Complainant

Respondent

Anonymised Parties

An Accountant

An Employer

Representatives

SIPTU

John Barry Management Support Services (Ireland) Ltd

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-00008207-001

16/11/2016

The complainant began work with the respondent in 2008 as an accountant with a range of responsibilities including payroll.

Part of her conditions of employment relating to entitlement to sick pay are contained in a collective agreement. The scheme is a graduated one in which longer service entitles an employee to a greater period of paid sick leave.

The respondent says that the complainant had exceeded the provisions of the scheme and she is claiming payment for a period of thirty-eight days.

The complainant’s medical practitioner recommended that she undergo elective surgery.

She learned that she could have this done almost immediately in her native country and she set about doing so.

She contacted her employer to advise of her intentions and to have the absence treated as sick leave. She says she was not required to produce any medical certification to authenticate the purpose of her proposed absence.

A short time before she was due to travel she was advised that she was not entitled to payment for the duration of her absence as she had exhausted her quota of sick pay as provided for by the collective agreement.

There was a further doubt raised as to whether the absence could be treated as sick leave as it was elective surgery.

She applied for annual leave and had her surgical procedure. The respondent reiterated that she was not entitled to payment under the sick pay scheme.

She claims that the entitlement (in her case to twenty-six weeks) is an annual entitlement and that as she had only had one week’s leave she was entitled to the leave claimed. There was a further conflict over the eligibility of an employee having elective surgery to benefit.

The respondent says that the sick pay scheme is a discretionary one.

The scheme does not define what happens when a person, having exhausted the entitlement a first time, will become eligible again for benefit.

In the course of 2015 the respondent advised its employees (approximately one hundred) that once an employee had availed of the maximum paid leave to which they were entitled, they would not be entitled to any further payment.

This was drawn to the complainant’s attention, as, in her case, she had fully availed of the leave to which she was entitled.

Evidence was given by the HR Manager and the complainant’s line manager that, in fact, the discretion not to pay has been exercised regularly in the past in a small number of cases.

In this case the fact that the procedure was elective was also a consideration. The respondent said that she had not submitted any of the supporting medical information at the point of her application.

The respondent made it clear in correspondence with the complainant on May 12^th that while it could facilitate her with time off this would not ‘automatically mean that you are entitled to be paid for this period of absence…’ and later, ‘you will not be entitled to be paid for this absence’.

She proceeded to take the leave with the agreement of her employer, but in the knowledge that she would not be paid.

The respondent relies on the discretionary nature of the scheme and the fact that the complainant had exhausted her entitlement to say that she was not entitled to a payment.

Section 5(1) of Payment of Wages Act prohibits deductions from an employee’s wages subject to a number of exceptions, such as statutory deductions, or where the employee has consented to union contributions, for example.

The question is whether the refusal of the respondent to pay the complainant for the duration of her sick leave falls within the jurisdiction of the Act.

There is a dispute as to the applicability of the terms of the collective agreement to the complainant at the specific time.

The respondent says that it is a discretionary scheme and direct evidence was given to this effect, in that other employees of the respondent have been adjudged to have exhausted their entitlement and been refused benefits under the scheme.

There was a good deal of argument around the circumstances of her proposed trip for the surgery, and the precise entitlements she may have had under the scheme. If the matter had been referred under the more general provisions of the Industrial Relations Acts it might have allowed for a review of these arguments.

But the complaint arises under the Payment of Wages Act and the respondent submitted that in order to be justiciable under that act it must be a contractual entitlement.

The Payment of Wages Act, 1991 defines wages in section 1 a) (Interpretation) as including

Any fee, bonus or commission, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise.

The key word here is ‘payable’.

The complainant’s contract of employment provides that collective agreements between the respondent and the employees’ union will be incorporated into her contract of employment.

This logically raises the issue of what the complainant’s entitlement actually was under the collective agreement and whether it meets the requirement in the Act to be ‘payable’.

If not it falls outside the protection of the Act.

I find that the complainant had exhausted her entitlement to benefit under the scheme. The union’s argument that an employee had an entitlement to twenty six weeks paid sick leave in respect of each calendar year is not borne out by the evidence, or indeed common sense. No sick pay scheme would provide for such generous terms.

The complainant was made aware of this before she left and a number of alternative options for maintaining payment to her for the duration of her absence were discussed.

I find that she had exhausted her entitlement to sick pay and that therefore no wages in the nature of sick pay were payable as defined by the Payment of Wages Act, 1991.

For the reasons set out above I do not uphold complaint CA-00008207-001 and it is dismissed.

Sick leave, sick pay, Payment of Wages Act