Complainant

Respondent

Anonymised Parties

A General operative

An Employer

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-00031369-001

04/10/2019

The complainant began working for the respondent in April 1997 as a general operator. He has been an exceptional employee with no previous disciplinary sanctions.

On the 28th of March 2019 the complainant was on a 6 a.m. to 2 p.m. shift operating a DEK machine. At approximately 10:30 am he injured himself whilst lifting tools out of the machine. He reported the accident immediately and an accident report form was completed. The complainant was sent to the company doctor. He was certified unfit for work for 2 days. He was advised to return to the surgery the following Monday if there was no improvement. The complainant did attend the company doctor the following Monday and he was further certified for one week.

The complainant had previously reported to the technicians, on several occasions, that there was an issue of overreaching while lifting out tools from this particular machine.

When the complainant returned to work on 8th April 2019 he noted that the dek machine had been modified so he was no longer required to manually lift the tools out of this machine.

On 15th April 2019 the complainant received his payslip and noticed his shift rate had not been paid to him following the week of his accident. He queried this deduction from the operations manager and was informed that the reason for the deduction was because he was on certified sick leave. He contested this. He was not on sick leave but was certified unfit for work due to a workplace accident. The complainant believes he should not be penalised as a result. He was informed by the operations manager that the shift rate is a form of compensation for working unsociable hours. As he did not work those unsociable hours, he was not entitled to be paid the shift rate.

The complainant contacted his Union and a meeting was held on the 14th of May 2019. In attendance was the Operation’s manager and the CEO. The Operations manager was asked to point out where in the company's injury at work policy it states that any person injured at work will be deducted their shift allowance. He replied that “it is not written down in any policy, it is just the way it has always been done”. The complainant’s Union argued that the sick pay policy does not apply to this case.

The complainant commenced employment as a General Operative with the respondent on 1 April 1997 and has worked in several different areas within the plant. The Complainant works Monday to Friday, forty hours per week.

The Complainant commenced sick leave on 28 March 2019 and returned to work on 08 April 2019.

The Complainant hurt his back at work on Thursday 28 March 2019 and commenced sick leave that day. He returned to work on Monday 8 April 2019.

The Complainant was paid as normal for the hours he worked in the week of the accident, including his full shift allowance. He was paid full basic pay for the week he was on sick leave plus bonus and no shift allowance. When he returned to work on 8 April 2019, he was paid his shift allowance.

The Complainant is seeking payment of the shift allowance he would have received had he worked week commencing 1 April 2019 (amounting to €112.26).

Company arguments

Up until October 2018, the Company only paid for sick leave when the absence was as the result of a work-related accident. The practice was always that an employee would receive full basic pay only when on such sick leave. Shift allowance was never paid to staff on sick leave.

Following local discussions regarding the introduction of a formal sick pay scheme, and at conciliation under the auspices of the WRC, a policy was introduced by the Company in October 2018. This was the first time a formal sick pay scheme was introduced into and by the Company. There were no concessions from SIPTU or staff with the introduction of this scheme.

In the Sick Pay Scheme policy, pay to an employee on sick leave is defined as:

“Full basic pay, bonus paid at employee’s 13 week average, in line with the calculation of annual leave.”

Following a query from Ms EM (SIPTU) regarding elements of the sick pay scheme and specifically on the point of pay, on 25 October 2018 the Company informed her: “The 13 week average is used for bonus purposes only.   Shift rate is not paid.”

At a Management/Union meeting on 10 April 2019, the payment of shift allowance to The Complainant was raised by SIPTU. As part of a written response to matters raised by the union, and specifically relating to The Complainant, the Company stated:

“The payment of shift premium happens because of the less social nature of alternating shift roster. The employee is paid the premium for the balance of the calendar week before or following the accident, which could be attributable to work. The company does not pay the premium for full weeks of absence when this less social aspect does not occur.”

At a further union meeting on 14 May 2019 relating specifically to the Complainant’s request for payment of shift allowance for the period he was on sick leave, the Company’s position was reiterated. This position was in line with the negotiated sick pay policy that had been introduced seven months earlier – The Complainant was entitled to be paid based on full basic pay and the thirteen-week average for his bonus. It was also explained that this had been the Company’s position since shift work had commenced in 1981.

The Respondent has a policy, entitled ‘sick pay scheme’ which was negotiated with the Worker’s Union and which came into effect in October 2018. The policy is very clear that when an employee is out on certified sick leave “the organisation will pay your basic, less social welfare illness benefit for a maximum of 20 weeks. The respondent does not differentiate between being certified sick with an illness to being certified due to a workplace accident. If you are certified unfit for work for any reason you qualify under the scheme. Shift allowance is not paid under the policy and it is the custom and practice that if an employee does not work a shift, for whatever reason, he/she does not get paid the shift allowance. It is on that basis that I find that the worker is not entitled to his shift allowance for the week he was absent from work.

In those circumstances I recommend that the worker accepts the respondent’s position. .

I recommend for the reasons set out above that the worker accepts the respondent’s position.