Worker

Employer

Anonymised Parties

 A Worker

 A Local Authority

Representatives

Diarmuid Long SIPTU

Keith Irvine LGMA

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 - 00000292

23/05/2022

The Worker commenced employment with the Employer as a temporary part-time sports facilities  assistant and was made permanent on the 29/7/2019. The Worker subsequently retired from employment on grounds of ill health on the 2/2/2023.

The matter which gives rise to the dispute is an allegation by the Worker that the Employer wrongfully deducted from his wages an amount equivalent to the amount received by the Worker for illness benefit from the Department of Social Protection upon his return to work from certified sick leave.

The Employer denies the claim.

The Worker was absent from work due to ill health and went on certified sick leave from the 13/1/2020 to the 1/5/2020. In accordance with the Employer’s sick leave policy employees are provided with three months full pay and three months half pay in a rolling four-year period.

It is submitted that the sick leave policy was applied to the Worker who was placed on half-pay on the 9/4/2020.  The Employer deducted €203 per week, an amount equivalent to the rate of illness benefit, in line with the terms of their sick leave policy.

It is submitted that the Worker received €270 as his weekly wage from the Employer and was paid €540 on a fortnightly basis. Accordingly, the Employer deducted €406 on a fortnightly basis, equivalent to two weeks of illness benefit from the Worker’s salary. The Employer paid the Worker the remaining balance of €134.

It is submitted that when the Worker was placed on half-pay on the 9/4/2020, his wages were reduced to half rate of €135. Accordingly, it was not possible for the Employer to deduct €403 from the Worker’s salary on a fortnightly basis, therefore the Employer decided to deduct €203 fortnightly.  

The Worker returned to work on the 1/5/2020. It is submitted that the Employer deducted €609 from the Workers’ wages over the period 4/6/2020 to 16/7/2020, on the basis that the Employer was entitled to recoup in full the remaining amount of €609 equivalent to the amount of illness benefit which had not been deducted by the Employer while the Worker was in receipt of half pay. Consequently, the Worker received half pay for this period.

It is submitted that the Worker engaged with the Employer to resolve the issue on an informal basis.  As this was not successful, the Worker sought advice from his Union who engaged with the Employer on this issue.

The Worker’s trade union representative submits that the Union engaged in correspondence with the Employer and refers to two letters dated 22/12 /2020 and 23/2/2022 received from the Employer. The Worker’s trade union representative received a reply dated 15/3/2020 from the Senior Executive Officer, of the Employer’s HR Department who advised that the Employer had followed the correct procedure regarding all deductions.

The Worker’s trade union representative submits that it is unclear what procedure refers to the Employer’s position which was set out in a letter dated 12/12/2020 stating that it is the Employer’s standard procedures to deduct full illness benefit even when an employee moves to half pay.

Furthermore, it is submitted that Section 5.8 of the Employer’s sick leave policy implies that the purpose of the sick leave policy is to provide staff with sick pay even if they are not in receipt of illness benefit, the spirit of the scheme is to ensure that people have access to sick pay. It is submitted that the way the Employer has applied the scheme has unfairly impacted the Worker to such a point that he was at a loss for being employed.

It is submitted that the Employer should not deduct illness benefit from part time staff in a situation such as this when the Worker has less income than the amount of illness benefit. It is further submitted that this deduction is a breach of the Employer’s sick leave policy and due to the way, the Employer applied the sick leave policy in this instance, the Employer profited in the amount of €609.  It is submitted that this policy is a practice/criterion which when applied disadvantages part-time staff in comparison to full-time staff.

It is further submitted that there was no obligation on the Worker to exhaust the internal grievance process, on the basis that the Worker and the Union both raised the issue with the Employer who engaged with them. In this regard it is submitted that there is an obligation on the Worker to try and resolve the issue which he did as evidenced in the correspondence submitted, therefore the Worker's obligation is satisfied.

At the hearing the Worker’s trade union representative submitted that SIPTU engaged extensively with the Employer and had three meetings with them. It was further submitted that there is no provision in the Industrial Relations Acts 1969, which requires a worker to exhaust the internal grievance procedure prior to referring a claim to the WRC. At the hearing the Worker confirmed that he was not aware of the Employer’s grievance procedure. The Worker stated that he initially engaged the Employer himself to resolve the issue and then sought advice from SIPTU who represented him from then on.

At the hearing the Worker stated that the deduction from his salary of €609 caused him much distress and he had to borrow money to pay his rent. 

It is argued that the Employer did not encourage the Worker to lodge a complaint per the grievance process as evidenced in the correspondence submitted. It is further submitted that the Employer is obliged to refer the Worker to the grievance procedure which the Employer failed to do. The Employer gave a definitive response on the matter and using the grievance procedure would not have produced a different result.

The Worker’s trade union representative submitted that SIPTU has not received any other complaints from part time workers on this issue. Accordingly, it is submitted that this dispute does not apply to a body of workers, therefore the Worker is entitled to pursue his dispute under Section 13 of the Industrial Relations Acts. 

The Worker is seeking repayment of his illness benefit in the amount of €609 and compensation for the stress he has suffered.

Preliminary Issues

The Employer raised four preliminary issues regarding my jurisdiction to investigate this dispute.

1.     It was submitted that the Employer has a grievance procedure in place, which is an agreed internal procedure with SIPTU, in relation to dealing with grievances and issues in employment, a copy of same was submitted at the hearing. It is the Employer's position that in the first instance, the Worker should refer any dispute or grievance to the Employer under the grievance process and should use the agreed local process prior to referring any dispute to the Workplace Relations Commission (WRC). The Worker did not use the grievance procedure therefore it was submitted that this dispute should not be heard by an Adjudication Officer. The Employer relies on previous decisions from the WRC and in particular recommendation ADJ 0018981 where the Adjudication officer stated;-

        “It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute…Accordingly, I recommend that the parties exhaust all internal dispute resolution mechanisms for addressing these grievances before the worker considers the further referral of this matter to the Workplace Relations Commission for adjudication under Section 13 of the Industrial Relations Act 1969.”

It was submitted that the Employer responded to several queries received from the Worker’s trade union representative in 2021 and 2022 in relation to the Worker’s illness benefit entitlements in 2020. It was further submitted that the Employer did not receive any grievance from the Worker under the grievance process. It was also submitted by the Employer, in response to the Workers position that he was not aware of the existence of the grievance process, that his Union should have advised the Worker to lodge a grievance pursuant to the agreed internal process.

2.     It was submitted that as this dispute impacts upon a body of workers I do not have                  jurisdiction to investigate it. It was submitted that the Worker’s submission, in relation to the greater impact of the policy upon part-time staff in comparison to full time staff, has the potential to apply to a body of workers, namely, all part time staff. It was submitted that the Worker has not established that any special circumstances apply limiting the claim to him.  Furthermore, it was submitted that the correct mechanism for the referral of such a dispute is under Section 20 of the Industrial Relations Acts 1969.

3.     It was submitted that, as the case concerns an allegation regarding the unlawful deduction of wages the more appropriate legislation to address this matter is a complaint under the Payment of Wages Act 1990.

4.     It was further submitted that as the case concerns an allegation regarding the less favourable treatment of part time staff in comparison to full time staff, the more appropriate legislation to address this matter is a complaint under the Protection of Employees (Part- Time) Workers Act 1990.

Substantive Case

The worker commenced employment on a permanent basis on the 2/7/2019 as a Sports Facilities Assistant working 19 hours per week.

The Employer submitted that the named Circular dated 31/3/2014 regarding arrangements for paid sick leave is a national Circular applicable to all local authority workers. It was further submitted that in line with the terms of the Circular all employees are obliged to apply to the Department of Social Protection for illness benefit while on certified sick leave. It was submitted that Section 3.1 of the Circular provides that for absences of six days or more illness benefit received from the Department of Social Protection must be either recouped by the local authority or the salary must be reduced by the relevant amount, which was applied to the Worker during his sick leave absence.  

It was further submitted that when a Worker’s salary is reduced to half pay after three months per the terms of the Circular, the illness benefit payment remains the same and is not reduced on a pro rata basis.

It was submitted that while no grievances were raised by the Worker, his union representative emailed the Employer on the 16/9/ 2021 seeking a review of the Worker’s sick pay from 2020 and public holiday entitlements in 2021. Following several further engagements by e-mail, the Employer responded to the Worker’s union representative on the 22/12/2021. Further emails were exchanged between the parties resting with correspondence from the Employer dated 23/2/2022 and 15/3/ 2022.

It was submitted that, without prejudice to the various preliminary issues raised by the Employer, the Employer applied the correct sick pay entitlement to the Worker, where his entitlement is provided at full pay or half pay less social welfare benefits.

Accordingly, the Employer denies the dispute and in the first instance submits that I do not have jurisdiction to investigate it based on four preliminary issues.

In conducting my investigation, I have listened to and considered all relevant submissions both written and oral presented to me by the parties. 

My role here is to examine the merits of the dispute in line with the standards of fairness and reasonableness and to try and assist the parties reach a resolution of the dispute.

This dispute was referred to the WRC on the 22/5/2022 under section 13 of the Industrial Relations Act 1969 and concerns a claim by the Worker “to appeal the outcome of an internal grievance in respect of the application of appropriate illness benefit” as set out in the complaint form.

Preliminary Issue – Internal Grievance Procedure  

It was not in dispute between the parties that the Employer has established an internal grievance process which is an agreed internal procedure with SIPTU, for addressing workplace grievances and complaints.

I note that the Grievance Policy and Procedure dated January 2017 applies to all employees of any local authority and provides at Section 1.4 “that all employees are obliged to comply and cooperate with the Grievance Policy and Procedure. Failure to comply with the Grievance Policy and Procedure will be considered as a breach of discipline and the disciplinary procedures will be applied.” Accordingly, I note that all employees are obliged to comply with the policy to address a workplace grievance.

It was not in dispute between the parties that the Worker did not raise a formal grievance under the Grievance Policy and Procedure.  

The Workers trade union representative submitted that the Worker was not obliged to exhaust the internal grievance process on the basis that he and SIPTU had engaged in extensive correspondence with the Employer on this issue.

I note that the Worker’s SIPTU representative did engage in e-mail correspondence with the Employer commencing on the 16/9/2021 and further emails were sent dated 6/12/2021, 14/12/2021 and 24/2/2021. I note that the Employer responded by way of emails dated 15/3/2022 and 18/2/2022, stating that the Employer had followed the correct procedure.

I note that the Employer relies upon the upon the well-established principle that the WRC and the Labour Court do not intervene in a dispute under Section 13 of the Industrial Relations Acts 1969 until all internal grievance procedures have been exhausted. I note the comments in Recommendation ADJ 0018981 where the Adjudication officer stated;

 “It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute…”

I also note the comments of the Labour Court in Recommendation LCR 22589 under Section 20 (1) of of the Industrial Relations Acts 1969 where the Court did not recommend in favour of the Worker and stated the following:

“The Labour Court is, in the Industrial Relations arena the Court of last resort. In the case to hand the Worker chose not to exhaust the internal procedures prior to referring the case to the WRC and then the Court. In normal circumstances the Court would recommend that the Worker return to the internal grievance procedure to process her complaint. However, as the Worker has now resigned her position there is no merit in doing that.

The Court finds that the Worker’s complaint fails as she did not exhaust the internal grievance process.”

I note that the above case concerned a referral under Section 20 (1) of the Industrial Relations Acts 1969 however it is my view that the reasoning of the Court is equally applicable to a dispute under Section 13 of the Act and to the facts of this case. I accept that the Worker’s trade union representative engaged in correspondence with the Employer on this matter. I also note that the Worker had the benefit of advice and representation from his Union at the material time who were aware of the agreed internal Grievance Policy and Procedure.

Accordingly, I do not accept the Worker’s trade union representative’s submission that the Worker was not obliged to exhaust the internal grievance process on the basis that he had engaged in correspondence with the Employer. Notwithstanding the fact that the Worker had engaged in correspondence with the Employer, it is my view that the Woker was obliged to exhaust the internal grievance policy prior to the referral of the complaint to the WRC, in line with the well-established principle in industrial relations matters set out above, which has been emphasized by the Labour Court on many occasions including in the above Recommendation.  Furthermore, it is my view that by using the Grievance Policy the Worker may have received a different outcome.   

I appreciate that the Worker suffered distress when his wages were reduced by €609 by the Employer. However, considering all the circumstances of this case, I do not find in favour of the Worker on the basis that he did not exhaust the internal grievance process prior to referring his complaint to the WRC. Ordinarily, I would recommend that the Worker return to the internal grievance procedure to process his complaint. However, considering the Worker retired on the 2/2/2023, there is no point in such a recommendation.

I do not recommend in favour of the Worker on the basis that he chose not to use the internal grievance process prior to the referral of his complaint to the WRC.

Exhausting internal Grievance policy- application sick leave policy -  illness benefit