Complainant

Respondent

Anonymised Parties

An Employee

An Airline

Representatives

Forsa Trade Union

In House Counsel

Act

Dispute Reference No.

Date of Receipt

S 13 Industrial Relations Act, 1969

CA-00049258-001

21/02/2022

This claim pursuant to Section 13 of the Industrial Relations Act 1969 was filed by the complainant in the WRC on 21st March 2022.

The claim asserts that the respondent has failed to properly afford the complainant paid sick leave and access to other supports to which he believe she is entitled.

He further asserts that he has been denied access to a person ill-health retirement process and there is a further claim relating to a lack of engagement by the respondent management following the complainant ’s cessation of sick pay.

The complainant has been employed as the respondent since 2nd March 1992 and is currently absent from work since January 2020 due to an occupational health incident/injury.

He has not been in receipt of income as of November 2021 when the respondent unilaterally decided to remove him from the payroll and access to ill health absence benefits.

There are several issues to address where he has been unfairly treated and denied benefits due to him as a long-established employee.

The first relates to the application of sick leave terms & conditions.

The complainant was on certifiedsickfromJanuary2020. Around March 2020, the respondent and the complainant’s representative body reached an agreement on amended conditions arising from the pandemic.

The agreement outlines that the complainant’s grade will receive 50% of their salary and only be rostered on for 50% of the usual rostered duties.  While it is also outlined in the agreement that those on sick pay will receive 50% of the normal sick pay entitlement, it does not impact upon the duration that sick leave pay entitlement travels for.

As those who were not absent due to sick leave would only have to operate their roster at 50% in return for 50% pay, then those on sick pay who are receiving 50% of their sick pay should have that based on exhausting 50% of the established duration that sick pay entitlement is in situ for.

Also, employees had their 50% working rostered hours applied to their actual rostered working blocks only, not all hours inside and outside of their rostered block hours, unlike those on sick leave.

Details of the long-term sick pay timeline were submitted.

While it is acknowledged that the pay elements outlined reduced pro rate by 50%, the duration of the entitlement remained and should therefore be applied at 50% intervals as a person would only be receiving 50% sick pay entitlement. This is in line with the arrangements for those that were working (50% rostered hours). The entitlement should have extended beyond the November 2021 cut of point that the respondent applied to him, potentially to date.

We are seeking that the complainant receives his pro rata sick pay retrospectively backdated to November 2021 to the date when the more appropriate 50% sick pay calculation & duration would have been exhausted.

2) Denial of IPO access as per co-workers

In 2021 the complainant’s situation deteriorated and he therefore sought access to an ill-health gratuity, but this has been refused by management on the grounds that he does not qualify and that he must sign a waiver I respect of other claims against the respondent, resulting in effective penalisation.

The respondent and their occupational health advisors contended that the complainant did not qualify for access to the ill-health gratuity as there was a reference in his specialist report to a new treatment that may assist in his recovery. This was clarified as being a treatment that may assist him in his day-to-day life but not a treatment that could help him recover to a point that he could fully operate again.

The respondent also informed the complainant that as he had an occupational health claim through the civil courts, he could not have access to the ill health gratuity. They later indicated to the complainant that he would have to withdraw other active claims against the airline to access the ill health gratuity.

The complainant also submitted a protective disclosure in relation to details relevant to his occupational injury/fume event. We understand that the respondent wants this to be withdrawn before they will process his valid ill health gratuity payment.

We are seeking that the complainant be granted access to the respondent’s IPO ill health gratuity, in line with the present agreed terms, without prejudice to the other separate proceedings he has in transit at other forums. He has little or no income presently and this it is unfair that management are withholding this payment to encourage the complainant to withdraw claims under other statutory civil proceedings, which he is entitled to pursue.

Finally, without the courtesy of any contact with the complainant, the respondent removed him from the payroll/sick benefit at the end of October 2021. It applied this finishing date to his entitlement to continued sick/illness payment support based on their own interpretation of what he is entitled to as under his associated terms & conditions, and how the Covid 19 emergency agreement with to be applied.

The respondent has also failed in its duty of care toward the complainant by being tardy in responding to his concerns and issues in connection with their interpretation of his continued sick/illness payment supports as well as slow responses/ no response on other issues.

In conclusion, the complainant has been without income since the end of last year and has done all he can to resolve matters in dispute internally, but these procedures are now effectively exhausted, and he needs adjudication at this point. We seek that the complainant

1.       be granted his IPO entitlement without prejudice to the other proceedings he has in transit at other forums and penalisation ceases.

2.       receive his backdated sick pay/support payments in line with paragraph 3.1.4 of this submission.

3.       be granted fair in compensation for the poor way the respondent has treated him during this episode and their tardiness in their communications with him.

The respondent wholly rejects the claims presented. It is acknowledged that on 22 June 2022 he applied to be considered for early retirement on ill-health grounds under the relevant Superannuation Scheme (the Pension Scheme).

This application was subsequently approved by the Trustees and the respondent. The complainant ’s employment with the respondent ended on 31 October 2022 by reason of his early retirement on ill-health grounds.

It is accepted that complainant has been absent from work on certified sick leave since 23rd September 2019, having had a previous period of absence in 2018. Sick pay entitlements for his grade are determined in accordance with the IPO agreement agreed between the respondent and the union which provides for the following:

In any four-year period, a person who fails to maintain their medical certification will be paid:

·       six months full basic pay.

·       six months at 75% of basic pay,

·       a further six months at 75% basic pay subject to availability for non-person duties; and

·       a further six months at 50% basic pay subject to availability for non-person duties.

The entitlement to sick pay is therefore capped at twenty-four months, with the final twelve months being subject to the individual being available for other duties.

Arising from the Covid19 pandemic the respondent reached agreement on a set of revised terms and conditions that would apply to employees during this period where there was little or no activity. The complainant has attached all the relevant Agreements as appendices to his submission.

This arose from the requirement to temporarily place all employees on short time thereby reducing normal working hours (and basic pay) by 50% for a temporary period which commenced on Monday 30 March 2020.

This agreement was subsequently replaced by the Covid Framework agreement in June 2020. Section 6.2 to 6.4 of the Covid Framework Agreement expressly set out how a person who was already on long term sick leave would be treated during this period.

In essence the agreement provided that a person on sick leave would have their sick pay reduced to the level of basic pensionable pay at force at the timeas per section 3.4 of this temporary fixed-term agreement regardless of the phase of the IPO sick pay scheme they were in. The agreement set out how sick pay would be applied for the person depending on the phase of the underlying sick pay scheme the person was at.

Theobjectiveoftheseclauseswastoensurethatnopersonwouldreceivelessthan50%of their underlying salary in for ceat the time.

In the context of sick pay, it ensured that a person absent owing to illness would receive a minimum floor of for example 50% sick pay and would not have the percentage reduction in force at a given time applied to the level of sick pay otherwise payable i.e., that a person on stage II - 75% sick pay would not receive 50% of their 75% sick pay, rather they would receive a flat 50%.

Whilst the level of sick pay was reduced in line with the reductions to basic pensionable pay in the period, the sick pay phases themselves were unaltered by the Covid agreements. The agreement expressly referenced the phases over a 24-month period provided for per the underlying IPO agreement. An employee was therefore entitled to be paid sick pay for a total of 24 months.

Thisisinkeepingwithhowsickpaywouldgenerallybeappliedtoanemployeeonreduced hours/pay in the respondent. A part-time person would be entitled to sick pay for the same duration as their full-time counterparts i.e., 24 months paid in accordance with their underlying rate of pay for part-time arrangement.

The complainant ’s contention is that that the period of sick pay of twenty-four months should be extended to reflect the fact that person pay was reduced during the period however this was not a feature of the Covid Framework agreements reached and is not consistent with how sick leave/pay is allocated across the respondent grades.

In the last four years the claimant was absent on the following periods: 26/11/18 to 13/12/18 (2 weeks) and 23/9/19 to date.

During the period of this sick leave, he was paid sick pay at.

100% basic pay for the two weeks of absence in 2018.

100% for the period 23/9/19 to 31/3/20

50% for the period 1/4/20 to 31/10/21 (19 months)

The complainant contends that he was unilaterally removed from sick pay. However, it is the case that he was not unilaterally removed rather he moved to unpaid absence as his company sick pay entitlement was exhausted. He was in fact overpaid relative to his 24- month entitlement. He was paid for 25 months and then a month at the discretion of the respondent.

The respondent is satisfied that the complainant was paid his full entitlement to Company sick pay in line with the agreements in force at the time of his sick leave.

The complainant raised one further question, namely that his accrual of annual leave was not factored into the decision to remove him from payroll.

He came off payroll because his sick leave entitlements were exhausted. His outstanding annual leave balance was not a factor considered at that time, nor should it have been, as to this day he remains absent owing to illness.

An employee cannot be placed on annual leave or paid in lieu of same whilst absent owing to illness. Notwithstanding this, he will continue to accrue annual leave whilst absent owing to illness in accordance with the application provisions of the Organisation of Working Time Act 1997 (which has been amended by Section 86 of the Workplace Relations Act 2015) and such leave accrued will be available to him on his return to the work.

The complainant applied to be considered for early retirement on ill-health grounds under the Trust Deed and Rules of the Superannuation Scheme (the Pension Scheme).

This is an early retirement option which may be open to eligible members subject to certain requirements and terms – namely satisfying the required medical criteria by being confirmed to be medically eligible for ill-health retirement by the respondent occupational health advisors, Medmark, and thereafter securing the approval of the Trustee of the Pension Scheme. Those who are eligible and whose applications are ultimately approved can retire from their employment early on agreed terms.

This is not an automatic entitlement, it is a process of application whereby person applicants must meet the required eligibility criteria and conditions before being approved and the Trustees can review the continued payment of an ill-health early retirement pension and may alter, suspend, or revoke the payment of such pensions.

As part of this established process the respondent requires all applicants to attend Medmark, so an occupational health doctor can assess and validate that the person meets the medical requirements to be eligible.

It is incumbent on the respondent to validate the applications received for ill-health early retirement by reference to the appropriate medical experts and our own occupational health advisors.

If the person’s application is ultimately approved, then they will retire early from employment with the respondent on ill-health grounds and will have immediate access to their accrued pension benefits under the Pension Scheme.

Separately, the respondent will offer a person who is leaving employment early in such circumstances an ex-gratia severance payment in full and final settlement of all matters relating to their employment. The calculation of that ex-gratia severance payment is based on an agreed actuarial formula.

There are two preliminary issues.

Firstly, the complainant asserts that he has been denied access to the ill-health retirement scheme. This is factually incorrect. His application has been approved by the Trustees of the Scheme and this has been confirmed in writing to him.

Secondly, and without prejudice to the first preliminary issue, the complainant submitted a formal grievance in respect of how his application for ill-health retirement was handled by the respondent personnel and Medmark on 15 August 2022 subsequent to this claim having been lodged in the WRC  

An independent senior manager was appointed to consider this grievance and that internal process is ongoing.

The complainant and his representatives have sought to place what is fundamentally the same grievance before Adjudication however it is the case that the internal process is pending and has not concluded and, in this regard, the internal investigations of these grievances has not been exhausted as is required by the WRC in such claims under the IR Act.

Without prejudice to the above preliminary points, our submission in respect of this claim is as follows:

In amedicalopiniondated13July2022, the respondent was advised that he required further information from the complainant ’s treating specialist before he could confirm the complainant to be eligible for ill-health early retirement under the Pension Scheme.

There is no question of a refusal or penalisation in this regard. The complainant was repeatedly encouraged to provide further medical information to Medmark.  

It is noted that Medmark did have further engagement and on 25 August 2022 the complainant was confirmed as an eligible candidate for ill-health early retirement. It is noted that in line with normal process, the complainant ’s application for ill-health retirement was subsequently considered and then approved by the Trustees of the Pension Scheme.

As with any application process, there are required steps to be followed to ensure good governance. In considering the complainant ’s application, the respondent personnel acted in accordance with the established process for these applications.

Unfortunately, the complainant is not the first person to have sought early retirement on ill-health grounds and indeed there are two other persons whose applications have been similarly approved and who are going to the final stages of the same process currently.

It is a reasonable requirement that there be agreement that the person meets the medical threshold for ill-health retirement. In the complainant ’s case as indeed with all applications there was a level of engagement required between the medics – this is standard practice amongst professionals and is expected for such an important process.

Ill-health early retirement and/or any of the ex-gratia or other benefits that may flow from the early termination of employment in such circumstances are not an automatic entitlement of any person – they must be confirmed to be eligible and that is what has happened in this case.

Ex-Gratia Severance Payment

Where an application for early retirement on ill-health grounds has been approved by the Trustees and by the respondent then there is eligibility for an ex-gratia severance payment, paid on termination of employment and subject to certain agreed and standard terms.

The prevailing ex-gratia severance terms are based on an actuarial formula whichhas been agreed with the respondent and the union.

As with all ex-gratia severance payments to employees leaving employment with the respondent under redundancy, voluntary severance and other mutually agreed terms, the standard the respondent severance documentation must be completed to include a form of acceptance waiver. The offer of an ex-gratia severance payment is made on the express understanding of a full and final settlement of all matters relating to the person’s period of employment with the respondent and the termination thereof.

The complainan ’s representatives Forsa will be well familiar with this paperwork as it is the standard respondent template which has been in use for many years for all severance programmes involving their members to include most recently voluntary severance schemes in 2020, 2021, 2022 and other severances.

It is important for the Adjudicator to note that contrary to what is suggested by the complainant in his submission, he is not being denied access to any ex-gratia gratuity or severance payment and there is no withholding of a payment as his submission would suggest.

Nor is he being treated unfairly or any differently to any other person who is currently being considered for early ill-health retirement. The complainant has been offered a very substantial ex-gratia severance payment subject to certain standard conditions, one of which is that he signs the required documentation in acceptance of a full and final settlement of all matters relating to his employment to include any third-party claims that may be pending or in contemplation.

It is a matter for the complainant as to whether he chooses to accept the ex-gratia offer that has been made by his employer on the express conditions referenced above.

The fact or circumstances of any matter/litigation that may be pending are entirely separate to the ex- gratia offer that has been made – however it is accepted that a natural consequence of a full and final settlement means that any such matter(s) would be withdrawn and/or discontinued.

It is important to confirm that the disclosure that was made by the complainant in January 2022 was considered fully by the appropriate personnel within the respondent and was responded to on February 7th 2022, as was noted by the complainant.

 From the respondent perspective that matter has been appropriately responded to eight months ago. There is no question of any purported request to withdraw said disclosure as part of this current ill-health early retirement process as is expressly stated in the complainant ’s submission.

It has further been suggested that because he has a claim in the civil courts, he has been refused “access” to an ill-health retirement severance payment. This is simply incorrect.

Firstly, the complainant ’s application for ill-health early retirement has been approved. Secondly, he has been offered an extremely generous ex-gratia severance payment as can be seen from the documentation attached at.

It is important to note that the particular correspondence set out in the complainant’s submission to ground his assertion expressly relates to a previous enquiry made by him as to whether he may be eligible to recover compensation under the company’s personal accident insurance for the alleged events which are the subject of his litigation against the company.

 In this response to the complainant, the HR Business partner advised the complainant that because he had initiated a claim for damages for personal injuries in the civil courts which fell within the scope of the Company’s Employers Liability policy, he was not eligible to separately recover damages for the same incident under the Company’s Personal Accident insurance policy. For completeness the latter insurance policy is not applicable to matters that may arise or be alleged to arise in an occupational context.

What it is clear however is that this correspondence does not relate to the complainant ’s application for ill-health early retirement which has been approved by the Company and the Trustees and does not support the argument being made by the complainant.

There has been appropriate and continuing engagement with the complainant during his period of absence. It is noted that there is no particularisation of this aspect of his claim.

He has been referred to Medmark for appropriate referrals to understand his occupational fitness. Where concerns or queries have been raised by him, they have been responded to by members of management and/or by the HR team.

The complainant has benefitted from the very generous sick pay provisions available to the respondent persons for a cumulative period of 25 months and a further month at the discretion of the Company.

Itisanestablishedprinciplethatapartymustexhausttheirinternalproceduresbefore referring a claim pursuant to the IR Acts to the WRC.

The complainant chose to refer this matter in March 2022, before making a grievance. He subsequently initiated and is participating in a formal grievance process in August 2022 which grievance touches on all of the issues that he has put before the WRC in his original claim form and subsequent submission. That internal grievance process is ongoing currently. In such circumstances, he has clearly not exhausted the internal procedures and the WRC must have regard to this in any recommendation made.

The complainant has made one reference to penalisation in his submission however this has not been particularised by reference to any statutory provisions or otherwise. The only claim the complainant has put before the WRC has been brought pursuant to the IR Acts.

He has not invoked the anti-penalisation provisions in any other employment statute which clearly define what is intended by penalisation in the context of those Acts and prescribe strict timeframes for the bringing of complaints.

It is established that to ground a claim of penalisation, one must a show that there has been an identified act or omission that affects an employee to his/her detriment. The types of detriment envisaged by the statutes will depend on the particular legislation.

It is submitted by the respondent that there has been no penalisation of the complainant. The complainant has not suffered any detriment and does not meet the requirements for the “but for” test as set out in the Labour Court caselaw (established in the case of O’Neill v Toni & Guy Blackrock).

He has applied for ill-health early retirement and after consideration, this application has been approved by the Trustees of the Pension Scheme. He will be entitled to have access to his pension benefits upon early retirement and he has been offered a very significant ex-gratia severance payment subject to the standard terms and conditions for such payments in the respondent. It is a matter of personal choice as to whether he chooses to accept the offer that has been made (or not - as is his entitlement).

There is no unfair treatment here - the complainant is one of three persons whose applications for ill-health early retirement are under active processing, all of whom are being considered in the same way with the same severance documentation required.

Separately there are several the respondent persons leaving employment by way of voluntary severance in the coming weeks and all have signed identical form of acceptance paperwork in acceptance of ex-gratia severance payments.

The complainant has been treated in precisely the same as all other persons and other employees of the respondent who are being offered such ex-gratia severance payments whether in the context of early ill-health retirement, voluntary severance, severance, or mutual agreement.

The motivation of the employer is a material consideration in whether any claim of penalisation can be reasonably upheld – it is submitted that in treating the complainant in line with all other employees, this is not evidence of unfair treatment or penalisation by his employer and/or any detriment.

There are three complaints.

The first relates to the period during which a person remains eligible to receive sick leave payments having regard to the fact that wages for the complainant and his colleagues were reduced by half during the pandemic when they were not in a position to work normally.

The case is that as they were on half pay, then the eligibility period should be doubled.

There is a superficial, mathematical logic in this, but it does not survive even elementary scrutiny.

Payment during sick leave is of course more related to the fact of illness than to a person’s wages. Therefore, the determining criteria derive from considerations such as recovery and convalescence which are not changed by a person’s rate of pay.

And, for example a part-time worker is covered by the same provisions in respect of the duration of any payments. An employee working one tenth of normal hours could hardly expect to have the eligibility period extended to many years for example.

There is a further jurisdictional issue here insofar as, even though this complaint is made on behalf of one person a decision in his favour would have the effect of establishing a right for all part-time employees.

This is a jurisdiction that is probably prohibited by S13(2) the Industrial Relations Act insofar as it applies to ‘a body of workers’, but as I find the complaint to be entirely lacking in merit this is an academic point, although one that potential complainants and their unions should be aware of.

The second complaint regarding the ex-gratia payment revolves around the request that the complainant sign a document that the payment will essentially be in full and final settlement of all claims against the respondent. (He has also complained that he has been denied this payment, but this is factually incorrect.)

This is a standard formula in many such severance agreements and the respondent submitted evidence that this is a requirement in all such settlements over which it exercises control, which as the name indicates are ex gratia.

The issue is that the complainant may be contemplating litigation against the respondent and the signing of such a waiver would estop that.

I can see nothing exceptional in the requirement of the respondent in this regard (and in any event it is the basis on which it offers all such settlements, the complainant is not an exception) and the complainant has a decision to make as to which option he wishes to avail of.

His indecision in this regard is rather surprising. The proposed ex gratia payment is a very substantial sum and set against the considerable uncertainty of costly litigation in the superior courts would be regarded by most people as representing a relatively simple choice.

But, in my view that is a choice he will have to make.

There is no merit in his complaint that he should be permitted to avail of the ex-gratia payment on a different basis than that provided for in the scheme and consistently operated by the respondent in the past, and this conclusion may assist him in resolving which path he should pursue.

If he harboured some hope that he might get a recommendation that would allow him to have access to both, then that hope was very misplaced indeed.

To the external eye it is not a difficult decision but the only delay in concluding this matter is the making of that decision by the complainant.

Finally, the complaint that the respondent has not acted diligently in addressing the issues presented by the complainant is not born out and at least some of this is still within its internal processes and has been presented prematurely to the WRC.

Accordingly, it is not within jurisdiction at this stage.

None of these complaints have merit and they are not upheld.

Therefore, I recommend as follows.

In relation to the eligibility period for sick leave, any change in this this is a matter for the collective bargaining processes but on the basis of the existing scheme, there is no equitable argument that the current time limits should be affected by the temporary salary reductions and the complaint has no merit.

In respect of the ex-gratia payment, I find that the respondent has acted properly and consistently in relation to the terms of the scheme and that it now falls to the complainant to actually make a decision as to whether he will accept its terms or otherwise.

Finally, his grievance about the handling of the matter remains within the respondent’s internal machinery and may not be considered until that has concluded.

Industrial relations, Need to exhaust grievance procedure