ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002436

Complaints for Resolution:

Date of Adjudication Hearing: 6th May 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

Each of the five complainants made complaints to the Workplace Relations Commission pursuant to the Payment of Wages Act against their common employer, a public service employer. The complaints were heard together at one adjudication on the 6^th May 2016.

The complainants were represented by Frankie Watters and the Assistant General Secretary of the complainants' union. Two representatives of the respondent attended. At the adjudication, both parties gave evidence and made legal submissions. They also handed in written submissions.

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

Complainant’s Submission and Presentation:

The complainants are employees of the respondent, a public sector employer that provides a unique public service in the State. It is in the nature of the service provided that it is one required every day of the year. It is provided at various facilities across the country and the complainants are located at three such facilities.

This case relates to certified and self-certified sick leave taken by employees of the respondent over what is referred to as the "Christmas fortnight", i.e. between the 24^th December 2015 and the 1^st January 2016. The complainants were all subject to deductions made to their wages, applied to the pay they each received on the 18^th February 2016. The amounts varied between the complainants and there is no dispute as to the amount deducted in each case. What is in dispute is whether the respondent was legally entitled to make the deductions.

According to the complaint forms, the following deductions were made from each employee’s pay:

• Complainant A (CA-00003217-001) Deduction of a total of €501.20 from pay commencing with the pay period of 18^th February 2016. No notice and no reason for this deduction was provided.
• Complainant B (CA-00003218-001) The respondent made two deductions from wages on 4^th and 18^th February, each deduction was in the amount of €220.31 giving a total deduction of €440.62. No notice or reason for this deduction was provided.
• Complainant C (CA-00003219-001) The respondent made two deductions from wages on 18^th February and 3^rd March 2016, each deduction was in the amount of €202.12, giving a total of €404.24. No notice or reason for the deduction was provided.
• Complainant D (CA-00003221-001) The respondent deducted €244.44 from wages on 18^th February 2016. This deduction was not made in accordance with the relevant circular letters and statutory provisions relating to uncertified sick leave.
• Complainant E (CA-00003222-001) The respondent deducted €257.07 from wages on 18^th February 2016. This deduction was in breach of the circular letters and statutory provisions relevant to uncertified sick leave.

There are certain differences between the cases. Unlike the other complainants, Employee A says that he did not receive the respondent's letter of the 9^th December 2015. He acknowledged that he was aware of its contents as a member of management had told him about it. He outlined that he only received a copy of the letter after the deduction was made to his pay. (The respondent replied that Employee A would have received the letter from his line manager, in the same way as 150 other employees did.) A second difference in the cases is that three complainants (Employees A, B and C) took two days of certified sick leave, while the other two complainants (D and E) took one day's self certified sick leave in this period. A third difference is that the respondent sent a letter dated the 11^th February 2016 to Employees D and E, but not to Employees A, B and C. According to the respondent, the letter was sent when requested by the local line manager.

In submissions, the complainants outline that the provision of paid sick pay is regulated by statute, referring to section 7A of the Public Service Management (Recruitment and Appointments) Act, 2004 as amended. On foot of this provision, the Minister for Public Expenditure and Reform issued a Statutory Instrument, S.I. 124 of 2014, to regulate sick pay. While the S.I. has since been amended, the amendments are not relevant to this issue.

The complainants refer to Regulation 7 of S.I. 124 of 2014, which lays out conditions for the payment of sick leave remuneration. The first condition is that a medical practitioner certifies the sick leave; a second that any "communication or representation" made by or on behalf of the employee is "bona fide" and third that any "relevant circular" is complied with. "Relevant circular" is defined as any circular or document disseminated or prepared by the relevant employer, or so disseminated or prepared by another public service body on behalf of the employer.

Regulation 24 of S.I. 124 of 2014 provides that an employer "may" award sick pay where the leave is not certified by a medical practitioner. This provision further requires that sick pay for self certified leave may only be awarded where the employee provides a statement to the employer that he was unable to work due to illness or injury.

The complainants also submit a Circular issued by the Department of Public Expenditure and Reform that sets out the administrative arrangements for paid sick leave. At 3.1, the Circular sets out the procedure an employee must follow in reporting absence. At 3.6, the Circular provides for referrals to the Chief Medical Officer and also refers to sick leave review meetings. Clause 4.2 provides more detail in relation to sick leave review meetings and in particular on the role of line managers.

The essence of the dispute between the parties is the status of a letter of the 9^th December 2015 issued by the respondent to certain employees. In the letter, the respondent notes that the employee-recipient of the letter has availed of sick leave in the period of Christmas Eve to the 2^nd January in at least three of the last four years. It is stated that in the light of this pattern, the option of paid sick leave might not be available to them over the Christmas period this year. The letter then provides "You will be required to apply to your [line manager] for consideration to be given to why the absence should be recognised as sick leave, and if you are within the limits for paid sick leave, why you should be paid for the absence. Your request and a recommendation from your [Line Manager] will be submitted to the [respondent] and considered in due course.”

The complainants submit that this letter does not have the status of a circular and that there was no legal basis for such correspondence to be considered a circular. It was not available on any website and the letters had a limited audience; a circular must be circulated generally to have force. The letter also fails to explain the nature of the consideration to be given by the respondent to an application made an employee. Employee C outlined at the adjudication that he had sought to raise his sick leave with his line manager, but this person was not available. He then sought to contact the respondent's HR Department, but they declined to assist.

In reply to the respondent’s submissions, the complainants outlined that the respondent had not referred to the Sick Leave Regulations at the time of making the deductions. A circular must be addressed to all staff and put up on a website. The correspondence issued by the respondent was addressed to individual staff and had a limited audience.

Respondent’s Submission and Presentation:

The respondent outlined that it was entitled to make the deductions from each complainant’s pay as the deduction was made in accordance to statute, or in the alternative, the monies paid represented an overpayment. The respondent was not challenging the bona fides of any of the claims. It outlined that because of large amounts of sick leave taken over the Christmas fortnight in previous years, it took this action. It outlines that in 2014, its facilities had been left in a precarious position because of sick leave taken in this period. Action was taken and 151 staff were provided with a circular letter. This required the staff member to apply to the head of their facility in order to assess the application for paid sick leave. The complainants had not availed of this procedure and so their absences over the Christmas fortnight were unauthorised absences. Section 16(1) of the Civil Service Regulation Act, 1956 provides that a civil servant shall not be paid for unauthorised absences. The deduction was lawful as authorised by statute. It further submits that the monies that had been deducted constituted an overpayment, again due to the unauthorised nature of the absence, and was equally recoverable by the employer as an overpayment.

The respondent submitted that the deductions in each case were authorised as they were made in accordance with the Public Service (Sick Leave) Regulations, 2014. Regulation 7 provides for sick leave remuneration and provides that this can be paid where the communication is bona fide and where any relevant circular is complied with. The respondent refers to the definition of “relevant circular” in the Regulations,in particular that this means “any circular or other document” disseminated and prepared by the employer or another public service body in respect of the relevant employer. It submits that the letter of the 9^th December 2015 prepared and disseminated to the 151 staff constitutes such a circular.

The respondent outlined that this was a provision to be addressed by the staff member after their return to work. It was expected that they would each make a case to the respondent regarding the period of sickness in the Christmas fortnight. Each facility would then issue a recommendation arising from such representations. The monies were not deducted until February 2016 in order to give each complainant the opportunity to submit a request. The letter of the 11^th February 2016 was sent at the request of certain facilities.

Findings and reasoning:

This adjudication involves complaints from five employees of the respondent regarding deductions made to their pay for absences due to illness over the course of what the parties referred to as the Christmas fortnight. An important difference between the complaints is that three complainants (Employees A, B and C) took two days of certified sick leave, while the other two complainants (D and E) took one day's self certified sick leave.

The lawfulness, or otherwise, of the deductions made in February 2016 rests on the letter of the 9^th December 2015. This correspondence was issued by the respondent at national level and communicated to each staff member by way of the head of the respective facility. It is addressed to each staff member by name. It refers in the “our reference” line to the employee’s staff number. It provides that the recipient must apply to have any sick leave taken over the Christmas fortnight recognised as sick leave. The complainants did not avail of this procedure.

The question to be determined is whether the respondent is correct that the letter of the 9^th December 2015 falls within the definition of “relevant circular” provided for in the Regulations and in particular the words “any circular or other document”. The respondent outlined that “other document” contains, within its ambit, the aforementioned correspondence.

This is an appropriate case to apply the canon of construction of ejusdem generis. Dodd in “Statutory Interpretation In Ireland” states, at 5.68, that this arises "where a list or strong of genus-describing terms are followed by wider residuary or sweeping-up words, the ordinary or wide meaning of the residuary words is presumed to be limited to things of that class of genus." Dodd gives the example of the interpretation of the Supreme Court in People v Farrell [1978] I.R. 13, where the Court interpreted the relevant provision of the Offences against the State Act, 1939 provided "[an arrested person] may be detained in a Garda Siochána Station, a prison, or some other convenient place." The DPP argued that the words "some other convenient place" could include a Garda car; the Court held "the general term "other convenient place" ought to be construed in the same sense as the specifics - a Garda station or prison - and at least must mean a convenient building of some kind."

Applying this canon of construction, I find that the words “other document” must be construed as limited to documents akin to circulars. Following this finding, the next question is whether the letter of the 9^th December 2015 can be construed as akin to a circular. This correspondence was issued to each complainant individually and addressed them by name and staff number. It was sent because they had each taken sick leave over previous years. In my view, the pieces of correspondence cannot be construed as circulars or anything akin to a circular. This is because it was personalised correspondence, addressed to each employee by name and number. I also have regard to the following passage of Hogan and Morgan Administrative Law in Ireland 4th edition, at 2-144, which provides that "circulars and the rest of their family are not law. This would follow from the fundamental character of the common law. For, if delegated legislation which is, at least, contemplated in primary legislation cannot make law which goes beyond the principles laid down in the parent Act, then the same restriction must certainly apply in the case of circulars. As a consequence, it is axiomatic that the public authority which issued such a circular may not rely on the circular as against the private citizen in order to affect or prejudice his strict legal rights nor may such a circular be relied on by one citizen against another."

Applying this finding to the five complaints contained in this adjudication, the complainants who had certified sick leave are entitled to succeed. Complainants A, B and C provided the certification required by Regulation 7 of the Sick Leave Regulations. Complainants D and E, however, were self certified and Regulation 24 gives discretion to an employer to pay the sick leave even if it is not certified. In this case, the respondent has decided not to pay for self certified days of sick leave within the Christmas fortnight and they are entitled to do so according to the Regulations. The complaints referred by complainants D and E cannot, therefore, succeed.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Pursuant to the findings made in this report, I determine as follows for each complaint made under the Payment of Wages Act:

• Complainant A (CA-00003217-001) The deduction made by the respondent to this complainant’s pay of €501.20 was unlawful and he shall be repaid the amount deducted.
• Complainant B (CA-00003218-001) The deductions made by the respondent to this complainant’s pay of a total of €440.62 were unlawful and he shall be repaid the total amount deducted.
• Complainant C (CA-00003219-001) The deductions made by the respondent to this complainant’s pay of a total of €404.24 were unlawful and he shall be repaid the total amount deducted.
• Complainant D (CA-00003221-001) The deduction made by the respondent to this complainant’s pay was not unlawful and the complaint does not succeed.
• Complainant E (CA-00003222-001) The deduction made by the respondent to this complainant’s pay was not unlawful and the complaint does not succeed.

Dated:   9^th September 2016