Complainant

Respondent

Parties

Aryson  Rispoli Oliveira

Tesco Ireland

Representatives

  Self- represented

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00061649-001

19/02/2024

The complainant submits that the respondent has breached his entitlements under section 5 of the Sick Leave Act 2022 (“the Act”), when they failed to pay his salary for the first three of five days spent on sick leave.

The complainant worked as a warehouse operative with the respondent from 20/3/2023 – 1/2/2024.

He earned €567, gross, a week.

He submitted his complaint to the WRC on 19/2/2024.

The complainant gave evidence under affirmation.

Owing to presenting with symptoms of Covid 19, and following a referral by the respondent, the respondent ‘s doctor declared  him unfit to attend work from 10-14 January 2024.

He was paid for the last two of the five  days ‘ absence but not for the first three days as the respondent’s sick leave  policy precludes payment for the first three days of illness.

Given that the statutory scheme pays from the first day of illness, he finds the respondent’s scheme  to be less favourable and that  they, therefore, cannot maintain that a more favourable scheme releases them from the obligations of the Act.

He requests payment for the first three days of illness which fell on the 10,11,12 January 2024.

The respondent denies that they are in breach of the Act.

The company sick pay scheme is more favourable than the statutory scheme.

The respondent refers to Section 9 (1) of the Sick Leave Act 2022 which provides that:

“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 set out in the scheme, benefits that are, as a whole, more favourable to the

employee than statutory sick leave.”

 The complainant had access to a sick pay scheme that as a whole, is more favourable than what is provided for under the Act.

The Respondent’s sick pay scheme provides the following benefits to warehouse

employees:

• 8 weeks’ pay.

• Paid full pay.

• Payment after day 3 of absence.

• Sick pay scheme runs from 01 January – 31 December.

• Eligible to employees who have completed probation (currently 6 months).

 The respondent cites the decision of Karolina Leszczynska v Musgrave Operating Partners Ireland ADJ-00044889. In this  decision, the Adjudication Officer found that the non-payment for the first three days of illness and the requirement for 6 months service as opposed to the statutory requirement for eight weeks before eligibility for payment arises, is outweighed by the benefits of the company scheme .

Th respondent asks that the complaint be dismissed.

 I am obliged to determine if the respondent has breached its obligations under the Act in failing to pay the complainant while on sick leave from 10-13 January 2024-  the first three days of his absence and paying him for the subsequent two days.

Section 5(4) of the Act provides that:

“The first day in a year that an employee is incapable of working due to illness or injury shall be the employee’s first statutory sick leave day, and any subsequent statutory sick leave days shall be construed accordingly”.

However, section 9 of the Act qualifies this entitlement. It states

 “(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 set out 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.

The respondent’s case is that section 8 of the Act permits an employer to substitute a more favourable sick pay scheme for the terms of statutory sick leave at section 5, and section 9 sets out the matters to be taken into consideration when determining if an employer’s scheme is more favourable.

 It is hard to avoid the conclusion that the benefit of 8 weeks paid leave,( a sum amounting to €4536 for this complainant),  on full  pay, as opposed to an entitlement of 5 days at  70%,(  a sum amounting to €397) does not surpass the statutory entitlement notwithstanding the loss of benefit  for the first three days  of absence and a longer service requirement for eligibility ; 6 months in the respondent’s scheme as opposed to 13 weeks in the statutory scheme. The respondent’s scheme

obviously  favours more long-term employees. However, the requirement in the Act is to determine if the entitlements under the respondent’s scheme , “as a whole “, are more favourable and are of an order and to an extent that relieves the respondent of the obligations under the Act.

I am guided by the decisions of the Adjudicators in Karolina Leszczynska v Musgrave Operating Partners Ireland ADJ-00044889 and Henryk Miszka V Tesco Ireland Limited ADJ 47574 which on the basis of the respective respondents’  more preferential sick pay schemes found against the complaints’ contention that the denial of sick leave on the first three days of illness was in breach of the Act.

Based on the evidence , I  cannot find that this complaint is well founded.

I decide that this complaint is not well founded.

Preferential company sick leave scheme