Complainant

Respondent

Parties

Peter  O' Reilly

Iarnród ÉIreann

Representatives

Ms. Ciara Galvin, SIPTU

Mr. John Brosnan, Iarnród Éireann

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-00038973-001

30/07/2020

The Complainant commenced employment with the Respondent on 1st January 1990. His role was described as that of “mobile granger”. The Complainant is a full-time permanent employee, with a rate of pay of €890.00 per week. On the date of the hearing he was still employed by the Respondent.

On 30th July 2020, the Complainant’s representative lodged a complaint under the Payment of Wages Act with the Commission. Herein, the Complainant alleged that he had suffered an unlawful deduction from his wages. Specifically, he stated that the Respondent failed to pay the full amount of a sickness benefit properly payable to him. By response, the Respondent stated that the benefit in question was not properly payable to him, and as such no breach of the Act occurred.

A hearing in relation to this matter was convened for and finalised on 28th April 2021. This This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. At the outset of the hearing the parties’ attention was drawn to the recent ruling of the the Supreme Court in the matter of Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24. The parties were informed of the procedural changes applicable to the hearing arising from the judgment. Having informed the parties of the import of this ruling, they confirmed that they wished to proceed with the hearing.

Both parties issued written submissions in advance of the hearing, which were copied to either side in advance of the same. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.  

The Complainant is employed as a mobile granger for the Respondent. In May 2017 the Complainant suffered a significant workplace injury which necessitated a period of sick leave of approximately four months. During this sick leave, the Complainant was received injury pay at the rate of his average earnings, in line with the Respondent’s policy. On 22nd February 2020, the Complainant underwent a further surgery relating to accident. This surgery required a significant recovery period, and again the Complainant commenced a period of sick leave in receipt of his average earnings as injury pay.

Following the surgery, the Complainant had anticipated that he would be fit to return to work in early April. This was discussed with the Respondent’s CMO shortly after the surgery, however he did not examine physically examine the Complainant at this time. On 23rd March 2020 the Respondent stated that the Complainant would require a certificate from his general practitioner in order to return to work. In early April the Complainant attended his GP for this purpose, however his GP advised that the injury had not sufficiently healed, and he did not provide a return to work certificate at that time.

On the 28th April 2020, a member of the Respondent’s HR team issued an email in relation to the Complainant’s injury payments. Herein, she advised that as the Complainant had been deemed fit to resume by the Chief Medical Officer, but had not returned to work he was not entitled to an the injury payment and instead should be placed on the lesser sickness payment. While this email was supposed to be sent to the Complainant, it was in fact issued to another employee with a similar name within the organisation.

In the interim, the Complainant received his return to work certificate and returned on 5th May 2020. It was at this point that the Complainant was informed that the Respondent intended to deduct further monies from his wages as they believed that he had been available for work from 9th April 2020. The earlier email was issued to the correct email address on 7th May 2020.

During the pay periods 19 & 20, falling on 23rd April 2020 to 6th May 2020, this payment was discontinued without the Complainant’s consent or any prior warning in relation to the same. The Complainant, through his union representative, objected to the deductions on the grounds that the Complainant was not in fact certified fit to return to work on 9th April, and could only have returned to work on 6th May 2020. By response the Respondent advised that the Complainant should have been certified as fit to return to work on 9th April and refused to re-instead that benefit.

By submission the Complainant’s representative advised that the unlawful deduction arising the removal of the injury benefit came to €987.20. They submitted that the benefit in question was properly payable as per Section 1 of the Act, and that the deduction of the same was not authorised by Section 5 of the same. In particular they submitted that the Complainant never received written notification of the same and never signed any documentation related to the deduction. It was further submitted that this non-payment result in significant financial hardship for the Complainant.

By respondent, the Respondent advised that they agreed with much of the factual matrix presented by the Complainant. They advised that as the Complainant was absent from work on sick leave arising from a workplace accident he received a payment known as injury benefit. This benefit allowed a payment of the Complainant average weekly earnings, including overtime and premium payments. Such payments must be approved by the Director of Human Resources following consideration of advice from the Chief Medical Officer (CMO) and a review of all relevant information at a monthly review meeting.

On 20th March, the CMO had a phone consultation with the Complainant. Following the same the CMO drafted a memo to the effect that the Complaint should be fit to return to work on 9th April subject to certificate from his own General Practitioner. On 23rd March, this memo was sent to the Complainant’s supervisor and was added to his file. On 28th April 2020, the Respondent’s HR department queried as to whether the Complainant had returned to work.   While this email was meant to be sent to the Complainant, it got misdirected due to an error. Given that the Complainant had not returned by this date the injury payment was discontinued. Following a later review, the CMO advised that the sick certs furnished after 9th April 2020 did not meet the criteria for the scheme as the date of 9th April 2020 was the date set for his return to work.

By submission the Respondent advised that the CMO is the final arbiter in relation to medical fitness and by extension, applicability for the injury benefit scheme. They advised that under the terms of the scheme the Complainant was not entitled to the benefit. As such, they advised that the payment in question did not constitute “wages” that were properly payment under the Act.

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…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”.

Section 5 of the Act then prohibits any deductions from wages deemed properly payable, unless certain prescribed criteria are met. The benefit of injury payment, being a sum payable arising by operation of the contract of employment, clearly falls within the scope of “wages” as defined by the Act, indeed this is not disputed by the parties. Rather, the dispute concerns the Respondent’s contention that the Complainant was not entitled to this payment from the period 7th April to 5th May 2020 under the terms of the policy, and by extension the contract.

In this regard it is noted that rules regarding the operation of this scheme are annexed to a policy referred to as “Welfare Scheme for Regular Wages Staff”. This annex states that payment of the injury benefit (being a form of sick pay that includes an average of overtime and other benefits in addition to the basic rate of pay) is contingent on “certification by the CMO” and “full cooperation with the advice of the CMO during the period of absence”.

Having regard to the totality of the evidence presented, it would appear that the Complainant satisfied both of these criteria. Following the operation on the 22nd February, the Complainant underwent a phone consultation with the CMO, informing him of the outcome of the procedure. It is notable that the CMO did not physically examine the Complainant at this point. This most likely informed the CMO’s opinion, articulated in the memorandum dated 23rd March, that the Complainant should be fit to return to work on 7th April, with the important caveat that he must be deemed fit to do so by his General Practitioner. It is clear that the Complainant was not in fact deemed fit to return to work by his GP until the 6th May 2020. Such a period of absence is in line with the CMO’s opinion of the 23rd March 2020 and clearly falls within the terms of the policy. It would appear that the issue for the Respondent arose from a failure in communication on their part thereafter. It appears the Respondent’s HR department, in contravention of the unambiguous statement of the CMO, removed the Complainant from the scheme whilst he was deemed unfit to return to work. This matter may have been resolved quite simply had the matter been raised with the Complainant, however it is accepted by the Respondent that the Complainant did not receive this communication at the relevant time. While I note that on review the CMO later stated that the Complainant was not entitled to the payment on a later review of the sickness certificates, this occurred after the fact and contradicted the earlier, unambiguous direction.

In light of the written and oral submissions of the parties, I find that the Complainant complied with the terms of the Respondent’s policy regarding the payment of injury benefit until 6th May 2020. Consequently, I find that the non-payment of the same by the Respondent from the period 23rd April to 6th May 2020 constituted a deduction from his wages in accordance with Section 5 of the Act. Given that none of the criteria set out in Section 5 are applicable to this matter, I find that the deduction is illegal for the purposes of the Payment of Wages Act. Having regard to the foregoing, in find that the Complainant’s complaint is well-founded and I find in his favour.

CA-00038973-001 – Complaint under the Payment of Wages Act

I find that the complaint is well founded and consequently I find in favour of the Complainant.

In relation to redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed. While the Complainant submitted that the Act allows for a payment of compensation over and above the amount of the deduction of wages, I note that Section 6(2)a expressly states that any award in this regards is not to exceed “the net amount of the wages (after the making of any lawful deduction therefrom)” subject to the deduction.In the matter of Student Housing Operations -v- Denise O’Brien PWD2019, the Labour Court noted that it “does not have jurisdiction under the Act to award either interest or compensation.”

In light of the foregoing, I order the Respondent to pay the Complainant the sum of €987.20, the amount of the deduction from his wages. This payment should be subject to all normal deductions as income.

Sick Pay, Payment of Wages, Compensation