Complainant

Respondent

Anonymised Parties

An Airline Pilot

Airline Carrier

Representatives

Anthony Slein BL instructed by McGroddy Brennan Solicitors.

N/A 

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-00033555-001

08/01/2020

The Complainant is an airline pilot and commenced employment with the Respondent in May 2000. He works approximately fifty hours per week and gross average monthly salary is €13,798.   In January 2019 the Complainant was involved in a road traffic accident which resulted in an injury which rendered him unable to work. He was on certified sick leave until 18th June 2019. He was certified fit to work by his own GP and certified as fit to fly by the Irish Aviation Authority on 24th June 2019. An issue arose with a new consent form required by the Respondent’s Occupational Health provider. The Complainant’s trade union took up the matter and, because of this along with a requirement to update mandatory training requirements the Complainant did not take a flight until 27th November 2019. This resulted in a substantial loss of “sector pay” also known as “flight pay” and “performance pay” which are paid when a pilot is engaged in flying duties.

The Complainant is an airline pilot of first officer rank. He commenced employment with the respondent on 12th May 2000.   As a result of a road traffic accident in January 2019 the Complainant was certified as unfit for work until 18th June 2019. On that date his General Practitioner certified him as fit to work and a copy of this certificate was sent to the Respondent the following day and receipt of this was acknowledged.

The Complainant was certified as fit to fly by the Irish Aviation Authority on 24th June 2019 and a copy of this certificate was furnished to the Respondent on that date. He returned to office duties on 24th June 2019 but was not permitted to take up flying duties until he attended a medical examination by the Respondent’s Occupational Health Provider. When the Complainant attended for this examination he was presented with a new consent form which caused him concern. He did not sign the form and the subsequent advice from his trade union was that its members should refuse to sign as this form was not agreed with the union and they wished to obtain legal and other advice in relation to this form.

Because this medical assessment was not completed by the Occupational Health Physician the Complainant was confined to office duties. This resulted in a loss of “sector pay” and “performance pay” which are payed when a pilot is engaged in flying duties. The issue regarding the consent form was resolved between the Respondent and the trade union on 30th August 2019 and the Complainant had an appointment with the Occupational Health Provider on 13th September 2019. The outcome of that examination was that he was certified as fit to fly. In order to comply with mandatory training requirements, the Complainant did not resume full flying duties until 27th November 2019.

Throughout this period deductions were made from the Complainant’s salary in relation to social welfare and sick pay. In addition, he was also at a loss of “sector pay” and “performance pay”.   It was submitted on behalf of the Complainant that he was certified fit to fly since 24th June 2019, but the Respondent continued to make deductions from his salary. This reduction amounted to 75% of pay and in addition to social welfare deductions and loss of “sector pay”. The Complainant raised a grievance in relation to this and at the hearing copies of a series of e-mails requesting clarification were submitted.

The Respondent confirms that the Complainant was absent owing to illness from 2nd February 2019 and his Class 1 medical certificate was issued on 24th June 2019. The Respondent did not permit the Complainant to take up flying duties until he was deemed fit to do by the Respondent’s Occupational Health Physician.   The Respondent confirms that the Complainant attended the Occupational Health Physician on 23rd April 2019 and he refused to provide the requisite consent to enable the Occupational Health Physician to complete their assessment. This consent would give the Occupational Health Physician permission to contact his treating specialist and the Aero Medical Examiner.   Without such consent the Occupational Health Physician could not complete the assessment in relation to the Complainant’s fitness for work. The Respondent could not permit the Complainant to return to flying duties until the Occupational Health Physician had confirmed that the Complainant was fit to do so.

The consent form became the subject of discussions between the Respondent and the Irish Air Line Pilots Association (IALPA), the trade union representing pilots. The trade union requested the Respondent to retain the Complainant on sick pay pending the resolution of the matter. The Respondent agreed to this but notes that an employee would normally be removed from the payroll in such circumstances. The Complainant was retained on sick pay in accordance with the sick pay arrangements agreed with the trade union. This would result in the Complainant receiving 50% of basic pay during the period.   The Respondent submitted that due to an error the Complainant was paid 100% of basic pay for the period.

The Respondent contends that in the circumstances the Complainant failed to fully comply with the absence procedures and refused to provide the requisite consent to allow an assessment of his fitness to return to work as a pilot. These requirements are provided for under the contract of employment and the Respondent’s absence procedures.

The Respondent submits that there was no entitlement to any pay, sector pay, and/or performance pay during this time. The Respondent confirms that they agreed with the Complainant’s trade union, on a without prejudice basis, to treat the period as sick leave and the Complainant was paid all monies due to him for the period designated as sick leave.   All deductions were made in line with the standard processing of sick pay, i.e., payment of basic pay only at the relevant rate less social welfare payment. Consequently, there has been no breach of the Payment of Wages Act 1991. The factual position is that he received sick pay when he was not otherwise entitled to and he was also overpaid.

The Respondent outlined that it recognises and respects the role of the Aero Medical Examiner and this is the recognised authority to determine a pilot’s fitness to fly.   This is a personal licencing matter between the Complainant and the regulatory authority. The Respondent also has their own Occupational Health advisors to assess and advise them on the fitness of their employees for their employment. All employees have a contractual obligation to attend the Occupational Health assessment if requested to do so by the Respondent. The consent which was not given by the Complainant is necessary to enable them to discharge their function in completing a medical assessment and in that context the Occupational Health Physician may deem it necessary to engage with the employee’s treating specialists and/or the Aero Medical Examiner. The consent form which the Complainant was asked to sign is the standard consent form which all employees are required to complete. The Respondent also confirms that the Occupational Health Physician used this standard form across all their client sites which encompasses a range of industries and sectors.

The Respondent clarified the outcome of the discussions between them and the trade union in relation to the concerns raised about the new consent form. The specific consent was clarified and following that the trade union provided written confirmation on 18th July 2019 that they would now be willing to recommend that their members sign the consent form in use by the Occupational Health provider.

I have considered carefully the written submissions and oral presentations at the hearing. The matter at issue in relation to this complaint is the payment received by the Complainant during the period 24th June 2019 until he resumed flying duties on 27th November 2019. The Complainant asserts that he should have been paid identical to that he would have received if he were undertaking flying duties. The Respondent emphasises that as the Complainant did not fully engage with their Occupational Health Physician any delays in returning to flight duties were caused by this action. The Respondent also affirms that the decision to allow the Complainant to remain on sick pay pending clarification with his trade union in relation to the consent form was more than what he was entitled to. The Respondent notes that the sick pay for pilots is agreed as part of the IPO Sick Pay arrangement. The Complainant’s sick pay for the period was calculated as per that agreement and he was due to be paid 50% due to previous absences in the preceding four-year period.

It was submitted on behalf of the Complainant that the recent case of Balans v Tesco Ireland Ltd [2020} IEHC 55 which MacGrath J summarised as follows is relevant:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where 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 to him to the employee, then, except insofar as the deficiency or non-payment is attributable to   an error of computation, the amount of the deficiency or non-payment should be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Paragraph 42 of that decision makes an observation on the Labour Court’s approach of accessing the appellant’s claim under the 1991 Act:

“It seems to me, however, that where the difficulty arises is that the Labour Court, rather than making the necessary assessment of wages properly payable under the Act of 1991 proceeded to perhaps unwittingly conflate that issue with the separate issue of whether there had been a deduction and whether that deduction came within the exception governed by s.5(6).   In doing so, in the opinion of this court, the Labour Court fell into error in failing to assess the wages properly payable to the appellant within the meaning of the Act of 1991.”

The Contract of Employment (2000) contains some relevant sections;

·         The section on Remuneration and deductions makes a specific reference to sector pay:

“Additionally, you will receive sector pay which shall be payable at such rate, on the terms and in accordance with arrangements specified from time by the Company.”

·         The section titled Medical states:

“You must be prepared to be examined by the Company’s chief medical officer or his/her nominee at any time during the course of your employment with the Company.”

·         The section dealing with Absence states:

“A staff member becomes entitled to the full sick leave allowance after completing three years’ service (details available from Attendance Management). Social welfare benefits payable to the employee will be deducted from such pay.”

·         The Respondent’s sick pay scheme contains a number of provisions that apply in any four-year period.

“Pilots who fail to maintain their medical certification will be paid full basic pay for 6 months following the loss of their medical licence certification.

·         Following the initial 6-month period, pilots who are available for non-pilot duties will receive ¾ basic pay for a further 6 months.

·         Following the 18-month period, pilots who are available for non-pilot duties will receive ½ basic pay for a further 6 months.

·         The Company and IALPA will agree a scheme whereby pilots who have exhausted twenty-four (24) months of sick pay will continue on half pay on the basis that their colleagues will contribute the equivalent of the half pay to a maximum of twelve (12) months.

·         At all times during the sick pay period the Company and the pilot will maintain their respective superannuation contribution at the level of the pilot’s notional salary.”

The Complainant submitted that the sequence of determinations in a claim under the 1991 Act is:

(a)    To assess the wages properly payable to the Complainant

(b)    To determine whether any deductions were applied to the Complainant

(c)     To determine whether those deductions were permissible under one of the exceptions provided for by section 5 of the Act.

The Complainant was returning from a period of sick leave when the issue relating to the consent form arose. The Respondent, following representations from the Complainant’s trade union, continued to apply the sick pay scheme pending the outcome of discussions in relation to the revised consent form. This was reasonable and pragmatic. In that context the Complainant was paid in accordance with the provisions of the scheme and was not entitled to flight pay or any other pay or allowance during this time. The deductions were made in accordance with the provisions of the Contract of Employment. Those deductions were permissible under section 5 (b) of the Payment of Wages Act 1991.

However, once the issue was resolved and the Occupational Health Physician had completed the assessment and confirmed that the Complainant was now fit to fly the Respondent should have revisited the pay arrangement at that time, i.e., 13th September 2019. I have decided that from that date the Complainant has complied with all the Respondent’s procedures and that the extension of the sick pay provisions should have ceased. While the Complainant was unable to fly due to mandatory training requirements he should have been restored to full pay. This would not include flight pay or performance pay which are only paid when undertaking flight duties. In that context I find that the deductions from pay for the period 13th September 2019 to 27th November 2019 were unlawful deductions under section 5 of the Payment of Wages Act 1991.

At the hearing the Complainant provided a breakdown of average sums deducted from the Complainant’s pay for the various periods. The Respondent was unable to verify these figures at the hearing.

I find that aspects of the complaint are not well founded in part only. I find that other aspects of the complaint are well founded in part and accordingly I order the Respondent to pay the Complaint all sums deducted from his wages by virtue of the application of the Sick Pay scheme for the period 13th September 2019 to 26th November 2019.

Sick pay.   Occupational Health.