Complainant

Respondent

Anonymised Parties

General Operative

Food Manufacturer

Representatives

Dave Curran SIPTU,

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-00020626-001

18/07/2018

The Worker has been employed as a General Operative since 1998. He has two medical conditions requiring him to attend hospital a couple of times a year. For the past 10 years approximately, he has been able to use sick days for these visits. Since December 2017 the Employer has stopped this and requires him to use holidays. He is seeking the restoration of this facility as the change was introduced without agreement.

The Worker has exhausted the internal grievance procedure.

The Worker has been employed for the past 20 years. He has two named medical conditions for which he has occasional hospital appointments. The sick pay scheme provides for 6 weeks full pay and 6 weeks half pay. He has for many years taken sick days when attending the hospital, usually amounting to a handful of days per year. He has always informed the company and requested the sick day. These were always granted until December 2017. In December 2017 he was refused.   He was informed that he would have to use holidays instead. He raised his grievance through the grievance procedure but the matter was not resolved.

It is his case that this is a long-standing practice which has become part of his terms and conditions of employment. It is now unreasonable for the Employer to require him to use annual leave and it is not in line with the purpose of leave entitlements. He referred to Sec 20 of the Organisation of Working Time Act which describes annual leave as being for “family responsibilities and rest and recreation”. The clear intention of annual leave is not to cover necessary medical appointments. This should be treated as medical leave. He has not surpassed the sick benefit. These hospital visits are infrequent and do not place any undue burden on the employer. Prior to December 2017 no problem had been identified by the employer. The use of 1 to 3 days per year means a lot to the Worker. This is now established as a custom and practice. He should be allowed to continue to take these days.

This case concerns the Worker’s challenge to management’s decision in their application of the rules of the sick pay scheme, which applies to all hourly paid employees in the company throughout the country. The company sick pay scheme is a benefit not a right for every permanent employee. The sick pay scheme is for the benefit of employees who fall sick or have an accident. This dispute concerns the employer’s decision not to pay sick pay for attending medical appointments booked in advance for underlying conditions. It is company policy that when an employee has a medical appointment he or she takes time off by way of annual leave or arranges the appointment for a time outside of their work schedule. The rules of the sick pay scheme clearly state that an employee must submit a doctor’s certificate for every absence. The employer extends the benefit of the sick pay scheme to all their employees on a consistent basis. In particular employees booking medical appointments. The Worker’s case is an exception to this and is an error which the Employer must be able to correct. He has a high level of absenteeism for the past five years which has never been challenged by local management due to the fact that it is known that he has these conditions. It is imperative that the company is consistent in its application of the rules of the sick pay scheme and to this end they are seeking that this decision is in their favour and that medical appointments are not considered as sick days for the purpose of sick pay.

I note that the Worker has been in receipt of this arrangement for the past ten years.

I note the Employer’s position that this arrangement is not compliant with the rules of the sick pay scheme.

I note the Employer’s position that the Worker is the only person in receipt of this arrangement.

I note the Employer’s position that this was done in error and they are entitled to correct the error.

I note the Employer’s position that the Worker has a very high level of absenteeism ranging from 4.25 weeks in 2015 to 5.8 weeks in 2017.

In full and final settlement of this dispute I recommend that the Worker should have his hospital visit days for 2018 restored to his holiday entitlement and applied in 2019.

I recommend that for all of 2019 the Worker should continue to have this arrangement applied on a strict red circled basis.

I recommend that in all future years of his employment this arrangement should not apply and he should be treated the same as all other weekly paid workers.