ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004396
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00006345-001 | 8th August 2016 |
Date of Adjudication Hearing: 25th October 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act 1991 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.
Background: . The Complainant has been employed by the Respondent since 28th February 2000 and his weekly rate of pay is €577.76c gross and €487.95c net. The Complainant was submitting that the Respondent had made a ‘deduction’ from his ‘wages properly payable’ to him in breach of his rights and entitlements under Section 5 of the Payment of Wages Act 1991.
Summary of Complainant’s Case:
My contract of employment states explicitly that sick pay entitlement is 'the difference from Social Welfare payment and your normal nett pay for a period of 3 months'. During a five-week absence, my Employer purported to inform me that my entitlement was only for a period of three weeks, and cited the provisions of a policy which I have never seen, still less agreed to. |
SIPTU said the Complainant has been employed as a Maintenance Overseer by the Respondent since February 2000 and they said that in his Written Statement of his Terms and Conditions of Employment, issued in 2005, it is stated under “Absence/Sick Pay”:
“The Company undertakes to pay the difference from Social Welfare and your normal nett pay for
a period of 3 months.”
SIPTU said that during a period of sick leave of 5 weeks in June and July 2016, the Complainant was informed by letter of 15th July 2016, that his sick pay entitlement was only of 3 weeks duration and that these 3 weeks had been exhausted. There was no allegation that the sick leave was not properly certified. SIPTU said the Respondent’s position, as stated on 20th August 2016, seems to be that the Complainant’s contractual entitlements have been altered by a collective agreement.
SIPTU said that the Complainant’s period of sick leave was from 20th June 2016 to 25th July 2016 and they said that his normal nett pay was €487.96c. SIPTU said that therefore they contend that during the period of paid sick leave, his normal nett pay should have been €299.96c and they said the applicable social welfare benefit was €188.00c per week.
SIPTU said that however the Complainant’s pay statement of 7th July 2016 shows nett pay of €244.13c. SIPTU said that no pay statement was issued on 14th July 2016 and the nett pay was zero. SIPTU said the pay statement of 21st July 2016 shows nett pay of €96.88c. SIPTU said that pay statements were not issued on 28th July 2016 or 4th August 2016 and that nett pay received was zero. SIPTU submitted that, in accordance with his agreed written statement of terms and conditions of employment, the Complainant should have received the nett sum of €1,499.80c (€299.96 x 5) during this 5 week period, but is fact received only €341.01c, leaving a shortfall of nett pay of €1,158.79c due to him.
SIPTU said the 2005 Agreement between the Complainant and the Respondent concerning sick pay is clear and unexceptional. They said the letter of 15th July 2016 from the Respondent to the Complainant is equally clear, but it relies upon the provisions of a ‘Sick Leave Management & Entitlements Policy’ that the Complainant has never seen, still less agreed to, to disapply the provision of the 2005 Agreement. SIPTU said that no notification of change, as would have been required by Section 5 of the ‘Terms of Employment (Information) Act 1994’, has been made.
SIPTU said that the letter of 20th August from the Respondent to them, purports to link that fact that a collective dispute exists in respect of the generally applicable sick provisions, namely a 3 week period of payments applies to the instant case.
SIPTU said that moreover, that generally applicable scheme is described in the letter as being “collectively agreed”, which SIPTU said is not correct as the Scheme pre-dates recognition of the Trade Union by the Respondent. SIPTU said that while it would of course be possible for the Complainant’s 2005 individual terms and conditions of employment to be diminished by a later collective agreement, no such collective agreement exists.
SIPTU quoted from Section 5 of the 1991 Act in support of their position and they said that Section 1 of the Act defines “wages” as including “any holiday, sick or maternity pay”.
Based on the foregoing SIPTU sought a decision that the complaint was well founded and that the Respondent be required to pay the Complainant the wages/sick pay due to him.
Summary of Respondent’s Position:
The Respondent said the instant case related to a perceived entitlement to sick pay entitlement that is a variance with the entitlement of all other employees.
The Respondent said that the Complainant was absent from work on sick leave from 28th June to 25th July 2016. On 1st July 2016, the Complainant received a telephone call from his Line Manager informing him that his entitlement to sick pay from the Respondent under the “Sick Leave Management & Entitlements Policy” would cease after 3 weeks on 29th June 2016.
The Respondent said that in a letter dated 8th August 2016, received on 10th August 2016, SIPTU confirmed that the Complainant was pursuing a complaint at the WRC under Section 6 of the Payment of Wages Act 1991. On 9th August 2016, the Complainant sought a meeting with his Manager, at which he stated that he did not receive payment for the week worked from 25th July to 29th July 2016, when he had returned to work.
The Respondent’s Representative said on 15th August 2016, in the absence of his Manager, he was requested to inform the Complainant in writing of the cessation of his sick pay, the effective date of that was 29th June 2016, with the final payment the following week, week ending 8th July 2016.
On 20th August 2016, correspondence was received by the Respondent from the WRC in relation to the Complainant’s complaints. On the same date the Respondent’s Representative wrote to SIPTU to point out that the Complainant’s case/complaint had not been progressed though the internal Grievance and Disciplinary Procedure – and they said that in fact the had not even been raised, the letter requested SIPTU to advise the Complainant to follow the agreed procedures within the employment. However SIPTU, on 25th August 2016, wrote in response, just acknowledging receipt of the letter of 20th August 2016.
On 30th August 2016, the Complainant wrote to his Manager, seeking to know why he did not receive payment for the period 25th to 29th July 2016, during which he had worked. On the following day, 31st August 2016, a meeting was held with the Complainant, the Finance Manger, his Line Manager and the Respondent’s HR Consultant. The Complainant was accompanied and represented by a named work colleague.
At this Meeting the payments made to the Complainant in respect of sick pay and hours worked were explained to him as follows:
As the Sick Pay Scheme operates over a rolling 12 month period, and absence by the Complainant from 7th July 2015 to 10th July 205, being 5 days of sick pay was paid on 16th July 2015. The Complainant was again out sick from 22nd February 2016 to 26th February 2016, being again paid 5 days of sick on 3rd March 2016. He again went out sick from 28th June 2016 to 27th June 2015 and he was paid for this on 30th June 2016. For the week of certified absence from 27th June 2016 to 1st July 2016, he received 5 days of sick pay on 7th July 2016. For the period from 4th July 2016 to 8th July 2016 he received 2 days or 15.60 hours of overpayment in error, payment was made on 14th July 2016. The Complainant did not receive payments from the Respondent for any further sick payment, apart from that stated in the foregoing. The Complainant had received 17 days pay as against the normal payment of 15 days over the rolling 12 months period, this being an oversight on the part of the Respondent. The Complainant was absent with no pay during weeks commencing 11th July 2016 and 18th July 2016. Upon his return to work on 25th July, payment was made to him from the week 25th July to 29th July 2016 was made to him on 4th August 2016. The Respondent said that the Complainant did not accept this explanation in relation to his payments.
The Respondent said that employees are paid their full nett pay while out sick and they are required to make their social welfare payment received payable to the Respondent. The Respondent said that the Complainant was informed of this, but he failed to so do.
The Respondent again stated in detail that a grievance was never raised by the Complainant or on his behalf at any time with them.
The Respondent said that in 2013, they were faced with extremely serious financial difficulties with their future in the balance. Measures had to be taken at that stage to ensure that the service provision continued and to secure the employment of employees. Wage reductions for employees were implemented. The Sick Pay Scheme was fixed at 3 weeks and 2 uncertified days. Many other initiatives including amendments to travel and subsistence was also introduced and to date the financial position of the Organisation is not viable. The Respondent said they have made the named SIPTU Organiser fully aware of this in precise detail in 2016, when requested to so do by a named Conciliation Officer of the WRC in the course of a Conciliation Conference.
The Respondent said they are engaged in conciliation under the auspices of the WRC in which they are seeking amendments to the current Sick Pay Schemes of 3 weeks sick pay by reducing this and also in relation to a second matter of paid breaks and they said that the Complainant through his membership of SIPTU is a party to this. The Respondent said that these Conciliation Conferences have acknowledged the existence of the Sick Pay Agreements of 3 weeks for all employees without exception and were attend by a named SIPTU Official and shop stewards for the area the Complainant works in.
The Respondent said that they have honoured their obligations in full to the Complainant in respect of sick pay entitlements due under the Sick Pay Scheme.
The Respondent sought a finding and decision that they had acted in a corporately responsible manner in their dealing with the Complainant and they sought that the complaint be rejected.
Findings and Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 6 of the Payment of Wages Act 1991, requires that I make a decision in relation to the complaint consisting of a grant of redress in accordance with the provisions of the same Section of the 1991 Act.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
I note that much of the submissions made by the Respondent refer to matters more appropriate to be dealt with in a claim under the Industrial Relations Acts. However the instant complaint is a complaint under the Payment of Wages Act 1991 and falls to be decided solely under the provisions of that 1991 Act.
It is my clear understanding that the only contract of employment / written statement of his terms and conditions of employment provided by the Respondent to the Complainant and signed and dated by the Complainant and the Respondent on 13th June 2005 and 5th September 2005 respectively. I was provided with no evidence that the Complainant was ever notified in writing of any change in this document as required by Section 5 of the Terms of Employment (Information) Act 1994 for any such change and accordingly I must accept as submitted by the Complainant, and not denied by the Respondent’s Representative, that no such written notification was provided to the Complainant by the Respondent. Accordingly the terms of that document remain and are binding on both parties.
This document of 2005 states inter alia:
“Absence / Sick Pay
In the event of absence from work you are required to contact your Supervisor (or in her/his absence the Personnel Manager) by 9.30am on the first day of absence. A certificate from a qualified Medical Practitioner must be submitted on the third day of a continuous absence through illness or accident and on a weekly basis thereafter. A maximum of one week normal working hours certified sick leave during the 52 week period is your entitlement. Thereafter, payment will be integrated with social welfare benefits. The Company undertakes to pay the difference from Social Welfare and your normal nett pay for a period of 3 months. The Company reserves the right to request you undergo an independent medical examination.”
The Respondent submitted a copy of a document dated 3rd June 2019, which they said was a collective agreement on an amended ‘Sick Pay Management & Entitlements Policy’. However the Complainant stated that he had never previously seen this document, much less agreed with it. The Respondent’s Representative was not in position to say when, if ever, the Complainant had been presented with this document, accordingly I must accept, the effectively uncontested evidence of the Complainant, that he had never previously seen this document.
In addition I note that there is nothing in this document to suggest that it is a collectively agreed one and I was presented with no evidence, such as correspondence between SIPTU and the Respondent, that this was an agreed document.
Based on the foregoing I must find and declare that there was no authority for any reduction in the level and duration of sick pay due to the Complainant based on his written contract of employment of June 2005 quoted in the foregoing.
I find and declare that the reduction in the Complainant’s sick pay entitlements was not, in accordance with the provisions of Section 5 of the Payment of Wages Act 1991:
required or authorised to be made by virtue of any statute or instrument made under statute
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, the deduction, or
in the case of a deduction, the employee has given his prior consent in writing to it
Based on the foregoing I find and declare that the complaint under Section 6 of the Payment of Wages Act 1991 in relation to a breach of Section 5 of the 1991 Act is well founded and it is upheld. The nett amount due to the Complainant is €1,158.79c and I require the Respondent to pay him that amount within 6 weeks of the date of this decision.
Seán Reilly, Adjudication Officer
Dated: 22 February 2017