Complainant

Respondent

Anonymised Parties

A warehouse operative

A logistics company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019232-001

17/05/2018

The Complainant is a warehouse operative and has been employed by the Respondent company since 13th May 2010.

In 2016 the Complainant arranged to travel to Poland for some elective surgery and did not inform the Respondent of this until June 2016, some two weeks before the scheduled surgery date.

The Respondent did not pay the Complainant any sick – pay for his period of absence.

The case before you today follows an instruction from our member, the Complainant relating to the non-application of his contractual terms and conditions of employment. The claimant believes that his employer, the Respondent failed to apply the sick pay scheme following his certified sickness. The claimant’s employee handbook clearly identifies the payments of benefits for employees which are certified absent and comply with the regulations and procedures. The claimant is seeking for this anomaly to be addressed and paid absence policy applied.

BACKGROUND

1.      The claimant commenced employment in May 2010 working in the role of Warehouse Operative. Since undertaking the role, the claimant has carried out his duties and responsibilities with due diligence.

2.      On May 2010, the claimant signed a new contract of employment in the role of Warehouse Operative. In 2016, the claimant went to Poland to seek medical assistance on his varicose veins complaint. Following medical examination, the medical team advised that he needed an operation.   Following the medical information, the claimant sought a meeting with his line manager to advise of the upcoming surgery.

3.      In early June, the Respondent approached the claimant regarding his request for paid sick leave. The claimant was sent to Occupational Health on 24th June 2016 and while he attended the appointment he went to his GP whereby he was certified sick.

4.      On 1st July 2016 the Respondent wrote to the claimant advising him that following the Occupational Health report, they requested he change his surgery due to workload pressure within the warehouse.

5.      The Respondent further advised that they would not consider the leave as sick pay however, the sick pay policy does not distinguish that payment of certified absence is dependent on the different types of illness.

6.      The Claimant proceeded to Poland for his operation and in accordance with sick policy returned the medical certification.

7.      Further complications arose from the recovery plan and the claimant was certified unfit for work until 12th September.

8.      The Respondent further sent the claimant for medical assessment with Occupational Health which advised that he should be fit for 8th September 2016. However, a view not shared by the claimant GP.

9.      The claimant returned to work on 12th September and appealed the decision not to pay him his sick pay on 24th September 2016. The appeal was heard on 14th November 2016 and on 22nd November the appeal was not upheld.

10.  The Respondent in rejecting the appeal cited the fact that the claimant refused to work with the Respondent and reschedule his surgery was a determining factor in not paying him.

UNION ARGUMENT

The staff book clearly states that where an employee complies with the regulations and procedures, payment for certified absence due to illness will be in accordance with service qualifications. There is no ambiguity in that.

BACKGROUND

1.      The Respondent group comprises a number of separate business units in growing, purchasing, sales and distribution of fresh food and flowers in Ireland and Europe.

2.      The Respondent has a sick pay policy in place, which is negotiated with SIPTU. AS per that agreement the Respondent reserves the right not to pay any member of staff who does not comply with absence procedures.

3.      The Respondent allows staff time off work for elective surgery. Employees who are seeking time off for elective surgery are required to inform the Respondent as soon as practically possible. The Respondent then engages with the employee through occupational health, regarding when this procedure can be scheduled for (if possible) so that the absence can have minimal impact on operations.

4.      Depending on the amount of time off being sought the employee might receive a combination of annual leave, unpaid leave and sick leave. Each case is naturally unique to its own circumstances and considered on its own merits.

BACKGROUND TO THE ISSUE

1.      On 6th June 2016, Warehouse Team Manager met with the Complainant to discuss a request for sick pay. The Complainant advised that his proposed leave would commence on 30th June 2016 with a predicted return to work date of 15th July 2016.   At this meeting, the Complainant informed Warehouse Team Manager that his Doctor recommended a period of 30 days recovery time post-surgery or maybe more.

2.      The Complainant confirmed that he was hoping to be paid sick pay for the duration of his leave, as he did not have enough annual leave to cover this timeframe. It must be noted that the Complainant made no effort to manage his proposed time off through annual leave or authorised absence. Upon receipt of the meeting notes, HR requested that the Complainant provide relevant documentation relating to this issue.

3.      On 18th June 2016 the Complainant reported to Warehouse Team Manager during an SYP meeting (Performance Meeting) that he intended to travel home to Poland for a period of six weeks to have surgery on his varicose veins. The Complainant asked if he would be paid for this leave, as the Complainant was unsure if he would receive sick pay on this occasion. The issue was subsequently raised to the HR department and relevant documents were requested.

4.      On 24th June 2016 the Complainant came to the HR office to speak to a HR Generalist to inform HR that he had scheduled varicose vein surgery in Poland and produced a medical certificate from his GP deeming that he would be unfit for work from 26th June 2016 to 18th July 2016. This medical certificate advised that the Complainant was scheduled for surgery on 8th July 2016 and is required to attend the week before his surgery for pre-operative assessment.

5.      At this time, the HR Generalist gave the Complainant direct face to face feedback in the HR Office advising that the Complainant would not be granted sick pay due to the fact that the surgery was elective in nature. The HR Generalist also advised the Complainant that the Respondent was awaiting a medical report from the Respondent’s Occupational Health Physician.

6.      On 28th June 2016, the Complainant attended the Respondent’s Occupational Health Physician for an assessment regarding the Complainant’s proposed surgery. The report stated that the Complainant had below knee varicose veins in his left leg. The Doctor found no evidence of any inflammation and the veins were minimally tender on palpation. The Doctor agreed that the varicose veins did warrant surgical intervention, however, the surgery was elective and listed to take place on 8th July 2016. The Doctor’s report included a foot note wherein he outlined that he perceived the Complainant’s understanding of the term “elective surgery” implied cosmetic surgery. The Doctor counselled the Complainant that elective surgery is a term given for   planned, non-emergency surgery and outlined that the Complainant’s proposed surgery was planned almost six months ago, therefore it was elective and not cosmetic.

7.      On 1st July 2016 the HR Generalist wrote to the Complainant clearly outlining the Respondent’s position on this leave. She advised that in line with the Respondent’s Occupational Health expert’s report, the surgery was classified as elective. This letter further advised that the Respondent was in peak holiday season therefore the Planning Department could not release the Complainant at such short notice. The letter did state that the Respondent was happy to collaborate with the Complainant and support time off for the surgery when the business could sustain it once peak holiday season was over. In conclusion, the letter instructed the Complainant that if he took this leave it would not be classed as sick leave, as this absence was avoidable, ie elective, therefore, this time off would not be subject to sick pay payment. Further should the Complainant chose to ignore the Respondent’s request to communicate and forward plan for this surgery, any related absence would be deemed as unauthorised absence.

8.      The Complainant subsequently was absent from work beginning on 26th June to 12th September 2016 for the elective surgery. The Complainant returned to work on 12th September 2016 after being absent for a total of 49 days. The Complainant’s return to work meeting was conducted by the Warehouse Team Manager on 12th September 2016.

9.      The Respondent decided not to deal with the Complainant’s unauthorised absence in a formal disciplinary hearing.

10.  On 17th September 2016 the Complainant submitted a grievance relating to his non-payment of sick pay. As the issue concerned an application for sick pay the correct process was to appeal the decision not to pay the Complainant to the General Manager.

11.  On 24th October 2016 the Complainant further appealed the decision not to pay him sick pay in writing. The Complainant was invited to attend an Appeal Hearing with the General Manager, scheduled for 14th November 2016.

12.  The General Manager issued his Appeal Outcome on 22nd November by way of a detailed letter, which addressed the points the Complainant raised during his Appeal Hearing. The General Manager upheld the decision not to process sick pay due to the following:

·         The Company Doctor had confirmed the surgery was elective in nature.

·         The Respondent had offered to accommodate the Complainant’s request for leave after the peak holiday season

·         In response to the reasonableness shown by the Respondent the Complainant had shown inflexibility and non-cooperation.

·         The Complainant could not provide details of when he had booked his flights despite being asked for this on several occasions.

·         The Complainant did not return to work in accordance with the Company Doctor’s report.

13.  The General Manager concluded that it was unreasonable for the Complainant to expect to dictate when the Respondent would pay sick pay for an elective procedure. The fact that the Complainant was fully aware by way of written correspondence from the HR Department that he would not be paid for this absence before flying to Poland for the surgery was noted in the appeal outcome. The appeal did not succeed and 17 months later the instant claim was received by the WRC.

RESPONDENT ARGUMENTS

1.      The Respondent has always had a consistent approach to time off for elective surgery. Employees seeking time off for elective surgery are required to provide as much notice as possible (ie as soon as they are aware of the date of surgery and period of leave required).

2.      The original documents from the Complainant’s Polish practitioner states that the referral for surgery was sent on 27th January 2016.   More than five months before the Complainant informed the Respondent of his need for time off.

3.      The Respondent works with the employee who is seeking time off to arrange for authorised absence for the employee concerned through unpaid leave, annual leave etc.

4.      The Complainant failed to communicate with the Respondent at this time even tough this was the opportunity to find resolution agreeable to all. Further the referral letter states the selected date was at the patient’s request.   The reasonable option was to discuss with the Respondent at this point given that July is peak holiday season and the Complainant is aware of this.

5.      What the Complainant is seeking is payment of an unauthorised absence of 49 days pay in circumstances where he showed a blatant disregard for procedure, deliberately waited until a matter of weeks before his absence to inform his employer and was told in unequivocal language that the absence would be unauthorised.

6.      To uphold the instant claim would not only reward a breach of procedure but would also be unfair on the Complainant’s colleagues who do abide by proper procedure.

7.      We note that the Complainant originally requested leave from 30th June as he had to be in Poland one week before surgery on 8th July. We note that the Complainant subsequently produced a sick certificate stating he would be unfit from 26th June. We do not know why, and the Complainant has never explained why he travelled to Poland two weeks before his surgery. We note that these events took place during the 2016 UEFA European Championship. We also note that Poland played in the Quarter Finals of the tournament on 30th June.

8.      The Complainant made no attempt throughout this process to follow procedure on site and request AAB or annual leave to accommodate time off for this surgery. Of interest is the fact that the Complainant availed of 11 days annual leave from April to June 2016. The Complainant works a four day week therefore this calculates to a total of two weeks leave. Given that the Complainant was aware of this surgery in January of that year, it is fair to argue that a fair-minded employee would communicate re an attempt keep this leave to manage time off for his proposed surgery. This indicates a sense of employee entitlement to sick pay for an elective surgery which is highly concerning and which the Respondent cannot reasonably sustain.

CONCLUSION

1.      Under the circumstances, the Respondent’s decision not to pay the Complainant was fair and reasonable.   The Respondent reserves the right not to pay any member of staff who fails to comply with the guidelines on sick pay and elective surgery. The Complainant’s actions and lack of communication and unwillingness to agree a date of which the operation could sustain coupled with his blatant disregard for the clear direction he received outlining the Respondent’s position on this matter resulted in non-payment of sick pay.

2.      We ask the Adjudicator to find in our favour and hold that the Respondent’s decision not to pay the Complainant was fair and well founded.

I have considered the submissions and arguments presented by both parties.

I note that the Complainant had arranged for surgery as far back as January 2016 and at that time he had arranged, at his own request, that surgery be performed on 08th July 2016 (ref - medical certificate attached at appendix 12 Respondent submission).

On the 18th June 2016 the Complainant informed his Warehouse Team Manager that he intended to travel to Poland for this surgery and raised the question of payment during his absence. The issue was raised with the HR Department who requested the Complainant to furnish relevant documentation.

On 24th June 2016 the Complainant met with HR and produced a medical certificate deeming that he would be unfit for work from 26th June 2016 to 18th July 2016. This medical certificate advised that the Complainant was scheduled for his surgery on 8th July and he would be required to attend hospital the week before his surgery for pre-operative assessment.

The Complainant was absent from work from 26th June to the 12th September 2016.

The Complainant was not paid ‘sick pay’ for this period.

The Complainant submitted a grievance on 19th September 2016 relating to his non-payment. A further appeal was made on 24th October 2016 and an appeal hearing conducted by the General Manager was scheduled for the 14th November 2016. The outcome of the appeal was delivered on 22nd November 2016. The General Manager upheld the decision not to pay the Complainant ‘sick pay’ for his absence.

The Complaint was received by the Workplace Relations Commission on 17th May 2018 – almost 18 months after the appeal outcome letter from the General Manager.

I find that the Complainant has done nothing to help himself in this case and has totally ignored the procedures utilised by the Respondent in matters such as this.

The Respondent has indicated that arrangements for such elective procedures can be accommodated at times when the warehouse activity permits and the time being requested is not at peak holiday times.

For reasons outlined I do not feel that the complaint is well found and therefore I am unable to find in favour of the Complainant. My recommendation is that the complaint fails.

Complaint fails.

Sick pay procedures.