FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : THE MENDICITY INSTITUTION - AND - JOANNA RUTKOWSKA DIVISION : Chairman: Mr Geraghty Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No ADJ-00019066.
BACKGROUND:
2. This is an appeal by the Worker of an Adjudication Officer’s Decision under the Payment of Wages Act 1991. A Labour Court hearing took place on 11 October 2019. The following is the determination of the Court:-
DETERMINATION:
Background
This is an appeal by Ms. Rutkowska, ‘the Complainant’, against a Decision of an Adjudication Officer, (AO), under the Payment of Wages Act 1991, ‘the Act’. The AO decided that The Mendicity Institution, ‘the Respondent’, had not breached the rights of the Complainant under the Act.
The Complainant was an employee of the Respondent from July 2015 to October 2018. In October 2017, the Complainant went on sick leave. Under the terms of her contract, the Complainant was entitled to be paid 20 days’ sick pay per annum and this was paid to her up to 6 November 2017.
The Complainant remained on sick leave and in January 2018 sought payment of a further 20 days. This gave rise to a disagreement between the parties that has been rendered irrelevant by the passage of time as to when the payment of 20 days’ sick pay was due. What is not in dispute is that after July 2018 when she was still on sick leave, the Complainant was entitled to a further payment of 20 days’ sick pay, subject to provision of ‘appropriate Medical Certificates’ as per her contract.
As the Respondent was not satisfied with the medical certification, sick pay was not paid and the Complainant referred the matter, under the Act, to the WRC. She appealed the WRC Decision to this Court.
Summary of Complainant’s arguments
The Complainant satisfied the requirements of the sick pay scheme. These requirements were changed unilaterally in June 2018. This amounted to an unagreed change in the Complainant’s terms and conditions.
The Complainant travelled to Poland in December 2017 for treatment. Copious correspondence took place with her employer on a variety of matters related to her sick leave, including the requirement for the Complainant to submit up to date sick certificates from her doctor in Poland, which she did.
When the Complainant lodged a grievance in February 2018 regarding non payment of sick pay, at no stage was it mentioned that she was not properly on sick leave.
When the Complainant resigned in October 2018 she was paid her annual leave and public holiday entitlement for the period of her sick leave. These entitlements only accrue in respect of recognised sick leave.
The Complainant was never subject to disciplinary proceedings for unauthorised absence from work.
Summary of Respondent’s arguments
Medical certificates submitted by the Complainant after 6 December 2017 lacked detail that did not allow for validation and contact information was lacking. At the end of November 2017, the Complainant had stated that she was returning to Poland, following her doctor’s advice.
Following a referral of the Complainant to an occupational health advisor, the Respondent was advised that the Complainant was fit to attend a meeting to discuss her grievances and to discuss a time frame for a return to work. That meeting took place on 12 March 2018. The Complainant stated that she would not return to work until the WRC had dealt with her grievances.
The Complainant subsequently refused to provide her postal address.
The Complainant was advised in April that her medical certification was not acceptable as the certificates were not legible and contact information was unclear, certificates after 21 February 2018 were undated and could not be validated independently.
The Respondent clarified the requirements of employees to qualify for sick pay in June 2018 and the Complainant was advised of these clarifications.
In May 2018, the Complainant was advised on a weekly basis either to provide certificates from a Dublin-based doctor or to provide her address in Poland, if she was resident there. Attempts were made to contact the physician purported to be issuing the certificates from Poland but without success. The Complainant was requested to have her Doctor make contact with the Respondent but this did not happen.
Questions from the Court
Under questioning from the Court, the Respondent indicated that, while certification had been accepted from December 2017 onwards ‘in good faith’, they had sought to establish when the Complainant might be expected to return to work. This had been unclear and they had referred the Complainant to their occupational health advisor, who had advised that the Complainant was fit to meet the Respondent to discuss her grievances and a time frame for a return to work.
The Complainant, on the other hand, stated it was her belief that this medical opinion was sequential and that her return to work was dependent on a resolution of her grievances. When asked why she did not return to meet the occupational health advisor for a second time when asked to do so, she replied that her grievances had not been addressed and it was a mere 6 weeks after her previous meeting, in circumstances where she was dealing with her illness.
The Complainant stated that her doctor in Poland was not willing to initiate contact with the Respondent as ‘this was not how it was done’ but that she supplied all certificates required and, when asked to do so, supplied original hard copies of same. The Respondent noted on this point that the hard copies were often received considerably later than the dates covered. The Respondent stated also that telephone calls to the number on the certificates, which was, itself, difficult to read on the photographs received, resulted in the telephone being hung up and then not answering.
The applicable law
Payment of Wages Act 1991
1.
“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,
5.
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.
Deliberation of the Court
The issue for the Court is whether, under s. 5(6) of the Act, the Complainant is entitled to payment of four weeks’ sick pay, this being ‘properly payable’, within the meaning of s.5(6), as it constitutes ‘wages’, in accordance with the definition under s.1.
The Complainant’s contract provides for such payments but this is subject to the provision of ‘appropriate Medical Certificates’.
In this case, the Court is satisfied that the Respondent acted reasonably in seeking to satisfy themselves that the certification submitted was ‘appropriate’. Sick pay can never be an absolute entitlement and an employer is entitled, within reason, to establish to their satisfaction that medical certification supplied is valid.
In the instant case, the Complainant did not do enough to meet the reasonable requirements of the Respondent, who was entitled to be satisfied as to the veracity of certification and nothing done by the Respondent to achieve this was, in the view of the Court, unreasonable.
Therefore, the Court is of the view that the Complainant did not meet the requirement in her contract to qualify for sick pay and that this was not, as a consequence, ‘properly payable’ within the meaning of the Act.
Determination
The Decision of the Adjudication Officer is upheld.
Signed on behalf of the Labour Court
Tom Geraghty
FMc______________________
14th October 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.