ADJ-00030901

Complainant

Respondent

Parties

Irene  O'Connor

Tusla Child and Family Agency

Representatives

  Self- represented

 Representatives of Tusla

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-00041153-001

18/11/2020

The complainant has submitted a complaint under the under the Payment of Wages Act, 1991, stating that the respondent unlawfully deducted half of her fortnightly salary from the 19 May – 6 July 2020.

She has been employed as an Assistant Staff Officer for children in care since January 2014.

She earns €1058 net a week.  She works a 30-hour week.

 She submitted her complaint to the WRC on 18 November 2020.

 The complainant gave evidence.

The complainant contends that the respondent is in breach of the Act of 1991 by failing to pay her the normal, full rate of pay for the period 19 May to 6 July 2020 which stood at €1058, and paying her, instead, half salary for this period. The complainant did not identify nor present evidence on the amount of the deduction imposed upon her. The respondent offered to and did provide details on the 6 December 2020 of the complainant’s earnings for the period in question. The respondent identified the sum of €1614 as the net, cumulative deduction for the period 19 May to 6 July at €1614.  This sum was not contested by the complainant.

The complainant was out on sick leave for the period 19 May to 19 July 2020. Her medical certificate states “unfit for work”; it also states, “Covid related - isolate”. At the time she was pregnant and underlying conditions rendered her vulnerable to contracting Covid -19.

The complainant submits that the decision to pay her half salary was an incorrect application of the procedures in force at the time regarding Covid-19 absences. The complainant contends that the operative Tusla guidelines dictate that she should have been placed on special leave with(full) pay during Covid- 19 for the period 19 May to 6 July. The complainant states that the respondent should be examining her entitlement to paid leave in the confined  context of the Tusla guidelines, Guidance and FAO for Public Service Employers during Covid, 28th April 2020 as opposed to the earlier Department of Public Expenditure and Reform (DPER) guidelines of the 4 March 2020 ,selected by the respondent. The Tusla guidelines of 28 April 2020 at section 4 clearly state

“Covid 19 Special Leave with pay should apply to periods of medically /HSE recommended self-isolation. 

“The application of special leave with pay will apply for the number of days advised by the HSE/Doctor. Appropriate Medical /HSE confirmation /advice of the need to self-isolate and/or a diagnosis of Covid 19 will be required”.

“any leave with pay granted for purpose of self-isolation will not be counted as sick leave.”

The complainant submitted evidence of her obstetrician’s recommendation to isolate due to Covid-19.

Section 4 in the Guidance and FAO for public service employers during Covid, 28th April 2020 states that any leave with pay granted for purpose of self-isolation will not be counted as sick leave

The complainant challenges the respondent’s reliance on the earlier guidelines of the 3 April 2020, which state

“Covid -19 Special Leave with Pay should apply to periods of medically /HSE recommended self- isolation, and also to medical diagnoses of Covid -19 Infection where the employee is not well enough to work from home”.

The complainant objects  to the respondent’s statement that

 “HR have advised that only staff who have Covid 19 or have been exposed to it and are medically advised to self-isolate can avail of Covid leave. It does not apply to staff who are advised to self-isolate in order to avoid getting Covid 19.”

The complainant states that the respondent has no basis to rely on the above guideline as they were superseded by the Guidelines of the 28 April which made a simple statement about an entitlement to special leave with pay where the employee is medically recommended to isolate as she was in her circumstances.

She is seeking full salary of €1058 per fortnight for the period 19 May to 6 July 2020.

The respondent denies any contravention of the Act of 1991.

The respondent submits that they correctly applied the regulations in force concerning special leave with pay, introduced to protect staff. The respondent refutes the complainant’s entitlement to full pay during the period 19 May -6 July 2020.

The complainant was certified unfit for duty by her own consultant on 19 May and again on the 19 June up until 19 July. The complainant received half pay from 19th May to 6th July 2021 in accordance with the regulations governing sick leave. From the 6th July she reverted back on to full pay under the shorter working leave scheme.

The Regional Manager gave evidence.

He stated that the lockdown commenced on 13 /3 /2020.

He points to a number of publications which explain their decision to reduce the complainant to half pay for the period 19 May to 6 July.

Tusla has applied the Special Covid Leave Payment in accordance with the Guidelines and Regulations issued by DPER and which have been applied, universally, in the same manner across the entire Civil and Public Service during the current pandemic.

Documents/ provisions relied upon by the respondent.

The respondent points to DPER, Covid -19 FAQ for HR in the Civil and Public Service.4/3/2020 which states

“C/L 2/1976 should apply to periods of medically /HSE recommended self-isolation where flexible arrangements are not possible and also to medical diagnosis of Covid-19 infections”

And again

“If it is recommended that an employee self isolates, and they arenot ill, managers may approve homeworking when possible and appropriate.”

In addressing leave for non- Covid-19 illnesses, the respondent Regional Manager points to Par 4.6, Tusla Guidance and FAQ’s for Public Service Employers During Covid 19, 9/4/2020 which includes the following question and answer:

 Q. “What if an employee does not have Covid-19 but has another illness?

A. Any non- covid illness will be treated as ordinary certified leave and the usual rules governing sick leave will apply”

These FAQ’s are based on a general FAQ’s document issued by the Department of Public Expenditure and Reform (DPER) and have been adjusted accordingly to include Tusla specific information.

The complainant’s medical certificates also states that she should self-isolate. This is fully accepted. The witness differentiates between a medical recommendation to self-isolate as a protection from the illness while being simultaneously available to work from home and the situation where you have been declared unfit to work and will not be able to work from home. In the latter circumstances special leave with pay does not apply. The Occupational Health reports of 15 June and 3 July stated that the complainant should isolate, acknowledged that she had worked from home, on full pay, up until the 19 May, but that she remained unfit for work at the time of writing due to pregnancy- related illness. Having been declared unfit, she was not in a position to work remotely. The Occupational Health  doctor ‘s report of 3 July stated that should her illness stabilise, she could then be considered fit to work from home.

The respondent is applying the Tusla guidelines of 9 April 2020.

The respondent witness maintains that only staff who have Covid 19 or have been exposed to it and are medically advised to self-isolate can avail of Covid leave.

The respondent relies on C/l. 12/1976 which provides for special leave with pay where HSE / medically recommended isolation arises. This may enable employees who are not ill to work from home, or where flexible working from home is not possible due to the nature of the service on offer to clients, provide these employees with special leave with pay. But that is not the case with the complainant. She had worked for home up until 19 May when her medical certificates stating she was unfit to work kicked in.

The complainant was paid on the basis of the normal sick leave arrangements.  She did not have Covid-19 and was not isolating awaiting a test or test results but was unfit to work from home.

The respondent complied with all regulations and paid the complainant the correct rate of pay.

The question for determination is whether the respondent’s failure to pay the complainant her full salary of €1058 per week as opposed to half salary in respect of the period 19 May to 6 July 2020 contravened section 5(1) of the Act of 1991

Relevant Law.

The Act at Section 5 provides as follows:

“5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—•

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it”.

Section   5 (6) of the Act of 1991 goes on to identify a deduction as follows:

“(b)None of the wages that are properly payable to an employee by an employer on any occasion (after making such deductions as aforesaid) are paid to the employee

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer”

Properly payable wages.

Was the full salary of €1058 a fortnight properly payable to the complainant? And was the failure to pay this amount leading to a net, cumulative deduction of €1614, over the period 19 May to 6 July an unauthorised deduction contrary to section 5 (1) of the Act of 1991.

To demonstrate that the amount of €1058 was properly payable, the complainant must as a preliminary point, identify a contractual entitlement or an entitlement on some other basis as per section 5 (6) of the Act prior to addressing the matter of a deduction of €1614,

With the arrival of the Pandemic, a whole new set of arrangements had to be put in place to protect staff and those whom they served.

It is accepted that the complainant was unfit to work due to pregnancy -related illnesses. Entitlement to sick leave in Tusla is governed by relevant circular letters which are not in question. The complainant is not arguing that the pre -Covid 19 Pandemic sick leave provisions contained in C/L 25/2008 were breached. She is arguing that the Guidance and Frequently Asked Questions for Public Service Employees, 28 April 2020, is the only valid reference point for determining her entitlement to full pay which states

“Covid 19 Special Leave with pay should apply to periods of medically /HSE recommended self-isolation. 

“The application of special leave with pay will apply for the number of days advised by the HSE/Doctor. Appropriate Medical /HSE confirmation /advice of the need to self-isolate and/or a diagnosis of Covid 19 will be required”.

and at point section 4 states

“Any leave with pay granted for purpose of self- isolation will not be counted as sick leave

In examining if the complainant’s claim for full salary is properly payable, I must examine the totality of relevant policies / procedures / circular letters governing the entitlement to special leave with pay. The complainant’s circumstances are governed by C/L 25/2008 which provides for half pay for women with pregnancy related illness. In addition to this Circular letter, unamended by the advent of Covid-19 and related guidelines, the respondent issued three sets of information sheets. The 3rd March and the 9th and 28th April publications govern special leave pay with pay -the why and when.

The document Frequently asked Questions for HR in the Civil and Public Service, incorporating the guidelines of the Department of Public Expenditure and Reform ,4/3/2020. states that special leave with pay (meaning full salary) 

“should apply to periods of medically / HSE recommended self – isolation where flexible arrangements are not possible and also to medical diagnosis of Covid-19.”

And in paragraph 4.1 states

“Special leave with pay should only apply when an employee is advised to self-isolate and is displaying symptoms of Covid - 19 or had a positive test.

The Guidance and FAQs for Public Service Employees during Covid-19, of 9/4 /20includes the following Q and A:

Q. “What if an employee does not have Covid-19 but has another illness?

A.  Any non- Covid-19 illness will be treated as ordinary certified leave and the usual rules governing sick leave will apply”

While the complainant was not ill with Covid, she was unfit for work. It was her pregnancy- related illnesses which rendered her vulnerable and unfit to work, and she had to isolate-but that’s different to stating that she is fit to work.

The complainant is arguing that the entitlement to special leave with pay is a right not confined to persons infected with Covid -19, but is, in addition, an entitlement available to staff who are declared unfit to work because of other non- Covid -19 illnesses-illnesses which render them more vulnerable to contracting Covid -19 and who are simultaneously recommended to isolate so as to protect themselves from contracting Covid -19.

The guidelines were established not to displace the existing sick leave regulations which have been applied by the employer, and this is accepted, but to deal with the need to protect its employees from contracting Covid 19. I accept that the qualified nature of the special leave with pay facility set out in the publications of 3 and 9 April does not carry through to the same extent in the guidelines of the 28 April which were the set relied upon by the complainant.  However, I find that you cannot isolate the guidelines of 28 April and treat them as a standalone entitlement, detached from and unaffected by the relevant circular letters governing sick leave -HSE C/L 25/2008 which allows for half pay for women with pregnancy -related illness, nor from the  Department of Public Expenditure and Reform guidelines of the 4/3/2020,  nor from the clear and distinct message contained in the totality of the respondent’s publications that special leave with pay is available for staff, isolating,  but who are nevertheless  available to work. The complainant does not fit into this category. The recommendation to isolate was matched by the complainant returning her laptop and materials to the respondent and ceasing all engagement with the workplace. There were valid medical reasons for this, but they are not reasons peculiar to Covid.  

What’s missing in the complainant’s analysis is her availability to work.

I find that the written and oral evidence submitted fails to demonstrate the availability of a statutory entitlement or other entitlement as prescribed in section 5(6) of the Act of 1991, justifying the complainant’s entitlement to the full rate of pay which stood at €1058 per fortnight. I do not find this amount to be properly payable to the complainant. Therefore, I do not find that the sum of €1614 which represents the uncontested difference between what the complainant was paid and what she states she ought to have been paid constitutes a deduction contrary to section 5(1) of the Act of 1991.

 I do not find this complaint to be well founded.

I do not find this complaint to be well founded.

Properly payable wages.