ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00051505

Parties:

Complaint:

Date of Adjudication Hearing:  17/09/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 the Sick Leave Act 2022, following the referral of the complain to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant seeks payment for 3 days sick leave he was absent for in January 2024.

Summary of Complainant’s Case:

The Complainant was employed as an electrician with Sean Aherne Ltd from August 2021 to February 2024 He was absent from work on the 9th, 10 and 11th of January 2024. Following this absence Alan was expecting to receive pay for those sick days. He noticed in his next payslip that he had not been paid for those sick days. Given that Alan worked for an employer who participates in the CWPS (Construction workers pension scheme), he believed that he would receive payment for those absences. When he didn’t receive pay for those sick days he inquired from his employer as to why he didn’t receive any pay, he was informed that the sick scheme which the company had (CWPS) didn’t pay out until the 4th day of absence.  Once Alan was informed of the terms of the sick policy, he then inquired why his employer didn’t apply the statutory sick pay which would have covered the sick days. Again, his employer informed him that this did not apply to him as the CWPS is a more favourable scheme, so there for the statutory sick pay scheme could not apply. The issue  centres around the determination of what constitutes more favourable in terms of the sick policies. Where one pays out from day one but for limited days, 5 days at the time of absence or one that only pays out on the 4th day but for a longer period. Our member firmly believes that he should have received sick pay through the statutory sick pay scheme as it is more beneficial receiving sick pay from day one as most genuine sick cases are of a very short duration and therefore, he would rarely if ever receive any pay from the CWPS.

Members claim:

While the purpose of the statutory sick pay scheme is to insure those with no sick pay benefits would have a certain level of cover or to give better cover to those with inferior terms than those introduced by the government, there are sick schemes in operation in industries across the country where this issue of no sick pay for the first 1,2,or 3 days will arise and will require clarification. Since this case was lodged there has been adjustments made to the CWPS and the amounts payable. However, this adjustment does not change the waiting period of 3 days at the start of an illness before you can claim any benefit. Moving forward into 2025 the statutory sick pay days will increase from 5 days to 7 days and again in 2026 from 7 days to 10 days all payable from the first day of sickness. Our member firmly believes he is disadvantaged in not being able to receive sick pay for the first three days of illness through his employment scheme and as stated earlier may never be in a position to claim that benefit due to potentially only ever being absent for short periods of time ie. 1/3 days. The question is, should the measures introduced by government apply in these cases, which scheme is more beneficial? Our member strongly believes that for the reasons outlined above he should have received the statutory sick pay.

Summary of Respondent’s Case:

The Respondent’s submission is that the Industrial Relations Sub Committee of the CWPS conducted a comparison exercise between the Sick Leave Act 2022 and the CWPS sick pay scheme and concluded that the CWPS sick pay scheme is substituted for the Sick Pay Act 2022 in accordance with section 9 of that Act.

Following deliberation on a comparison between the sick pay scheme operated by the Construction Workers Pension Scheme (CWPS) and the Sick Leave Act 2022, the Industrial Relations sub-Committee made a recommendation to the Executive Body that the CWPS sick pay scheme is substituted for the Sick Pay Act 2022 in accordance with section 9 of that Act.

This recommendation was accepted by the Executive Body at its meeting on 28th November 2023. This decision was made in light of the recent WRC decision in the case of Karolina Leszczynska -v Musgrave Operating Partners Ireland (“the Musgrave case”). This was the first case under the Sick Leave Act 2022 and the Adjudication Officer concluded that the employer’s sick pay scheme was a substitute for the Sick Leave Act 2022 in accordance with section 9 of that Act.

When he handed in his notice the Complainant was paid his last week’s wages , his holidays that were owed but as the Respondent was operating the CWPS sick pay scheme which he had been informed of,  he was not due these sick days.

Findings and Conclusions:

The preamble to the Sick Leave Act 2022 states that its purpose is,

… to provide that employees shall, subject to certain conditions, be entitled to up to and including 3 statutory leave days[.]

Clearly, the legislation is intended to confer a benefit on employees with no contractual entitlement to paid sick leave.  Statutory Instrument 607 of 2022 fixes the daily rate of statutory sick pay at €110 or 70% of the employee’s gross daily rate of pay, whichever is the lesser.  

The Act provides for:

2023: 3 days paid sick leave based on 70% of earnings to a maximum of €110 per day 

2024: 5 days paid sick leave based on 70% of earnings to a maximum of €110 per day.

Section 8(1) provides that an employer may provide a benefit that is,

(a) as favourable to an employee as, or

(b) more favourable to an employee than,

an entitlement to statutory sick leave in accordance with this Act, and any such provision shall be in substitution for, and not in addition to, that entitlement.  

section 9 of the Act provides:

(1) The obligations under this Act shall not apply to an employer who provides his or her employees a sick leave scheme where the terms of the scheme confer, over the course of a reference period setout in the scheme, benefits that are, as a whole, more favourable to the employee than statutory sick leave.

(2)In determining, for the purposes of subsection (1), whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, the following matters shall be taken into consideration:

(a) the period of service of an employee that is required before sick leave is payable;

(b) the number of days that an employee is absent before sick leave is payable;

(c) the period for which sick leave is payable;

(d) the amount of sick leave that is payable

(e) the reference period of the sick leave scheme.

 In this instant case, the Respondent provided documentation from the CWPS which demonstrated that on the whole, when the payment of 50 days per annum is compared with the statutory sick pay, the CWPS scheme is more favourable.  I recognise that the waiting period (3 days in the CWPS scheme compared to no waiting days in the statutory) puts the Complainant at a disadvantage.  However, this is outweighed by the CWPS scheme paying 50 days, albeit at a lower rate.

I find that the respondent’s scheme is encompassed by section 9(1) of the Act and that its benefits are, as a whole, more favourable to the employee than statutory sick leave.  I find the complaint to be not well founded.

Decision:

Based on the findings above, I have decided that the complaint is not well founded.

Dated:   15th of November 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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