FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KEELINGS LOGISTICS SOLUTIONS - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. This is an appeal of an Adjudication Officer Recommendation No ADJ-000-14700.
BACKGROUND:
2. TheComplainant is a warehouse operative and has been employed by the Respondent company since 13th of 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 issue was referred to the Workplace Relations Commission which heard this case on 17th of May 2018. The complaint failed. The Workplace Relations Commission Recommendation was subsequently appealed by the Worker under Section 13(9), of the Industrial Relations Act, 1969 on 10th of December 2018.
A Labour Court hearing took place on 14th of February 2019.
UNION’S ARGUMENTS:
3. 1. The staff handbook 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.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer reserves the right not to pay any member of staff who fails to comply with the guidelines on sick pay and elective surgery.
2. The Complainant's actions, lack of communication and disregard for the clear direction in advance he received outlining the Employer's position on this matter resulted in non-payment of sick pay.
DECISION:
The Court has given careful consideration to the written and oral submissions of the parties.
The appellant in this case made arrangements in January 2016 to have elective surgery in July 2016. His medical advisor recorded that the date was chosen by the claimant. It is the employer’s position that June, July and August are the busiest time for the business and are also peak holiday period in terms of staff taking annual leave.
The employer submitted that the sick pay policy as regards elective surgery places obligations upon the appellant to engage with the employer as regards any planned absence for elective surgery. It was submitted that he did not fulfil those obligations. The employer submitted that its policy in this respect is widely known in the workplace. The Court finds it unhelpful that the policy as regards elective surgery is not set out in writing.
The appellant engaged with the employer in June 2016 as regards his intended absence. He submitted that he did mention it in February 2016 to an un-named person in the company but that is disputed by the employer.
The employer submitted that employees regularly return to their country of origin for elective medical treatments and that the employer has a record of responding constructively to make mutually satisfactory arrangements jointly with the employee whenever engagement takes place in good time.
The employer, on 24th June 2016, clarified to the appellant that his intended absence was not authorised and that he would not receive sick pay in respect of any such absence. The appellant had not booked his flight to Poland at that point.
The Court notes that a doctor based in Dublin, on 24thJune 2016, certified the appellant as having been unfit for work from 26thJune 2016 until 17thJuly 2016. It is not for the Court to comment on how a doctor can certify an illness in advance and without assessing the patient during the period of certification. The matter nonetheless has added to the complexity of this case.
The appellant was absent for 49 days until 12thSeptember 2016. The appellant appealed the employer’s decision not to pay him sick pay for the period and his appeal was ultimately unsuccessful.
Over 12 months after his exhaustion of the internal appeal processes, the appellant made the within complaint to the Workplace Relations Commission.
The Court concludes that the appellant arranged to undergo elective surgery in January 2016 and planned for that surgery to take place at peak holiday time in the business. The Court has not been given sufficient information to conclude that he advised the employer of his plans at any time before June 2016. It is noted that the employer advised the appellant in June 2016 that his absence would not be encompassed by the sick pay scheme. It is common case that the appellant proceeded notwithstanding that advice. It is clear for example that the appellant booked his flight to Poland after being advised by the employer that his absence would not be covered by the sick pay scheme.
In all of the circumstances, the Court concludes that it was unreasonable of the appellant to set the date for his surgery in the peak holiday period and similarly unreasonable of him not to engage with the employer as soon as those plans had been put in place. The appellant was advised in advance of his absence and in advance of his having booked a flight that the sick pay scheme would not apply to his absence. The Court cannot, at this remove and in all of the circumstances, find that the decision to exclude this absence from the sick pay scheme was unreasonable.
The appeal fails and the decision of the adjudication officer is upheld.
Signed on behalf of the Labour Court
Kevin Foley
CH______________________
26 February 2019Chairman
NOTE
Enquiries concerning this Decision should be addressed to Carol Hennessy, Court Secretary.