Worker

Employer

Anonymised Parties

A Warehouse Operative

A Retail Distribution Company

Representatives

Claire O'Connor, SIPTU

 Represented by HR Managers

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000723

03/10/2022

The employee commenced working for this employer as a warehouse operative in early 1998.  Since 2004, he has had a poor attendance record due to illness.  The company has a sick pay scheme which provides that employees who are absent may be paid their wages less their social welfare benefit for up to 12 months, with periodic reviews.  Between 2010 and 2013, the employee was removed from the sick pay scheme because of excessive absenteeism.  Between January 2013 and January 2014, he missed no shifts and he was reinstated in the sick pay scheme.  This was the pattern from 2014 on, where the employee was re-admitted to the sick pay scheme and then was absent again due to illness.  He was removed from the scheme for period of 12 months, during which time, he attended work regularly, and then, when he was reinstated in the scheme, he was out sick.

The employee was absent from work due to knee pain from January 19th 2021.  Following an absence review meeting on February 11th, he was removed from the sick pay scheme with effect from March 1st.  He returned to work on May 13th, and, although he was absent for 19 shifts due to Covid-19 between December 2021 and January 2022, he was paid his wages.

In April 2022, without meeting directly with the employee, the operations manager wrote to the employee to inform him that the company would not pay him sick pay if he was absent again.  The employee appealed against this decision and, in July, he was informed that his appeal was unsuccessful.  He appealed again and, on September 9th, he was informed that his attendance would be kept under review and that the company would exercise its options in accordance with the sick pay scheme, which was to remove people from the scheme, to pay sick pay at a reduced rate or to continue to pay sick pay.  He was out sick from September 30th  and he was paid sick pay until November 1st 2022.  He was then informed that his sick pay would be discontinued.  He remained absent until December 19th.

This dispute is about the employee’s concern that, in his view, he was given no reason to justify the extension of his exclusion from the sick pay scheme in September 2022.  He claims that there is no transparency in the company’s decision-making, that the grievance procedure was not adhered to by the company and that, between April and September 2022, there was a long delay responding to his request for an appeal of the company’s decision.

On behalf of the employee, Ms O’Connor said that he is concerned that the decision to disqualify him from access to the sick pay scheme on April 28th 2022 was an unfair implementation of the company’s illness policy.  He believes that colleagues with a similar sickness record have been treated differently.  Also, Ms O’Connor said that the company hasn’t put forward a business rationale or other justification for the extension of his removal from the sick pay scheme.

On May 6th 2022, the employee invoked the grievance procedure to attempt to resolve the issue and he asked for a copy of the agreement or policies referred to by the operations manager in his letter of April 28th confirming his exclusion from the scheme.

On May 17th, the employee attended a meeting to appeal against the decision to remove him from the sick pay scheme.  Almost 10 week later, on July 26th 2022, the employee was informed that the company was sticking to its decision to remove him from the scheme.  He attended a second level appeal meeting on August 24th and received an outcome on September 9th, reiterating the company’s original position.  In that correspondence, the management said that individuals may be removed entirely from the scheme for periods at the company’s discretion. 

Despite persisting in seeking an appeal hearing and sending several emails, the employee’s grievance has not yet been heard and he has not been provided with the agreement or policy referred to in the letter of April 28th concerning the company’s decision to remove him from the sick pay scheme.

The Union’s Position

The company insists on its discretion in the application of sick pay.  Although the letter of September 9th 2022 which confirms the outcome of the second level appeal refers to “overall attendance history” and “the amount of sick pay previously paid,” no clear criterion has been specified.  The letter also refers to “compliance with current policies” but there is an absence of clarity regarding these.

As a result of this lack of clarity, the employee has no specific, detailed, quantitative or qualitative reasoning regarding the offence he has committed to justify the extension of his removal from the sick pay scheme.

His request for a meeting under the heading of the grievance procedure has been ignored.  The company failed to handle the appeal of the “exclusion” decision in a timely manner and, in this way, frustrated the process.

The union’s case is that the employee is being treated selectively and on a random basis.

Finally, Ms O’Connor referred to the recommendation of the Labour Court in July 2011 in relation to sick pay at the employee’s workplace in which the Court recommended that sick pay on that site is brought into line with arrangements in all the other locations.  I have not given the number of the Labour Court recommendation because it identifies the employer and this decision must be anonymised.

The union is seeking the reinstatement of the employee in the sick pay scheme and a clear statement of the rules and criteria which determine access to benefit.

In the employer’s submission, the HR manager also referred to the recommendation of the Labour Court which was cited by Ms O’Connor and the Court’s recommendation that the sick pay scheme on the site where the employee works is brought into line with arrangements on other sites.  Arising from this recommendation, the management informed employees that the following changes would be effective from September 14th 2011:

§    The company reserves the right to continue to review an employee’s absences and sick pay on an ongoing basis as is currently the case, including the period within the first six months of continuous absence.  At the company’s discretion, sick pay may be continued, discontinued or continued at a reduced rate and the individual’s absence and overall attendance history during the course of his or her overall employment will be taken into account.

§    Sick pay will be calculated excluding social welfare and the employee retains the amount paid in social welfare illness benefit.

§    The company will continue to manage the scheme by removing individuals entirely from the scheme for periods at its discretion.

The management referred to correspondence to SIPTU dated September 29th 2014:

We have a long-standing practice and policy in (the company) of removing individuals from the sick pay scheme at our discretion.  Our most recent agreements contained a clause reiterating that policy.  The clause, “We will continue to manage the scheme by removing individuals entirely from the scheme for periods at the Company’s discretion,” was reached as an alternative to the original proposals from the Company aimed at reducing the cost of the scheme by other means.  (The company) had proposed introducing changes to the scheme overall, including non-payment for the first three days.  SIPTU repeatedly requested that, rather than make changes that were adverse to everyone, that we instead manage the scheme by continuing to remove individuals from it who are availing of it excessively.  This, as always, was to continue to be done on an individual-by-individual basis.

The employer’s submission provided a background to the employee’s attendance and absence history between 2010 and 2022.  It is apparent that he developed a pattern of poor attendance from 2004, because, in 2009, he had been absent for over 300 shifts in five years and he had received four verbal warnings and a written warning.  Correspondence issued to him in September 2009 showed that, in less than four years, he had been paid sick pay for over a year.

When he missed 121 shifts over seven months up to April 2010, the employee was removed from the sick pay scheme for a year. 

In April 2011, the employee was informed that he would remain disqualified for sick pay, because he had told his employer that he was medically unable to perform all the duties associated with his job.  Following an appeal, he was reinstated in the scheme in June.  By October 2011, his absence had disimproved again and he had missed 28% of his shifts.  He was removed from the sick pay scheme, although he received sick pay up to November 11th 2011.  When he missed 39 shifts in 2012, he was removed from the scheme in January 2013.

By January 2014, the employee had had no absences in the previous 12 months.  He was reinstated in the sick pay scheme.  By June that year, he had been absent for two months and he was paid in full for the period from May 9th until June 24th.  On June 26th, he was removed from the scheme.  This was the fourth time he was removed from the sick pay scheme.

In the 12 months to August 2015, the employee had missed no shifts and he was reinstated in the scheme.  He was then absent due to illness from August 25th until October 12th 2015.

In 2017, the employee was absent for six shifts in January and February and then absent from April 26th until September 1st.  He was removed from the sick pay scheme again.

Between October 2017 and October 2018, he missed no shifts and he was reinstated in the sick pay scheme.  Following his reinstatement, in October 2018, he was out sick for three shifts.

Between March 7th and April 30th 2019, the employee was out sick continuously.  He was removed from the sick pay scheme.  He was informed that the reason was because of the amount of sick pay he had received so far, his current absence level and the financial cost associated with this.

The employee was reinstated in the sick pay scheme in January 2020.  He was informed that his entitlement to sick pay was subject to review and would be paid at the discretion of the company.  He missed 13 shifts between April and May 2020 and 15 shifts between August and September.  He was paid for these missed shifts.  He was out sick in January 2021 and on March 1st, he was removed from the scheme.  He returned to work on May 13th 2021, and, although he had been removed from the sick pay scheme, he was paid for 19 shifts between December 2021 and January 2022 during which he was absent due to Covid-19.

On April 28th 2022, the management carried out a review of the employee’s absence.  He was notified that, in line with the company’s agreements and policies on sick pay, and, having considered his absence up to now and the amount of sick pay he had been paid, he would not be paid sick pay if he was absent from work.  He appealed this decision, and, as we know from the union’s submission, the outcome of his second-level appeal was sent to the employee on September 9th 2022.  He was advised that payment may be discontinued, continued or continued at a reduced rate at the company’s discretion.

The employee went absent on September 30th 2022 and was paid sick pay until November 1st.  Then, for the eighth, time, he was informed that his entitlement to sick pay was suspended.  At the hearing of this grievance on April 21st 2023, he remained excluded from the scheme.

The Company’s Position

At the hearing, the HR manager pointed out that the company’s sick pay scheme is very generous by industry standards and provides for full pay from the first day of absence, for up to 12 months, with periodic reviews.

The company has proposed making changes to the scheme, including non-payment for the first three days of absence.  SIPTU has opposed the changes and has repeatedly requested that, rather than change the scheme in a way that would affect all the employees in an adverse way, that the company should manage the scheme by continuing to remove employees who avail of the benefit excessively.

It is the company’s position that the process of managing the employee’s entitlement to sick pay is consistent with its agreement with SIPTU and the recommendation of the Labour Court in 2011.

Each time that the employee’s absence was reviewed, he was informed in writing prior to any meetings, he was given to right to be represented at meetings, he was advised of the outcome of meetings and he had the right to appeal the decisions to remove him from the sick pay scheme.

The way in which the employee has been treated and his removal from the sick pay scheme after excessive absences is consistent with how other employees are treated.

In the six years before this dispute was referred to the WRC, the company has paid the employee €40,600 in sick pay.  At the hearing, the HR manager said that this level of sick pay is unsustainable.  The management’s position is that, rather than acting unfairly in respect of this employee, he has been treated with reasonableness and restraint.

The management pointed out that on some occasions when he was removed from the sick pay scheme, the employee’s attendance improved. 

The sick pay scheme is a valuable benefit for all employees and the company must manage it responsibly.  The level of absence and the extent to which this employee has availed of the scheme is placing the benefit in jeopardy for his colleagues. 

It is the union’s position that the criteria according to which an employee may be excluded from the company’s sick pay scheme is not transparent.  At the hearing, Ms O’Connor said that the union is seeking a clear statement on the rules which deny an employee access to the scheme.

It seems to me that what the union is seeking is an indication of the number of days an employee must be out sick before they are removed from the sick pay scheme.  In the context of a scheme that has been agreed between the company and SIPTU, and, on the basis that the scheme places the entitlement to sick pay “at the discretion of the company,” it is my view that the introduction of a numbers-based criterion according to which an employee may be excluded will not work for everyone and will cause hardship for some.  For example, an employee out sick due to treatment for a heart attack or cancer may be absent from six months or more.  Should they be excluded from the scheme after a certain number of days or weeks? 

It is my view that the scheme in operation in the company is more generous than many or even most sick pay schemes in the sector in which the business operates.  It is disheartening to find that this employee has used the benefit to such an extraordinary extent, particularly when it is apparent that he is capable of attending work regularly when the benefit is removed.

If the union is seeking clarity, then it is provided in the fact that good attendance on an ongoing basis causes no risk of being removed from the sick pay scheme.  If discretion to manage the scheme is agreed between the company and the union, then, it means that the company can decide the basis on which an employee who is absent to an unacceptable degree may be excluded.  On the issue of consistency, one employee may be excluded from the scheme because of a certain level of absence, and, at the same time, an employee with a high level of absence on a once-off basis, who, unlike this employee, has not overused the benefit in the past, may not be excluded.

The employment relationship is based on a contract according to which an employee comes to work every day for an agreed rate of pay.  There is no legal entitlement for employees to be paid wages while they are out sick, although most reasonable and progressive employers pay sick pay.  An employee who is paid when they are out sick makes no contribution to their employer, and, while that may be tenable occasionally and for short periods, no sick pay scheme is constructed on the basis of the usage of this employee.  An employer must have discretion to manage very high levels of absence because, the failure to do so, causes absenteeism to increase and, in this way, places the benefit of sick pay at risk for everyone.

Although the employer did not challenge the causes of the employee’s absences or suggest that he wasn’t sick when he was absent, the fact that he had perfect attendance for periods of 12 months at a time after being removed from the sick pay scheme, indicates to me that the benefit of the scheme may be causing him to be out sick.  At the hearing, the employee said that he had problems with his shoulders and his knees and that he has had six operations.  I accept fully that people get sick and need to be absent from work occasionally, but an absenteeism rate of one year in four is something that very few employers would accept or pay for.  The employee is a shop steward in the site where he works and, as a person with responsibility for upholding and for trying to improve benefits in the workplace, he must show leadership and make every effort to come to work when he is not genuinely sick. 

I accept that there was some delay between May and July 2022 until the employee received an outcome from his appeal against his removal from the sick pay scheme on April 28th.  On the basis of the amount of management time taken up with dealing with his attendance over the years, it seems to me that the delay can be excused, particularly in light of the challenges to this employer as a provider of an essential service during Covid-19.

At the hearing, the employee said that he sent two emails on the same date in May 2022, one asking for an appeal of the decision to exclude him from the sick pay scheme and the other submitting a grievance about how he was treated.  It is the employee’s position that his grievance was not dealt with, although the person who heard his appeal said that his grievance was considered at the same time.  Now that this hearing has taken place at the WRC, the employee’s grievance has been fully aired and the grievance procedure has concluded, apart from the right of appeal to the Labour Court.

I recommend that the sick pay scheme continues to be operated on the basis of the agreement with SIPTU, arising from the recommendation of the Labour Court in July 2011. 

Absence, sick pay scheme