Complainant

Respondent

Anonymised Parties

A Team Leader

A Manufacturing Company

Representatives

PeterGlynnSIPTU

Alastair Purdy ofAlastair Purdy & Co. Solicitors

Act

Dispute

Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00023797-001

05/12/2018

The dispute concerns a claim by the worker that he is entitled to a benefit from the employer’s voluntary sick pay scheme. The employer disputes this and states that the worker on promotion became a member of the team leader sick pay scheme and is no longer entitled to sick pay from the voluntary scheme. 

The worker commenced employment with the employer in June 1987 as a general operative and joined the voluntary sick pay scheme. The scheme was made up of both contributions from the employer and the employee and it provided benefits of six weeks following a certified sick absence.

In 1999 the worker applied for and was successful in his application for team leader stores/ warehouse position and became a member of the supervisory sick pay scheme as well as continuing to be a member of the voluntary sick pay scheme. in June 2017 the worker became ill and needed surgery resulting in him being on certified sick for a 9-month period. The sick pay scheme which applies to the supervisory grade provides that the employer pays 6 weeks full pay, 6 weeks half pay and 14 weeks at ¼ pay. The worker applied for payments from the voluntary sick pay scheme as he was also paying into this scheme and he was refused on the grounds that he was receiving payment from the supervisor scheme. In January 2018, the worker had exhausted the supervisor sick pay scheme and he remained on certified sick leave receiving only social welfare. On the 23rd of April 2018, the worker raised a grievance regarding the refusal of the employer to allow the worker to avail of the voluntary sick pay scheme except for medical expenses. A meeting was scheduled for the 25th of April 2018, where the worker set out his grievance. On the 23rd of May 2018, the employer wrote the complainant advising him that his grievance was not upheld. The worker appealed the outcome and a meeting with scheduled under stage 3 of the grievance procedures on the 7th of June 2018. An appeal was heard and on the 13th of June the worker was notified that the appeal was rejected. A further appeal was referred by the worker, but this also was rejected by the employer.

The union said that the employer rejected the grievance citing that the worker was notified that he was now part of the supervisory sick pay scheme since 1999 and therefore he gets paid when out sick. The employer’s decision was that they worker has no entitlement to sick pay within the voluntary scheme. The Union contends that the worker in paying into the voluntary sick pay scheme had a legitimate expectation that following the exhaustion of the company scheme, he could then rely on accessing the voluntary scheme. The company in their response stated that the worker received payment during this period, however those payments ceased in January 2019. The rules governing the scheme are silent on the individual’s status following the exhaustion of the company sick pay scheme. The fact that he could not have avail of the benefit in January 2019 raises a question mark over the benefits of his contributions.

In conclusion the Union is requesting a recommendation that this complaint is well founded. The worker is seeking a recommendation that the employer pay him 6 weeks entitlement under the voluntary sick pay scheme or reimburse his contributions.

The employer states that the worker having been promoted to group leader position in 1999 was no longer entitled to payment for absence under the voluntary sick pay scheme as the sick pay committee had changed the voluntary sick pay scheme to exclude payment for absences for group leaders.

On the 7th of May 1999 the worker was offered a new position by the employer as group leader. On the 10th of May 1999 the worker accepted same. In his letter of appointment, the worker was informed that he would be eligible for the company's group/team leader sick pay scheme

Prior to his appointment he was a member of the voluntary sick pay scheme, a separate general scheme to cover hourly paid workers. In addition to payments for certified absences, the voluntary scheme permitted vouch medical expenses to be claimed. The scheme was paid by way of weekly deductions from the worker’s wage and a contribution from the company. In addition to be a member of the group team leader sick pay scheme, the worker continued to maintain his membership of the voluntary scheme.

In 2000 the committee in charge of the voluntary sick pay scheme amended the rules of the scheme so that group team leaders who were entitled to payment from the company when absent due to illness would no longer be entitled to a double payment under the voluntary scheme. They would however still qualify for vouched medical expenses. Any changes or amendments to the sick pay scheme once signed off by the committee, were posted on the workplace notice board for all employees to see.

In around March 2018, on foot of a claim from the worker, the sick pay committee informed him that he was not entitled to obtain payment for sick leave under the voluntary scheme. He had made the claim as his payment under the group team leader sick pay scheme had been fully exhausted due to his extended absence from work. On the 16th of March 2018, the worker wrote to the employer requesting that his weekly contribution to the voluntary sick pay scheme be stopped with immediate effect. On the 23rd of April 2018, the worker raised an internal grievance against employer because of not being able to obtain payment for his sick absence under the voluntary scheme despite paying into it for 18 years. He requested that he be reimbursed for the money he paid into the scheme since May 1999. He is claiming that he is entitled to the money that was paid into the scheme because he was not able to claim for the sick leave even though he was entitled to claim for medical expenses throughout the intervening period. The complainant's grievance was heard on the 25th of April 2018 in accordance with the grievance procedures, but his grievance was not upheld because he is entitled to full pay during absences under the group leader sick pay scheme.

The worker appealed the decision and it was heard on the 7th of June 2018 under stage 3 of the grievance procedures. The worker said that he had never been advised that he was not entitled to sick pay under the voluntary scheme. His appeal was not upheld, and it was stated that there was no evidence to confirm the workers assertion that he was not notified that he could not claim from both schemes.  The rules were clearly posted on the notice boards and when the worker joined the scheme he was given a copy of them. The worker then appealed under stage 4 of the grievance procedure but this appeal was not upheld.

The worker’s contention that the respondent failed to provide him with payment for sick leave under the voluntary scheme and failed to inform him that he was not entitled to payment from the voluntary scheme is rejected. The employer states that the decision to maintain his membership of the voluntary scheme was his responsibility and he could have claimed medical expenses over the 20 years as he was a member of the voluntary scheme. Moreover, the worker was aware that the sick pay committee made amendments to the voluntary scheme and these were posted on the notice board. As a group leader it is surprising that the worker was not aware of his entitlements under the voluntary scheme as this information was clearly presented to the worker. When he joined the sick pay scheme he agreed that he would accept the committee's decision was final in all matters within the rules of the scheme and that the company would not be responsible for any sum due to him from the scheme.

it was submitted that it is clear that the worker is not entitled to payment for sick absences from the voluntary scheme and he can still receive payment for medical expenses meaning that any claim to recoup monies paid into the scheme would be illogical and without foundation.  A non-qualifying claim does not entitle a person to refund of the insurance payments at the end of the year. Accordingly, the workers trade dispute in accordance with section 13 of the Industrial Relations Act 1969 should be dismissed.

I note at the time the worker was refused payment from the voluntary sick pay scheme he has been on sick leave for several months and had exhausted his entitlement under the team leaders sick pay scheme. He was paying into the voluntary scheme and expected to avail of the benefits for his sick leave of absence. At the time he made his claim he was not entitled to receive full pay during his prolonged sick leave absence as he had already exhausted his entitlement under the other sick pay scheme. As he was paying into the scheme and had exhausted all the other sick leave benefits and in the particular circumstances of this case, I recommend that a claim should be granted. I recommend that the employer pay the worker €450 to settle the dispute.

I recommend that the employer pay the worker €450 to settle the dispute.

Industrial Relations Act, 1969 Section 13, sick pay scheme, entitlement to sick leave pay