ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014636

Parties:

Complaint(s):

Date of Adjudication Hearing: 12/10/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint under the Payment of Wages Act, 1991 and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant commenced employment with the Respondent on 28 February 2000 as an Industrial Engineer. In 2012, the Complainant was diagnosed with advanced colon cancer which resulted in him commencing a period of sick leave for treatment which lasted from 16 July 2012 to 9 August 2013. The first 6 months of his certified sick leave was paid by the Respondent as per his contract of employment and then a reduced combination of social welfare and long term illness support from the insurance company made up the remaining 6 months of his absence. The insurance company paid 70% of the Complainant’s salary (income protection) which was based on his salary at that time which was €54,222.

In October 2017, the Complainant commenced another period of sick leave to which the company made no payment.

The Complainant’s current salary is currently €58,456.69.

Summary of Complainant’s Case:

The Complainant outlined his dispute in relation to a clause outlined in his contract of employment which states “there is a maximum limit on sick pay of 6 months for staff”. The Complainant states his employer claims that an employee is only entitled to 6 months paid sick leave for the entire duration of employment rather than this being subject to a specific period of time such as 12 months.

The Complainant states that current management are interpreting that this limits staff to an entitlement of 6 months for the duration of employment however the Complainant states that this was not the intention of previous management who issued the contract and subsequent managers operating the HR department prior to the current HR Supervisor. The Complaint outlined that there are not many employees within the company with the same contract as him with the same entitlement of sick leave and so it would not place a financial burden on the company to pay staff more than 6 months pay during the course of their employment.

The Complainant outlined that he is aware of other employees within the company with whom the Respondent ceased all sick leave payments as they were seen to be accumulating too much “casual” absence. The Complainant outlined that he is aware that several of these individuals challenged this decision externally and the Respondent made an agreement with these individuals that they could receive sick pay again after two to three years of using up their 6 months entitlement.

The Complainant presented a signed agreement between the Respondent and another employee (AE1) of the company which was reached in the presence of the Labour Relations Commission in March 2005. This agreement outlined that the employee in question would be entitled to six months paid sick leave over a two year period.

The Complainant also provided evidence of an agreement which was made by the Respondent with a second member of staff (AE2) which outlined that the employee could re-enter the sick pay scheme after three years if his absenteeism was ‘reasonable’.

The Complainant outlined that he does believe that the Respondent tracks absence correctly and does not always stop paying sick pay after 6 months. The Complainant stated that he is aware of colleagues with 20 plus years’ service who have exceeded six months sick leave.

The Complainant stated that when the insurance company declared him fit to return to work on 1 April 2017, the HR Supervisor told him that the company were willing to allow him continue on a four day week until December to which he thanked the company.

The Complainant stated that he has not yet returned to work as he is still undergoing chemotherapy treatment.

The Complainant outlined that he was never asked to return to work in some capacity nor was he told that he could take a grievance that he raised to the European HR Director. The Complainant also outlined that this option is not outlined the company’s own Grievance Procedure.

The Complainant stated that he interprets the sick pay scheme entitlement as per the contract to be per annum. The Complainant outlined that he should not have to interpret the contract, that it should be clear and unambiguous as to the period. There is no handbook or additional policy in place clarifying the sick pay entitlements. The Complainant outlined that he would like to have the same treatment in relation to sick pay as AE1 and AE2.

The Complainant outlined that his earnings from November 2017 to April 2018 was less due to the Respondent refusing to pay him €5328 in sick pay. The Complainant also outlined that if the Respondent had paid him for the first 6 months, then the insurance company would have paid him illness benefit as a new claim based on his current salary not as a re-instatement from May 2018 onwards based on his salary from 2012. Due to the insurance company using his salary from 2012 which is less than his current salary, the payment shortfall from the insurance company equates to €226 per month. The Complainant outlined that the insurance pay 67% of his current salary minus the state illness benefit. The Complainant stated that taking this case was not for monetary reasons but for principal and so should he be successful in his claim, all monies would be donated to local cancer charities.

Summary of Respondent’s Case:

The Responded outlined that the Complainant returned to work from his first period of sick leave on 12 August 2013 to a three day per week basis until December 2013 when it increased to four days per week. The Respondent stated that the Complainant continues to work a four day week. The Complainant was paid at 70% for the days off during this period and the Respondent paid the balance 30% until 31 July 2016 which was a discretionary and enhanced offering to support the Complainant during this period. The Respondent stated that this resulted with the Complainant being paid his full salary despite initially working three days from 12 August 2013 to December 2013 and working four days thereafter.

On 1 August 2016 the Respondent ceased paying the top up (30%) for the one day per week. The Respondent insurance company continued payments on the remaining 70%.

On 31 January 2017 the insurance company declared the Complainant medically fit to return to full-time work ceasing payment from 1 April 2017.

On 1 April 2017, despite being declared as fit for full time return to work, the Complainant requested to continue on the four day per week basis. The Respondent agreed to this request.

On 28 October 2017 the Complainant commenced another period of certified sick leave which was unpaid as per the Complainant’s Contract of Employment as had exhausted 6 months sick pay entitlement from the Company. The Complainant has remained on certified sick leave since this date.

On 10 November 2017 the Respondent wrote to the Complainant informing him he would not be paid by the Respondent for sick leave as he had exhausted his entitlement as per his signed Contract of Employment.

On 5 December 2017 – The Complainant lodged a grievance based on the fact that the Respondent would not pay for his period of certified sick leave.

On 12 December 2017 the Respondent alleges that the HR Supervisor had a call with the Complainant in relation to the grievance he raised. They allege that the HR Supervisor explained the position of the Respondent and asked the Complainant to return in some capacity to offset financial loss. The Complainant informed the HR Supervisor that this was not possible as he was on medication and so was unable to drive. The Respondent stated that the HR Supervisor informed the Complainant that a formal grievance could be taken to European HR Director. The Responded stated that the Complainant refused this and stated that the matter would go external.

On 15 December 2017 another official letter was issued to the Complainant confirming that he will not be paid sick leave from the Company as it had been exhausted.

On 10 January 2018, it was communicated to the Complainant that the insurance company had agreed to waive the usual 6 month waiting period and recommenced payments from the date he ceased work. The Complainant is therefore being paid two-thirds based on full time pay (despite officially being on four day week). This is not being topped up by the Respondent as before.

The Respondent states that the clause in the Complainants contract of employment is clear. The Respondent stated that the Complainant has interpreted this as per annum but that is a generous interpretation supporting his case.

The Respondent states that the administrative error referred to by the Complainant relates to when the Respondent stopped top up payment of the 5th day of sick leave when the insurance company had been paying 70% of the 5th day and the Respondent paying the other 30% (despite him being officially on a four day week) from January 2015. The Claimant challenged this mid-2016 and said he should be paid for this extra 30% as he was not informed this payment from the Respondent would stop. The Respondent, as a further good will gesture, agreed to pay these arrears of 30% of the 5th day from 1 January 2015 to 31 July 2016 – this amounted to €5,499.81.

The Respondent stated that all these payments were enhanced payments from his contractual entitlement, in good faith and to support the Complainant during his sick leave. At all times the Respondent has sought to deal with the Claimant fairly and transparently. The Respondent stated, not only has the contractual entitlement been met but it has been exceeded as a gesture of good will. The Respondent stated that the total amount paid to the Complainant as a gesture of goodwill by the Respondent from August 2013 until July 2016 amounted to €10,063.40 and so as a result, there were no further monies owed.

The Respondent stated they could not dispute the agreements made with AE1 and AE2 as they had no knowledge of these employees.

Findings and Conclusions:

There was a full opportunity for both the Respondent and the Complainant to put forward detailed submissions via written and oral evidence at the hearing.

I have considered all information presented to me in conjunction with the legislation and relevant case law in reaching a finding.

The evidence suggests that other employees on the same contractual terms and conditions as the Complainant have received more than a total of 6 months for example an agreement exists between other members of staff (AE1 & AE2) to which the Responded had agreed to allow employees re-enter the six pay scheme. The contract of employment also offers little clarity around the details of the sick pay scheme. Other than stating there is an entitlement of 6 months, this is not clear and has resulted in this ambiguity which has led to this claim. There is also no further sick pay policy nor has any clarification prior to this dispute given to the Complainant to clarify the same.

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 and the Payment of Wages Act, 1991.

Taking all written and oral evidence and all the legislation into account.

The term in question under this claim in line with the legislation is 12 November 2017 to 11 May 2018 which equates to €5,327.68. The contractual clause in the contract is not clear regarding the time frame sick pay would be paid. It is not clear whether the Respondent would pay 6 months sick pay for the entire employment period or whether they would pay 6 months per annum or any other period of time. The Respondent paid the Complainant a top up of 30% of one day’s wages which equated to sick pay to compliment his insurance payment. This demonstrates the discretion regarding the payment and period of payment which on that occasion was from May 2013 to July 2016. There was no verbal or written confirmation that this was an exception to their own policy or entitlement.

Therefore, based on the evidence presented, I confirm the Complainant’s claim succeeds and based on the previous agreements agreed by the Labour Court, I confirm the period of 2 years should be applied to each 6 month sick leave period in this contract going forward to avoid ambiguity in the absence of clarity in the current contract. The Complainant should receive the appropriate back pay based on this being applied to his sick benefit. This entitlement is only specific to this contract and does not apply to other employee contracts in this employment.

Dated:   11-12-2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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