ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004825

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

Date of Adjudication Hearing: 18/11/2016

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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.

Complainant’s Submission and Presentation:

The Complainant is a leisure attendant and commenced working at the Sports and Leisure centre in 2004. A Transfer of undertakings took place in 2007.

The Complainant went on sick leave on the 14th of February 2016 citing work related stress.

A further transfer of undertakings took place on the 7th of March 2016.

The Complainant submitted sick notes to cover the period of absence.

At the time of the transfer, the Respondent wrote to the Complainant advising him that he would transfer with full continuity of service and on his existing terms and conditions of employment with the exception of any pension arrangements he may have with his former employer.

The Complainant provided me with a copy of a contract of employment with his Employer in 2007 and a statement of revised terms and conditions of employment dated January 2011.

Beside the heading “Incapacity for Work/Sickness/Sick Pay” was

“1 day without medical certificate, 2 days or more require medical certificate (Appendix 3)”

Appendix 3 of the document was headed Sick Leave. The Appendix set out

“In the event of absence from work through illness you will be required to make contact by telephone as early as possible prior to the start of your shift stating the time and expected duration of your illness.

A certificate from a qualified medical practitioner must be submitted according to your terms and conditions of employment.

Arrangements for payment during illness will be made in accordance with the appropriate regulations.

[Employer] reserves the right to have you examined by an independent medical advisor.”

On the compliant form, the Complainant set out that he was on sick leave for over seven months and for six months of this absence, he received his full wages. His claim is that after six months, the Respondent reduced his weekly sick pay to twenty hours which was half of his normal working hours.

The Complainant relied on the above clause in his contract. He queried the reference to the regulations and sought a copy of the regulations that the Respondent was following.

The Complainant’s case was that there is no reference to half pay in his terms and conditions and therefore any reduction in pay by the Respondent is incorrect and is a breach of Section 5 of the Payment of Wages Act 1991 as an unlawful deduction.

Respondent’s Submission and Presentation:

The Respondent’s case is that it operates a number of leisure centres throughout the country.

It refutes the claim and submits that the Complainant has been paid as per the terms and conditions of his contract of employment with the Respondent and the previous transferor.

The Respondent arising from the transfer of undertakings acquired an entity that had originally comprised staff of a local authority.

The Respondent therefore applied the Public Service Management (Sick Leave) Regulations 2014 as the appropriate regulations referred to in the sick leave policy. It is the Respondent’s own policy for the other leisure centres that it runs is not to pay employees for periods of sick leave. However to ensure adherence to the TUPE regulations, the Claimant was paid sick pay.

The Claimant had been in receipt of sick pay as per his terms and conditions prior to the transfer to them in March 2016.

Regulations 9 and 10 of Public Service Management (Sick Leave) Regulations 2014 governs the amount and rates of sick leave remuneration for non-critical illnesses.

Regulation 12 of Public Service Management (Sick Leave) Regulations 2014 governs the amount and rates of sick leave remuneration for critical illness or injury.

The medical certificates provided did not indicate that the Complainant suffered from a critical illness or injury.

Under the Public Service Management (Sick Leave) Regulations 2014 the Complainant if not suffering from a critical illness or injury should receive three months full pay and three months half pay. In this case the Complainant has received six months full pay and six months half pay.

Decision:

Section 41(4) 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.

I have considered the substantial written and oral submissions in this case.

The background to this business is fundamental to the position the parties find themselves in.

When the swimming pool complex was originally set up, it was run by the local county council. At some stage the business was transferred to a company limited by guarantee. As development work was being carried out to the swimming pool complex, a new legal entity (limited liability Company) was set up and a transfer of undertakings took place between the prior company and this new company. The newly formed company was owned by the local county council and local town council. That company transferred its business to the Respondent with effect from the 6^th March 2016.

While the Respondent itself does not operate a sick pay policy in the other leisure centres that it operates, it maintained the Complainant’s existing terms and conditions of employment following the transfer of undertakings. One of these terms is the sick pay policy.

The sick pay policy contains a number of conditions. One of these conditions is that

“arrangement for payment during illness will be made in accordance with the appropriate regulations”

I accept that the reference to “ appropriate regulations” is lacking in detail, however I am satisfied that taking into account the history of the business, it could not relate to anything other than the civil service sick leave regulations which date back to circulars issued since 1978.

The most current regulations are the Public Service Management (Sick Leave) Regulations 2014 which came into effect on the 31st of March 2014.

No evidence has been furnished to show that the Complainant is suffering from critical illness or injury. However despite same, the Respondent has applied the sick pay rules relative to critical illness or injury.

It is submitted that that sick pay is encompassed by the definition of wages for the purpose of the Payment of Wages Act 1991 and that the Respondents refusal to pay the Complainant sick pay at the full rate, amounts to an unlawful deduction within the meaning of Section 5 (6) of the Payment of Wages Act 1991.

The Payment of Wages Act 1991 defines wages at Section 1 in the following terms:-

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(Emphasis added)

Section 5(6) of the Act provides:

“(6) Where—

1. 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 is properly payable by 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 are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

    

   (Emphasis added)

It follows that payment under the sick pay scheme for a full salary does not qualify as wages “properly payable” within the meaning of Section 5 (6) of the Payment of Wages Act 1991.

The Complainants case fails.

Dated:   12/04/2017