The Complainant commenced employment with the Respondent on the 1st of January 1990. His role was described as that of “mobile granger”.  On the 30th of July 2020, the Complainant’s representative lodged a complaint under the Payment of Wages Act. The Complainant alleged that he had suffered an unlawful deduction from his wages in relation to the Respondent's failure to pay the full amount of a sickness benefit properly payable to him.  In response, the Respondent stated that the benefit in question was not properly payable to him, and as such no breach of the Act occurred.

In May 2017, the Complainant suffered a significant workplace injury which necessitated a period of sick leave of approximately four months. During this sick leave, the Complainant received injury pay at the rate of his average earnings, in line with the Respondent’s policy.  On 22nd February 2020, the Complainant underwent a further surgery relating to the injury, which required a significant recovery period, and again the Complainant commenced a period of sick leave in receipt of his average earnings as injury pay.

Following the surgery, the Complainant had anticipated that he would be fit to return to work in early April 2020 and had a discussion with the Respondent's Chief Medical Officer (CMO) to that effect.  Thereafter, the Complainant attended his GP, however his GP advised that the injury had not sufficiently healed, and he did not provide a return to work certificate at that time.

On the 28th April 2020, a member of the Respondent’s HR team issued an email in relation to the Complainant’s injury payments. The Respondent advised that as the Complainant had been deemed fit to resume by the CMO, but had not returned to work he was not entitled to an the injury payment and instead should be placed on the lesser sickness payment. While this email was supposed to be sent to the Complainant, it was in fact issued to another employee with a similar name within the organisation.

In the interim, the Complainant received his return to work certificate.  It was at this point that the Complainant was informed that the Respondent intended to deduct further monies from his wages as they believed that he had been available for work from 9th April 2020. The earlier email was issued to the correct email address on 7th May 2020.  The Complainant, through his union representative, objected to the deductions on the grounds that he was not in fact certified fit to return to work on 9th April, and could only have returned to work on 6th May 2020. The Respondent submitted that the Complainant should have been certified as fit to return to work on 9th April and refused to re-instead that benefit.

The Respondent submitted that they agreed with much of the factual matrix presented by the Complainant. The Respondent advised that the CMO is the final arbiter in relation to medical fitness and by extension, applicability for the injury benefit scheme. The Respondent  submitted that under the terms of the scheme the Complainant was not entitled to the benefit. As such, the Respondent maintained that the payment in question did not constitute “wages” that were properly payment under the Act.

The Adjudication Officer noted that it appeared that the Respondent’s HR department, in contravention of the unambiguous statement of the CMO, removed the Complainant from the scheme whilst he was deemed unfit to return to work. This matter may have been resolved quite simply had the matter been raised with the Complainant - however it is accepted by the Respondent that the Complainant did not receive this communication at the relevant time.

The Adjudication Officer took both parties written and oral submissions into consideration and found that the non-payment of the benefit by the Respondent from the period 23rd of April to the 6th May 2020 constituted an unlawful deduction from the Complainant’s wages in accordance with the Payment of Wages Act.

The Adjudication Officer found in favour of the Complainant and ordered the Respondent to pay the Complainant the sum of €987.20, this being the amount of the deduction from his wages. This payment was to be subject to all normal deductions as income.
https://www.workplacerelations.ie/en/cases/2021/august/adj-00029220.html