Worker

Employer

Anonymised Parties

A Driver

A Bus Company

Representatives

Bernadette Thornton SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028798-001

31/05/2019

The Worker has been employed by the Employer since 11th of June 2008.

He was on certified sick leave for two weeks from 11th of June 2018 to 21st of June 2018.   During his sick leave he attended a 1-day CPC course for truck driving without notifying the employer and consequently he was not afforded sickness benefit for the two weeks of certified sick leave.

The Worker was not notified of any decision to withhold sick pay and was not notified as to the reasons for withholding his sick pay.

He is now seeking that this two weeks sick pay be reinstated.

The worker submits that he

was on sick leave for almost 2 weeks in June 2018 during which his sick pay had been withheld without notice and without consultation.

In April 2019 he was advised that his sick pay for the June 2018 sick leave period was withheld as the employer discovered informally from another employee that he had attended a 1-day CPC truck driving course during his sick leave.

The employer submits that

The worker was on certified sick leave for two weeks from 11th of June 2018 to 21st of June 2018.  

During his sick leave he attended a 1-day CPC course for truck driving without notifying the employer and consequently he was not afforded sickness benefit for the two weeks of sick leave.

Under the terms of the employer’s welfare scheme an employee who is absent from work is expected not to participate in any work sport or other activities which “could aggravate the illness or injury or which could delay recovery”.

The worker in this case advised the hearing that he was on certified sick leave for almost 2 weeks in June 2018 during which his sick pay was withheld without notice and without consultation. The worker stated that he wasn’t aware that this had happened and had received no notification or consultation in this regard from his employer. The worker told the hearing that he was called to an absence review meeting in April 2019 where the services manager advised him that his sick pay had been withheld during his June 2018 absence due to the fact that he had attended a 1-day CPC truck driving course during his sick leave.

The employer advised the hearing that it had withheld the worker’s sick pay after discovering that he had attended a 1-day CPC truck driving course during his sick leave. The employer stated that the worker had not notified them of his attendance at this course and that they had been told by another employee that the worker was on the course. The employer added that under the terms of the employer’s welfare scheme an employee who is absent from work is expected not to participate in any work sport or other activities which “could aggravate the illness or injury or which could delay recovery”.

The employer when questioned at the hearing as to how the employer could reach a conclusion regarding whether or not an activity could be considered as one which could “aggravate the illness or injury or which could delay recovery”, stated that a decision in this regard would usually be made after referral to the CMO.

The worker advised the hearing that he was not at the time referred to the CMO and stated that he had received no contact at all from the employer querying whether or not he had attended the CPC course or advising him that his sick pay was being withheld due to this.   In addition, the worker was not advised that the employer was considering withholding his sick pay and was not given a chance to participate in the decision-making process which ultimately resulted in the employer deciding to withhold his sick pay. The worker told the hearing that he was referred to the CMO on 26th of July 2018 but that he was already back at work at this stage and it transpires tha the sick pay had already been withheld at this point. The employer clarified that the July CMO appointment was a review and an attempt by the employer to combat high levels of absenteeism.   The employer at the hearing conceded that it had not requested or received any report from the CMO addressing the question of whether or not the worker’s attendance at a 1-day CPC driving course could “aggravate the illness or injury or which could delay recovery”.

The worker told the hearing that he was not notified that his sick pay was being withheld until 10 months after the fact. The worker was not given any chance to influence or participate in that decision and was not offered any appeal of the decision.     The employer at the hearing sought to argue that the worker could have appealed the decision.   Th employer however conceded that he worker was not notified that the decision was made to withhold his sick pay until 10 months after the decision had been made and the consequent action of stopping his pay had already been carried out.

It is clear from the evidence adduced, that there were no procedures adopted by the employer in withholding the workers sick pay. There was no medical assessment of the worker to determine whether or not his attendance at the CPC course could have had the effect of ‘aggravating the illness or injury or which could delay his recovery’.   There was no consultation with the worker and he was not at any point in time advised that the employer was considering withholding his sick pay. The employer took a unilateral decision to withhold his sick pay without consultation and without advising that they had done so until 10 months later.

There is an obligation on employers to follow fair procedures and natural justice. The employer in this case failed to follow any procedures when it took the decision to stop the workers sick pay and proceeded to withhold his sick pay without notifying him. In addition, the fact that they did not advise the worker that they had taken this action until 10 months after the fact meant that he was unable to avail of any internal appeal mechanism.  

I am satisfied given the circumstances of this case and based on the totality of the evidence adduced, that the worker was not afforded fair procedures in relation to the decision to withhold his sick pay and was not offered any appeal of the decision.    Accordingly, I find in favour of the worker and I recommend that the employer reinstate his two weeks sick pay which he would have received had a decision not been taken to withhold same.

In addition, I recommend that the employer clarify its procedures regarding the procedure to be followed in circumstances where it is faced with deciding whether or not to grant sick pay to an employee who is engaging in activities which could “aggravate the illness or injury or which could delay recovery”.

Having considered the submissions of both parties and the evidence adduced at the adjudication hearing, I recommend in favour of the worker and I recommend that the employer reinstate the worker’s two weeks sick pay which he would have received had a decision not been taken to withhold same.

In addition, I recommend that the employer clarify its procedures regarding the procedure to be followed in circumstances where it is faced with deciding whether or not to grant sick pay to an employee who is engaging in activities which could “aggravate the illness or injury or which could delay recovery”.