ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00037819

Parties:

	Complainant	Respondent
Parties	Rachel Fitzpatrick	Tesco Ireland Limited

Representatives

Ibec

Complaints:

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-00049237-001	16/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00049237-002	16/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00049237-003	16/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00049237-004	16/03/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00049237-005	16/03/2022

Date of Adjudication Hearing: 08/09/2022

Workplace Relations Commission Adjudication Officer: Kara Turner

Procedure:

In accordance with s.41 of the Workplace Relations Act 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

I conducted a remote hearing on 8 September 2022 in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

I received and reviewed comprehensive written submissions from both parties prior to the hearing.

Ms Rachel Fitzpatrick represented herself and Tesco Ireland Limited was represented by Ms Niamh Ni Cheallaigh of Ibec. Mr Bobby Nugent, Deputy Manager, Ms Gerardine Murray, Colleague Relations Partner and Ms Louise Kelly, Lead Colleague Relations Partner with Tesco Ireland Limited also attended the hearing. Ms Fitzpatrick and Ms Murray gave sworn evidence.

Whilst the parties are named in this decision, for ease hereafter I will refer to Ms Fitzpatrick as the “Complainant” and to Tesco Ireland Limited as the “Respondent”.

I gave the Respondent an opportunity to submit post-hearing documentation and information which had arisen for clarification during the hearing and the Complainant was provided with an opportunity to respond to same.

Background:

The Complainant was employed with the Respondent from 13 November 2020 until her resignation on 17 May 2022. The Complainant commenced a period of sick leave absence on 16 September 2021. The within complaints relate to a deduction marked ‘IB Deduction’ on the Complainant’s payslips and applied by the Respondent in the five different pay periods the subject of the complaints. The Complainant’s case is that she was not paid her full sick pay entitlement by the Respondent and that deductions were made in breach of the Payment of Wages Act 1991.

Summary of Complainant’s Case:

The Complainant worked initially on the tills and store floor before moving to the payroll department in July 2021. The Complainant followed the Respondent’s absence notification procedures when she telephoned the store on 16 September 2021 to advise that she would be absent from work until 21 September 2021. The Complainant’s absence continued after that date and up until her resignation from employment in May 2022.

The Complainant maintained that she was not afforded her full sick pay entitlement and that unlawful deductions were made from her wages in breach of the Payment of Wages Act 1991. It is the Complainant’s case that she ought to have received normal pay, by reference to the 13-week period preceding her absence, in the pay periods the subject of the within complaints.

In evidence, the Complainant said that she did not have access to the Sickness Policy and other documents relied upon by the Respondent at the material time. The Complainant maintained that she was unaware of the information set out in the Sickness Policy and was further unaware of the social welfare process relied on by the Respondent.

The Complainant was unclear as to how the Respondent applied its social welfare process to her sick pay to calculate and process a partial refund to the Complainant.

The Complainant also relied on s.5(2) of the Payment of Wages Act 1991 Act to the effect that deductions were made by the Respondent based on a Sickness Policy she was not given and, as such, she was unable to meet the requirements therein.

Summary of Respondent’s Case:

The Complainant was paid her sick pay entitlement of 8 weeks sick pay in line with her contract of employment, the Respondent’s Sickness Policy and a staff update communication on the Respondent’s sick pay process.

The Complainant did not provide the Respondent with written evidence of not having a social welfare illness benefit entitlement within the 2-week timeframe set out in the Respondent’s Sickness Policy and social welfare process. Notwithstanding, upon receipt of correspondence outlining that the Complainant had not received social welfare payments, as a gesture of goodwill, the Respondent applied the relevant provision of its social welfare process to make a social welfare illness benefit adjustment to the Complainant’s wages. The Respondent submitted that the Complainant was ultimately paid what she would have received if she had provided the relevant social welfare documentation within the correct timeframe. On review of the Complainant’s payslips, the Respondent processed and paid a refund to the Complainant.

It was the Respondent’s position that the Complainant had received and/or had access to the Sickness Policy and staff communication update on the sick pay process and had received training on same.

It fully disputed the claims under the Payment of Wages Act 1991 and submitted that the Complainant had received her contractual entitlement and that there were no unlawful deductions made.

Findings and Conclusions:

It was accepted that the Complainant followed the Respondent’s procedures for notification of absence from the workplace and further that the Complainant was an employee eligible to benefit from the Respondent’s sick pay scheme in respect of her absence from work from 16 September 2021. It was also accepted that the relevant benefit was for 8 weeks of sick pay.

The complaints under the Payment of Wages Act 1991 (the “1991 Act”) relate to weeks 3, 4, 5, 7 and 8 of the Complainant’s paid sick leave absence when a deduction referable to Illness Benefit was applied to the Complainant’s pay. The Complainant contends that she ought to have received normal pay on the occasions in question, that deficiencies in her wages should be treated as deductions and that such deductions were not in accordance with s.5 of the 1991 Act.

I have carefully reviewed and considered all the documentation provided to me and given due weight to the evidence of the parties.

Section 5 of the 1991 Act prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where on any occasion an employee is paid less than the total amount of wages that is properly payable to the employee on that occasion, the amount of the deficiency or non-payment is to be treated as a deduction.

At the outset, I must assess the wages properly payable to the Complainant on the occasions in question when she was absent from work on sick leave.

I have had regard to the contract of employment between the parties which details the following on the sick pay scheme:-

“The Company operates a sick pay scheme for colleagues who have successfully completed their probationary period. Sick pay is paid less the current value of social welfare illness benefit and is conditional upon the provision of medical certificates and compliance with procedures for notification. Your sick pay can be paid up to a maximum of 8 weeks in any one year. The first 3 days of any period of sickness absence is unpaid. The sick pay scheme is managed in line with the Company Sickness Policy.”

I note that the Respondent’s Sickness Policy deals with matters such as the purpose/scope of the policy, eligibility for sick pay, submission of medical certificates, notification of absence procedure and provides at (f):-

“Social Welfare Payment

It is a condition of our sick pay scheme that the entitlement is paid less any social welfare entitlement that the colleague might be entitled to. The company recognises that some colleagues may have different entitlements from the Department of Social Protection and once evidence of this is provided within 2 weeks of the sickness occurring the company will reverse the downward adjustment. All details on how to manage this process are provided under the procedure section below.”

The procedure section under (f) refers an employee to reference documents for comprehensive guidance.

The Respondent submitted a document entitled “Staff Communication on Updates to the Company Sick Pay Process” (hereafter referred to as the “updates communication”). The purpose of this document is stated as being “to inform staff of the clarifications in particular in relationto the treatment of Social Welfare Illness Benefit entitlements”. I understand the updates communication to have come into effect from 1 January 2012 following a Tesco/Mandate/SIPTU meeting to discuss the sick pay process. The Respondent relied on an extract from the updates communication which outlines a process whereby part-time employees, who do not have an illness benefit entitlement at the time of a period of certified sickness absence, will be subject to a reduced (pro rata) adjustment to their sick pay on the provision of appropriate evidence from the Department of Social Protection within a specified timeframe.

The relevant extract is as follows:-

“All staff members employed on or after 1st January 2012 that work less than the full-time hours that apply in their store, and do not at the time of a period of certified sickness absence have an Illness Benefit entitlement, and submit written evidence of this from the Department of Social Protection (see contact details below) within 2 weeks of the start of the sickness absence, to their Line Manager, will be subject to a reduced (pro rata) adjustment to their Company sick pay reflecting their actual rostered hours.”

I note that the updates communication also details staff responsibilities which includes obtaining and submitting the application form, submitting any evidence letters from the Department of Social Protection and provides that if evidence letters are not submitted within the 2-week timeframe, there will be no exceptions made to the normal process outlined therein.

The Complainant’s weekly contracted hours of work were 20-25 hours per week. It is common case that the Complainant did not, within 2 weeks of the start of her sick leave absence, submit written evidence from the Department of Social Protection in relation to not having an illness benefit entitlement.

It was the Complainant’s evidence that whilst she had access to her employment contract and the Colleague Handbook on commencement of her sick leave absence, she had not been provided with, and did not have access to, the Respondent’s Sickness Policy or details of its social welfare process. The Complainant maintained that the first time she saw the Sickness Policy was when it was provided under cover of correspondence from Mr Nugent on 13 December 2021. She also stated that she was not aware of the social welfare process referred to by the Respondent and had not seen the updates communication until it was included in the Respondent’s submission to the Workplace Relations Commission before the hearing.

I acknowledge a dispute between the parties on the matter of training on the Sickness Policy on the Complainant’s induction. The training record card which referred to training on the Absence People Policy does not assist me in resolving the issue. On balance, I accept that the Complainant did not have access to, or was unaware of, the Respondent’s social welfare process on commencement of her sick leave absence, given that she ultimately submitted a letter from the Department of Social Protection on 27 October 2021 on being advised to do so by the Respondent. I note also in this regard that the relevant pages of the Colleague Handbook provided post-hearing do not contain detail of the Sickness Policy or social welfare process; the Sickness Policy is footnoted, but not under the section relating to pay whilst absent.

I have carefully considered the Complainant’s submissions and evidence concerning the applicability of the Sickness Policy and updates communication to her sick leave absence. The Complainant, on the one hand, relied on an extract from the Sickness Policy in support of her assertion that she ought to have been paid full pay on sick leave. On the other, the Complainant’s evidence was that an issue for her was that she did not have the information in the Sickness Policy and updates communication at the material time and that the Respondent ought to have told her about the social welfare process on commencement of her leave. The Complainant asserted, based on the foregoing, that she should be reimbursed the amounts deducted.

As referred to above, the focus of my investigation in the first instance is to assess the wages properly payable to the Complainant within the meaning of the 1991 Act, this means determining the wages to which the Complainant is properly entitled.

I am satisfied that the sick pay to which the Complainant was entitled is evidenced in the contract of employment between the parties, namely that the first 3 days of any sickness absence are unpaid and thereafter sick pay is paid less the current value of social welfare illness benefit, subject to certification and compliance with notification procedures. I am of the view that neither the Sickness Policy nor the updates communication alter the terms of the contract pertaining to sick pay. I am satisfied that the updates communication outlines a process whereby the normal sick pay position may be ameliorated for part-time employees who do not have an illness benefit entitlement. I understand the aforementioned social welfare process to have been agreed between the Respondent and relevant unions and note the clause in the Complainant’s contract of employment whereby she agreed to be bound by collective agreements past and future.

The Complainant received sick pay on the occasions in question based on her average weekly working hours over the previous 13 weeks, namely 22.75, less the value of social welfare illness benefit. I am satisfied that this was the normal process or default position, as provided for in the contract of employment and outlined in the updates communication.

I cannot find support, on the evidence before me, for the Complainant’s submission that full pay was due to be paid in respect of her absence, whether pursuant to the Sickness Policy, updates communication, by reason of the Complainant not having access to or being aware of the provisions of the foregoing, or otherwise.

The Complainant relied on (i) of the Sickness Policy to contend that a week’s sick pay equates to a normal week’s pay. However, on review, I am satisfied that this provision relates to how sickness absence is recorded and calculated and cannot be relied upon in isolation and to the exclusion of the contract of employment, other provisions of the Sickness Policy and the updates communication.

Furthermore, I cannot conclude that the Complainant was entitled to full pay by reason of not knowing about the social welfare process because to do so would be to ignore the terms of the contract and normal process between the parties. In my view any complaint on the part of the Complainant in relation to the Respondent’s communication of the Sickness Policy or social welfare process is not an appropriate consideration for me in assessing the wages properly payable to the Complainant.

In such circumstances, I must find that the Complainant has not established that the wages paid to her were other than those properly payable.

Notwithstanding my findings above, it must be recalled that the Respondent did in fact make an illness benefit adjustment to the Complainant’s sick pay upon the Complainant submitting a letter confirming that she had not received any social welfare payments in respect of a particular period. It also carried out a review and calculated a refund to the Complainant at the end of November 2021 based on what the Complainant would have received if she had submitted the relevant evidence within the timeframe prescribed by the social welfare process.

The Respondent provided a clarification document post-hearing as to how it had applied the Sickness Policy and social welfare process to the Complainant and explaining the review and calculation it had carried out. On my review of this documentation, I note that the Respondent calculated a pro-rata adjustment of the standard Illness Benefit by reference to the Complainant’s average weekly working hours over a six-week period that the Complainant was entitled to sick pay and that it processed a refund in the pay period week ending 11 December 2021 of the differential between the foregoing and the sums paid to the Complainant in the said period.

FINDINGS:

Section 5(6) of the 1991 Act provides:-

“Where-

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion 9after making any 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 from the wages of the employee on the occasion. “

CA-00049237-001

This complaint relates to wages paid to the Complainant in week ending 16 October 2021, week 3 of the Complainant’s absence due to illness, on which occasion the Complainant received pay based on her average weekly hours with a deduction referable to illness benefit.

I find that on the occasion in question the Complainant received what was properly payable to her and do not consider there to have been a deduction contrary to s.5 of the 1991 Act, including a deduction in respect of any act or omission of the Complainant to provide the Respondent with social welfare evidence contrary to s.5(2) of the 1991 Act.

CA-00049237-002

This complaint relates to wages paid to the Complainant in week ending 23 October 2021, week 4 of the Complainant’s absence due to illness, on which occasion the Complainant received pay based on her average weekly hours with a deduction referable to illness benefit.

I find that on the occasion in question the Complainant received what was properly payable to her in line with the contract of employment dated 13 January 2021, the Respondent’s Sickness Policy and updates communication.

In such circumstances, I do not consider there to have been a deduction contrary to s.5 of the 1991 Act, including a deduction in respect of any act or omission of the Complainant to provide the Respondent with social welfare evidence contrary to s.5(2) of the 1991 Act.

CA-00049237-003

This complaint relates to wages paid to the Complainant in week ending 30 October 2021, week 5 of the Complainant’s absence due to illness, on which occasion the Complainant received pay based on her average weekly hours with a deduction referable to illness benefit.

CA-00049237-004

This complaint relates to wages paid to the Complainant in week ending 13 November 2021, week 7 of the Complainant’s absence due to illness, on which occasion the Complainant received pay based on her average weekly hours with a deduction referable to illness benefit.

CA-00049237-005

This complaint relates to wages paid to the Complainant in week ending 20 November 2021, week 8 of the Complainant’s absence due to illness, on which occasion the Complainant received pay based on her average weekly hours with a deduction referable to illness benefit.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00049237-001