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DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00002285 (CA-00003039-001)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court on 06 November 2024 in accordance with Section 44 of the Workplace Relations Act, 2015. 

The following is the Court's Decision:

DECISION:

Background to the Appeal

This is an appeal by Mr Robert Pirsch (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-0002285/CA-0003039-001, dated 4 September 2018) under the Payment of Wages Act 1991 (‘the Act’). Notice of Appeal was received in the Court on 5 October 2018. The Court heard the within appeal, along with seven related appeals on several dates over the course of 2024 with the final hearing date occurring on 6 November 2024. The related appeals bear the following reference numbers: WTC/24/61; WTC/24/62; TE/18/54;TE/24/62; TE/24/63; TE/24/64 and TE/24/65.

The Complainant gave sworn evidence to the Court as did two witnesses called on behalf of Ryanair Designated Activity Company (‘the Respondent’). Only the evidence relevant to the within appeal is recited in this decision.

The Factual Background

The Complainant was employed by the Respondent as a Ground Handling Agent with effect from 8 November 2008 and was based at Dublin Airport. He signed a contract of employment on 6 November 2008 and that contract was countersigned on behalf of the Respondent on 12 November 2008. The Complainant’s salary was €2,945.51 gross per month. The Respondent operates a sick pay scheme which is referenced in the Complainant’s written contract of employment and the full details of which are to be found in the ‘Rough Guide to Ryanair’

The Complaint

The Complainant submits that he commenced a period of long-term sick leave in mid-August 2015 and was only paid sick pay for the first two weeks of his absence although he had been certified as being unlikely to be fit to return to work until early October 2015. It is his submission that the Respondent failed to comply with the terms of its own sick pay policy and, therefore, he contends, its failure to continue to pay him sick pay when he was medically certified as unfit to work amounts to an unlawful deduction from his wages. He further submits that his initial decision to seek employment with the Respondent was motivated in part by the fact that the company had a sick pay scheme in place. He seeks to rely on the following sentence in Clause 12 of his contract of employment to assert that he had an entitlement to be paid sick pay:

“You will be entitled to receive Company sick pay in accordance with the Ryanair Sick Pay Scheme.”

The Complainant told the Court that he had recollection of seeing the ‘Rough Guide to Ryanair’.

The Respondent’s Submission

It is submitted on behalf of the Respondent that it stopped paying sick pay to the Complainant from 1 September 2015 onwards because he ceased to be eligible to receive payments under that scheme in circumstances where had not complied with the terms of the scheme by virtue of his failure to attend four scheduled welfare meetings on 9 and 17 September 2015, on 19 October 2015 and on 2 November 2015.

Counsel opened ‘Fact Sheet 3 – Absence from work’, a part of the ‘Rough Guide’ which provides inter alia:

“NB – You cannot be considered for discretionary sickness benefits if:

• You do not comply with the absence policy and/or qualifying conditions set out above at all times during your absence
• You do not attend a medical appointment arranged by the company
• You fail to attend meetings and/or answer calls from the company. You must be contactable at all times during your absence.
• You are subject to a disciplinary investigation. Payments will be suspended when a disciplinary investigation is initiated pending the outcome of the disciplinary process. Benefits may be reinstated and/or back payments made when the disciplinary process is concluded at the company’s discretion.
• You have resigned and you are working your notice period.

If any of the above applies you will not qualify for sickness benefits.”

Mr Robert Wall, who was HR Manager with responsibility for Ground Operations at the material time, gave evidence in relation to the nature of the Respondent’s sick pay scheme and its application to the Complainant. He told the Court that the scheme is discretionary and does not entitle an employee to payment of sick pay. He referred also to the ‘Rough Guide to Ryanair’ and confirmed that it is the Respondent’s practice to issue a copy of that document to each new member of staff who in turn is required to confirm when signing their contract of employment that that they have read the ‘Rough Guide’. The Complainant’s signature on the relevant part of his contract of employment was exhibited. The witness said that the Complainant had received sick pay for the first two weeks of his absence in August 2015 as he had had complied with the rules of the scheme for that period. However, according to the witness, the Complainant’s repeated failure to attend scheduled meetings thereafter rendered him ineligible for further payments. The witness said that the Complainant did attend a meeting in January 2016 but did not provide the Respondent with sufficient information to enable it to restore him to the sick pay scheme. According to the witness, the information given by the Complainant at that meeting was ‘opaque and required further investigation’.

Discussion and Decision

The Court is satisfied that the Respondent’s sick pay scheme is non-contractual in nature, notwithstanding the reference in the Complainant’s contract of employment to an employee being “entitled to receive Company Sick Pay”. When the entirety of Clause 12 of the Contract is read along with the relevant sections of the ‘Rough Guide to Ryanair’ there can be no doubt that the Respondent’s undertaking to pay an employee during a period of certified sick leave is predicated on the employee complying with a number of conditions, including attending in person at review meetings as scheduled by the Respondent.

The Complainant in this case was certified as being unfit for work at all material times. The nature of his illness, which was long-term and for which he had returned to his native country to be treated, undoubtedly made it very difficult for him to comply with the Respondent’s request to attend at scheduled meetings in Dublin at relatively short notice. The harshness with which the Respondent sought to apply its policy to the Complainant is further evident from the fact that the Respondent’s occupational health specialist had advised that the Complainant was unlikely to be fit to return to work before early October 2015 but, nevertheless, the Respondent sought to compel the Complainant’s attendance at meetings with HR throughout September and October 2015.

Notwithstanding the foregoing, it is not open to the Court – having regard to the discretionary nature of the Respondent’s sick pay scheme – to make a finding that benefits under that scheme were ‘properly payable’ to the Complainant in circumstances where he was unable to comply with the stated requirements of the scheme. For this reason, the Complainant’s appeal fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
ÁM	______________________
29th November 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.