ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005326

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

Date of Adjudication Hearing: 07/02/2017

Workplace Relations Commission Adjudication Officer: Joe Donnelly

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:

Respondent’s Submission and Presentation:

Preliminary Issue:

The complaint relates to a period from the 27 February 2016 to 18 March 2016. The claim form was lodged with the WRC on 7 October 2016. This is in excess of the six month period provided in the legislation for the filing of a claim and the complaint is therefore statute barred.

No extension of the time limit has been sought.

Substantive Issue:

The complainant has been employed by the respondent for almost 12 years, was given a Staff Handbook and therefore should have knowledge of the provisions of the sick pay scheme.

The sick pay scheme sets out the criteria for qualification for payment. Amongst the examples for non-payment was ‘Accidents which occur outside work’.

On 26 February 2016 the complainant contacted his line manager to advise that he had been injured in an attack and required stitches in his wounds. This absence lasted until the complainant advised his manager that he was fit to return to work on 21 March 2016.

On 14 March 2016 the complainant was advised by letter from the HR Dept. that he was not entitled to sick pay as per the rules of the scheme. His Return to Work Interview confirmed the reason for his absence as being an assault outside of work.

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.

Issues for Decision:

Was the claim lodged within the time limit laid down in legislation for the filing of a complaint and if not was there a reasonable cause for the delay such as to allow for an extension of the time limit?

Was the non-payment of sick pay a permissible action by the respondent under the Payment of Wages Act, 1991?

Legislation involved and requirements of legislation:

Section 41(6) of the Workplace Relations Act, 2015, states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Subsection 8 states:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Section 5(1) of the Payment of Wages Act, 1991, states:

An employer shall not make any deduction from the wages of an employee (or receive any payment from an employee) unless –

1. The deduction (or payment) is required to be made by virtue of any statute or instrument made under statute,

2. The deduction or payment is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

3. In the case of a deduction, the employee has given his prior consent in writing to it.

Decision:

The complainant is employed as a general operative by the respondent having commenced employment in August 2005. He is employed on a full time basis on a gross wage of €530.00 per week.

The complaint relates to the non payment of sick pay for the period of time commencing on 27 February 2016 until 21 March 2016 during which time the complainant was absent on certified sick leave.

Preliminary Issue:

The complaint was received by the WRC on 7 October 2016 which is more than 6 months after the period to which the complaint of non payment of sick pay relates. The complainant’s representative stated that the delay in filing the complaint arose from a specific set of circumstances whereby the union official with responsibility for the employment in which the complainant worked was unable to process the complaint and by the time responsibilities were reassigned within the union the date for filing the complaint had passed. On that basis there was a reasonable cause for the extension of the time limit permitted under the legislation to be extended. The respondent objected to any extension being granted.

The Labour Court dealt with this issue in Determination WTC0338 as follows:

The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a casual link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.

Taking everything into account, particularly the specific circumstances as explained by the complainant’s representative, I have decided to allow the extension of time permitted by Section 41(8) of the Act.

Substantive Issue:

The background facts are not in dispute. The complainant was the subject of an assault outside of working hours as a result of which he suffered injuries which necessitated hospital treatment. He was absent from work from 27 February 2016 until 21 March 2016 and submitted medical certificates in this regard. The respondent did not pay the complainant any sick pay in relation to this absence.

In his submission the complainant stated that the respondent did not give him a reason for withholding this payment. The respondent however produced a copy of a letter sent to the complainant on 14 March 2016 in which it was states that “the company have reviewed your absence and as it is related to an incident that occurred outside of the workplace it is not in line with the sick pay requirements. As such you are not entitled to sick pay as per the employee handbook and the Company sick pay scheme.” The letter went on to advise the complainant of his right to appeal this decision.

The staff handbook was issued to the complainant at the time of his initial employment and was signed for by him. Clause 2.2.6.(c) is the relevant clause and it states:

As the scheme is non-contributory, the Company at all times retains the right to withhold or vary payment. Some examples where payment will not be made are:

• Accidents which occur outside work

• Sports injury

• Activities normally excluded by standard insurance conditions…

The complainant, in his submission, stated that his partner who also worked for the respondent was injured in the same incident and was paid for their absence. On that basis the complainant argued that he should also be paid. No direct evidence was produced by either side in relation to this matter and in any case the question I have to decide is whether the respondent was entitled under the Payment of Wages Act to withhold sick pay from the complainant. I am also conscious in this regard that the complainant did not exercise his right of internal appeal against the decision where that argument may have been relevant.

Having taken everything into consideration I have decided that the rules of the sick pay scheme as included in the staff handbook permitted the respondent to withhold the payment in question and that the complaint is accordingly not well founded. The complaint therefore fails.

Dated:   27^th April 2017