ADJ-00006988

Complainant

Respondent

Anonymised Parties

A Worker

A Refuse Collection Company

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-00009560-001

03/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009560-002

03/02/2017

The Complainant claims that the Respondent has contravened Section 5 of the Payment of Wages Act 1991 in terms of its refusal to pay him for the duration of an absence on sick leave after he sustained a work related injury. The Complainant also claims that he has been subjected to bullying and harassment in the workplace by his Supervisor, Mr. A, and has sought to have this matter investigated in accordance with the provisions of Section 13 of the Industrial Relations Act 1969.

The Complainant has been employed as a Helper at the Respondent’s refuse collection business since 2004. The Complainant was absent from work on certified sick leave on 22^nd November, 2016 when he received a telephone call from his Supervisor, Mr. A, insisting that he come into work. The Complainant understood from the telephone call that the Respondent was very short of Helpers on that date for certain routes. The Complainant claims that he was left with no choice but to attend work as he felt that he would lose his job if he refused to attend work.

The Complainant attended work on the following days while still on certified sick leave and sustained an injury on 25^th November, 2016 while carrying out his duties. The Complainant claims that he was struck by a car at a pedestrian crossing while collecting a refuse bin and that he sustained injuries to his ankle and shoulder as a result of the collision. The Complainant went absent from work on certified sick leave on 28^th November, 2016 as a result of the injuries sustained after being struck by the car while carrying out his duties. The Complainant remains on certified sick absence as has not been paid by the Respondent for the duration of the period of his absence. He is currently in receipt of sickness benefit from the Department of Social Protection.

The Complainant claims that he is entitled to sick pay from the Respondent during his absence and he referred to a comparable situation where the Respondent has paid another employee for the duration of a sick absence after this person has sustained a work related injury. The Complainant claims that his claim for sick pay is further strengthened by virtue of the fact that he has been employed by the Respondent for thirteen years and that the injury which is currently preventing him from working was sustained after he was forced to return to work under duress while he was on a period of certified sick leave. The Complainant claims that he is entitled to €3,824 in unpaid wages which the Respondent has unlawfully deducted from his wages contrary to Section 5 of the Payment of Wages Act 1991.

The Complainant also claims that he has been subjected to bullying and harassment in the workplace by his Supervisor, Mr. A, and has sought to have this matter investigated in accordance with the provisions of Section 13 of the Industrial Relations Act 1969.

The Respondent submits that the Complainant has been absent from work on certified sick leave since 25^th November, 2016. The Respondent acknowledges the Complainant’s right to be absent on certified sick leave and has maintained his employment for the duration of his absence. The Respondent does not pay sick pay to staff when absent on certified sick leave and submits that it is not legally obliged to do so.

The Respondent submits that the Complainant’s Supervisor, Mr. A, was made aware on 25^th November, 2016 of a very serious incident involving the Complainant which was alleged to have occurred while he was carrying out his duties on that date. This incident involved a serious allegation of assault by the Complainant against a member of the public when he was conducting waste bin collections on behalf of the Respondent. Based on this serious allegation, the Respondent wrote to the Complainant on 30^th November, 2016 inviting him to attend a disciplinary meeting on 1^st December, 2016. The Respondent submits that at no stage up to that juncture had the Company been made aware by the Complainant, either formally or verbally, that he was on certified sick leave.

The Respondent’s Office Manager subsequently received a text message from the Complainant on 30^th November, 2016 to inform her that he was “out on certs the last three weeks” and wished “to concentrate on getting well again now”. Based on this text message, the Office Manager again wrote to the Complainant indicating that the Respondent was not aware the Complainant was on certified sick leave as he hadn’t submitted any medical certificates up to that juncture covering his period of absence. In light of the fact that the Complainant was receiving medical attention, it was further added in this letter that the planned disciplinary meeting would be deferred until the Complainant was fit to attend work.

The Respondent received a backdated medical certificate from the Complainant on 2^nd December, 2016 (dated 30^th November, 2016) indicating that he was certified as being unfit for work from 21^st November, 2016. The Respondent submits that the Complainant has remained absent from work on certified sick leave since 25^th November, 2016 and his employment has been maintained pending his fitness to return to work. The Complainant has not been paid during the period of his absence on sick leave as it is the Company’s policy not to pay employees while on sick leave. The Respondent accepts that another worker has been paid while absent on sick leave, on an exceptional basis, after sustaining a work related injury. The Respondent submits that the circumstances of that case are entirely different to the present situation involving the Complainant and claims that any payments made to the other worker are being reimbursed to the Company as part of a settlement agreement with its insurers arising from the worker’s accident.

The Respondent also denies any claims of bullying or harassment made by the Complainant and submits that he never raised any complaint regarding such matters during his period of employment. The Respondent submits that it has a comprehensive Dignity at Work policy to deal with issues relating to bullying and harassment in the workplace and that the Complainant has not invoked any grievance under this policy.

CA-00009560-001 - Complaint under the Payment of Wages Act 1991

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

 “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

              (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) 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

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides:—

(a) 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.

The issue for decision in relation to this element of the complainant’s claim is whether the respondent made unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to the failure to pay the complainant during the period of his absence on certified sick leave. In considering this issue, I must first decide whether the claimed unlawful deduction was in fact “properly payable” to the Complainant.

It was common case that the Complainant was absent from work on certified sick leave during the cognisable period relevant to this complaint i.e. from 25^th November, 2016 until the date of referral of the complaint on 3^rd February, 2017. It was also common case that the Complainant has not been paid by the Respondent for the duration of this absence on sick leave. The Respondent’s evidence was that it has a general policy whereby it does not pay employees while absent on certified sick leave. It was not in dispute between the parties that the Complainant has not been provided with a written contract of employment or a written statement of the main terms and conditions of employment pursuant to the Terms of Employment (Information) Act 1994. However, it is clear that the Complainant is an employee of the Respondent but the terms of the contract under which he is employed were either expressed verbally or were implied. The Complainant has not adduced any evidence to suggest that there was any express or verbal contractual agreement with the Respondent that his salary would be payable during periods of certified sick leave.

The main plank of the Complainant’s argument in support of this claim relates to the contention that another employee of the Respondent’s was paid while absent on sick leave after sustaining a work related injury and therefore, that a custom and practice has been established whereby other employees are paid while absent on certified sick leave. The Respondent accepts that this other employee was paid while on certified sick leave, however, it contends that this was an exceptional and once-off arrangement arising from a settlement agreement with its insurers whereby the Company is being reimbursed for any wages paid to this person while on sick leave.

In considering this matter, I have taken cognisance of the case of Brinks Ireland Limited –v- Roman Protsenko[1] where the Labour Court held that: “A term can also be implied by application of the alternative and somewhat overlapping, ‘custom and practice’ test adopted by Maguire P in O'Reilly v Irish Press [1937] 71 I.L.T.R 194. Here it was held that the practice must be: -“… so notorious, well-known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties … it is necessary in order to establish a custom of the kind claimed that it be shown that it was so generally known that anyone concerned should have known of it or easily become aware of it.”

In applying the reasoning in the above case and having regard to the evidence adduced, I am satisfied that the Respondent does not have an established custom and practice of paying employees while absent on certified sick leave. Furthermore, I am satisfied that the aforementioned situation involving another employee was an exceptional and once-off situation which arose as a result of specific set of circumstances. In coming to this conclusion, I note that the Complainant accepted under cross-examination that he was not paid by the Respondent in relation to other periods of sick leave which occurred previously during his period of employment. The Respondent also gave credible evidence in relation to a number of other employees who have not received sick pay while absent on sick leave and provided supporting documentation to corroborate this contention.

In the circumstances, I find that payment while absent on sick leave during the relevant period does not qualify as wages “properly payable” within the meaning of Section 5(6) of the Act. Therefore, the question of the Respondent’s compliance with subsections (1) and (2) of Section 5 of the Act does not arise for consideration in the circumstances of the present case.   Accordingly, I find that the complainant fails.

CA-00009560-002 – Dispute under the Industrial Relations Act 1969

The Complainant has also claimed that he has been subjected to bullying and harassment by his Supervisor, Mr. A, and has referred this matter for investigation in accordance with the provisions of Section 13 of the Industrial Relations Act 1969.

It was not in dispute between the parties that the Respondent has established internal dispute resolution mechanisms for addressing grievances and disputes of an industrial relations nature. The Complainant did not dispute the fact that he has not exhausted these internal grievance procedures prior to the referral of the present dispute to the Workplace Relations Commission.

It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute.

Accordingly, I recommend that the Complainant exhausts all internal dispute resolution mechanisms for addressing his grievances before considering the further referral of this matter to the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969.

CA-00009560-001

I find that the complaint pursuant to the Payment of Wages Act 1991 in respect of sick pay is not well founded.

CA-00009560-002

I recommend that the Complainant exhausts all internal dispute resolution mechanisms for addressing his grievances before considering the further referral of this matter to the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969.