ADJUDICATION OFFICER DECISION and RECOMMENDATION

 Adjudication Reference: ADJ-00009136

Parties:

 Complainant         Anonymised Parties          Respondent  

A Machine Operator                                        A Food Company  

Representatives

Deirdre Canty SIPTU                              Sophie Crosbie, IBEC Executive.

Complaints:

ActComplaint/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-00012005-001 20/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00012005-002 20/06/2017  

Date of Adjudication Hearing: 18/09/2017 Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act 1991 and Section 13 of the Industrial Relations Acts 1969, following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute:

Background:

The Complainant lodged a complaint regarding a deduction in his wages and variance from the application of the Company sick leave Scheme on 20 June 2017. Both complaints were disputed by the Respondent.

Summary of Complainant’s Case:

CA-00012005 -001 Payment of Wages Act, 1991. The Union outlined the case on behalf of the complainant. He commenced work as a Machine Operator on 29 April 1991. He worked a 42-hour week in return for a gross salary of €886.00 per week. In December, 2016, the Complainant missed 10 working days due to stress. He submitted medical certificates to this effect. As wages are paid in arrears, he discovered that he had not received payment for this week of 14 December. When he raised the matter with the Company he was informed that the Company does not recognise “stress” as an illness and consequently, he would not be paid. Attempts to resolve the matter locally were unsuccessful. The Union submitted that the deduction was in breach of the Company Collective Agreement on Sick Leave. The Union contended that the Complainant had been in receipt of an unlawful deduction in his wages in breach of Section 5(6) of the Act. The Union argued further that the deduction could not be saved by Section 5(1) of the Act. The Complainant expressed that he felt he had been disregarded by the Company. The Complainant sought payment of €1772.002 CA-00012005 -002 Industrial Relations The Union on behalf of the Claimant sought that compensation be awarded for the variance in application of the sick leave scheme. They contended that the claimant had cooperated with all requirements of the scheme and the Employers actions had been deliberate against him .  

Summary of Respondent’s Case:

CA-00012005 -001 Payment of Wages Act, 1991. The Respondent Representative outlined a response to the claim. The Company has been in business since 1991 and employs 145 people over three business domains. The company was subject to a significant review of business during 2016 and 2017 aimed at ensuring business viability. The Complainant works in a brand domain which represents 73% of the business. In December 2016, the Company informed all employees of an impending revised rotation system in the Complainants business domain. This was guided by defined Technical and Quality issues. On 12 and 13 December 2016, Unofficial Industrial action took place on the site. This concluded at lunchtime on 13 December on the Union proviso that: “members were willing to return to work and to co-operate with the revised rotation system provided the parties entered into discussions over the coming days, which was agreed to “ On 14 December, the Complainant was asked to carry out an unskilled task. He responded by stating that he felt sick due to work pressure and was going to attend his Doctor. The Company received a medical certificate covering 14 to 28 December 2016. On 19 December, the company wrote to the complainant and observed that he had left work shortly after carrying out a task he believed that he should not have been asked to do. The complainant was requested to attend the company Dr for validation of sick pay. The Complainant attended the Company Doctor on 21 December, 2016.A report was generated on 22 December which confirmed that while medical symptoms were reported, the complainant was not suffering from a defined medical condition and most his issues were non-medical. The Complainant resumed work after Christmas and sought a written response to not being paid. He was informed that his absence was a direct result of him being asked to do something he felt he should not have been asked to do. The Company Doctor had not confirmed the presence of a defined medical condition. Further discussions took place between the parties without agreement. The Respondent took issue with the parallel claims under the Payment of Wages Act 1991 and the Industrial Relations Act, 1969 as the claims were identical in nature. The Respondent submitted that the Company followed its own sick leave procedure where “an employee shall be subject to examination prior to making a decision to pay. the Complainant did not satisfy the terms of the scheme on defined Medical grounds. The Respondent acted correctly by exercising discretion in this regard. Paid Sick Leave was not a contractual entitlement. The Company drew the attention of the hearing that many employees have been subject to the same conditions under the Company Sick pay scheme and the complainant was treated consistently. The Rotation system is vital for the food safety imperative at the company. The Respondent referred to the terms of LCR 21413 dated March 2017 which permitted the Company absolute discretion on rotation in the interests of product viability. The Respondent requested that the Company position be upheld. On 27 September ,2017 the Respondent clarified that the correct actual terms in dispute were:

1 62.25 hours’ unpaid hours 2 Gross loss €1218.88

This was copied to the Complainants Representative and did not elicit a further response.

CA-00012005 -002 Industrial Relations The Respondent re-iterated that the issues in the IR claim had already been submitted under the Payment of Wages complaint and sought that one Act of employment should be considered.  

Findings and Conclusions:

CA-00012005 -01 Payment of Wages Act, 1991. I have considered the oral and written submissions in this case. I believe that it is important to reflect on the context and background to the claim as emerging against the backdrop of Industrial Action, a frequently tense time where conflict between parties can be evident. It is also of note that the Labour Court Recommendation aimed at maximising the Viability of the Company came some 4 months after the circumstances I have been asked to consider. Section 1 of the Payment of Wages Act, 1991 defines wages as:

Means any sum payable to the employee by the employer about his employment, including –

(a)    Any fee, bonus or commission, or any holiday, sick, or maternity pay ……. whether payable under his contract of employment or otherwise.

Neither party relied on the contractual documentation in this case. I did note that both parties relied on different issues of the sick leave scheme. for the purposes of my Decision, I have chosen to rely on the one presented from the latter day as August 2007 as it had the Company logo inserted. I appreciate that a certain scheme for employees was agree in 2000 and I will come back to that. The Complainant contends that Section 5(6) refers to the sick leave being properly payable.

The Respondent contends that it holds a discretion on payment and it exercised that discretion fairly. I have reviewed the Sick Pay Scheme for Weekly paid workers and I make the following observations.

1 The Company provides a generous sick pay scheme. 2 Medical certificates must be submitted not later than the 3rd day of absence. 3 Supervisors should pass the certs to pay roll before 11 am on Monday. 4 Employees are paid for the first 3 days of illness. 5 The Scheme does not limit the Company’s right of referral for assessment of fitness to work. 6 The Disciplinary Procedure is equipped to address excessive certified sick leave 7 A monitoring Group exists to address exceptional cases 8 Employees may be referred for medical review for ……. (a)    Complaints of medical conditions deemed to be associated with their work (b)    Clarification of Medical Certs/Conditions 9 Employees may be excluded from the scheme if found to be outside the Guidelines, following the 2000 Change Document. The Disciplinary procedure seemed to be the first tool in this regard.

In the instant case, it is clear from the documents submitted, letter dated 19 December ,2016 that a decision had been taken by the company to withdraw sick pay from the Complainant. There is a clear reference to the role of the Company doctor being one of validation of sick pay. This vested power in Occupational Health Services is not cross matched in any of the Documents and I have found that the consideration given by the company to the Report as the basis for stopping pay significantly overreached the terms of the Policy where the role is one of Clarification of Medical conditions /certificates. If the Company had an issue with the Complainants access to sick pay, it beheld them to address this with the Complainant in the first instance rather than move to deduct pay at Christmas time . I note that the Occupational Health report was not shared concurrently by the Respondent. I did not see the original medical certificate, but both parties agreed that it referred to stress. The Occupational Health Report reflected an acceptance that the Complainant was on sick leave and did not oppose the Medical Certificate, lodged first in time. I noted that the Respondents sick pay scheme is very generous and the omnipresence of a Monitoring Group for exceptional circumstances was also mentioned. This route was not scoped out by the parties. I could not establish a reference in the documentation submitted to me that sick pay was exclusively paid for a medical condition at the Company. I note the deliberations of the EAT in the case of Devlin V ESB [2015} 26 ELR 278, in relation to the non-payment of a performance related bonus. The Bonus was held to be discretionary and not contractual. This case is somewhat distinguished from the fact of the current case, where Sick pay is described in the Policy as: For certified absences, a payment of 9 weeks at full pay less social welfare and a further six weeks at three quarters pay less Social welfare will apply It is not underwritten by a defined scope to interrupt this save for the Disciplinary procedure and certain administrative noncompliance issues. On that basis, I must conclude that that the Complainant held a contractual entitlement to sick pay which was erroneously withheld prior to the Occupational Health Consultation on December 21,2016. I have found that the Respondent acted in contravention of Section 5(6) (b) of the Act and cannot now rely on the exclusions contained in Section 5(1) of the Act.

CA-00012005 -002 Industrial Relations Claim I have considered the claim as submitted and I have found that I have already adjudicated on the identical facts in the initial complaint. I have not found merit in this Dispute .    

Decision:

CA -00012005-001 Payment of Wages Claim Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages Act 1991, requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act. I have established that Section 5(6) of the Act has been contravened. I order the Respondent to pay the complainant €1218.88 in compensation for the breach.

Recommendation: CA-00012005 -002 Industrial Relations Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute I have considered the merits of the Dispute before me. I have found that the identical facts have already been adjudicated on. The issue was not raised as a Grievance with the Company. Accordingly, I find against the claimant.  

Dated:   26th January 2018 Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words: Deduction in Wages , Grievance Procedure .