2008 until the 14th May 2010. Company A and Company B were owned by the same individual. The Complainant was informed that Company A went into liquidation and ceased trading in May 2010 and accordingly this period of employment was not factored into her redundancy payment.
The Complainant believed her employment was continuous as she continued to work for the same Employer. Her role did not change and her salary was continuous. Accordingly, the Complainant contends she was in continuous employment for ten years and is entitled to the appropriate redundancy payment for that time period.
The Complainant advised she did not receive a P45 from Company A. However, the Complainant did acknowledge in the course of her email dated the 26th March 2019 that the Revenue advised that a P45 was issued on her behalf and her period of employment with Company A was from the 30th June 2008 to the 14th May 2010.
The Respondent Company confirmed in evidence and in previous correspondence that the Complainants employment commenced with Company B on the 1st June 2010. They advised this can be confirmed by the Revenue record of the Complainant. Prior to this period of employment, the Complainant was employed by Company A (in liquidation) which ceased trading in May 2010. Company B purchased the assets of Company A in August 2010. All the Employees, of Company A, received the required P45’s at this time. The staff from Company A, where appropriate, received the statutory redundancy payments which were arranged by the liquidator.
A number of the Employees who were made redundant from Company A were offered a position by Company B but it was made absolutely clear that this was not a continuation of their previous employment. In that respect two emails were provided from two current Employees of Company B. They both confirmed that they had received their P45 and statutory redundancy in relation to Company A. They both were offered a new contract of employment with Company B and were informed that this was a separate entity from Company A and not a continuation of their former employment.
Accordingly, the Respondent Company submits that the Complainant was paid the appropriate redundancy as per their employment from the 1st June 2010 to the 11th October 2018 and was not entitled to any redundancy payment from the 30th June 2008 to the 14th May 2010.
Section 7 (1) of the Redundancy Payments Acts 1967-2012 states:
“(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided:
(a) he has been employed for the requisite period, and
(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.”
Section 7(2) of the Redundancy Payments Act, 1967-2012, states:
“For the purposes of subsection (1), an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to:
(a) The fact that his employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed, or
(b) The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish…”
Section 7(5) of the Redundancy Payments Act 1967 -2012, states-
“(5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.”
Based on the evidence provided and in light of the acknowledged confirmation from the Revenue that the Complainants period of employment with Company A was from the 30th June 2008 to the 14th May 2010, it was found that the Complainants employment with Company A terminated on the 14th May 2010. It was found that the Complainants employment with Company B (the Respondent Company) commenced on the 1st June 2010. It was found that Companies A and B are separate and distinct legal entities. Accordingly, the complaint under Section 39 of the Redundancy Payments Acts, 1967-2012 is not well founded and fails.
ADJ-00019066
Complainant fails in case of alleged Sick Pay Entitlements
The Complainant was employed by the Respondent charity as a Project Worker from October 2013 until her resignation in October 2018. She was appointed as Project Leader on July 27th 2015. For the last 12 months of her employment, she was absent due to work-related stress and spent some of that time in Poland. This is a complaint about the fact that she was not paid what she said was her contractual entitlement to four weeks’ sick pay in 2018.
The Complainant outlined she was on certified sick leave from October 10th 2017 until October 9th 2018.
In December 2017, she went to Poland for treatment. In 2017, the complainant received four weeks’ pay while she was out sick, and she expected to be paid another for another four weeks in January 2018. When she didn’t receive any sick pay in January, the Complainant submitted a grievance which was decided-on in March 2018. The management confirmed that the Complainant was not entitled to sick pay until the anniversary date of the signing of her contract, which was July 27th 2018. However, up to the date of her resignation on October 9th 2018, she received no further sick pay.
Upon resignation, the Complainant received her annual leave and public holiday pay for the entire time that she was on sick leave. It is the Complainant’s case that annual leave and public holiday entitlements only accrue to Employees on “recognised” sick leave. She now claims that, in accordance with her contract, she is entitled to four weeks’ sick pay to which she was entitled on July 27th 2018.
The Respondent’s representatives said that the Complainant was paid for 20 days’ sick leave in respect of her absence from October 10th to November 6th 2017. For the duration of this absence, the Complainant sent medical certificates which outlined the reason for her absence, the date of absence, the possible return-to-work date and the doctor’s name, address and contact details. Although the Charity’s policy is to deduct social welfare illness benefit from sick pay, the Complainant received her full salary for four weeks.
In December 2017, the Complainant said that her doctor recommended that she continue her treatment in Poland. No evidence was provided by the Complainant of her doctor’s opinion in this regard. Medical certificates that she submitted from December 6th onwards were not acceptable to the Respondent because they were not legible, the contact information was unclear, they were undated and could not be verified. Evidence was submitted at the hearing of the certs sent in the by the Complainant, which were on plain, un-headed paper with no doctor’s name legible and a blurred company stamp.
The Complainant expected to be paid sick pay for a further 20 days in January 2018, but it was explained to her that her entitlement to sick pay would be due again on July 27th 2018, on the anniversary of the start date of her contract.
In March 2018, she appealed against this decision to the Company Secretary, but she refused to meet him to advance her grievance. When she was asked by the Company Secretary to provide her postal address in Poland, the Complainant refused. She said that her permanent address was in Dublin. She was then asked to provide medical certs from a doctor in Dublin, but she refused this request.
Following a consultation with the Respondent’s occupational health consultant in February 2018, the consultant recommended that the Complainant engage with her Employer to discuss a return to work. At a meeting on March 12th, she informed the Chief Executive and the Operations Manager that she would not contemplate returning to work until a separate complainant was investigated at the WRC.
In May 2018, the Respondent’s Operations Manager contacted the Complainant on a weekly basis by e-mail to request certs from a Dublin-based doctor and she was advised that her certs were not in compliance with the Organisation’s policy. The Operations Manager also attempted to contact the doctor in Poland who issued the certs, but the phone was not answered and it was apparent that the phone number was not the number of a medical clinic. An e-mail address was not provided. The Complainant was asked to get her doctor to contact the Employer, but the doctor did not get in touch. At the hearing, the Chief Executive said that they wrote to the doctor at the address provided on the letters, but they got no reply.
The Respondent Organisation is a small charity working with homeless people. The charity’s core values are compassion and respect and that they made every effort, over the course of her 12 months of absence, to accommodate the Complainant. They said that she failed to provide proper medical certificates while out sick from December 2017 until October 2018. The certs provided could not be verified, despite the best efforts of the management and requests to the Complainant to address the problem. The Complainant made no effort to procure the certs that were required. It is the Respondent’s case that they were acting reasonably by ensuring that the entitlement to sick pay is paid in a fair and impartial manner and in cases of demonstrable illness.
Section 5(6) of the Payment of Wages Act 1991 (“the Act”), deals with the circumstances in which wages which are properly payable to an employee are not paid:
“(6) Where:
(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or
(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”
In respect of this complaint, the failure of the Employer to pay the Complainant sick pay in 2018 is regarded as a deduction from wages. Details of the Respondent’s sick pay policy are set out on the contract of employment issued to the Complainant on October 12th 2015. Employees with 0-6 months’ service receive no benefit. Employees with 6 months – 1 year service receive 5 days per annum. Employees with 1 – 2 years service receive 10 days per annum. Employees with 2 - 3 years service receive 15 days per annum and Employees with 3 years and onwards receive 20 days per annum.
The first three days of any sick period are unpaid; payments are made from the fourth consecutive day of illness. Employees are paid in full less Social Welfare entitlement which can be claimed whilst on sick leave. Payments of sick pay are dependent upon the receipt of the appropriate Medical Certificates.
It is apparent that the Respondent has made it a condition of the payment of sick pay that “appropriate medical certificates” are provided. Appropriate certificates require certain basic information such as the name and address of the doctor and a phone number at which the doctor can be contacted.
It was found that the requirement of the Respondent with regard to medical certificates is not unreasonable or unusual. The Respondent communicated clearly with the Complainant and informed her that the certs she submitted were not acceptable. The Complainant did not comply with the requirement to submit proper and detailed certs. She also provided no medical evidence in December 2017, of her doctor’s opinion that she should be treated in Poland. Sick pay in respect of the Complainant’s absence in 2018 does not quality as wages that are “properly payable” under Section 6(5) of the Act.
It was found that the Respondent’s decision not to pay the Complainant sick pay in 2018 was not an illegal deduction from her wages, and thus the complaint under the Payment of Wages Act 1991 is not upheld.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
www.adarehrm.ie
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- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
- Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development
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