Worker

Employer

Anonymised Parties

A Health Care Worker

A s. 39 Health Care Organisation

Representatives

SIPTU

Internal/Self-represented

Act

Dispute Reference No.

Date of Receipt

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

CA-00065070

28/07/2021

This case is one of a block of 9 cases [ADJ-00053158 (CA-00065069), ADJ-00053159 (CA-00065070), ADJ-00053160 (CA-00065071), ADJ-00053161 (CA-00065073), ADJ-00053162 (CA-00065075), ADJ-00053163 (CA-00065076), ADJ-00053164 (CA-00065079), ADJ-00053165 (CA-00065080) and ADJ-00053166 (CA-00065081)]

This dispute occurred in the context of a transfer of undertakings. This group of employees previously worked for ‘the transferor’, and their employment was transferred to the Respondent Employer in these cases, ‘the transferee’.

This dispute involves the interpretation/application of a particular term in the employees’ contracts, pertaining to a possible additional period of paid sick leave, subsequent to the transfer. The Workers submit that prior to the transfer, the term ‘discretionary’ was interpreted in favour of anyone who applied for it, i.e. that, in effect, pay in relation to the additional period of sick leave ceased to be discretionary in nature, and instead, became a further guaranteed period of paid sick leave, under their employment contracts (which have slight variations depending on when the employee joined their prior (pre-TUPE) employment), as a result of the principle of ‘custom and practice.’

The transferee/Respondent Employer submits that it cannot provide a meaning/interpretation of the word ‘discretionary’ in the absence of clarification provided by the transferor. The transferor has not engaged with the WRC, or with either of the two parties to the dispute, subsequent to the transfer.

The transferee further submits that as it is a s. 39 organisation, whose funding comes via a national health service, it cannot consent to any additional financial spending (above that budgeted) in the absence of that spending being agreed to (financially underwritten) by the funding organisation.

The Workers submit that prior to the transfer of their employment, the term ‘discretionary’ in relation to the additional possible period of sick leave was interpreted in favour of anyone who applied for it, i.e. that, in effect, pay in relation to the additional period of sick leave ceased to be ‘discretionary’, and instead, became a further guaranteed period of paid sick leave, under their employment contracts (which contain slight variations), as a result of the principle of ‘custom and practice.’

Examples of some employees who received the additional period of paid sick leave (under the ‘discretionary’ clause) were given, but given the nature of sick leave, most workers do not fall into the category of having needed the additional sick leave or having applied for the additional sick pay.

The transferee submits that it cannot provide a meaning/interpretation of the word ‘discretionary’ in the absence of clarification provided by the transferor.

The transferor has not engaged.

The transferee further submits that as it is a s. 39 organisation, whose funding comes via a national health service, it cannot consent to any additional financial spending (above that budgeted) in the absence of that spending being agreed to (financially underwritten) by the funding organisation.

The transferor emphasises its willingness to engage with the employees, in respect of this matter – it submits that what is required ‘for everyone’ is clarity in respect of the meaning/application of the word ‘discretionary’ in the relevant clause.

It further submits that the concept of ‘custom and practice’ is not particularly helpful in aiding interpretation, in the circumstances, given that there are slight variances in the employment contracts.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

s. 13(2) of the Industrial Relations Act 1969 sets out that:-

‘Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.’

This is a dispute pertaining to a body of workers.

The question is whether ‘discretionary’ sick pay, pertaining to an additional period of sick leave, is encompassed within ‘rates’ of pay as per s. 31(2) of the Industrial Relations Act 1969. I conclude that it is.

‘Rates of pay’ pertains to the amount of pay a worker receives for a particular period.

There is clarity between the parties as to the amount of sick pay payable for the first initial period of sick leave.

However, there is a lack of clarity between the parties as to the rate of pay applicable for any additional period of sick leave, and the basis upon which it is to be determined. There is disagreement as to the word ‘discretionary’ in the employment contracts of the group of employees.

The union, on behalf of the body of workers submits that the word ‘discretionary’ should be interpreted to mean automatic, on foot of what it submits was ‘custom and practice’ which occurred at the transferor organisation, and how that word was interpreted by the transferor (pre-TUPE) when any employee applied for the granting of the additional period of sick pay.

The transferee/Respondent employer submits that it cannot provide any clarity in relation to it but highlights that that approach exceeds the industry standard. The transferee, however, emphasises its willingness to engage with the employees in relation to the matter but submits that as a s. 39 organisation, any increase to the expected budget has to be agreed/underwritten by its national funder.

In the circumstances, as set out, I find that I do not have jurisdiction under s. 13(2) of the Industrial Relations Act 1969 in relation to this dispute, as this trade dispute involves a body of workers and pertains to their rate of pay.

Interpretation of clause in employment law contract; ‘Discretionary’ period of paid sick leave; ‘Custom and practice’;