Complainant

Respondent

Anonymised Parties

A driver.

A Waste Recycling Company

Representatives

Maria Geraghty, SIPTU

Michael McGrath, IBEC

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-00020423-002

09/07/2018

The Complainant was employed by company “G” from the 26th October 2004. The company’s business was waste recycling and the Complainant was a truck driver in this business.

He and his colleagues were advised that the business was transferring to company “A” in July 2008 in a TUPE arrangement.

The dispute, now referred, concerns the non-transfer of the sick pay scheme operated previously by company “G”. The Complainant had been out ill for one day on the 21st March 2018 but was not paid for that day.

The Complainant says he was transferred from his original employer -company “G” to company “A” on the 8th September 2008 in an agreed Transfer of Undertakings. At that point he understood that the sick pay scheme, being a formal part of his contract transferred with him.

He was off work, sick for one day on the 21st March 2018 but when he received his pay the following week he saw that he was not paid for the day.

He says he took it up with the relevant office staff who advised that he would be paid. He was not paid and eventually discovered that he was not being paid for the day. He attended a meeting with his manager on the 9th April 2018 and was subsequently advised that though his previous employer (from whom he transferred to the Respondent) operated a sick pay scheme, it was operated on a discretionary basis and the Respondent did not intend to have a sick pay scheme.

He was not paid for the day. This resulted in the complaint being submitted to the WRC.

The Respondent made the following case in response:

The Sick pay scheme that transferred was discretionary on the part of the employer and they were using their discretion in not operating the scheme in favour of any employee.

They also point out that the Complainant’s role, in the company, as a truck driver was being discontinued and he was given the option of redundancy or to transfer on a new contract to a role as a skip driver. He accepted the latter and signed a new contract that also specified that the contract of employment did not include a sick pay scheme. This contract was signed by the Complainant on the 28th May 2010.

They also make the point that while this case is brought forward by one Complainant that a recommendation in favour of the Complainant has a knock-on effect for all other employees.

Finally, they say that in discussions with the Complainant’s Union in 2017, the issue of the sick pay scheme was “parked” by both sides and they agreed to revisit the issue on the conclusion of the term of that 2017 agreement, which ends in mid-2019.

There are I believe, arguable points around the “discretionary” nature of the transferred sick pay scheme but I believe that time has moved all concerned way from further consideration of that.

There is now a clear process laid out to have the matter of a sick pay scheme negotiated between the parties in 2019, when the merits of such a scheme can be discussed on a collective basis.

The Respondent is now part of the major recycling organisation. The parent company operates a sick pay scheme.

I recommend, in the circumstances, that dealing with the issue of a sick pay scheme in a piecemeal fashion is not appropriate, and should be discussed and agreed through the collective process proposed.

I note that the larger part of this company operates a sick pay scheme and the extension of this to all employees should be negotiated as soon as possible in 2019.