Complainant

Respondent

Anonymised Parties

A Project Leader

A Charity

Representatives

Karl Gill, Citizens Information Service

Act

Complaint/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-00024503-001

02/01/2019

The complainant was employed by the respondent charity as a project worker from October 2013 until she resigned five years later in October 2018. She was appointed to the role of project leader on July 27th 2015. For the last 12 months of her employment, she was absent due to work-related stress and she spent some of that time in Poland. This is a complaint about the fact that she was not paid what she said was her contractual entitlement to four weeks’ sick pay in 2018.

At the hearing, the complainant outlined the background to her case and she said that she was on certified sick leave from October 10th 2017 until October 9th 2018.   In December 2017, she went to Poland for treatment. In 2017, the complainant received four weeks’ pay while she was out sick, and she expected to be paid another for another four weeks in January 2018.

When she didn’t receive any sick pay in January, the complainant submitted a grievance which was decided-on in March 2018. The management confirmed that the complainant was not entitled to sick pay until the anniversary date of the signing of her contract, which was July 27th 2018. However, up to the date of her resignation on October 9th 2018, she received no further sick pay.  

When she resigned, the complainant received her annual leave and public holiday pay for the entire time that she was on sick leave. It is the complainant’s case that annual leave and public holiday entitlements only accrue to employees on “recognised” sick leave. She now claims that, in accordance with her contract, she is entitled to four weeks’ sick pay to which she was entitled on July 27th 2018.

In their submission at the hearing of this complaint, the respondent’s representatives said that the complainant was paid for 20 days’ sick leave in respect of her absence from October 10th to November 6th 2017. For the duration of this absence, the complainant sent medical certificates which outlined the reason for her absence, the date of absence, the possible return-to-work date and the doctor’s name, address and contact details. Although the charity’s policy is to deduct social welfare illness benefit from sick pay, the complainant received her full salary for four weeks.

In December 2017, the complainant said that her doctor recommended that she continue her treatment in Poland. No evidence was provided by the complainant of her doctor’s opinion in this regard.   Medical certificates that she submitted from December 6th onwards were not acceptable to the respondent because they were not legible, the contact information was unclear, they were undated and could not be verified. Evidence was submitted at the hearing of the certs sent in the by the complainant, which were on plain, un-headed paper with no doctor’s name legible and a blurred company stamp.

The complainant expected to be paid sick pay for a further 20 days in January 2018, but it was explained to her that her entitlement to sick pay would be due again on July 27th 2018, on the anniversary of the start date of her contract. In March 2018, she appealed against this decision to the company secretary, but she refused to meet him to advance her grievance.   When she was asked by the company secretary to provide her postal address in Poland, the complainant refused.   She said that her permanent address was in Dublin. She was then asked to provide medical certs from a doctor in Dublin, but she refused this request.

In February 2018, following a consultation with the respondent’s occupational health consultant, the consultant recommended that the complainant engage with her employer to discuss a return to work. At a meeting on March 12th, she informed the chief executive and the operations manager that she would not contemplate returning to work until a separate complainant was investigated at the WRC.

In May 2018, the respondent’s operations manager contacted the complainant on a weekly basis by e-mail to request certs from a Dublin-based doctor and she was advised that her certs were not in compliance with the organisation’s policy. The operations manager also attempted to contact the doctor in Poland who issued the certs, but the phone was not answered and it was apparent that the phone number was not the number of a medical clinic. An e-mail address was not provided. The complainant was asked to get her doctor to contact the employer, but the doctor did not get in touch. At the hearing, the chief executive said that they wrote to the doctor at the address provided on the letters, but they got no reply.

The respondent organisation is small charity working with homeless people. The representatives who attended the hearing said that their core values are compassion and respect and that they made every effort, over the course of her 12 months of absence, to accommodate the complainant.   They said that she failed to provide proper medical certificates when she was out sick from December 2017 until October 2018. The certs she provided could not be verified, despite the best efforts of the management and requests to the complainant to address the problem.   The complainant made no effort to procure the certs that were required. It is the respondent’s case that they were acting reasonably by ensuring that the entitlement to sick pay is paid in a fair and impartial manner and in cases of demonstrable illness.

The Relevant Law

Section 5(6) of the Payment of Wages Act 1991 (“the Act”), deals with the circumstances in which wages which are properly payable to an employee are not paid:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

In respect of this complaint, the failure of the employer to pay the complainant sick pay in 2018 is regarded as a deduction from wages.

The Complainant’s Contractual Entitlement to Sick Pay

Under the heading of “Sick Pay,” on the contract of employment issued to the complainant on October 12th 2015, details of the respondent’s sick pay policy are set out:

In order to qualify for sick pay, please note that payment will only be made to employees who comply with the notification procedures set out in the policy. The entitlements are as follows:

0-6 months’ service – no benefit

6 mths – 1 year service – 5 days per annum

1 – 2 years service – 10 days per annum

2-3 years service – 15 days per annum

3 years onwards – 20 days per annum

The first three days of any sick period are unpaid; payments are made from the fourth consecutive day of illness. Employees are paid in full less Social Welfare entitlement which can be claimed whilst on sick leave. Payments of sick pay are dependent upon the receipt of the appropriate Medical Certificates.

It is apparent therefore that the respondent has made it a condition of the payment of sick pay that “appropriate medical certificates” are provided. They have decided that appropriate certificates require certain basic information such as the name and address of the doctor and a phone number at which the doctor can be contacted.

Findings

The requirement of the respondent with regard to medical certificates is not unreasonable or unusual and I am satisfied that they communicated clearly with the complainant and informed her that the certs she submitted were not acceptable. Despite numerous requests, the complainant did not comply with the requirement to submit proper and detailed certs. She also provided no medical evidence in December 2017, of her doctor’s opinion that she should be treated in Poland. Arising from this, it is my view that sick pay in respect of the complainant’s absence in 2018 does not quality as wages that are “properly payable” under section 6(5) of the Act. I find therefore, that the respondent’s decision not to pay the complainant sick pay in 2018 was not an illegal deduction from her wages.

For the reasons set out above, I decide that this complaint under the Payment of Wages Act 1991 is not upheld.

Medical certificates, sick pay