Worker

Employer

Anonymised Parties

 Inspector

Inspection Facility

Representatives

Joseph Ateb         SIPTU Trade Union

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 - 00001242

05/04/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 5th of April 2023.

The Complainant was fully represented by his Union Representative.  I was provided with a comprehensive submission (prepared by the Union Representative) in advance of the hearing. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. The Complainant gave evidence on his own behalf and where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Complainant believes he is entitled to be paid for nine days of certified sick leave in circumstances where he says he complied with the procedural requirements set out in the sick pay scheme as detailed in the Employee Handbook.

The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 25th of July 2023.  I understand that the Respondent’s Head of Human Resources (a Mr. O’B) communicated with the Complainant’s Representative on the 30th of August 2023. The relevant email was made available to me, and I note that the Respondent indicated it would not be attending the hearing and consequently would not be presenting a formal submission. The email notes that “the issue was heard under appeal and the decision was upheld”.

I must deduce from this email that the Respondent Employer is relying on the efficacy of it’s own procedures.

The Complainant gave an account of the dispute .

The Complainant was out sick for four weeks from the 18th of July 2022 to the 15th of August 2022. At the direction of the Employer (and in compliance with the Sick Leave policy and Procedure) the Complainant submitted separate Medical Certificates for each of the four weeks he was absent. In further compliance with the Sick Leave Policy, the certificates each specified the nature of the illness and the duration (limited to one week).

I note that the Complainant’s GP provided the Certificates on a weekly basis, citing “work related stress” as the reason for the absence.

For reasons unexplained, the Respondent does not appear to have been content to accept this reason and looked initially for an updated certificate, and then asked the Complainant to explain the background to your work-related stress?

The Complainant was disappointed and surprised that his Employer (of fourteen years) did not accept the self-explanatory reason of “work related stress” as the reason for the absence. It is also, I accept, surprising that the Employer took such an abrasive tone given the Complainant was out on sick leave. If an employee signals to his doctor that he is under mental strain and this is certified as a matter of fact, then the Employer must tread very carefully in seeking clarification of what has caused this rupture.

There is absolutely no suggestion that the Employee herein did anything wrong. He says he asked the HR department how he should substantiate his diagnosis other than state that he was feeling under constant pressure at work, which was what he did tell HR.

I note that the Employer paid the Complainant for two weeks of the sick leave but refused to cover the second two weeks and was put on nil pay.

The Complainant raised the issue of the nil pay as a formal Grievance and specifically stated that he should be paid the balance for two reasons. Firstly, that he had followed the procedures. Secondly, that he had been treated differently to co-workers who had cited the same illness and who had been fully paid for the duration of their certified sick leave.

This is all set out in an email to the HR department dated the 30th of August 2022.

The Grievance meeting was conducted on the 11th of October by a Ms. L. The meeting was quite short.

The outcome to the Grievance hearing was made known on the 5th of December 2022. I do not get the sense that Ms. L talked to anyone outside of the Complainant in the course of considering this Grievance. We have therefore no idea for the rationale in allowing two weeks’ pay and denying two weeks’ pay. The decision maker involved was not interviewed.

I also have no idea why HR asked the Complainant to explain the background to your work-related stress? Ms. L does not appear to have bothered to clarify that the Complainant had elaborated on the reasons with persons in HR. He stated this in the Grievance meeting, but Ms. L did not follow up.

I have to conclude that if the Complainant was paid for two weeks, then he must have been found to have abided by the rules laid down in the Sick Leave Policy and Procedure. The non-payment of the second two weeks period, appears to have been decided arbitrarily.

In her outcome Ms. L has stated that the sick pay policy is at the discretion of the company. It is not clear to me that the Employee Handbook does actually state this in such bald terms. It was certainly not highlighted to the Complainant in the course of the Grievance meeting. In any event, even if that was the case, the company would have to be seen to apply the discretion in a non-arbitrary way.

Looking at the policy, it is clear to me that “The granting of sick pay is subject to compliance of the procedural requirements set out…”  The Complainant did exactly what was asked of him and provided weekly medical certificates specifying the nature of the illness and the likely duration. He was paid for two weeks for the compliance and there is no reason not to pay him for the second two weeks.

Looking at the facts, it seems to me that the Complainant believed he was potentially being punished for not elaborating on what exactly had given rise to work related stress. This was not ever said to him. This issue was not teased out in the Grievance and was not referenced in the outcome, so it is not clear to me if it was a factor at all.

The Complainant stated that he was aggrieved that he was treated differently to co-workers who had stayed out of the workplace for work related stress. In fairness to him, he referenced this in advance of the Grievance hearing. He also referenced it in the course of the Grievance hearing. He specifically states that he has evidence of co-workers being paid for sick leave in circumstances similar to his. This was dismissed out of hand by Ms L. When I asked the Complainant about this, he indicated that he had the permission of two colleagues to use their names as persons who had been fully recompensed having provided medical certificates reading “work related stress” as the reason for the absence. To my mind there was an onus on Ms. L to either accept what the Complainant was saying, or to organise to interview the persons who were willing to back the Complainant’s case.

On balance my sense is that the Complainant was done a disservice by his Employer when it failed to pay him his sick pay. The Grievance meeting and outcome were not of an acceptable standard and no real investigation was conducted. The individual/person hearing the Appeal hearing went no further then his predecessor and the only thing that I have gleaned form the notes of the Appeal hearing is that everybody agreed that the Complainant had done nothing wrong. The Appeal outcome does not interfere with the Grievance outcome.

I am satisfied that the Complainant should be paid the balance of the monies that should have been paid to him when he was legitimately certified as absent through sickness. The Complainant had been singled out for arbitrary and punitive treatment.