Complainant

Respondent

Parties

Anas  Musa

Health Service Executive Letterkenny University Hospital

Representatives

Niamh Sweeney (IMO)

 Paul Hume (HSE HR Advisor)

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-00049209-001

15/03/2022

This complaint concerns the refusal by the Respondent to pay the Complainant sick pay during a certified period of sick leave.

The Complainant gave evidence, under affirmation as follows:

The Complainant worked as a non-consultant doctor in Letterkenny University Hospital. He commenced employment on the 19th of January 2021 and he resigned his post on the 16th of the February 2022.

This is a payment of wages complaint arising from the refusal by the Respondent to pay him his salary in accordance with the Respondent’s policy on sick pay, when he went on sick leave which arose from arising work induced stress.

The Complainant asserts that the refusal to pay him was an unlawful deduction of his wages and this relates to the period 31st of December 2021, until 15th of February 2022 following which he resigned his post. His loss of salary for this period was €2947.68.

The Complainant contends that the distinction that the Respondent has made between a certificate issued by a person whose name is entered in the General Registrar of Medical Practitioners is artificial. The definition should also include a person whose name is on the Specialist Registrar of Medical Practitioners and to exclude a medical certificate on the basis that the person is not on General Registrar of Medical Practitioners whereas they are on the Specialist Registrar of Medical Practitioners, is wholly wrong and eliminates for example not only GP doctors who are fully qualified but are not yet on the Register but also other, often more qualified specialist doctors even including some Consultants.

The Complainant accepts that he was paid sick pay for the last two weeks of January 2021 and for the period

With respect to the period 1 February 2022 - 16 February 2022 (on which date the Complainant resigned), the Complainant accepts that he filed no sick certificate however this was because a consultant in the hospital had referred him to Occupational Health and Occupational Health (i.e. the HSE’s own team) had recommended that due to his ill health, he should not be returned to his post. It is bordering on ridiculous that even when the Occupational Health team had examined him and found him to be unfit to return to work, that the Respondent are ignoring that finding.

The Respondent’s HR manager, Madge Toye Temple, gave evidence under oath as follows:

She submitted that this sick pay period should be broken down into three sections.

1.       31st of December 2021 - 21st of January 2022.

The sick certificate that was presented by the complainant for this period was certified by a trainee GP who is not on a medical practitioner on the general medical register. When the certificate was presented the HR team were wary. This was because they were aware of media reports with respect to fraudulent conduct with respect to the specific GP who had signed the Complainant’s sick certificate. However once they investigated and found that the specific GP was in fact a GP trainee, the Respondent refused to sanction the payment of sick pay because the Management and Attendance Policy Procedures (MAPP) - which is a policy agreed between the IMO and the other medical unions and the Respondents -  requires that sick certificates  are signed by a medical practitioner who is on the general registrar for medical practitioners. The definition section in section 3 of the MAPP is clear, a registered Medical Practitioner is a person whose name if entered in the General Register of Medical Practitioners and the GP trainee who signed the Complainant’s certificate was not a person on the General Register of Medical Practitioners.

2.        21st to the 27th of January 2022 and 25th to 1st of February 2022.

The Respondent submits that the complainant was properly certified for these two weeks and was paid sick pay.

3.        1 February 2022 - 16 February 2022 (on which date the Complainant resigned).

The Respondent received no sick certificate for this period, which the MAPP requires. The Complainant asserts that he was in receipt of an Occupational Health recommendation that he should not be returned to his post and this evidence should be proof enough, and while the Respondent accepts that while a Consultant did refer the Complainant to Occupational Health, sick pay relies on the provision of a medical certificate, which was not provided. A finding by Occupational Health is a recommendation only, it is not determinative and it does not replace the requirement for the provision of a sick certificate. There is nothing in the MAPP which allows that a recommendation by Occupational Health may replace any of the procedures for reporting and proving a sick based absence from work, including the provision of an appropriately completed sick certificate.  The Role of Occupational Health is described within section 4 of the MAPP which expressly states that “its functions should be distinguished from that of a General Practitioner.”

The Respondent contends that the MAPP was provided to the Complainant at the commencement of his employment. Furthermore, the IMO are fully aware of the conditions, being a party to this collective agreement.

The Respondent contends that sick pay is a discretionary payment and therefore it cannot form the basis of a payment wages claim. However, the right to sick pay depends on compliance with the Managing Attendance Policy and Procedures (MAPP) which was agreed between the unions and the Respondent in January 2009, and was revised in May 2014.

MAPP states, inter alia,  as follows.

Paragraph 5.1

-          Employees are required to inform their manager that they will be unable to attend work due to illness in accordance with the following procedure…

-          If an absence exceeds two continuous days a medical certificate, must be submitted to the appropriate office on the third day of the absence. Follow-up certificates must be submitted on a weekly basis, unless the employees is advised otherwise.

-          The medical certificate should be signed and stamped by a registered medical practitioner and should contain the following…

-          Medical certificates which do not conform with these requirements will not be accepted and will be returned to the employee and may result in withdrawal of the sick pay scheme if not corrected.

Moreover, with respect to first period of absence, namely, the 31st of December 2021 to the 21st of January 2022, the certificate tendered was not only non-compliant with the MAPP insofar as the certification was by a trainee GP who was not on the Register. It was also non-compliant in that it was for a three-week certification as opposed to a certificate being submitted on a weekly basis as the policy requires and the Complainant had not been advised that a weekly certificate was not required.

As the Complainant was paid for the second period and as no sick certificate was furnished with respect to the third and final period of sick leave, the Complainant has not proven that the failure to pay him sick pay was an unlawful deduction from his wages.

In order for an unlawful deduction of wages to be found under the Payment of Wages Act 1991, there needs to be an entitlement to the wage in the first instance.

I am not satisfied that the Complainant has discharged this onus of proof.

With respect to the first period (31 December 2021- 21 January 2022) while I do not accept the Respondent’s general proposition that the sick pay policy is purely discretionary, I do accept that there are conditions that attach to the operation of this policy and those conditions are clearly set out in the Managing Attendance Policy and Procedures. The MAPP  is a collective agreement which was signed by the Respondent and the IMO firstly in 2009 and it was then renewed in 2014. It contains a condition (and one can understand why this is so) that for sick pay to be sanctioned, the sick certificate needs to be signed by a medical practitioner who is defined as a person whose name is entered in the General Register of Medical Practitioners. That is what the IMO agreed to and even if a person is on the specialist register or (as the Complainant contends) is more highly qualified than a person on the General Register of Medical Practitioners, the entitlement to sick pay hinges on this form of certification. That is what the agreement states.

The GP who signed the certificate for the period of absence from 31 December 2021- 21 January 2022 did not meet this definition and thereby the condition of the policy was not met. I am not concerned with the background concerns that the Respondent had with respect to this trainee GP but I have no discretion to interfere with the wording of this Policy, it being what the Respondent and the doctors’ union representatives signed up to.

With respect to the second period (21 January -1 February 2021) the Complainant accepts that he was paid for this period, so no unlawful deduction pertains. 

With respect to the third period, I accept the Respondent’s submission that a recommendation by Occupational Health does not replace the requirement for sick certificate issued by, a person whose name is entered in the General Register of Medical Practitioners.

For the above reasons I am not satisfied that the Complainant has proven that the failure to pay him sick pay for the relevant periods constitute an unlawful deduction under the Payment of Wages Act 1991. Moreover, I am satisfied that the failure to pay him sick pay occurred due to the application of the terms of the Managing Absences Policy and Procedures by the Respondent,  which form part of the Complainant’s contract of employment.

For the above reasons I find this complaint to be not well founded.

I find this complaint to be not well founded.

Pay  - Sick Pay – Failure to comply with Sick Pay Policy