ADJ-00015103

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00015103

Parties:

	Complainant	Respondent
Anonymised Parties	A Civil Servant	A Government Department

Representatives

Peter Leonard BL on behalf of Chief State Solicitor’s Office

Complaints:

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-00019834-002	18/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00019834-003	18/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00019834-004	18/06/2018

Date of Adjudication Hearing: 23/01/2019

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant details that the respondent reduced his pay, made unauthorised deductions from his pay and discriminated against him on the basis of his disability by making deductions to his pay.

Whilst I will not be referring to all correspondence, incident, witness, event or reference every case law presented, I have taken into account all the submissions including oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

A brief summary of events is as follows:

The complainant went on sick leave on 18th September 2017 and was diagnosed with pancreatic cancer.

Some sick certs were received by Mr A, the complainant’s line manager, thereafter.

The complainant advised Mr A of the nature of his illness but requested that this information be kept confidential.

Mr A kept the nature of the illness confidential.

The complainant was referred to the Chief Medical Officer on 14th November 2017 who advised by letter in January 2018 that the complainant had a significant medical illness.

The complainant was advised that he would go on half pay from 11th December 2017 and that his pay would stop on 9th January 2018.

The complainant was advised on 13 February 2018 that he had been overpaid from 11th December 2017 until 9th January 2018 and that deductions would take place in line with policy.

The complainant made direct contact with the HR section of the Respondent in March 2018 including inter alia deductions and reduction in his pay.

In April 2018 the complainant was placed on Critical Illness Payment (CIP) which was backdated.

Summary of Complainant’s Case: CA-00019834-002

The complainant outlined that he went out sick in September 2017 and was diagnosed with pancreatic cancer. He underwent serious surgery for this and advised his direct line manager Mr A of the nature of his illness. He maintained contact with Mr A through mostly text messages during his time out sick.

He was shocked that deductions were made to his wages by the respondent between 1st January till 31st March 2018 which had very serious consequences for him. The complainant also endured significant turmoil that such deductions could impact his health insurance contributions, particularly as he was so unwell and in need of medical treatment including chemotherapy.

The complainant details that the respondent made an unlawful deduction from his wages and that he is owed monies from between 1st Jan and 31st March 2018. He outlined that he had advised the respondent of the seriousness of his illness and sent in sick certs.

Evidence of text messages updating his direct line manager Mr A were provided. It was detailed that he could not respond to some documentation from the respondent owing to his ill health. The complainant detailed that despite, repeated requests, the respondent has failed to advise him of the reasoning behind the deductions in pay which occurred from January till March 2018.

Summary of Respondent’s Case: CA-00019834-002

The respondent detailed they are obliged to follow Public Service Management (Sick Leave) Regulations 2014, SI 124 of 2014, Public Service Management (Sick Leave) Regulations 2015, SI 384 of 2015, DPER Circular 12/2015 for Paid Sick Leave, DPER Circular 05/2018 for Paid Sick Leave and that the complainant had submitted some sick certs which did not detail the nature of the illness but which stated, “under investigations”. Because the complainant remained absent he was referred for assessment on 14th November 2017 to the Chief Medical Officer (CMO) as per procedures, circulars and statutory instruments (Sis). At the time the complainant had been absent 8 weeks with just one cert provided covering the period 19th to 26th September.

While preparing paper work for the complainant’s referral to the CMO, the HR system incorrectly recorded that the complainant was medically certified absent until 9th January 2018, when in fact, the complainant had not submitted regular sick certs. The respondent detailed that as a result of this error, the respondent did not realise that the complainant had only sent in the one sick cert covering 19th to 26th September 2018.

Regardless of this error, the complainant was due to go on half pay from 11th December 2018 with cessation of sick pay from 9th January 2018 in line with procedures, circulars and SIs. Mr B in HR made attempts to contact the complainant to keep the complainant up to date but had no success. Mr B asked Mr A if he was able to contact the complainant and remind the complainant that sick certs needed to be sent in regularly. Mr A was able to contact the complainant and on 8th December 2017 further medical certs were received from the complainant but did not state the nature of the complainant’s illness.

A letter was written to the complainant on 14th December 2017 regarding the provisions of Circular 12/2015 regarding absence and payments. The complainant was due to be placed on half pay on 11th December 2017, as would be the normal policy, and nil pay from 9th January. 2018. Due to an increased work load in the relevant section deductions had not taken place and thus an overpayment arose which the complainant was advised of. As the respondent had no information to support whether the complainant was suitable for Temporary Rehabilitation Remuneration (TRR) the respondent was not in a position to place him on this and complainant was advised of same and was advised that the respondent’s EAP was available to him. A letter from the CMO on 17th January 2018 did not detail the nature of the complainant’s illness but it appeared from the CMO’s report that the complainant was not suitable for TRR. The complainant did not engage with the relevant section within respondent, despite being requested to do so, until 12 March 2018.

Details of Civil Service Circular 12/2015 were provided which outlines when TRR and CIP might apply, with the former where there is a “reasonable prospect that the individual will be able to return to work and give regular and effective service”,andthat this follows on from Section 6 of the Public Service Management (Sick Leave Regulations) SI 124 of 2014.

The HR section was contacted for the first time, directly, regarding deductions and reductions by the complainant on 12th March 2018 and they dealt with the complainant’s concerns as a matter of urgency including advising the complainant to apply for CIP and while waiting for receipt of the complainant’s application for CIP, the respondent approved the award of TRR. The CIP application form was received from the complainant on 23rd March 2018 and a decision was made that day to award the complainant CIP. Arrangements were made to advance the complainant the sum of €500 to help the complainant with living expenses.

The respondent detailed they followed appropriate procedures, circulars and SIs with regards to dealing with payments to the complainant but were hindered by the complainant’s failure to respond or engage with the HR section. While it was accepted that the complainant was very ill at the time, the respondent had no knowledge of his illness as the complainant had not furnished any such information to the HR section.

Findings and Conclusions: CA-00019834-002

It was not disputed that the complainant was absent from work due to a serious illness. The complainant details that the respondent made unlawful deductions from his pay from 1st January till 31st March 2018. The respondent detailed that they acted in accordance with procedures and statutory instruments and circulars including Public Service Management (Sick Leave) Regulations 2014, SI 124 of 2014, Public Service Management (Sick Leave) Regulations 2015, SI 384 of 2015, DPER Circular 12/2015 for Paid Sick Leave, DPER Circular 05/2018 for Paid Sick Leave and that the complainant was on notice of same through their correspondence with him.

It would appear that some sick certs were sent in by the complainant, some of which did not arrive in a timely manner. The failure to send in the sick certs was due to a number of reasons including the very serious nature of the complainant’s illness.

The complainant received full sick pay from September 2017 and was due to be placed on reduced sick pay in December 2017 in line with respondent’s policies, circulars and SIs, albeit there was a delay in its application. Employees who are absent owing to illness/injury may also be eligible for TRR payment or CIP. Having reviewed both the TRR and CIP policies I note that such payments are not automatic and require a decision by management upon the advice of the occupational medical advisor. The respondent did not seek out nor were they advised by the CMO regarding the complainant’s suitability for CIP, but it appeared the complainant was unsuitable for TRR. The respondent did not have sufficient information to determine if the complainant was suitable for CIP until March 2018 and in the interim was awarded a TRR payment inclusive of backpay paid on 5th of April 2018.

It should be noted that the complainant found it difficult at times to articulate the differences between this complaint and that of CA-00019834-003, and CA-00019834-004 referenced below and it was also clear that he has gone through a very difficult time recently with his ill health. However, I am satisfied that he was given ample opportunity to present his complaints.

These are undoubtedly significant shortcomings in the respondent’s administration of this case, most particularly regarding the ownership of the complainant’s absence. While Mr A was aware of the serious nature of the complainant’s illness, he upheld the complainant’s insistence on confidentiality. However, personnel who were dealing with the complainant’s pay file were not on notice of the serious nature of the illness and with various personnel dealing with the complainant’s file, there could have been more regard towards the impact of their decisions on the complainant. Much emphasis was placed by the respondent on their lack of knowledge of the complainant’s specific illness, but I note that nowhere in the policies does it detail a requirement for the respondent to know the ‘specific’ illness of an employee; albeit might have been useful. I note that SI No 124 of 2014 under Section 3 Decision to Award details “management should consider all the circumstances of the case” andit was evident that management did not have all the circumstances of the case.

The respondent was hindered by the complainant’s, albeit not deliberate, failure to maintain regular contact with the relevant section within the respondent or provide all the “circumstances of the case” including his failure to respond to letters sent to him by HR and it was also evident that the complainant had knowledge that his pay would be reduced as detailed by his text message to Mr A on 18 October 2017 and the letter he received dated 14th December 2017 from the respondent. In the absence of the necessary information the respondent was not in a position to make a decision regarding payments such as TRR or CIP.

Section 5 details that .— (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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

( a) any act or omission of the employee, or

( b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

Thus, while there were deductions in the complainant’s pay this was owing to him having fully utilised the sick pay scheme which is a provision within statutory instruments and the complainant’s contract of employment, and thus any such deductions were, in accordance with the Section 5 of the Act and the complainant was also on notice of same. I declare that the complaint is not well founded.

Summary of Complainant’s Case: CA-00019834-003

He detailed that he was paid less than that which he was owed between 1st January till 31st March 2018 which had very serious consequences for him. The complainant also endured significant turmoil that the failure to pay him the appropriate pay might have impacted his health insurance contributions, particularly as he was so unwell and in need of medical treatment including chemotherapy.

The complainant details that the respondent owes him monies from between 1st Jan and 31st March 2018. He outlined that he had advised the respondent of the seriousness of his illness and sent in sick certs.

Evidence of text messages updating his direct line manager Mr A were provided. It was detailed that he could not respond to some documentation from the respondent owing to his ill health. The complainant detailed that despite, repeated requests, the respondent has failed to advise him of the reasoning behind not paying him the appropriate monies between January till March 2018.

Summary of Respondent’s Case: CA-00019834-003

The respondent detailed they are obliged to follow Public Service Management (Sick Leave) Regulations 2014, SI 124 of 2014, Public Service Management (Sick Leave) Regulations 2015, SI 384 of 2015, DPER Circular 12/2015 for Paid Sick Leave, DPER Circular 05/2018 for Paid Sick Leave and that the complainant had submitted some sick certs which did not detail the nature of the illness but which stated, “under investigations”. Because the complainant remained absent, he was referred for assessment on 14th November 2017 to the Chief Medical Officer (CMO) as per procedures, circulars and statutory instruments (Sis). At the time the complainant had been absent 8 weeks with just one cert provided covering the period 19th to 26th September.

Findings and Conclusions: CA-00019834-003

It was not disputed that the complainant was absent from work due to a serious illness from 18th September 2017. The complainant details that the respondent has not paid him the appropriate amounts due from 1st January until 31s March 2018. The respondent detailed that they acted in accordance with procedures and statutory instruments and circulars including Public Service Management (Sick Leave) Regulations 2014, SI 124 of 2014, Public Service Management (Sick Leave) Regulations 2015, SI 384 of 2015, DPER Circular 12/2015 for Paid Sick Leave, DPER Circular 05/2018 for Paid Sick Leave and that the complainant was on notice of same through their correspondence with him.

The complainant received full sick pay from September and was due to be placed on reduced sick pay in December 2017 in line with respondent’s policies, circulars and SIs, albeit there was a delay in its application. Employees who are absent owing to illness/injury may also be eligible for TRR payment or CIP. Having reviewed both the TRR and CIP policies I note that such payments are not automatic and require a decision by management upon the advice of the occupational medical advisor. The respondent did not seek out nor were they advised by the CMO regarding the complainant’s suitability for CIP, but it appeared the complainant was unsuitable for TRR. The respondent did not have sufficient information to determine if the complainant was suitable for CIP until March 2018 and in the interim was awarded a TRR payment inclusive of backpay paid on 5th of April 2018.

It should be noted that the complainant found it difficult at times to articulate the differences between this complaint and that of CA-00019834-002, referenced above, and CA-00019834-004, referenced below and it was also clear that he has gone through a very difficult time recently with his ill health. However, I am satisfied that he was given ample opportunity to present his complaints.

Management were hindered by the complainant’s, albeit not deliberate, failure to maintain regular contact with the respondent or provide all the “circumstances of the case” including his failure to respond to letters sent to him by HR and it was also evident that the complainant had knowledge that his pay would be reduced as detailed by his text message to Mr A on 18 October 2017 and the letter he received on dated 14th December 2017 from the respondent. In the absence of the necessary information the respondent was not in a position to make a decision regarding payments such as TRR or CIP.

Section 5 details that .— (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,

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

(2) An employer shall not make a deduction from the wages of an employee in respect of—

( a) any act or omission of the employee, or

( b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee),

Thus, while there were deductions in the complainant’s pay, this was owing to him having fully utilised the sick pay scheme which is a provision within statutory instruments and the complainant’s contract of employment, and thus any such deductions were, in accordance with the Section 5 of the Act and the complainant was also on notice of same. The complainant, therefore, was not paid less than that owed to him as it was not properly payable to him. I declare that the complaint is not well founded.

Summary of Complainant’s Case: CA-00019834-004

The complainant details that he has a disability as defined under the Act as he has cancer, which involved a serious operation, chemo and radiotherapy, the result of which will require him to take medication for the rest of his life. It was detailed that the complainant made illegal deductions to his pay as result of his disability which amounted to discrimination. The complainant also detailed that the respondent was aware of his disability and failed to provide him with the benefits of of either TRR or CIP.

Summary of Respondent’s Case: CA-00019834-004

The respondent denied the claims that the complainant was discriminated against. It was outlined that any loss of income or temporary loss of income occurred within the statutory provisions and regulations set down by the respondent for management sick leave.

Every effort was made to contact the complainant to manage his absence within the respondent’s regulations. The respondent outlined that once the nature of the complainant’s illness was made available to them, the complainant was immediately approved for CIP following his completion of the CIP form on 23rd of March 2018 and he was approved later that day.

The procedures regarding CIP are set out clearly and it requires an application from the complainant which they did not receive until March as well as information from the medical officer and the line manager. With the absence of any application and the absence of relevant information, management were unable to approve it before 23rd of March 2018.

Findings and Conclusions: CA-00019834-004

The issue for decision by me is whether or not the Complainant was treated in a discriminatory manner in circumstances amounting to discrimination on grounds of disability in terms of Section 6 of the Employment Equality Acts 1998-2015 (the Act).

It should be noted that the complainant found it difficult at times to articulate the differences between this complaint and that of CA-00019834-002, and CA-00019834-003 referenced above and it was also clear that he has gone through a very difficult time recently with his ill health. However, I am satisfied that he was given ample opportunity to present his complaints.

The complainant details deductions were made to his pay owing to his disability and that was a reduction in his pay. He details that his disability is cancer and as a result of this cancer he will have to take medication for the rest of his life. The respondent details that deductions were made in accordance with regulations and that the complainant was not discriminated against.

Section 6 of the Act details: “Discrimination for the purposes of this Act

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),”

Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the Complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows: -

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The complainant was out sick and while out sick received some sick pay, in line with established policies, circulars and regulations. Due to administration issues an overpayment occurred which was dealt with in line with established policies, circulars and SIs. The complainant was given details of the over payment that occurred but did not engage with the respondent owing to his illness. The complainant details that the deductions in his pay and a reduction in his pay was on the basis of his disability. I have already established above that there were significant administration omissions in the handling of the complainant’s absence but having heard all the evidence of this complaint I find that the Complainant has not established the burden of proof necessary to establish a prima facie case that he was discriminated against on the basis of his disability and it is therefore not well founded and I dismiss the complaint.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00019834-002

I declare that the complaint is not well founded.

CA-00019834-003

I declare that the complaint is not well founded.

CA-00019834-004

The complainant has failed to establish a prima facie case of discrimination, and it is not well founded, and I dismiss the complaint.

Dated: February 3rd 2020

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Payment of wages, sick pay, equality, discrimination, disability