ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002676

Complaint for Resolution:

Date of Adjudication Hearing: 01/06/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

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

The Complainant has been employed by the Respondent since 1^st January 2007. The Complainant is paid €834 gross per week and he works a 39 hour week. The Complainant was provided with a written Statement of his Terms and Conditions of Employment. The Complainant referred a complaint to the Workplace Relations Commission on 6^th April 2016 alleging his Employer had made an unlawful deduction from his wages effective from 17^th November 2015.

Summary of Complainant’s Position.

The Complainant is employed as a Driver. The Complainant has been on certified sick leave since 13^th October 2015 due to work related stress. As per the Company Sick Pay Scheme the Complainant was paid his full wages less his Social Welfare entitlements. The Complainant was requested to attend the Company Doctor some 4 weeks later, which he complied with. The Company Doctor certified him “physically fit to return to work”. On foot of this the Respondent ceased payment to the Complainant under the Company Scheme. The Complainant was notified by letter of this on 17^th November 2015. He was required to confirm his return to work. The Complainant sought a copy of the Company Doctor’s Report but this was not provided. The Complainant continued to submit medical certificates from his GP.

SIPTU wrote to the Company on 22^nd February 2016 in an attempt to seek to resolve the issue. There was no response. SIPTU wrote again on 8^th March 2016 and a response was received on 23^rd March 2016 but it was clear the Company did not wish to resolve the issue.

SIPTU outlined the Company Sick Pay Scheme which they asserted had been breached by the Respondent.

SIPTU further contended that the Respondent was in breach of the Payment of Wages Act, 1991 in that they had made an unlawful deduction, without his consent, as provided for by the legislation.

The Complainant is seeking payment of €15,439.36.

Summary of Respondent’s Position.

The Complainant has been employed since January 2007 and is paid an annual salary of €46,073.00.The Company have a comprehensive sick Pay Scheme in place for its employees. The Complainant’s Contract of Employment contains reference to the Sick Pay Scheme at Section 7 of the Contract of Employment. The Respondent stated that there is a shared mutual recognition by the Company and SIPTU of the need to maintain the integrity of the Scheme. The Company’s named Medical Advisors have provided advice regarding fitness for work over many years.

An incident occurred in January 2015 when the Complainant was uncontactable for a number of hours and it subsequently transpired that his truck was driven outside his expected delivery route. Issues arose between the Complainant and his Line Manager which were the subject of discussions between SIPTU and the Company in June and August 2015.

The Complainant was absent from work since 13^th October 2015 and submitted medical certificates citing stress. He did inform his Line Manager that he would be absent from work for the foreseeable future. The Complainant was paid under the Sick Pay Scheme.

He was referred to Occupational Health on 16^th November 2015 where he was certified “medically fit for work at present”. The Company wrote to the Complainant on 17^th November 2015 outlining that the Occupational Health had certified him fit for work and that he had not submitted weekly certificates as is required. He was advised to return to work and informed his sick pay would be discontinued. SIPTU were advised. The Complainant sought a copy of the Health Report and this was provided to him on 8^th January 2016. The Complainant remained absent from work.

The Company wrote to him again on 8^th January 2016 stating he must return to work. On 15^th January 2016 SIPTU, on behalf of the Complainant, submitted a complaint of Bullying and Harassment in accordance with Company Policy. The Company responded on 29^th January 2016 and the investigation was initiated and is ongoing.

The Complainant was again referred to Occupational Health on 21^st January 2016 which again found that the Complainant was medically fit for work but went on to state that the Complainant “is reluctant to return to work unless his perceived difficulties are addressed”.

The Complainant remains absent from work and unpaid from 26^th November 2015.

On the basis of the evidence and written submissions from both Parties I find as follows:

1. The Complainant has been absent from work since 13^th October 2015 and is medically certified unfit for work by his GP.
2. The Complainant has been referred on two occasions to Occupational Health under the Company Sick Pay Scheme and has been found to be medically fit for work on both occasions.
3. The Complainant confirmed at the Hearing that his GP did not provide a medical response to the Occupational Health findings and the Complainant also confirmed at the Hearing that he had been provided with a copy of the Occupational Health Report on 8^th January 2016.
4. I have examined in detail the Company Sick Pay Scheme which requires as follows: “During a period of prolonged sickness, an employee must present, as requested, on at least a four weekly basis to the Company Doctor. Also, an employee will be required to submit medical reports to the Company Doctor from his/herown Doctor. The Company Doctor, in consultation with the employee’s own Doctor, may refer the employee for further medical tests at the Company’s expense”.
5. I find that the Respondent did not breach Section 5 of the Payment of Wages Act, 1991 – 2015 as they complied fully with the Company Sick Pay Scheme.
6. Decision:

Section 41(5) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. On the basis of my Findings above and in accordance with the Act I declare the Complainant is not well founded.

Date:______16 September 2016