Complainant

Respondent

Anonymised Parties

An Executive Officer

A Government Department

Representatives

Represented by Claire Bruton instructed by CSSO

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00034440-001

04/02/2020

The complainant states that her sick leave record while she was out of work critically ill has been calculated incorrectly and as a consequence, her pay was deducted incorrectly. The complainant states that she has read the circulars and legislation regarding sick leave and critical illness pay and all of them state that sick leave is granted under CIP for 183 days on full pay in a rolling one year period (12 months and not 17 months as it appears to have been calculated for the complainant from 26 November 2017 to 30 April 2019). The complainant contends that even her Peoplepoint report states that she has 180 days in 1 year (219 days in 2 years and 293 in 4 years). The complainant states that from 30 April 2019 back to 30 April 2018 (12 months) is equivalent to 157 days. The complainant submits that if you take any 12-month period in her sick leave record, it can be seen that the 183-day limit has not been reached. The complainant submits that she suggested to Peoplepoint that they recalculate an absence at the very least when a change of pay may have been indicated in her case which was 30 April 2019, but she never received a satisfactory reply to this suggestion.

The complainant submits that when you look back 12 months to 29 April 2018, she had 156 days of sick leave. She states that similarly the lookback from 24 May 2019 back to 24 May 2018 she has 180 days sick leave (the 1 day of sick leave on 1 May 2018 has rolled off). The complainant contends that Peoplepoint and DPER (Department of Public Enterprise and Reform) keep repeating the same information and state that the look back is from 30 April 2019 back to 26 November 2017 but the complainant reiterates that this period is over 17 months not 12 months. The complainant maintains that teachers who are paid through any of the payrolls in the Department of Education and Skills have their sick leave and pay calculated in the way she has outlined and not in the manner that DPER and Peoplepoint have outlined. The complainant asserts that Civil Servants and Teachers are both governed by the “Public Service Management (Sick Leave)(Amendment) Regulations”.

The complainant submits that when she receives her salary into her bank account, the description of who it is from is the “Department of Finance” which is now the Department of Public Expenditure and Reform. The complainant asserts that the policy and direction for calculating sick leave is provided by DPER, it was stated to the complainant in e-mail correspondence from an official of DPER that his section advises local HR regarding calculation of sick leave. The complainant therefore considers that the Department of Public Enterprise and Reform to be the appropriate body to answer these questions and is the correct respondent in this case.

In relation to the Calculation of Sick Leave, the complainant highlights the DPER Circular 05/2018 which states:

Limits for Sick Leave granted under the Critical Illness Protocol

·        183 days on full pay in a rolling 1 year period counting back from the day before the latest date of absence

The complainant states that definitions of a rolling 1 year period are as follows;

1.      In an administrative sense, a rolling 1 year period means the previous 12 months, with the previous 12th month back, rolling off when a new month arrives (rolls on).

2.      A 1 year rolling period means a period of 12 consecutive months determined on a rolling basis with a new 12-month period beginning on the first day of each calendar month.

3.      The 12-month rolling sum is the total amount for the past 12 months. As the 12-month period “rolls” forward each month, the amount from the latest (most recent) month is added on and the one-year-old amount is subtracted.

The complainant states that the Look Back Paper provided to her by Peoplepoint as an explanation of the basis of their calculations of sick leave corroborates what she has been saying about the look back. Under the heading “Current Practice”, it states “if an absence involves a pay rate change (when the pay rate is reduced) they will conduct the look back again from the date of the change, in order to see if sick leave has “fallen off” from the early stages of the individual’s record.”  The complainant maintains that this paper recognises this look back and refers to it as “calculating the look back on a rolling forward basis”. The complainant states that this paper then goes on to state that the look back should be conducted only once but such an exercise would not be in keeping with a 1 year rolling period as described above. The complainant further states that the regulations do not say that a look back should be carried out only once. The complainant submits that the conclusion of this paper is saying “we are going to deviate from how calculations have been carried out in order to discourage absences and reduce our administrative burden”. The complainant asserts that as a person who was critically ill when this took place, she was outraged that someone so ill could be treated so unfavourably to reduce costs and paperwork. The complainant states that in any case, this paper does not supersede legislation or the circular but appears to be a document provided by DPER and incorrectly being used by Peoplepoint to calculate sick leave.  

In response to the respondent’s assertion that the claim is out of time; the complainant submits that Peoplepoint were tardy in responding to her queries and that her query was finally forwarded to DPER in September 2019. The complainant further submits that she was not in a position to lodge a complaint with the WRC until she had a definitive reply from DPER in regard to her calculations for sick pay.

The respondent submits that as this claim was lodged on 4 February 2020, the cognisable period for the purposes of the claim is 5 August 2019 to 4 February 2020. The respondent maintains that it is not the proper respondent to the within claims, not being the employer of the complainant who at all material times is employed by the Department of Education and Skills. It states that the claim of the complainant is fundamentally flawed in a number of respects and there are no wages properly payable to her as alleged or at all.

The respondent states that the complainant is an Executive Officer at the Department of Education and Skills. As an Executive Officer, the complainant is entitled to critical illness payments, subject to the terms of the underlying rules as provided in the relevant circular. The respondent submits that the critical illness scheme is administered by Peoplepoint, a HR provider and the respondent is responsible for the provision of the critical illness policy albeit that the payments are made by the complainant’s employer; the Department of Education and Skills – the appropriate respondent to the within claim.

The respondent states that the relevant applicable Regulations are SI 124/2014, SI 384/2015 and Circular 05/2018 which is subject to these Regulations. The respondent submits that it has no discretion in the operation of these Regulations and the Circular. The respondent outlines that Regulation 12(3) of SI 124/2014 provides that sick leave is at full pay “in the 12 months preceding the first day of the relevant person’s current period of sick leave.” It states that there is a limit to full pay for 183 days in the previous 12 months. Regulation 12(4) states that sick leave “at the half rate may be paid in respect of any period of sick leave in the 12-month reference period, following on, or occurring after, the period of 183 days sick leave referred to in paragraph (3).” This half pay has a limit of 182 days. Regulation 13 states that regulation 12 is subject to a 4-year threshold of 365 days sick leave in the four years preceding the first day of the relevant individual’s current period of sick leave.

The respondent submits that the import of the following is that sick pay with full pay is available in the 12 months preceding the first day of the persons current period of sick leave for 183 days. Half time after expiry of 182 days, subject to a four-year threshold of 365 days in the context of critical illness sick pay. This review known as a look back involves an examination of the 365 days threshold first on the basis of the preceding 4 years and then the previous 12 months in terms of the calculation of access to critical illness pay. The respondent submits that critical illness provision is a scheme approved by the CMO with local HR and manager input and following an application process. It states that the purpose to provide extended sick leave pay in the circumstances of critical illness as outlined above. It is a separate scheme.

The respondent submits that the complainant’s absence was from 26 November 2018 on sick leave. A 4 year look back review examined her sick leave in the previous 4 years; 26 November 2014 – 25 November 2018. The respondent states that the ‘look back’ showed that 113 days had been taken by the complainant as sick leave, such days being subtracted from 365 to leave a balance of 252 days. Sick leave was paid on the basis of the balance calculated for full pay due, which was 156 days as per paragraph 13, and half pay for the remainder of the 252 days. The look back process is retrospective in nature and is conducted on a rolling basis as absences commence at different times.

The respondent maintains that on the basis of the 12-month review; 26 November 2017 – 25 November 2018, the complainant had taken 27 days sick leave. This was taken from 183 days, leaving 156 days available for full pay. Then these 156 days were taken from 252 (balance of 4-year review) which left 96 days which were paid as sick leave at the rate of half pay. The respondent states that the examination is a 12 month review from the date of the relevant absence and is not reset every 12 months as absences commence at different times.

The respondent submits that the foregoing was entirely in accordance with the Terms of the Regulations and Circular and the complainant received her entitlements in full. The respondent states that there are no wages due to her as alleged. It states that the interpretation by the complainant of the scheme that a review period of 12 months can commence at any date is not the case. Rather this period is reviewed from the “day before latest date of absence”, as per Regulation 12 of SI 124/2014.

Cognisable Period / Statute barred

 The respondent states that the claim relates to alleged unlawful deductions from November 2018 – 28 May 2019, outside of the jurisdiction of section 41(6) of the Workplace Relations Act 2015. It submits that the cognisable period is 6 months from the date of lodging the complaint, therefore being 5 August 2019 – 4 February 2020. The respondent contends that the complainant had returned to work by 28 May 2019 but delayed until 5 August 2019 to lodge her claim. She was in receipt of her sick leave records and payslips at this time.

Incorrect Respondent    

The respondent maintains that it is not the correct employer as the complainant is employed by the Department of Education and Skills and that any issues the complainant may have with the payment of critical illness pay arise entirely against the Department of Education and Skills.

Wages are not properly payable

The respondent maintains that the complainant received the correct level of paid sick leave including critical illness pay as she was entitled to as per the Regulations and the relevant Circular. It states that there are no wages properly payable to her. The respondent further states that if the claim of the complainant is granted, the complainant would receive an overpayment in respect of sick pay which is not the purpose of the Payment of Wages Act, 1991.

Preliminary Issues

Time Limits

The respondent has argued that the claim is statute barred as it was lodged outside the requisite time limit and is therefore outside of the jurisdiction of section 41 (6) of the Workplace Relations Act, 2015. However, the complainant has argued reasonable cause for an extension of time on the basis that she was in ongoing contact with Peoplepoint, who she submits were tardy in responding to her queries and that her query was finally forwarded to DPER in September 2019. The complainant further submits that she was not in a position to lodge a complaint with the WRC until she had a definitive reply from DPER in regard to her calculations for sick pay. On the basis of the testimony advanced, I find that the complainant has established reasonable cause, in that, there were reasons which both explain the delay and afford an excuse for the delay in line with the established test for deciding if an extension should be granted for reasonable cause as formulated by the Labour Court in Determination DWT0338 Cementation Skanska v Carroll.

Incorrect Respondent

The respondent has argued that the respondent is not the employer of the complainant and that in fact she is employed by the Department of Education and Skills. Having examined this issue, I find that the respondent administers the Regulations and Circular pertaining to the sick pay scheme as outlined in SI No. 124/2014  and SI 384/2015 – Public Service Management (Sick Leave) Regulations.  Accordingly, I am satisfied that the respondent is the correct respondent in the within claim.

Substantive Issue       

With regard to the within claim, I note that the relevant applicable Regulations are SI 124/2014, SI 384/2015 and Circular 05/2018 which is subject to these Regulations. I further note that the respondent submitted at hearing that it has no discretion in the operation of these Regulations and the Circular. I note that Regulation 12(3) of SI 124/2014 provides that sick leave is at full pay “in the 12 months preceding the first day of the relevant person’s current period of sick leave.” It states that there is a limit to full pay for 183 days in the previous 12 months. Regulation 12(4) states that sick leave “at the half rate may be paid in respect of any period of sick leave in the 12-month reference period, following on, or occurring after, the period of 183 days sick leave referred to in paragraph (3).” This half pay has a limit of 182 days.

Regulation 13 states that Regulation 12 is subject to a 4-year threshold of 365 days sick leave in the four years preceding the first day of the relevant individual’s current period of sick leave. This review known as a look back involves an examination of the 365 days threshold first on the basis of the preceding 4 years and then the previous 12 months in terms of the calculation of access to critical illness pay.

I am satisfied from the Regulations and Circular that the examination is a 12-month review from the date of the relevant absence and is not reset every 12 months as absences commence at different times.

While the complainant has argued that there has been a breach of the Payment of Wages Act in relation to her calculation of sick pay, having carefully examined all the evidence adduced, I am satisfied that the interpretation by the complainant of the scheme that a review period of 12 months can commence at any date is not the case. The position is that this period is reviewed from the “day before latest date of absence” pursuant to Regulation 12 of SI 124/2014 as was carried out in the case of the complainant.

Based on the foregoing, I am satisfied that there were no unauthorised deductions in relation to the Payment of Wages Act. Accordingly, I find that there is no breach of the legislation. 

I find that there was no breach of the Payment of Wages Act and that this complaint is not well-founded. 

Payment of wages, time limits, reasonable cause