PWD1716

This is an appeal by the Health Service Executive (“the Respondent”) from a decision of an Adjudication Officer (ADJ-00003262, dated 8 February 2017). The Notice of Appeal was received by the Court on 16 February 2017. The appeal was heard in Dublin on 30 March 2017. Both parties submitted additional written materials to the Court following the hearing, as requested.

Mr Di Marzio (“the Complainant”) referred a complaint under the Payment of Wages Act 1991 (“the Act”) in relation to the rate at which his sick pay was calculated for an absence that occurred on Sunday, 6 September 2016. He had been rostered to work 3 hours on that date but didn’t attend for work as he was on uncertified sick leave on 5 and 6 September 2016. It is common case that had he worked the 3 hours in question he would have been paid for them at premium double time rate. He was, however, paid 3 hours at the basic rate. The Complainant’s claim that he should have received sick pay at the premium rate was upheld by the Adjudication Officer.

The Parties’ Submissions

The Complainant submits that he should have received payment for his absence on Sunday 6 September 2016 at the premium rate because he had previously received sick pay calculated in this manner in respect of other Sundays he had been rostered to work but had been absent due to illness. He gave the specific example of a period in the past when he had been absent for 8 weeks following an accident and during which period his sick leave included premium payments for all rostered Sunday hours.

The Respondent, on the other hand, submits that its policy is to pay sick pay based only on basic pay; sick pay does not include premium payments. Therefore, the Complainant, it further submits, was paid correctly in respect of his absence on 6 September 2016. If he – or any of his colleagues – had been paid for sick leave in the past based on premium rates, this was done in error.

Discussion and Decision

Having given careful consideration to the parties’ submissions and to the additional materials received after the hearing, the Court accepts the position outlined by the Respondent in relation to its sick leave policy: i.e. sick leave is calculated at the rate of basic pay only and does not include premium payments, other than where otherwise expressly agreed. The Complainant did not furnish any evidence to the Court to establish that there is in place an explicit agreement in his case to depart from the normal HSE practice in relation to the calculation of sick pay. It follows, therefore, that the Complainant has not established that sick pay based on a premium rate of pay was ‘properly payable’ to him, within the meaning of the Act, in respect of his absence on uncertified sick leave on 6 September 2016.

The decision of the Adjudication Officer is, therefore, overturned.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
19th June 2017______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.