ADJ-00031755

Complainant

Respondent

Parties

Martin  O'Dowd

SK Biotek Ireland Limited

Representatives

Cara O' Neill SITPU

Jan Hayden 

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-00042307-001

03/02/2021

The complainant (Mr. Martin O’Dowd) is employed by the Respondent as a Chemical Process Operator in the Manufacturing Department of SK Biotek Ireland Limited.

Employment commenced June 1997.

This complaint was received by the Workplace Relations Commission on 3rd February 2021.

Written submissions were presented by both parties. The Complainant was represented by Ms. Cara O’Neill from SIPTU and the Respondent was represented by Ms. Jan Hayden from Ibec. 

The hearing of the complaint took place on 9th June 2022.

Background.

Mr O’Dowd (the complainant) is employed by the Respondent as a Chemical Process Operator in the Manufacturing Department of SK Biotek. The Company has a significant presence in custom chemical development and active pharmaceutical ingredient manufacturing where the Swords campus is recognised internationally as a centre of excellence in this area of production.

Employment commenced with Bristol Myers Squibb in 1997. The operation in Swords was taken over by SK Biotek in 1997 and the complainant transferred under TUPE regulations at that time.

In July 2020 following consultation with SIPTU a new shift pattern was agreed and implemented. A 4-shift pattern was introduced, with a new 60-hour block week. The Complainant and his colleagues cooperated with the new proposed arrangements but at no time did management indicate that implementation of the new shifts would have implications for sick pay arrangements.

Chain of events.

On 3rd September 2020 the Complainant contacted his manager to advise that that he was experiencing some back pain which, he felt, was connected to another injury. He confirmed to the manager that he would attend for his shift on 4th September 2020 because he was aware of the pressure on the shift if he was unable to work.

On 4th September the Complainant reported to work at 7.40 but as the shift progressed he was experiencing severe pain. The manager advised him to visit the nurse on-site before leaving, which he did. He left work at approximately 1.00pm.

The Complainant was unable to secure an appointment with his GP until 6th September. He informed his manager on the 5th September that he would see his GP the following day and contact him afterwards.

On 6th September 2020 the Complainant’s GP administered treatment for the relief of pain and signed the Complainant off work for a period of one week.

On 7th September the Operations Lead, Mr DF in the context of a local union/management meeting, advised the SIPTU shop steward that they had begun to identify a pattern of elevated absenteeism across the recently changed shift and that management intended to use the absence policy to address attendance issues.

On 13th September Mr O’D contacted Mr F again to advise that he needed to make a further visit to his doctor on the following day (Monday 14th) and would revert with an update then, which he did.  He advised that he would be certified for a further week.

Our member’s next rostered shift after his return to work would have been 23rd September.

On 21st September Mr O’D received a letter from Mr DF delivered by taxi indicating that they had been unsuccessful in their attempts to contact him on the landline, and they had no record of a mobile number on file.

The letter contained a reference to the 60-hour block of the shift cycle, an “… emerging trend which we deem to be an abuse of our policies….” and notified him of their intention to withhold payment for that period of absence.

On 23rd September 2020 the Complainant met with his manager on his return to work, as instructed in the letter. The manager had no knowledge of the contents of the letter and apparently was unhappy about the contents.

A number of letters were exchanged between the Complainant and senior management over the following days in which management set out their reasoning for the decision to withhold sick pay.

         I.            ….an unacceptable trend relating to absence

       II.            ….. unavailability for work

     III.            ….an emerging trend which we deem to be an abuse of policies

The Complainant commenced the grievance process. The stages at stage 1 and stage 2 were unacceptable to the Complainant and the matter went to stage 3 with the Operations Director. The Complainant’s concerns were not satisfactorily addressed and were found to have no merit. The Complainant then felt obliged to proceed to stage 4 and refer the matter to the WRC for adjudication.

The Complainant’s grievance.

The Complainant has no knowledge of why management were unable to contact him, as stated in the letter of 23rd September 2020. He disputes the assertion that there were no other contact details on file.

Siptu has no evidence that correspondence was sent to any other staff member by taxi on any previous occasion. Utilising registered or express post services would have been sufficient. The action taken seems excessive in the absence of gravely urgent circumstances.

The allegations contained in the letter of 23rd September 2020 are unacceptable.

The Complainant was absent for a total of 9 days, all fully certified and during which absence he maintained regular contact with management.

There is no evidence of “abuse of the policy” on Mr O’D’s part and none has been provided in spite of requests for same and repeated allegations throughout the entire local process.

A “pattern” cannot be identified in the context of a single absence.

Management appears to have conflated their concerns about absence levels within the department with an individual’s rights and obligations – under the relevant legislation – to take appropriate action and absent themselves from the workplace if necessary.  The collective attendance concerns were specifically referenced in the findings from stage 3 of the grievance procedure –

“… an emerging trend gathered over the 10-week period was deemed an abuse of the sick pay scheme, your unavailability for work in this instance aligned with this trend”.

In the context of subsequent correspondence addressed to SIPTU, management confirmed their intention to use collective attendance issues as justification for action against individuals.

This is unacceptable to SIPTU and has not at any time been accepted as a reasonable industrial relations principle.

Mr O’D did not meet the criteria specified in the Absenteeism Policy for either withholding sick pay or for further intervention on the part of management to be warranted i.e., the triggers outlined in the company policy.

At no time did management suggest that our member should be assessed by the Occupational Doctor. The reason given for that decision was “…. Not the veracity of sick certs but rather … the pattern of unavailability for work”.

This reasoning is illogical when the latter undoubtedly falls within the scope of a Company Doctor’s function.

If the company does not doubt the veracity of the sick certificates provided, are the Company stating for the record that they expect staff members to attend for work regardless of their state of health and in spite of a medical professional’s opinion to the contrary?

And therefore, is the penalty for failing to attend for work – or being physically incapable of doing so – withdrawal of sick pay?

Furthermore, should SIPTU advise our members to save themselves the expense of a doctor’s visit to secure certification if it is not recognised by the employer?

Is it SIPTU’s view that the decision to withhold sick pay – notwithstanding the lack of justification for same – was, at a minimum, premature and was made prior to any attempt to understand our member’s inability to work.  It is also resulted in Mr O’D being without income for 5 weeks as the events outlined coincided with a change in salary arrangements.

The established custom and practice, which would have given an employee of 25 years a reasonable expectation that sick pay would be forthcoming, was not recognised and instead an active policy of non-payment was pursued by the company.  The lack of notice only served to compound the injustice and the financial hardship inflicted on this member.

Essentially, contrary to the much emphasised “discretionary” nature of sick pay in the company, where a sick pay policy exists, it should apply as a minimum in cases of absence from work on grounds of illness.  The discretionary element should only apply if, for example, a request is made to prolong the period of eligibility for the payment in the case of serious illness etc.

If, for example, a fraudulent claim is suspected, which might justify an interruption of the usual policy application, disciplinary measures are available to the employer; clearly, however, those were not deemed appropriate in Mr O’D’s case and therefore do not provide justification for non-payment.  No evidence of any other grounds for denial of access to the basic sick pay scheme have been provided while unfounded accusations of “abuse of the scheme” are repeated throughout all stages of the local process.

For the avoidance of doubt, regardless of the company’s interpretation of employee rights in this jurisdiction, the Act explicitly categorises sick pay as “wages” and as such a higher standard than that applied in this case must be adhered to if withholding a payment can be justified.

Questions about inconsistent application of the policy, and requests for evidence of precedence, were not addressed in the grievance meetings.

We remain of the view that the Complainant was singled out for particularly harsh treatment and unprecedented action (including the delivery of correspondence by taxi??) and that management has not yet produced any reassurance to the Complainant or to his representatives on this matter.

Conclusion

The Complainant found himself incapacitated and unable to work for a number of days.  He observed correct procedure throughout the absence and maintained contact with management to keep them appraised of his progress and fitness to return to work.

The company management have made numerous references to his alleged “abuse of scheme” and have explicitly linked his absence to allegations of a more general “abuse of the sick pay scheme” across the manufacturing department but have done nothing to justify their decision to withhold sick pay in this instance.  They claim to accept the details of his sick certification, and therefore accept that he was genuinely unable to attend for a number of shifts; however, if that is the case, was the decision to deny him access to the sick pay scheme merely a punitive measure intended as a deterrent across the department personnel?

We believe his employers unlawfully withheld sick pay on the basis of an observed rise in absenteeism across his department, which they linked to the recent implementation of a new shift pattern, and in doing so they displayed unfair and unreasonable judgement in their handling of the Complainant’s personal circumstances.

Finally, we believe that the internal procedures failed to provide any clarity on the rationale behind management’s handling of this matter and further disadvantaged our member in his attempts to gain an understanding of the action taken by his employer or to have the matter remedied upon reflection on his stated concerns and objections.

We respectfully request that retrospective payment of sick pay is recommended, and that the unfair treatment to which the Complainant has been subjected would also be given consideration.

The within claims by Mr Martin O’Dowd (hereinafter referred to as ‘the Complainant’) against his employer, SK Biotek Ireland Limited (hereinafter referred to as ‘the Respondent’) are brought under Section 6 of the Payment of Wages Act, 1991 and Section 13 of the Industrial Relations Act, 1969

Background to the Complainant

1.1.   The Complainant commenced employment with the Respondent in June 1997.

1.2.   The Complainant was on sick leave from 5 September 2020 until 18 September 2020. The Complainant was not paid for this period of sick leave, as sick pay is at the discretion of the Company.

The Complainant provided sick certs to cover 4 September 2020 to 11 September 2020 and 14 September 2020 to 18 September 2020.

Upon his return, on 23rd September 2020, a return-to-work meeting was held with Bernard Fox (Shift Manager). The Complainant stated that his absence was due to a back injury.

The Complainant remains in his position of employment with the Respondent.

Background to the Respondent

1.3.   SK Biotek is a contract development and manufacturing organisation known for its presence in custom chemical development, advanced intermediates, and active pharmaceutical ingredient manufacturing.

Following lengthy discussions between the Respondent and SIPTU, a significant change program commenced company-wide in 2018 which included implementation of a new shift pattern. This led to a significant period of upheaval culminating in Strike action for a several weeks in late 2019.  In early 2020 following further negotiations, a new company/union agreement was formed and accepted. A number of voluntary redundancies were agreed and finally the overall change programme was finalised. A new 4 shift cycle shift pattern, chosen by the employees themselves, was introduced on the 13 July 2020 within the manufacturing department. This included a 60-hour block week as part of the new 4 shift pattern.

Background to the Claim

Following the implementation of the new shift pattern, the Company very quickly identified an emerging trend across the Manufacturing department. It was clear that there was an increase in absenteeism levels upon commencement of the 60-hour block.

1.4.   On 4 September 2020, the Complainant commenced his shift at 7.41am and clocked out early at 1pm.

On 5 September 2020, it was established that the Complainant would remain absent. The Respondent identified a trend in the Complainants absence at this point.

1.5.   As a result of the Complainants unavailability for work, the Respondent decided not to provide sick pay for this period of absence. This is in line with the Respondents policy which clearly states that sick pay is at the discretion of the Company.

On 7 September 2020, Mr David Forde (Operations Lead) informed Mr Bernard Jackson (SIPTU Shop Steward) during a planning meeting that there were issues on site with employee attendance. Mr Forde informed Mr Jackson that the absence policy would be used to address the attendance issues going forward.

On 21 September 2020, the Complainant had not returned to work. Mr David Boyle (Shift Manager) attempted to contact the Complainant via his home phone number, all attempts proved unsuccessful. There was no mobile phone number on file for the Complainant. Following this, the Respondent sent a letter to the Complainants home address via taxi.

On 29 September 2020, the Complainant responded to the communication and claimed that he had no record of being contacted via the landline. The Complainant also stated that the Company had his mobile contact phone number. The Complainant outlined his case as to why he believed he had not breached the Company policy.

On 2 October 2020, Mr Fox responded to the Complainant and confirmed that there is no contention that he was on certified sick leave. Mr Fox clarified that payment of sick pay is at the sole discretion of the Company.

On 11 October 2020, the Complainant wrote to the Respondent. In this letter the Complainant contested the allegations and outlined his concerns regarding his alleged abuse of the Absent Management policy.

1.6.       On 15 October 2020, the Complainant wrote to Ms Paula O’Doherty (HR Business Partner) advising that he wished to raise a grievance as per the Company policy.

On 15 October 2020, Ms O’Doherty responded to the Complainant, seeking an overview of the grievance, and clarification on which stage of the process he wished the grievance to be heard under. Ms O’Doherty also attached a copy of the Company grievance procedure.

The Complainant responded that night, advising that he had already spoken to his line manager (stage one) and so he would like to progress to stage two of the grievance procedure.

On 19 October 2020, Ms O’Doherty sent the Complainant an email, inviting him to attend a hearing as per stage two of Grievance policy.

On 22 October 2020, the grievance was heard by David Forde (Operations Lead) as per stage two of the Company policy. Ms O’Doherty attended in the capacity of note taker.

On 11 November 2020, Ms O’Doherty furnished the Complainant with an email and letter from Mr Forde. The documents contained an outcome report, concluding this stage of the grievance.

On 15 November 2020, the Complainant wrote to Mr Forde, outlining his response to the outcome letter.

On 18 November 2020, Ms O’Doherty wrote to the Complainant, inviting him to attend a hearing as per stage three of the grievance procedure.

On 27 November 2020, the appeal of the grievance was heard by Mr Declan Hannigan (Operations Director) as per stage three of the Company policy. Ms O’Doherty attended in the capacity of note taker.

1.7.       On 4 December 2020, Ms O’Doherty furnished the Complainant with an email and letter from Mr Hannigan. The documents contained an outcome report, this concluded the internal stages of the grievance.

On 6 December 2020, the Complainant contacted the Respondent, advising of his intent to pursue this through a third party.

Respondents Position

Claim under Section 6 of the Payment of Wages Act:

1.8.   The Respondent refutes the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred in line with the remuneration stated in the Complainant’s contract of employment.

At no point has the Complainant received a salary below his contractual salary. In making this statement the Respondent is considering not only the Complainant’s clear written contract of employment, but also the operation of this contract in reality and the established norms of the Respondent more generally.

The Complainant received all of his wages for the hours which he worked. Sick pay does not form part of the Complainants wage, it is a discretionary payment which may or may not be paid by the Company. 

1.9.   The Complainant is arguing that there was a deficiency in payment of his wages on the period in question. The Payment of Wages Act, 1991, under section 5(6) states:

“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, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”. 

The important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment.

The Respondents policies clearly specify that sick pay is only paid at the discretion of the manager and, therefore, this is not, and cannot be, wages “properly payable”.

No deduction as defined in Section 5 of the Act has been made. Any deduction made to the Complainant’s salary were made in accordance with Section 5 of the Act, namely deductions required by virtue of statute, and are thus lawful deductions.

Applicable case law:

The following case law all pertains to claims taken under the Payment of Wages Act, where Complainants are seeking payment of sick pay. In all these cases, the Respondents policy has been that “sick pay is at the discretion of the Manager/Company/ Human Resources Business Partner”. 

In the case of A Special Needs Assistant v A School (ADJ-00032165), it was found that the non-payment of sick pay is not an unlawful deduction as per the Payment of Wages Acts:

“In relation to the claim for reduced wages arising for the period that the Complainant was in receipt of sick pay or TRR, I find that the Complainant has not demonstrated that these losses arose from an unlawful deduction from her wages.” 

1.10.   The case of A training Consultant v A Training Company (ADJ-00018655), came to a similar conclusion:

“The Complainant complains that she did not receive her normal remuneration while on sick-leave. The Respondent’s sick-policy provides payment of sick-pay is at the employer’s discretion, which was not exercised in the Complainant’s favour. Pursuant to S6 of the Payment of Wages Act 1991 I find this aspect of the complaint is not well founded.” 

1.11.   Finally, in the case of Irish Rail v A Worker (LCR22538) the decision stated the following:

“The Court notes the parties’ acceptance at the hearing that the award of average pay is a discretionary decision of the Director of HR. The Court also notes the employer’s submission that the CMO did give advice on this matter and that this advice did not support the contention that the worker’s absence could be attributed to a specific workplace accident.

In all of the circumstances of the operation of the scheme, the Court concludes that it has not been provided with a basis to recommend that the decision of the Director of HR should be set aside. The Court therefore does not recommend concession of the worker’s claim.” 

Claim under Section 13 of the Industrial Relations Act, 1969 – please refer to separate WRC Recommendation.

The complaint as presented under section 6 of the Payment of Wages Act, 1991 raises the question of compliance with the said Act.

Representative for the Respondent has clearly stated that there is no statutory provision on any employer to pay an employee during a period of absence due to illness.

On 20th July 2022 the Sick Leave Act 2022 became law. Sick Pay entitlements start once this law is commenced, this will require a Ministerial Order and is expected shortly. Until this Order is signed employees have no entitlement to paid sick leave.

Representative for the Respondent has quoted case law:

The following case law all pertains to claims taken under the Payment of Wages Act, where Complainants are seeking payment of sick pay. In all these cases, the Respondents policy has been that “sick pay is at the discretion of the Manager/Company/ Human Resources Business Partner”. 

In the case of A Special Needs Assistant v A School (ADJ-00032165), it was found that the non-payment of sick pay is not an unlawful deduction as per the Payment of Wages Acts:

“In relation to the claim for reduced wages arising for the period that the Complainant was in receipt of sick pay or TRR, I find that the Complainant has not demonstrated that these losses arose from an unlawful deduction from her wages.” 

The case of A training Consultant v A Training Company (ADJ-00018655), came to a similar conclusion:

“The Complainant complains that she did not receive her normal remuneration while on sick-leave. The Respondent’s sick-policy provides payment of sick-pay is at the employer’s discretion, which was not exercised in the Complainant’s favour. Pursuant to S6 of the Payment of Wages Act 1991 I find this aspect of the complaint is not well founded.” 

1.12.   Finally, in the case of Irish Rail v A Worker (LCR22538) the decision stated the following:

“The Court notes the parties’ acceptance at the hearing that the award of average pay is a discretionary decision of the Director of HR. The Court also notes the employer’s submission that the CMO did give advice on this matter and that this advice did not support the contention that the worker’s absence could be attributed to a specific workplace accident.

In all of the circumstances of the operation of the scheme, the Court concludes that it has not been provided with a basis to recommend that the decision of the Director of HR should be set aside. The Court therefore does not recommend concession of the worker’s claim.” 

Based on this case law and the argument presented by the Respondent representative I can only find that the complaint as presented under the Payment of Wages Act, 1991 is not well founded and therefore fails.

Based on this case law and the argument presented by the Respondent representative I can only find that the complaint as presented under the Payment of Wages Act, 1991 is not well founded and therefore fails.

Payment of Wages Act, 1991; Sick Pay.