PWD211

1.Appeal 0f Adjudication Officer Decision No. ADJ-00023180 )

BACKGROUND:

2.This is an appeal by Mr Grzegorz Grzebalski (‘the Complainant’) from a number of Decisions of an Adjudication Officer (ADJ-00023180; CA-00029774-001,
CA-00029774-002 CA-00029774-003, each of which is dated 2 June 2020) under the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997 respectively.

The Complainant’s Notice of Appeal was received on 5 July, 2020.

The Court heard the appeal in a virtual courtroom on 24 September, 2020.

The Complainant withdrew his appeals under the Organisation of Working Time Act 1997 in the course of the hearing (i.e. his appeal of both CA-00029774-002 CA-00029774-003).

The Complainant has been employed by Tesco Ireland Limited (‘the Respondent’) as a warehouse operative in its distribution centre since 1 February 2008. His gross pay is €717.75 per week. He was absent on certified sick leave from 6 December 2018 until the end of December 2018 for elective surgery which he given advance notice of to the Respondent. The Complainant availed himself of the Respondent’s sick pay scheme during this period of sick leave. Nevertheless, he received correspondence from the Respondent dated 18 January 2019 which stated as follows:

“After taking everything into account, it is my decision to support you on this occasion of absence and this case will not go forward to a disciplinary hearing. However, this absence will be treated as an occasion of absence. I need to inform you that any future occasions of absence may lead, following investigation to disciplinary action up to and including dismissal and may also lead to your suspension or removal from the Company Sick Pay Scheme.”

The Complainant went out on certified sick leave again on 4 February 2019. He returned to work in March 2020. He was not paid during this period. He is seeking payment for eight weeks of his absence in accordance with the Respondent’s Sickness Policy. That Policy provides at page 4:

“For colleagues who have completed their probationary period, sick pay will be paid up to a maximum of 8 weeks in any sick leave year. This is conditional on the provision of medical certificates and compliance with procedures for notification.”The sick leave year for the purpose of the Respondent’s policy runs from 1 January to 31 December each year.

The Respondent submits that the Complainant was advised in the aforementioned letter of 18 January 2019 that any further absence may lead to his removal from the sick pay scheme. It further submits that its decision not to pay the Complainant under the sick pay scheme in respect of his absence that commenced on 4 February 2019 was “reasonable and expected in the circumstances”.

The following is the Court’s Determination:-

DETERMINATION:

It is apparent to the Court that the Respondent did not inform the Complainant at any stage that it had taken a decision to exclude him from its Sick Pay Scheme. The Court, therefore, finds that the Complainant was entitled to benefit from the scheme and receive payment for up to eight weeks of certified absence in circumstance where it is not disputed that he complied in full with the requirement to submit medical certificates.

Accordingly, the appeal under the Payment of Wages Act 1991 succeeds and the Court directs the Respondent to pay the Complainant an amount equivalent to eight weeks’ gross wages less any statutory deductions.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
NJ	______________________
8 January 2021	Deputy Chairman