Complainant

Respondent

Anonymised Parties

A Building Worker

A Construction Company

Representatives

SIPTU

 Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00039623-001

07/09/2020

The complainant was employed by the respondent from 21 October 2019.  He went on sick leave on 3 August 2020.  The respondent is bound by Sectoral Employment Order 2017 and had not paid the required contributions at that time.  The respondent believed the employee had left the employment. The employee was unable to benefit from the scheme.

The complainant was employed by the respondent from 21 October 2019 as a Ground Worker.  He went on sick leave on 3 August 2020.  The respondent is bound by Sectoral Employment Order 2017 (SEO) which provides that  ‘a pension scheme with no less favourable terms, including both employer and employee contribution rates, than those set out in the Construction Workers Pension Scheme be in place in the industry…Every employer employing workers to whom this Order applies shall participate in a pension scheme that meets the pension requirements’ and that ‘A sick pay scheme in line with the Construction Industry Sick Pay scheme, including no less comparable benefits and contributions by both workers and employers, will be maintained in the sector.  Every employer employing workers to whom the Order applies must have in place a provision for Sick Pay benefits for each employee covered in the Order. The complainant contends that the respondent is in breach of the SEO.

The union representing the complainant wrote to the company on 25th August 2020 stating that they had been made aware that the company had not made the required pension contributions and that, as a result, the complainant was not receiving sick pay while currently out sick. There were some emails exchanged culminating in one on 22 Sept in which the respondent stated that the complainant should have been aware that the contributions were not being made and that it had not been brought to their attention until now.

The SEO is clear that the duties are on the employer and not on the worker. The complainant would have been entitled to payment for 50 days of his sick leave or €7,800.

The respondent was unaware of the requirement in relation to the SEO until this was brought to its attention by the complainant’s representative.  When it became aware of the requirement the respondent made the contributions on behalf of the company and the complainant.  The complainant did not comply with the contractual requirements in relation to notifying the company of sick leave and, in addition, sought payment of outstanding annual leave.  He was not returned for having worked any hours after 3rd August and did not inform anyone that he was out sick.  The respondent therefore concluded that he had left.

Sectoral Employment Order 2017 requires every employer employing workers to whom the Order applies to have in place a provision for Sick Pay benefits for each employee covered in the Order.  The failure of the employer in this instance was the principal reason why the complainant was unable to benefit from his entitlements under the scheme.  The employer did not make the required contributions until December 2020.  The employer has argued that the behaviour of the employee contributed to the problem insofar as he did not comply with the provisions of his contract relating to sick leave. However, there is evidence that the employee spoke with senior members of the company and made them aware of his illness and secondly, that he made a number of attempts to contact the company without success.  I do not accept that the employer was entitled to consider that the employee had left the employment at that point in time.

The maximum duration under an SEO Sick Pay Scheme should not be any lower than a period of 10 weeks in any calendar year.  The scheme is silent on what happens if the illness continues into the new calendar year.  However, the employer in this instance cannot be liable for contributions when the employment has clearly ceased.  The employee has not complied with the terms of his contract in relation to sick leave and while this may have been acceptable in the initial stages where he was hospitalised I cannot accept that, while in receipt of the professional advice of his union, that it could be assumed that the provisions of his contract did not apply to him.

 I find that the employer was in contravention of the scheme and as a result the employee did not receive €2200  (€44 per day for 50 days) which would have been otherwise paid to him under the terms of the Sectoral Employment Order.

The employer is in contravention of Sectoral Employment Order and I order him to pay the employee the sum of €2200.

Sectoral Employment Order.  Sickness benefit