Background:

The Complainant appealed the initial Adjudication Officer decision of his complaint to the Labour Court. The Complainant claimed that he was seriously injured in an unprovoked assault by a co-worker while at work on 25 June 2021. The Complainant suffered a deviated septum, a concussion, and injuries to his neck and right hand as a result of the assault, and therefore was certified unfit for work from the date of the assault until 24 September 2021, when his employment ended due to the Complainant’s resignation. The Complainant was not paid by his employer, the Respondent, in full for that period of absence. The Complainant alleged that full payment for absences was a custom and practice which was so notorious, certain, reasonable, and obligatory that it amounted to a contractual entitlement.

The Respondent denied that full payment was an entitlement and adduced evidence that it established a new Workplace Illness/Injury Policy which altered the way such payments were processed. The Respondent produced documents showing the Complainant had signed a form acknowledging the change to the policy. Representatives for the Respondent said that the Complainant would have been aware of this change as a Health and Safety Representative for the Respondent. As a result, the Complainant could not have reasonably believed that he would be entitled to full pay as he describes, although the Respondent accepted that the Complainant’s injuries did constitute a workplace injury.

Outcome:

After carefully considering the meaning of wages “properly payable” under the Payment of Wages Act, 1991, the Labour Court found that the Complainant was or ought to have been aware of the changed policy, and therefore did not have an entitlement to full pay for the duration of his leave related to his illness. However, the Labour Court also found that the Complainant was not entitled to both sick leave and a full six days of workplace injury pay for which all employees are entitled without review, and also found that there was no reason why these payments were not concurrently payable. The Complainant only received five days’ workplace injury pay, and so the Labour Court found in favour of the Complainant for one additional day’s pay, which is calculated to be €95.60 net.

Practical Guidance for Employers:

When introducing a new policy to a workplace, it is important to communicate it effectively (as the Respondent did), but it is also important to ensure that it does not interact with other workplace policies to create unintended consequences.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/december/pwd2340.html