ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005124

Parties:

Representatives

Paul Hardy SIPTU

Ronnie Lawless IBEC

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00007144-001	22/09/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00007144-002	22/09/2016

Date of Adjudication Hearing: 06/12/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Location of Hearing: Galway Maldron Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and the abovementioned Act and Regulations, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complainant has been employed as a cleaner since June 2015 and the employment transferred to the respondent under TUPE with effect from 6^th of December 2015. The complainant alleges that the respondent has unilaterally changed her terms and conditions resulting in breach of the abovementioned Act and Regulations. The complaints were received by the WRC on the 22^nd of September 2016. The parties made written and oral submission to the hearing.

Summary of Complainant’s Case:

The complainant submits that she transferred to the employment of the respondent on December 6^th 2015 as a result of a TUPE. Her contract extant provided that she would be entitled to payment of sick pay on a sliding scale. She suffered a workplace injury on the 18^th of July 2016 but was refused the same despite the fact that she had an accrued contractual entitlement to two weeks sick pay on the basis of her service at that time. She wrote to the respondent citing the obligation it had to her under TUPE and stating that no reason was proffered for the refusal to pay her. The response was to the effect that the respondent did not pay sick pay as a matter of policy and that in any event such a payment was discretionary in her previous contract.

00007144-001: The contractual obligations transferred by virtue of Regulation 4 (1) and therefore the failure by the respondent to comply with the contractual obligation in respect of payment of sick pay amounts to a breach of that Regulation. The respondent’s policy in respect of the payment of sick pay is irrelevant and it’s justification on the basis of discretion is insufficient in circumstances where no objective reason whatsoever for the failure has been advanced. Additionally such a cavalier approach goes to the heart of the implied term of reasonableness which attaches to all contracts of employment. Where such discretionary terms exist they are normally applied in circumstances of abuse. Consequently the implied term is breached. The complainant seeks payment of the loss €213.40 net (being the entitlement under contract) together with general compensation for breach of the aforementioned Regulation.

00007144-002: The complainant submits that the failure to pay her contractual entitlement to sick pay amounts to a breach of s. 5 (1) of the Act and she seeks compensation in the amount of €213.40 net for breach.

Summary of Respondent’s Case:

00007144-002: The respondent submits that the complainant transferred under TUPE on the 6^th of December 2015. The complainant in this case claims that she injured her wrist lifting a bin lid on the 18^th of July 2016 and was certified unfit for work by her GP as a result of a “soft tissue injury and tendonitis”. A personal incident report was completed and she was sent to the respondent’s Occupational Physician who diagnosed her main complaint as that of Carpal Tunnel Syndrome (compression of the nerve as it travels through the wrist at the carpal tunnel) and he indicated that whereas it was difficult to say what the cause was it was “unlikely to be in any way related to the incident with the bin lid at work”. The payment of sick pay is discretionary under contract and the respondent asserts that it has preserved all of the complainant’s right’s under contract in accordance with its obligations under the Regulations.

00007144-002: The respondent submits that there was no unlawful deduction in this case as the payment of sick pay is a discretionary one in the contract.

Findings and Conclusions:

00007144-001: I find that the respondent’s E-mail of the 28^th of July is instructive in that it cites as primary justification of it’s refusal to pay the contractual entitlement to sick pay the fact that it is a matter of policy not to pay. Thereafter it refers to the discretionary aspect of the contractual provision although it never outlined any objective reasons relied upon to justify the non-payment. I am therefore left with no other option but to conclude that it was never the intention of the respondent to honour this particular term of contract and that a breach of Regulation 4 (1) has occurred.

00007144-002: in the absence of contemporaneous objective justification I find that there has been a breach of s. 5 (1) of the Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

00007144-001: I find that the complaint is well founded and hereby require that the respondent would meet it’s particular obligation under Regulation 4 (1) as it relates to the payment of sick pay under contract for future reference and that it pay the complainant €750 (say seven hundred and fifty euro) in compensation for breach of Regulation 4 (1) of the 2003 Regulations. For the avoidance of doubt this sum is exclusive of the non-payment in question.

00007144-002: I find that the complaint is well founded and hereby require that the respondent pay the complainant €213.40 (say two hundred and thirteen euro and 40 cent) net in compensation for breach of s. 5 (1) of the Act.

Dated: 3^rd May 2017

Workplace Relations Commission Adjudication Officer: Michael Hayes