FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : HSE MID WEST - AND - MICHAEL POWER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal Of Adjudication Officer's Decision No. R-140797-PW-13.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991 on 17th December, 2015. A Labour Court hearing took place on 13th April, 2016. The following is the Determination of the Court:
DETERMINATION:
This appeal has been brought on behalf of Michael Power (‘the Complainant’) from a decision of the Adjudication Officer, R-140797-PW-13, dated 13 November 2015. The notice of appeal was served on the Respondent employer and thereafter received by the Court on 17 December 2015. The Adjudication Officer determined at first instance that the complaint was not well founded.
Background
The Complainant has been employed as a porter at the Mid-Western Regional Hospital since July 2004. The complaint that gives rise to the within proceedings relates to the the period 6 June 2013 to 17 July 2013 during which the Complainant was absent from work on sick leave. The first number of days’ absence were uncertified. The Complainant submitted a medical certificate for the period 11 June 2013 to 16 June 2013. However, no further certification was submitted by the Complainant until his return to work. Although the Complainant did, at that point, submit medical certificates in respect of the period 17 June to 17 July, he did not receive any payment pursuant to the Respondent’s sick pay scheme. His absence had been recorded as unauthorised on the Respondent’s payroll system.
Complainant’s Case
Although he did not submit weekly medical certificates during the aforementioned period of sick leave (other than in respect of the first week that he was required to do so), the Complainant, nevertheless, submits that he kept his supervisor updated on his circumstances through regular voicemails left on the supervisor’s office phone each Monday morning wherein he informed the supervisor that he would not be attending work that week due to his ongoing illness. The Complainant accepts that he did not speak directly to his supervisor on any occasion on which he telephoned the office.
The Complainant further submits that there was a well-established custom and practice in place for the porter grade at the time whereby staff at that grade were permitted to submit medical certificates on their return from a period of extended sick leave. The Complainant called a witness – a former colleague who had retired from the grade in 2015 – in order to give evidence to support his submission in relation to this alleged custom and practice. Neither the Complainant nor his witness were able to adduce any specific examples of the alleged practice.
The Complainant also referred the Court to an office notice issued by the Respondent to all porter staff and dated 30 July 2013. This notice set out the procedures the Respondent required staff to adhere to when reporting illness absence and when returning to work. The Union placed considerable emphasis on the date of this notice and referred to the timing of the publication of the notice and the operative date stated on the face of the notice (30 July 2013) as “not co-incidental”.
The Complainant is seeking compensation of €1,480.80 which is the net value of the sick pay he believes he was wrongfully denied in respect of the period 17 June 2013 to 17 July 2013. It is submitted on his behalf that sick pay is encompassed by the definition of ‘wages’ for the purposes of the Payment of Wages Act 1991 (‘the Act’) and that the Respondent’s refusal to pay the Complainant sick pay for the aforementioned period amounts to an unlawful deduction within the meaning of section 5(6) of the Act. Furthermore, it is submitted, the Respondent had failed to comply with the procedural requirements of subsections (1) and (2) of section 5 which require an employer to furnish an employee with 7 days’ advance written notice of the reason for, and amount of, any deduction from the employee’s wages in circumstances where the employee has not given prior written consent to any such deduction.
Respondent’s Case
The Respondent’s Managing Attendance Policy sets out in some detail the reporting and certification procedures staff are required to follow when absent from work due to illness. This policy has been in place since 2009. A copy of the policy document was included in the Respondent’s written submission to the Court.
Section 5.1 of the Managing Attendance Policy provides:
- “If an absence exceeds two continuous days, a medical certificate must be submitted to the appropriate office on the third day of absence. Follow up certificates must be submitted on a weekly basis unless the employee is advised otherwise.”
The Respondent also submitted that access to its sick leave scheme is conditional on the production of medical certificates in accordance with section 5.1 other than in circumstances in which “the employee is advised otherwise”. It denied that the Claimant in this case was “advised otherwise” in respect of his absence between 17 June 2013 and 17 July 2013.
The Complainant’s supervisor was called as a witness. His evidence to the Court was that he had not given permission to the Complainant to delay submitting his medical certificates until after his return work in July 2013. The witness also denied any knowledge of the custom and practice amongst portering staff, as alleged by the Complainant. He did, however, accept that employees may have been given a 3-4 day grace period within which to submit a medical certificate in circumstances where this had been expressly requested in advance.
The witness also accepted - under cross-examination and when questioned by the Court - that the Complainant had left voicemails on the witness’s office telephone, on a number of occasions, advising that he would not be returning to work during the week in question. The witness told the Court that, as the Complainant’s supervisor, he endeavoured to contact the Complainant several times during the period of the latter’s absence from work but did not succeed in doing so. He accepted that he had not written to the Complainant to advise him of the requirement to submit medical certificates.
Ms Sinead Finucane, Employee Relations Manager also gave evidence on behalf of the Respondent. Ms Finucane had previously held the position of General Services Manager until March 2014. In her evidence in chief, the witness referred to a letter dated 26 November 2009 she had sent to the Complainant. She told the Court that there was some concern in or around that time about the very high levels of sick leave being availed of by support staff across the Mid-West Hospital Group. In response to this, she took steps to ensure that all staff, including the Complainant, received a copy of the Managing Attendance Policy. She reviewed each staff member’s sick leave record. Having noted the Claimant’s high level of uncertified sick leave she advised him as follows in the aforementioned letter of 26 November 2009:
- “Due to your continued high level of uncertified sick leave you are requested to submit a medical certificate for any sick leave in the future. You will therefore not receive payment for any uncertified sick leave.”
The witness informed the Court that a similar campaign was undertaken by management in 2013 to raise awareness about the provisions of the Respondent’s Managing Attendance Policy. This initiative was requested by SIPTU so as to ensure that all staff were aware of the relevant procedures. It was in this context that the Respondent issued the office notice to all porter staff dated 30 July 2013. The timing of the office notice was entirely coincidental and was in no way connected to the Complainant’s absence at that particular time.
Under cross-examination, Ms Finucane stated that there was no custom and practice of accepting late medical certificates from portering staff as submitted by the Complainant. She also gave evidence that she had personally advised the Complainant and his witness in this regard.
The witness outlined the Respondent’s procedures for dealing with an employee who is on long-term sick leave and who has failed to submit medical certificates as follows. In the first instance that employee’s supervisor should attempt to make contact with the employee. If the supervisor is unable to make contact, the issue is escalated to the relevant senior manager. She confirmed on cross-examination that she was not aware of any letter having been sent to the Complainant in respect of his failure to submit medical certificates in June-July 2013.
Discussion
The Complainant’s representative has placed considerable emphasis on section 5 of the Act in support of his submission to the Court that payments in accordance with Respondent’s sick pay scheme were wages, for the purposes of the Act, ‘properly payable’ to the Complainant for the period 17 June to 17 July 2013 and the Respondent’s failure to pay those wages therefore amounted to an unlawful deduction within the meaning of the Act.
Section 5(6) provides:
- “(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 isproperly payableby 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 areproperly payableto an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,
- (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 isproperly payableby 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
It is clear to the Court that the Respondent operates a discretionary sick pay scheme, payments pursuant to which are expressly contingent on an employee fulfilling certain pre-conditions. One of those pre-conditions requires an employee to submit medical certificates confirming his or her illness at stated intervals for the duration of the illness period in respect of which he/she is seeking to avail of the employer’s sick pay scheme. The Complainant did not fulfil those pre-conditions and clearly accepts that he did not do so. It follows that payment under the sick pay scheme for the relevant period does not qualify as wages ‘properly payable’ within the meaning of section 5(6) of the Act. The question of the Respondent’s compliance with subsections (1) and (2) of section 5 of the Act do not arise for consideration. In all of the circumstances, the appeal fails.
While the Court accepts that an employee must comply with the procedures for submitting medical certificates as outlined in the Respondent’s Managing Attendance Policy if he/she wishes to avail of the Respondent’s discretionary sick pay scheme, nevertheless, in the Court’s view, best practice indicates that an employer has a responsibility to make reasonable efforts to maintain contact, by telephone and/or in writing with an employee in the circumstances in which the Complainant herein found himself. It seems to the Court that the Respondent should have made a greater effort to contact the Complainant, in writing if necessary, to advise him of the consequences of his failure to submit medical certificates on a weekly basis.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
29th April 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.