Complainant

Respondent

Anonymised Parties

General Operative

Wholesaler of hardware

Representatives

Shane O'Gorman IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016220-001

08/12/2017

The Complainant started his employment with the Respondent on 12th November 2007 as a General Operative. He was paid €501 gross per week and worked 39 hours. He has been on sick leave since 27th September 2017. The Complainant claims that he is owed €3000 in arrears in respect of sick leave. The Respondent rejects the claim.

The Complainant submits that his employer has not paid him his wages since 6th October 2017.

The Complainant submits that he went on sick leave on 27th September 2017 due to reoccurring wrist problems that he has been experiencing for a few years now. He claims that because

of the sick leave the Respondent does not want to pay him any wages despite the fact that the company Sick Pay Policy clearly states that: "Where an employee has greater than 3 years service full basic pay less social welfare benefit will be paid for a total 20 days medically certified sick leave plus an additional 20 medically certified sick leave days will be paid at half pay and the employee retains their social welfare benefit during the calendar year."

The Complainant submits that the Respondent informed him that because he is abusing the Sick Pay Policy he will not be paid for his sick leave any more. The Complainant argues that his long term sick leave relates to his problem with the right wrist (In addition, previously he had the following work related injuries, for example: knocked-out tooth and cut lip after he was hit in the face by a steel hook in 2009, broken rib after he was hit by a piece of construction steel hanging from a swinging chain in 2010, back injury in 2013, as well as multiple cuts, minor injuries and bruises in all other years - but the sick pay was always granted to him in those cases). The Complainant submits that he has never put the Company at risk of loss and the need to pay for his absence caused by "ordinary” disease, such as common cold or flu. His current health problem, a strain in his right wrist joint, is directly related to the type of work he does according to all the doctors that examined him so far including his GP Dr. R, CUH Rheumatology Department specialist Dr. F and the Company doctor Dr. M who examined him in November 2017. The Complainant submits that because of the type of work he does every day his wrist is repeatedly exposed to significant over-strain as a result of lifting and handling heavy objects or repeated, constant use of heavy hammer. These specialists suggested, in the letters that they sent to the Complainant’s Manager Mr. S, that in order to resolve his wrist problems a different position should be considered for the Complainant that would not require such intense use of his wrist. On the 10th of January 2017 the Company doctor Dr. M wrote in a letter to the Respondent: "However, I feel that if he goes back to using his right arm for heavy physical work he may well cause a recurrence of his symptoms." The Complainant submits that all these suggestions have been rejected by the Manager, Mr. S and he motivated his decision by the lack of available positions. However, the Complainant argues that at least 10 new employees have been engaged with the Company for less physically demanding positions.

The Complainant seeks €3,000 in respect of all outstanding wages for his current sick leave period in accordance with company's Sick Leave Policy.

In his direct evidence, the Complainant denied that he informed the Respondent that he had injured his wrist during a volleyball game. He argued that he informed the Respondent that he realised after the game that his wrist felt different and was sore. However, the injury was not due to a single accident. He submitted that after reporting the health problem to the Respondent he was moved to different sections. However, he did not consider the work in any of them as “lighter duties”. He noted that in every department he had a crane to help with the lifting of heavy objects. However, due to the constant time pressure he did not use the crane.

The Respondent reject the claim. The Respondent submits that it operates a discretionary sick pay scheme to the equivalent of 20 days pay plus additional 20 days at half pay. The progress of this scheme varies depending on the status of the employee, i.e. whether he/she is a new starter or has finished his/her probation. The matter in this complaint relates to a difference of opinion between the Respondent’s application of the policy and the Complainant’s interpretation of same. The Respondent submits that the Complainant has been paid in accordance with the Act and that the application of a sick pay scheme within the Respondent’s company has always been and will continue to be a discretionary payment rather than an entitlement. The Respondent submits that since commencing employment with the Respondent, the Complainant has availed of regular sick days and absences, both paid and unpaid. The breakdown as of 31st December 2017 is as follows: sick leave unpaid: 281 days, sick leave full pay: 128 days, sick leave half days pay: 69, other absence unpaid: 61 days. As of today, the Complainant remains on unpaid sick leave. Bearing in mind the Complainant’s injury, Mr. S, the Respondent’s Director had inquired on a previous occasion if the Complainant would consider an internal vacancy which had arisen. This position would enable the Complainant to transfer from a General Operative role to a Forklift Driver role. This position would not be as labour intensive and would allow the Complainant to remain in a familiar working environment. The Complainant had accepted the offer, but after a very short period he notified Mr. S that he wanted to revert to his original General Operative position. On 1st November 2016, Mr. S spoke with the Complainant, via telephone, to address the issue of the Complainant’s misuse of the Respondent’s sick pay policy. Mr. S highlighted the Complainant’s now orderly absence profile and the consequences that will have on his removal from the Sick Pay Scheme. The Complainant was informed by Mr. S that such payments were being made only at the “generosity of the company”. A follow-on meeting was held on 2nd November 2016. In attendance was the Complainant, Mr. H, the Managing Director and Mr. S. At the meeting the Complainant was made aware by Mr. H of the application and scope of the company Sick Pay Scheme. Mr. H referred the Complainant to the Employee Handbook, specifically “Unsatisfactory Sick Leave” where it notes: “Unsatisfactory sick leave may arise in cases of persistent long-term absence due to injury or illness or frequent short-term absence due to minor ailments. These will be investigated under the firm’s disciplinary procedures.” Mr. H explained to the Complainant that the exploitation of the sick pay scheme could result in disciplinary action and will result in suspension from the scheme. Mr. S informed the Complainant the purpose of the Company sick pay scheme is to alleviate financial hardship because of unavoidable absence from work through genuine illness. Furthermore, Mr. H stated: “It [the sick pay scheme] is not designed nor is it intended to be used for long-term & repetitive injuries.” At this meeting the Complainant requested management to reconsider their decision. Mr. H reflected on the Complainant’s request taking into account that there would be a reduction in his income and this would, in turn, present a financial difficulty for him. As a goodwill gesture Mr. H granted the Respondent would on that occasion extend the payment to lessen the financial pressure on the Complainant. The Complainant was informed by Mr. H that the Respondent will not be able to pay the Complainant if he seeks payment under the scheme in the future. The Complainant was then notified of the requirement for him to be reviewed by the Respondent’s Doctor to establish whether he was fit to perform his duties upon his return to work. The Complainant attended the Respondent’s Doctor on 10th January 2017. It was the opinion of the Doctor that the Complainant’s wrist was subjectively and objectively normal. On 27th September 2017 the Complainant went on sick leave again. As a result of the Complainant being advised of the misuse of the scheme in November 2016 the Respondent felt they had no other option but to terminate his access to the discretionary payment. The Complainant emailed Mr. S on 10th November 2017, and noted the grievances:

·         The company was refusing to pay him as per the sick pay policy.

·         His request for transfer was rejected.

·         He was overlooked for a management position in 2015.

·         The injury is inherent to his duties.

·         10 new employees had been employed in less demanding positions.

In response, the Respondent notes the following:

·         The Respondent operates a discretionary sick pay scheme for all employees and reserves the right to suspend employees from the policy in any case where exploitation is evident. This is clearly noted in the Employee Handbook.

·         The Complainant was presented with an opportunity to take up a forklift driver position. Having accepted to take up the new role he later requested to revert to his original position after a very short period.

·         The Complainant was interviewed for a customer facing management position along with two other employees. He was fairly considered by the Respondent but was not selected for advancement.

·         The Complainant submits that his injury is “directly related to the type of work [he does]”. The Respondent denies this statement. The Complainant informed Mr. S on 1st November 2016 during a telephone conversation that he had injured his right hand while playing a volleyball match. By his own admission, the Complainant also informed the Occupational Health Consultant of this detail in early 2018. Furthermore, the Respondent provides all necessary training and lifting apparatus to all employees where required.

·         The Respondent recruited 10 staff members since the Complainant commenced sick leave in September 2017. The vacancies either required prior technical trade experience, are based in a different location (some 2 hrs 10 minutes away) or are located in the same department the Complainant is employed in.

The Respondent submits that the Complainant has been paid all wages properly owing to him. The Respondent submits that it extended a gesture of financial aid to the Complainant in the form of additional paid sick leave. On that matter the Respondent relies on AE v BNY Mellon PW268/2015, where the EAT stated: “The company could have reduced his pay immediately but instead the sick pay scheme was allowed to run… The fact that they took this more benign approach in favour of the appellant should not be held against them.” The Respondent notes that this is the first case of this kind within the Respondent and as such the Respondent cannot allow a situation to arise where it is custom and practice to permit an endless sick pay scheme to be created.

Both Parties advanced extensive submissions in relation to the nature of and the circumstances surrounding the injury in question. My role, however, does not involve deciding upon whether the injury was a work-related one. The question for me is whether or not the Complainant was entitled to the sick pay, as he claims.

It is the employer’s duty to pay wages or remuneration as agreed between employer and employee in the contract of employment. The obligation to pay is both a statutory and contractual duty.

The Payment of Wages Act 1991 defines “wages” as, inter alia

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, …

Section 5 of the Act, Regulation of certain deductions made and payments received by employers stipulates: (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or(c) in the case of a deduction, the employee has given his prior consent in writing to it.

Inconsidering this issue, I must first decide whether the claimed unlawful deduction was in fact “properly payable” to the Complainant. The Complainant referred this complaint to the Workplace Relations Commission on 8th December, 2017. By application of the time limits provided for in Section 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was referred to the WRC. Therefore, the cognisable period covered by the claim is the six-month period from 9th June, 2017 until 8th December, 2017. It is common case that the Complainant has been absent from work on sick leave from 27th September, 2017 to date. It is also common case that the Complainant was not paid by the Respondent for the duration of this absence on sick leave. The Complainant claims that he was absent on work related sick leave during this period and that he was entitled to be paid during this absence in accordance with the terms and conditions of his contract of employment.The Complainant’s Contract of Employment dated 3rd September 2007 states the following: “Absenteeism / Sick Leave: Please find attached a copy of the company’s sick pay scheme which outlines in detail the rules and procedures of the scheme. Note also that a full day’s pay will only be paid on completion of the standard hours as outlined above. Any shortfall will be deducted unless taken as annual leave as agreed in advance with your supervisor.”

The Sick Leave Policy outlines in detail the sick pay entitlements. It states: “Employees are not entitled to sick pay while on probation. All new employees are not entitled to sick pay for the first six months of employment. Temporary employees are not entitled to sick pay. No payment will be made for the first two days of absence due to illness. Where an employee has greater than 12 months service but less than 3 years service full basic pay less social welfare benefit will be paid for a total of ten days medically certified sick leave during the calendar year. Where an employee has greater than 3 years service full basic pay less social welfare benefit will be paid for a total 20 days medically certified sick leave plus an additional 20 medically certified sick leave days will be paid at half pay and the employee retains their social welfare benefit during the calendar year.”

“Unsatisfactory Sick leave. Unsatisfactory sick absence may arise in cases of persistent long-term absence due to injury or illness or frequent short-term absence due to minor ailments. These will be investigated under the firm’s disciplinary procedure.”

“Abuse of Sick Pay Policy. Any abuse of the firm’s Sick Pay Policy may result in disciplinary action and suspension from benefit under the Sick Pay Scheme.”

I note the Respondent’s submission that the Respondent operates a discretionary sick pay scheme. I also note that on 1st November 2016 Mr. S had a telephone conversation with the Complainant during which he highlighted the Complainant’s absence profile and outlined the consequences to him. I also note that a meeting was held on the next day, 2nd November 2016. The meeting was attended by the Complainant, Mr. H, the Managing Director and Mr. S. At the meeting, Mr. H explained to the Complainant that the exploitation of the scheme could result in disciplinary action and will result in suspension from the scheme. Following the Complainant request, Mr. H as a goodwill gesture agreed that on that occasion the Respondent would extend the payment but will not pay the Complainant if he seeks payment under the scheme in the future. Subsequently, on 27th September 2017 the Complainant went on sick leave once again. The Company at that stage terminated his access to the payment.

I note that the Sick Leave Policy applies only to employees with certain length of service and it varies with the length of service. In September 2017, the Complainant had almost 10 years of service. He would, therefore, be entitled to 20 days at full pay minus the social welfare benefit and 20 days at half pay in respect of the sick pay per calendar year. The Policy does not contain a provision related to the discretionary nature of the scheme other than that related to the length of service.

I note that the Respondent relies on the Unsatisfactory Sick leave and Abuse of Sick Pay Policy clauses. However, there is no ambiguity that the clauses provide clearly for either “investigation under the firm’s disciplinary procedure” or “disciplinary action” respectively. At the hearing, the Respondent confirmed that at no stage did it instigate a disciplinary process. It is my view that the telephone conversation and the follow up meeting cannot be a substitute for a disciplinary procedure. I find that the Respondent, without instigating a disciplinary process made a decision to withdrew the Complainant from the scheme and informed him of same at the meeting on 2nd November 2016. On that occasion the decision was reverted and as “a goodwill gesture” a payment was made to the Complainant. However, the Respondent came to the same conclusion in September 2017, again without adhering to its own procedure. I am, therefore, of the view that the Respondent did not follow its own policy in relation to the suspension of the Complainant from the Sick Pay Scheme.

I have reviewed the evidence presented before and at the hearing and noted the respective positions of the parties. Taking the aforesaid into consideration I find the complaint well founded. I direct the Respondent to pay the Complainant €2,400. In awarding this amount I am taking into account social welfare benefits that Complainant would have received during the 20 days full paid sick leave.

Sick leave- no disciplinary procedure