ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001666

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 12/09/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

At the first hearing , the classification of the complaint was considered as in the processing of the complaint by the WRC , the only complaint identified by the WRC was an alleged breach of Section 5 of the Terms of Employment (Information) Act1994.The claimant’s representative asserted that it was clear in the body of the complaint that the claimant was also complaining of unlawful deductions from his wages .On the basis of the claimant’s submissions and having reviewed the complaint form I am satisfied that the claimant has also made a complaint of an unlawful deduction from his wages and accordingly I accepted that there were 2 complaints before me- one under the Terms of Employment (Information) Act 1994 and the other under the Payment of Wages Act 1991.Accordingly , an adjournment was facilitated to allow the parties confirm their respective positions with respect to the Payment of Wages Act 1991 complaint/s.

A number of exchanges ensued following the hearing , with the final correspondence being received on the 2^nd.Nov.2016.

Complainant’s Submission and Presentation:

Terms of Employment (Information) Act 1994

Claimant’s Submission and Presentation.

The claimant commenced employment with the respondent in Nov. 1996.The claimant was suspended with pay pending an investigation in Sept. 2014 .During this suspension the claimant was certified as sick by his GP owing to work related stress .It was submitted that the employer then ceased to pay the claimant on foot of a revision to the Sick Pay Scheme .The claimant was unaware of amendments to the Scheme which were brought to his attention after he commenced sick leave during his period of suspension.The claimant submitted the respondent was in breach of Section 5 of the Act for failing to notify him of changes to the company Sick Pay Scheme.It was submitted that the claimant was unaware of the changes to the Sick Pay Scheme issued to him in April 2013.It was submitted that that policy makes no reference to precluding a worker from “ moving from paid/unpaid suspension to sick pay…If a colleague unfortunately becomes sick during this period they will be [placed on unpaid leave until such time as they are fit”.This amendment was contained in a later revision to the Scheme and it was submitted that the claimant was not made aware of said changes within one month of their introduction as required by Section 5.It was submitted that the claimant was advised by the Deputy Manager of his local store that the respondent would pay the Sick pay due.The claimant requested that the respondent honour the provisions of the original Sick Pay Scheme and pay him 8 weeks sick pay from the 13.10.2014 – 05.01.2015.

Summary of Respondent’s Position and Presentation.

The respondent set out a chronology of events dating back to the claimant’s suspension.It was submitted that the claimant was advised by letter on the 17^th.October 2014 that in accordance with the provisions of the Sick Pay Scheme , he could not move from paid/unpaid suspension to Sick Leave.It was submitted that the claimant did not dispute or raise any issues regarding the Sick Pay at this time.While it was acknowledged that the claimant was advised by local management that the Sick Pay would be recouped to the claimant , the local managers were unaware that the claimant had received a letter on the 17^th.October 2014 , advising that he would not be paid Sick Pay.It was submitted that the Company Scheme was very clear on the matter and that the claimant had no entitlement to the Sick Pay.It was advanced that the policy had been in force since October 2013 and that the claimant was well aware of its contents.The respondent referred to the provisions of Section 3 regarding collective agreements and submitted that at all times the claimant had a reasonable opportunity to read the updated sick pay policy.

Decision

I have reviewed the written and oral submissions of the parties .I note that the provisions of Section 3 – relied upon by the respondent – specifically exclude paid sick leave with respect to collective agreements – note Section 3 (1)(j) and 3(3).As a consequence and in light of the failure by the respondent to present evidence of having notified the claimant of the amendment to the Sick Leave Scheme , I am upholding the complaint of a breach of Section 5.I am limited by Section 7 to awarding a maximum award of 4 weeks remuneration. I require the respondent to pay the claimant €3,000 compensation within 3 weeks of the date of this decision.

Payment of Wages Act 1991

Summary of Claimant’s Submission and Presentation

The claimant commenced employment with the respondent in Nov. 1996.The claimant was suspended with pay pending an investigation in Sept. 2014 .During this suspension the claimant was certified as sick by his GP owing to work related stress .It was submitted that the employer then ceased to pay the claimant on foot of a revision to the Sick Pay Scheme .The claimant was unaware of amendments to the Scheme which were brought to his attention after he commenced sick leave during his period of suspension.The claimant submitted the respondent was in breach of Section 5 of the Act for failing to notify him of changes to the company Sick Pay Scheme.It was submitted that the claimant was unaware of the changes to the Sick Pay Scheme issued to him in April 2013.It was submitted that that policy makes no reference to precluding a worker from “ moving from paid/unpaid suspension to sick pay…If a colleague unfortunately becomes sick during this period they will be [placed on unpaid leave until such time as they are fit”.This amendment was contained in a later revision to the Scheme and it was submitted that the claimant was not made aware of said changes within one month of their introduction as required by Section 5.It was submitted that the claimant was advised by the Deputy Manager of his local store that the respondent would pay the Sick pay due.The claimant requested that the respondent honour the provisions of the original Sick Pay Scheme and pay him sick pay from the 13.10.2014 – 05.01.2015 in the amount of €6,253.28

At the time of his suspension , the claimant was employed as a Grocery Line Manager.It was submitted that no finding was made against the claimant and he was engaged as a General Assistant in February 2015.The claimant followed internal appeal procedures to challenge the decision to demote him and was ultimately re instated to his previous position as Grocery Line Manager in August 2015.It was submitted that the loss of earnings the claimant suffered at this time constituted an unlawful deduction and the claimant was entitled to outstanding wages of €11,303.50.

It was submitted that the final appeal procedure remained incomplete as although the outcome of his appeals were communicated to the claimant on the 21^st.Dec.2015 ,the Company procedure for a written warning was never implemented.The company had failed to implement the following provision…”The colleague will be required to sign the written warning in the presence of the colleague representative as confirmation of having read and understood the content”.It was submitted that the processing of the disciplinary procedure and the claimant’s appeal had been characterised by delays and procedural flaws and no evidence had been advanced to support the allegations made against the claimant..It was argued that the claimant’s complaints of illegal deductions only crystalised on the completion of the company’s disciplinary procedure and that accordingly the complaints were in time.It was submitted that the claimant had been wrongly demoted and he had been vindicated through the appeal process.It was contended that the claimant was penalised for appealing an internal decision .

Summary of Respondents Position

The respondent set out a chronology of the events leading up to the investigation , the disciplinary sanction and the appeal process.The company denied any breach of the Act and submitted that in any event the complaints were out of time.It was argued that the claimants complaints were not received by the WRC until the 1^st.Feb.2016 .It was contended that the claimant could have pursued his complaint regarding sick pay at any time in the last year and could have pursued his loss of earnings complaint while his appeal was being processed.It was suggested that it had been open to the claimant to pursue his grievances and make an industrial relations complaint to the WRC but had not done so.It was argued that the respondent had a right to demote the claimant and his wages were reduced as a consequence of same.It was advanced that this was in keeping with the McKensie finding under the Payment of Wages Act 1991.It was argued that the Payment of Wages Act 1991 had no application to a reduction in pay and that it could not be construed as a deduction under the Act.

Decision

The complaint regarding non payment of sick pay related to the period the 13^th.Oct.2014 to the 5^th.Jan.2015.The claimant’s complaint was received on the 1^st.February 2016 – consequently the complaint is out of time and I have no jurisdiction to investigate this element of the complaint.

The complaint regarding the loss of earnings during the period of demotion related to the period the 6^th.February 2015 to the 15^th.August 2015.A fraction( 2 weeks) of that period is in time but in any event I am satisfied on the basis of the claimant’s submissions concerning the delay in the processing of his grievances that there was reasonable cause for the delay in making the complaint and accordingly I deem the complaint of loss of earnings to be in time.

I have reviewed the oral and written evidence presented at the hearings .I have concluded that the General Assistant wages paid to the claimant for the duration of his demotion were wages “ properly payable” as provided for under the Act and consequently I find the complaint was misconceived. Accordingly I find against the claimant.

Dated:   14^th December 2016