Complainant

Respondent

Anonymised Parties

A Porter

A University

Representatives

Dessie Robinson Fórsa

Niamh Ní Cheallaigh

Act

Complaint/Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Acts 1969

CA-00040036-001

24 September 2020

Background

The worker commenced employment with this employer in January 1996, as a General Operative.  He was promoted to the position of porter in February 2007. He works full-time, 40 hours per week and earns an annual salary of €46,500, including allowances and excluding overtime.

The employer is a university.

A dispute has arisen over payments made to the worker during his absence from work at the outset of the Covid 19 Pandemic period.

The worker submits that his employer alleges that he failed to adhere to instructions on self-isolating in the early part of the Covid 19 pandemic.  The worker believed that by informing his line manager that he had been certified absent by his doctor, on the grounds that he had underlying medical conditions, that he there was no need for him to return to work. The worker believed he was complying with the requirement to protect himself and his colleagues, in line with the HSE Public Health Covid 19 guidelines. The worker submits that poor communication by management was the root cause of the difficulties.

By way of background the worker explained that due to his underlying health conditions he was fearful of contracting the virus. He went to his doctor and was advised to self-isolate as he was a member of a vulnerable group, the worker got a certificate from his doctor to this effect.  The worker started self-isolating from 20 March 2020.  He informed his line manager of this and submitted the medical cert to him.

The worker followed the steps for staff in the vulnerable group for Covid 19 from the information he found in the HSE Circular for all public sector staff. Staff were told not to claim and submit social welfare benefits.  Staff were also informed that they would not receive their shift allowances premiums but that they would be paid their basic pay. This was exactly the way the worker was paid for six weeks.  At all times he genuinely believed he was complying with the policy.

The union representing the worker contends that he made every possible effort to abide by all the policies regarding his employment during the Covid 19 pandemic.  Unfortunately, management did not inform the worker that an instruction had been issued on the procedures relating to absence from work, so he continued to submit sick certs outlining the requirement to self-isolate to protect his health. He was not aware that he was being paid ordinary sick leave, especially as he was not contacted regarding sending in social welfare certs which would be usual when staff are on ordinary sick leave. Also, he would have received his shift premium allowance on ordinary sick leave; he thus believed he was on basic pay and everything was in order.

The worker submitted a fit for work cert on Monday 11 May 2020 and discovered on the following Thursday that he had not been paid his wages. He contacted his line manager who told him he had been entered in as present on the weekly wages sheet.  Payroll confirmed this and told the worker that he had not been paid as he had run out of sick leave entitlements; this was the first time the worker had heard anything about him being on sick leave.  When he complained that he should have received his basic pay each week he had been on Covid leave his query was directed to the HR Department.

The HR Department emailed the worker explaining that his pay had been stopped that week and he would remain off pay until such time as he had entitlements again and that he would have to attend the OHP.  It also stated that he had been overpaid and that HR would be in touch to discuss the amount he owed.

The worker was subsequently informed that he had been overpaid to the amount of €3,927.48 and that he had eight weeks in which to pay the money back to the employer.  He was also told that he would not receive any wages that week as the wage run had been done, but he would be paid the following week and that his wages would be backdated to 11 May 2020, the date he had sent in his fit to return to work cert.

The worker then received another email from HR on 29 May 2020, informing him that Payroll advised that they would be deducting the gross value of the overpayment.  The worker replied asking that they hold off stopping his wages again as it would be his fourth week without wages. He received an email the same day from HR stating that they had advised Payroll not to deduct anything from his salary the following week. The Union representing the worker wrote to the employer’s Leave and Benefits Manager regarding the overpayment.

In conclusion, the worker submits that he made management aware of his circumstances.  In the unprecedented circumstances of the pandemic, it is recognised that the lack of communication between the Worker, his line manager and HR has caused difficulties. The Worker reiterates that at all times he genuinely believed that he was complying with the policy; at no time was any form of document related to Covid leave forwarded to him.

At the hearing in the WRC the worker acknowledged that he should have contacted work to get clarity and advice on the situation.

The worker is asking that the management position regarding the overpayment to him be rectified and that he should be afforded the same entitlement to payments as other staff that were instructed to work from home or who were on special leave.

To deduct him €3,927.48 would cause the Worker and his family severe hardship.

The employer refutes the worker’s claim in its entirety.

By way of background the employer submits that in March 2020, the Department of Public Expenditure and Reform (DEPR) issued a number of guidance documents and circulars in relation to the Covid 19 Pandemic; COVID-19 FAQs for HR in the Civil and Public Service ( 4 March 2020) and Circular 0022/2020 (9 March 2020) The Circular advised of special leave for covid diagnoses or instructions to self-isolate, Special leave with pay entitlements to apply for the number of days advised by the HSE/doctor.  In addition, the President of the institution issued advice to all employees on 16 March 2020, via email, about the procedures in place in relation to leave.

The employer submits that on 24 March 2020, the worker made the decision to self-isolate due to underlying health conditions, albeit that he did not have Covid-19 and was in the high-risk group rather than the very high-risk category which, under guidelines, permitted him to work.  He was absent from 24 March until 10 May 2020 inclusive.

All medical certs submitted for the duration of the worker’s absence stated he was, “suffering from: Self-isolation due to being a member of the vulnerable categories as per the HSE.”

The employer submits that the advice at the time, in line with COVID-19 FAQs for HR in the Civil Service was that if someone was advised to self-isolate but was not sick, they should contact their employer to arrange to work from home.  The worker never did this.

When HR were made aware of the worker’s absence (which was when they received his Return-to-Work Cert in May 2020, they investigated the matter and found that the Worker had exhausted his ordinary sick pay entitlements resulting in an overpayment of €3,927.48.  HR advised the worker of their findings and a repayment plan. The worker sought advice from his union, and he was advised not to repay the overpayment.

Attempts were made to resolve the matter at local level, but these were unsuccessful.

The employer submits that on 16 March 2020 it had communicated with all employees explaining the process which should be followed regarding leave. The worker was paid based on the normal sick leave arrangements.  He did not have Covid 19 and was not isolating awaiting a test or test results but was medically declared as unfit to work, therefore the sick leave procedures applied, and he was not entitled to special covid leave.

The employer submits that the worker had already exhausted his sick leave entitlements when his absence commenced on 24 March 2020 which was not unfortunately picked up on time by the employer resulting in an overpayment. The employer is obliged to reclaim such overpayments.

In conclusion, the employer submits that it acted in line with Government and Departmental advice in regard to Covid-19.  If the worker was unsure of the policies and procedures in place, he should have contacted his employer for clarification.

At the hearing in the WRC the employer agreed that the stoppage of four weeks’ pay was an error and an apology had been issued. The employer also stated that there are no similar cases.

The employer puts forward that it has been more than reasonable in not making any deductions from to the Worker’s pay thus far and are willing to agree a reasonable repayment plan with him.

It is clear that there were errors on both sides in this episode; the worker most certainly should have contacted his manager to get clarity on matters pertaining to his absence; the manager should have contacted the worker to ensure he was informed on the guidance on Covid related absences; HR should have initiated a dialogue with the worker to find out his status in relation to his absence (particularly in light of the wording on his medical certs); the worker’s pay should not have been stopped as it was, which was an ill-judged decision, doubtlessly causing significant difficulties for the worker and his family.

I acknowledge the employer’s desire to recoup what they classify as an overpayment but in the circumstances, I think this overpayment should be waived, particularly as the employer is not at a loss in this case as had the worker not supplied medical certs for his absence he would have been paid normally. There are no comparable cases, so not seeking repayment of the sick leave overpayment will not create any knock-ons.  I think it only fair that the leave taken by the worker between March and May 2020 be reclassified to be the same as the leave other employees were on during this period when they were not in work and not working from home.

I recommend the employer does not pursue the worker for repayment of the overpayment.

Covid-19, Absence, Overpayment