Complainant

Respondent

Anonymised Parties

A General Practitioner

A Primary Healthcare Provider

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00023163-001

12/11/2018

The Complainant was employed by the Respondent as a General Practitioner from 29 January, 2018 until 23 November, 2018. The Complainant claims that the Respondent has contravened Section 5 of the Payment of Wages Act 1991 in terms of its refusal to pay him for the duration of an absence on certified sick leave from 8 October, 2018 to 14 October, 2018. The complainant claims that the Respondent made an unlawful deduction from his wages in the amount of €2,083.80 in respect of this absence.

The Respondent disputes the claim under the Payment of Wages Act, 1991 and claims that the Complainant was not entitled to be paid in respect of his absence while on certified sick leave as he failed to comply with the company’s Sickness Absence Policy in relation to this matter.

The Complainant was employed by the Respondent as a General Practitioner and worked on average 36 hours per week at a primary care centre. The Complainant was unable to attend work from 8 October, 2018 until 14 October, 2018 due to acute sickness. The Complainant informed his Manager about his absence by text message on 8 October, 2018 and his Manager subsequently replied to acknowledge his message. The Complainant’s condition had worsened on 10 October, 2018 so he sent a further text message to his Manager to notify her about the situation. The Complainant’s Manager wasn’t very happy when she replied to his text message and telephoned him later that day to ascertain what was wrong. The Complainant obtained a medical certificate in support of his absence from his doctor on 11 October, 2018 and forwarded same to the Respondent.

The Complainant was subsequently informed by the Respondent’s HR Department that he would not be paid in respect of his absence on sick leave. The Complainant submits that his contract provides that he is allowed two weeks sick leave and that he is required to provide a medical certificate if absent for more than two days. The Complainant accepts that the Respondent’s Employee Handbook states that notification of sick absences by text message is not allowed but it also provides that the Manager is required to ensure that employees are made aware of the procedure for sick leave. The Complainant submits that he was never made aware by his Manager of the relevant procedures for reporting sick absences.

The Complainant contends that an amount of €2,083.80 was deducted from his wages in respect of his absence on sick leave and he claims that this was an unlawful deduction contrary to Section 5 of the Payment of Wages Act 1991.

The Respondent submits that the company operates a discretionary sick pay scheme the details of which are clearly set out in its Employee Handbook. The Employee Handbook provides that payment for sick leave is a benefit and not a statutory entitlement and as such all payment for sick leave is at the discretion of management and will be reviewed on a case by case basis. The Employee Handbook clearly states that sick payment may not be paid where the reporting requirements are not met. The reporting requirements clearly provide that “the employee should inform their Manager (if Manager is unavailable, notify HR Department or Reception staff) at the earliest opportunity, and not less than thirty minutes before scheduled start of the working day, and indicate the likely duration of their absence (text messages, voice mails or e-mails are not acceptable)”. The Respondent submits that these reporting requirements are necessary and totally justified given the nature of its business and the importance of being notified at the earliest possible juncture when one of its doctors is absent and unable to see patients who have already made an appointment.

The Respondent submits that the Complainant was provided with a copy of the Employee Handbook on the commencement of his employment and he signed a declaration to confirm that he had read and would adhere to the company policies (including the policy on sick pay).

The Respondent submits that the Complainant was absent from work on sick leave from 8 October, 2018 until 14 October, 2018 and the amount of €2,083.80 was deducted from his wages on the basis that he failed to comply with the requirements for reporting this absence as provided for in the company’s Employee Handbook. The Respondent submits that the Complainant informed his Manager about this absence by text message on 8 October, 2018 and the Sick Absence Policy clearly states that this method of communication is prohibited.

The Respondent submits that the Complainant was not entitled to sick pay in respect of this absence due to his failure to comply with the reporting requirements set out in its Sick Absence Policy. The Respondent disputes the claim that this constitutes an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991.  

The relevant Law

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

                “wages”, in relation to an employee, means any sums payable to the employee by the                 employer in connection with his employment, including—

                                (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other                                 emolument, referable to his employment, whether payable under his contract of                                 employment or otherwise, and

                                (b) any sum payable to the employee upon the termination by the employer of his                                 contract of employment without his having given to the employee the appropriate                                 prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides: —

(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.

I note that the Complainant had claimed on his complaint referral form to the WRC that the Respondent had made unlawful deductions from his wages in respect of unpaid sick leave and salary arrears. However, the Complainant confirmed at the oral hearing that the matter in relation to unpaid salary arrears had been resolved and that he did not wish to pursue this claim.

Therefore, the only issue for decision in relation to this complaint is whether or not the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991 in respect of the failure to pay him during the period of his absence on certified sick leave from 8 October, 2018 to 14 October, 2018. In considering this issue, I must first decide whether the claimed unlawful deduction was in fact “properly payable” to the Complainant.

The Complainant referred this complaint to the Workplace Relations Commission on 12th November, 2018. By application of the time limits provided for in Section 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was referred to the WRC. Therefore, it is clear that the unlawful deduction which is alleged to have occurred in respect of the unpaid sick leave in October, 2018 is within the cognisable period covered by the claim.

It is clear that the Respondent operates a discretionary sick pay scheme and that payments pursuant to this scheme are expressly contingent on an employee complying with certain stipulated pre-conditions. The Respondent’s Sickness Absence Policy clearly states that one of these pre-conditions requires an employee to inform his/her Manager at the earliest opportunity, and not less than thirty minutes before the scheduled start of the working day about the sick absence. The Policy also clearly states that the notification of sick absences by way of text message is not acceptable.

Having regard to the evidence adduced, I am satisfied that the Complainant did not comply with the stipulated requirements provided for in the Sickness Absence Policy in respect of the notification of his sick absence during the period from 8 October, 2018 to 14 October, 2018. Furthermore, I am satisfied that the Complainant was provided with a copy of the Employee Handbook which includes details of the Sickness Absence Policy prior to the occurrence of this absence and I note that he signed a declaration to confirm that he had read and would adhere to the company policies (including the policy on sick pay).

In the circumstances, I find that payment under the sick pay scheme for the material period in question does not qualify as wages “properly payable” to the Complainant within the meaning of Section 5(6) of the Act. Therefore, the question of compliance with subsections (1) and (2) of Section 5 of the Act do not arise for consideration. Accordingly, I find that the complaint is not well founded.

I find that the Respondent did not make an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991. Accordingly, I find that the complaint is not well founded.

Payment of Wages Act 1991 – Section 5 - Unlawful Deduction – Sick Absence – Wages not properly payable - Complaint not well founded