Claimant

Employer

Anonymised Parties

A General Operative

A Tea Company

Representatives

SIPTU Official.

No Appearance by or on behalf of the   Employer

Act

Dispute Reference No.

Date of Receipt

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

CA-00009068-001

13/01/2017

The Claimant referred a Dispute to the WRC on 13 January   2017.This stated that she sought restoration of payments incorporated in the   company Sick Pay Scheme.

The Union outlined the case on behalf of the claimant. The   Claimant had been employed in the role of General Operative since October   1987 on a 24 hour week basis.

The Union submitted that issues had arisen between the   claimant and a Manager which was currently subject to an Investigation .The   claimant had been on medically advised continuous sick leave since March   2016.

The Union set out the record of the claimant’s intermittent   sick leave between October 2015 –March 23, 2016.During this time; she was   referred to the Company Doctor on two occasions.

On 17 February, 2016, the claimant received a letter from   her Manager. This outlined that as her level of work absence was unacceptable   during 2014 and 2015, she would not be paid in the case of future absences.

The Claimant returned to the Occupational Health Service   on 24 August 2016 and was deemed unfit to return to work.

The Union outlined the Company Sick leave Scheme which   provided for a maximum of 26 consecutive weeks pay less Department of Social   Protection payments, in the case of sick leave subject to listed   qualification criteria and exclusions.

The Union argued that the claimant satisfied the   qualification criteria and had been unfairly excluded from the scheme. The   Claimant told the hearing that she knew of co workers who had received the 26   weeks sick pay .

The Union detailed that the claimant had 6 days absence in 2014 and 30 days in   2015,three days of which were unpaid .The Claimant had not reached the 26   week threshold and should not have been excluded from payment .

The Union contended that the claimant was victimised   because of her illness which they attributed was linked to relationships in   the workplace .They drew the attention of the hearing to the Occupational   Health Department reports which favoured the claimants position .The Union   sought restoration of paid sick leave and restoration of a Productivity bonus   .

There was no appearance by or on behalf of the Employer in   this case.

I have given careful consideration to the presentation   made by the Claimant by way of written submission and oral hearing .I was   disappointed not to meet with the Employer on the occasion of the hearing. I   am satisfied that the Employer was properly notified of the hearing on 24   July, 2017, on the same day that I took carriage of the case from WRC .The   Claimant told me at hearing that an adjournment was granted to the Employer   on 16 May last .There was no follow up from the Employer after this date .

I allowed a reasonable period of time before commencing   the hearing .I was not alerted to any reason for the non appearance .I also   noted that the Company had not responded to the opportunity afforded to   object to a hearing under the Industrial Relations Act earlier in January   2017.

The Claimant informed the hearing that an Investigation   into her allegations of bullying against her Manager was currently underway   at the company .This was being led by an external Investigator and was due to   be completed.

The Claimant submitted that she had never had issues at   work and she had suffered extensive financial loss by her removal from the   sick pay scheme and exclusion from her anticipated bonus.

As stated , I would have preferred to hear from both   parties in this case .I was very keen to explore the events, if any that surrounded the furnishing of the last   Occupational Health Report in August 2016.The claimant was unable to assist   me in this regard .

I examined the sick leave scheme dated 2014 which was   furnished at the hearing .I noted the reference to a discretionary   application of paid sick leave .I found no evidence of where this discretion   was applied outside an arbitrary withdrawal dated 17 February, 2016.I note   that the claimant did not appeal this decision internally .I find that she   acted to her own detriment in that regard.

However, the claimant presented a difficult set of   circumstances to the hearing .She confirmed that she had 30 years uneventful   service with the company and had been   on continuous sick leave since March 2016,in a no pay zone and awaiting the   out come of an investigation into her complaints of bullying against the   Manager who withdrew her pay .

I found that there was a defined imbalance of power in   that presentation which may have been remedied if I had received a balancing   statement from the Employer. I found it unusual that the company had not been   in contact with the claimant .

I have, therefore, found some merit in the Claimants   Dispute.

Recommendation:

Section 13 of the Industrial   Relations Acts, 1969 requires that I make a recommendation in relation to the   dispute.

1.   I recommend that in the absence of a fair,   transparent and reasonable exercise of discretionary decision making on paid   sick pay, the claimant should receive 26 weeks consecutive paid sick leave,   inclusive of pension contributions for the years 2016 and 2017, minus any   Department of Social Protection Payments. This should be processed within 6   weeks of this recommendation. I make this recommendation to seek to restore   some balance to the 30 year employment relationship.
2.   I direct the parties to engage on the   Occupational Health Report of August 2016.
3.   I do not recommend concession of the bonus   payments at this time as I have insufficient information before me on the   parameters of the scheme. I would prefer if the parties would engage on this   locally on the premise that the claimant reports receiving the bonus for the   calendar year 2015.

These   recommendations are in full and final settlement of the claim.

Paid Sick Pay