EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
PW268/2015
APPEAL OF:
Alun Evans
-Appellant
against the recommendation of the Rights Commissioner in the case of:
Alun Evans
-v-
BNY Mellon
-Respondent
under
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr. M. Noone
Mr. J. Dorney
heard this appeal at Dublin on 29th July 2016 and 12th October 2016
Representation:
Appellant: Mr. Brian Gageby BL instructed by Mr. Kieran Kelly, Fanning & Kelly, Solicitors, 2 Hatch Lane, Hatch Street, Dublin 2
Respondent: Mr. Des Ryan BL instructed by Mr. Russell Rochford solicitor, Matheson solicitors, 70 Sir John Rogerson’s Quay, Dublin 2
Background:
This case is before the Tribunal by way of an employee appealing a Decision of a Rights Commissioner under the Payment of Wages Act, 1991. The appellant was on sick leave and had been paid sick pay through a work sick pay scheme. The company ceased paying this as it maintained that it was for a limited period only or that it reserved the right to alter the terms/ conditions/ or length of payment.
Appellant’s Case:
The Tribunal heard evidence from the appellant. He worked for the respondent which is a banking type of establishment. He commenced in 2006. He signed a contract of employment. In 2009 he had an injury due to a sports accident. He began to have attacks of vertigo. Then in 2012 he had a bad attack of vertigo and was kept in hospital overnight. The consultant confirmed migraine related vertigo. So during 2012 he had sporadic absenteeism. If he felt tired or ill he took sick leave.
His employer/ Manager and colleagues had been understanding of his situation. However as his absenteeism increased he was advised of an illness benefit. He was also advised that if his illness did not get better a disciplinary process could issue.
In 2012 he had been advised that sick pay was for 26 weeks. In 2013 he was advised that the sick pay was on a “rolling” basis, and that the company could withdraw the sick pay.
In or around April 2014 he was out sick for about a month and he was informed about disciplinary action, he asked the company not to proceed with that.
He returned to work on or about April after this and he returned to work on half days. He had a letter / note from his Doctor to work half days. He went to see the company Doctor who agreed with his Doctor that he work half days for nine months to a year. The company Doctor agreed but that he phase back to full days. His Doctor did not agree (to phasing back to full days). Then the company told him that he would be on half pay. The company agreed to half days but at some point that he would only be paid for the hours that he worked.
His pay slip showed that he was paid for a half day and the other half showed as a deduction. “If I was not there I was not paid at all”.
At a later point in time he was diagnosed with Crohn’s Disease. He last worked on 23rd September 2015.
Respondent’s Case:
The Head of Human Resources (HR) in Ireland gave evidence. She stated the respondent company “benchmarked” their policy and procedures against their competitors and all HR policies were reviewed on a yearly basis.
The witness opened the Appellant’s contract to the Tribunal citing clause 3 which stated:
“Human Resources Policies and Procedures
You are required to familiarise yourself with the relevant rules and procedures specified in the Manual which is available for inspection on the (respondent named) Intranet. The Company reserves the right to update/amend these policies.”
The witness explained that the company’s policies and procedures were available to all employees through a portal on the computer system which they used on a daily basis.
In November 2013 the company’s sickness policy was revised (this was opened to the Tribunal). Under the heading of “Sick Pay” the revised corporate policy stated:
“The company will, at its sole discretion, pay full sick pay less Illness Benefit in the event of the employees being absent form work due to illness for up to 26 weeks in any 12-month rolling period where such absences are not consecutive, or for the first 26 weeks of any consecutive absence.”………….”In cases where an employee is consistently absent, whether medically certified or not and where such absence shows an unacceptable pattern and or a failure to meet contractual obligations to attend work the disciplinary procedures may be applied. All medical information will be treated confidentially.”
The witness told the Tribunal that the appellant was paid over and above the 26 week period. When the decision to cease the payment to the appellant he was notified verbally six weeks prior to the cessation date and given written notification of the intent to cease the payment two weeks before it occurred.
The witness told the Tribunal that she felt the Appellant had been treated very fairly by the Respondent in this matter.
The Human Resources Business Partner who worked in the section where the Appellant had been employed at the time in question gave evidence.
The witness told the Tribunal that the appellant was absent from work for the majority of the month of May 2014. He contacted his Line Manager and informed them he would be returning to work on half days only, as advised by his Doctor. The appellant was then sent to be assessed by the company Doctor who advised the appellant work three half days and two full days. This was conveyed to the appellant at a meeting on the 17th of July 2014. On hearing this, the appellant stated he would go on his Doctor’s advice and only work half days.
At this meeting the witness outlined the company Doctor’s guidance to work breaks and alternative work to PC work. He was also informed the company would no longer in a position to pay the expense of a taxi fare for the appellant on any further occasion he had to go home sick from work. The witness further informed the appellant that the discretionary sick pay would cease from the 1st of September 2014. The witness stated this was re-confirmed in an email dated the 15th of August 2014.
On the 13th of October 2014 and the 24th of October 2014 the appellant lodged a grievance in relation to five elements. The first three elements were considered under the company Grievance Procedure: “1. Salary Reduction, 2. Sick Pay Being Withdrawn, when entitlement to Sick Pay not Exhausted and 3. Classification of a Medically Advised Half Day.” The fourth element was not considered and the fifth element was dealt with under the respondent’s Dignity & Respect Policy. The witness told the Tribunal that she was not involved in this process.
The respondent found there was no breach in either the appellant’s contract or under the Payment of Wages act, 1991. The appellant appealed this decision but his grievance was not upheld.
Determination:
The Tribunal have carefully considered the sworn evidence and submissions adduced in this matter.
The Appellant is stating he should be paid for the half day he did not attend work and was absent on sick leave. The respondent paid the appellant for the time he worked.
The Appellant relies on the original terms of the Respondent’s sick pay scheme. However, this policy was revised in November 2013 to state that “at its sole discretion” it would pay sick pay.
The Payment of Wages Act, 1991 provides for payment for work carried out and for which payment is due. The appellant only worked for a half day and was paid for that half day.
It is the view of the Tribunal that the claimant sought to vary the employment contract to work half days instead of full days. The company Doctor was consulted and he agreed that the appellant should work half days for a period. Later the company Doctor revised their view when he became aware of the opinion of the appellant’s Consultant Physician. This can be seen as a process of negotiation, which resulted in agreement between the parties that he would work half days indefinitely.
There was no negotiation as to payment for the half days he worked but the logic of an agreed reduction of work to half days would indicate that the pay should also be halved.
The company could have reduced his pay immediately but instead the sick pay scheme was allowed to run until the 26-week period expired. The fact that they took this more benign approach in favour of the appellant should not be held against them.
As the Tribunal is of the view that the contract of employment had been changed, we cannot find that there was a deduction in the wages “properly payable” to him under Section (6) of the Act.
Accordingly, the appeal under the Payment of Wages Act, 1991 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)