Complainant

Respondent

Parties

Shannon  Reina

Sk Biotek Ireland Ltd.

Representatives

Jan Hayden                                                     IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00064763-001

14/07/2024

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. It was therefore open to members of the public to attend this hearing.

In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in recognition of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statement or evidence is an offence. Only the Complainant gave evidence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 14th day of July 2024. In general terms I am looking at the six-month period immediately preceding that date (starting January 15th 2024).

The Complainant was not represented and made her own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on the submission set out in the Workplace Relations Complaint Form. This read as follows:

The Absence Management Policy in place at SK biotek means that anyone who is sick for more than 3 occasions in 3 months, 4 occasions in 6 months or 5 occasions in a year, is called into an investigation meeting with HR and asked why they were absent (regardless of if the sick leave was certified).

I was absent for 17 days in total due to multiple different circumstances including Covid-19 and a work-related injury between June 6th 2023 and December 27th 2023 (only 3 of these days were uncertified) and on January 3rd 2024 I was called into an investigation meeting with my manager and a representative from HR. I was questioned on why I had been absent and then told that it didn't matter why I was absent as I was unavailable for work those days which was unacceptable.

I was then sent to the company doctor who questioned me on my illnesses and asked about any conditions which related to these illnesses and a report from the company doctor was sent to my manager and to the HR representative. This report and the investigation meeting would be used to determine if a disciplinary hearing was required, as the absence management policy infers that a disciplinary hearing is not always required, if there are mitigating factors and also remedial action is usually attempted prior to disciplinary sanctions.

On January 18th, 2024 I was sent to a disciplinary hearing with my boss and a different HR representative, where I was again questioned on why I had been absent and asked if there was anything I could do to prevent absences in the future. I was also asked if I understood the impact of my absence on my team. I was told that it was unprecedented for someone in my department to go through this process and I was told by my manager and my boss that they didn't know what would happen next in the process or what would happen at any of the meetings that they were attending as this had never happened before involving themselves.

I asked during this process if I would have been penalized if I had taken unpaid annual leave for any of the periods when I was sick and I was told it would not have triggered this policy. However, shortly after I made this comment, on January 23rd, 2024 the company's leave policy was changed to remove the paragraph which stated that sick leave could be coded as annual leave. In the document update it is stated that this is "based on legislation," but when I questioned this, I was told by HR that the legislation hasn't changed, and it was updated as a "business decision." On January 26th 2024, I was told the outcome of the disciplinary hearing, which was a verbal warning which went on my record for 6 months and meant I would not receive sick pay for the 6-month period, however, I had not received up to this point as I had been on probation.

I was told if I was absent again it would be added to my previous occasions and there would be, "further sanctions up to and including, dismissal." I appealed this decision with a further meeting with the Quality Director on February 2nd 2024 where I explained key points from the Sick Leave Act 2022 which stated that I could not be penalized for the taking certified sick leave and I should have been paid for at least 3 days sick leave taken in 2023 which I did not receive. I also appealed on the basis that the company's Disciplinary Procedure was not followed as they did not warn me about the consequences of taking certified sick leave, they didn't take into account mitigating factors which were my genuine illness during my absence, and they did not attempt remedial action before moving to disciplinary action. I received an email with the outcome of the disciplinary appeal on February 9th 2024, which stated that the QC director would not overturn the disciplinary sanctions as the company's Leave Policy is more favourable than the State policy which is why they do not have to pay me for any sick leave.

I was deeply affected mentally and emotionally by this process, and I became fearful of losing my job if I was unwell in the future, I started having nightmares about being fired and I was very anxious whilst in work. A number of other employees were affected by this absence management policy after me and many employee did not take sick leave when they were unwell which increased my anxiety as they could make me sick and I could not take further sick leave. I applied for a different job at this point and the application process was lengthy, so I remained employed by SK biotek as I enjoyed the responsibilities of my role, and I was receiving new training and gained valuable experience in my field whilst working there.

I did not take any sick leave until May 13th 2024 when I became ill with a chest infection. I took a further five days sick leave based on doctor recommendations and during this time, my manager emailed the Absence Management policy to me as I should only inform my manager of my absence via phone call and I had emailed after struggling to reach multiple managers via phone call during the week.

When I went back to work on May 20th 2024 I was informed of my absence triggering the absence management policy and was sent an invitation to a meeting the following Monday, May 27th 2024 however during this week I went to a VHI clinic and was strongly advised against attending work due to the extent of my illness and later had to attend A&E for shortness of breath. Unfortunately, when I recovered from this illness and was ready to return to work, my grandmother's health declined while she was in hospice and I had to take further time off (as holiday leave) to be with her in hospice and ultimately attend her funeral as she passed in hospice during this time.

When I returned to work on June 12th 2024, I was again informed of triggering the absence management policy and would be called into an investigation meeting, I felt I was not emotionally stable enough to go through this process again and decided to hand in my notice for the sake of my mental health so I did not have to go through the investigation process again. I have been applying for jobs since I handed in my notice, but I have been informed by a recruiter that it is a difficult time to be hired as many hiring managers are on holidays during this period, so I am currently unemployed. I am on a panel for the position, I applied for in February, and I am hoping to be contacted about that soon but in the meantime I am looking for a job.

I was also provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

Whilst the narrative set out in the workplace relations complaint form identifies a number of troubling issues perceived to be experienced by the Complainant in the workplace, the Complainant has brought only one complaint to the attention of the WRC  - namely a failure to be paid sick leave.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

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 Respondent was represented by the business representative group known as IBEC. The Respondent provided me with a comprehensive written submission (together with appendices) received on the 10th of October 2024. Despite the fact that the IBEC representative turned up with four or five people from the Respondent company, there was no suggestion that anyone was there to give evidence. The Respondent was relying on it’s submissions and oral argument.

At the end of the hearing the Respondent representative offered to forward some further materials which were received on the 28th of January 2025 and which were sent to the Complainant for comment.

The Respondent rejects that the Complainant has any entitlement to statutory Sick Pay.

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.

I have carefully considered the evidence adduced in the course of this hearing together with the assertions put forward on behalf of the Respondent.

At the outset I must state that I have every sympathy for the Complainant who had the misfortune of going through a period of time when she had to absent herself from her workplace by reason of different short episodes of ill health. Even though the Complainant’s absences through illness were certified and genuine the response of the Employer seemed, to my mind, to be somewhat harsh.

The Complainant commenced her employment with the Respondent on the 14th of August 2023. The Complainant was out of work on six separate occasions between commencing her employment and the end of 2023. As the Complainant had been absent on five separate occasions in a twelve-month period the Complainant was disciplined. The fact that these absences were certified was not relevant to the Respondent’s consideration of the facts.

The Absences were investigated in accordance with the absence management policy and a disciplinary process was engaged in. The Complainant was sanctioned with a verbal warning in January of 2024. This sanction was appealed by the Complainant, but the finding was affirmed on appeal.

Unfortunately, the Complainant had another bout of illness from the 13th to the 17th of May 2024 which seemingly led to the commencement of another investigation/disciplinary process as the Employer does not wipe the slate clean (as per the Complainant) when a sanction is imposed.  This means that if there is a further instance of certified sick leave, it will be looked at in the context of the previous 6 or 12 months even if there has already been a punishment imposed in respect of the previous instances.

An unavoidable stint out of the workplace on compassionate leave at the end of May left the Complainant in such a state of panic that she handed in her notice rather than face the inevitable, and seemingly endless, process of discipline and sanction.

For the avoidance of doubt I accept that the Complainant absences were all as a result of a series of unrelated issues which rendered her unfit for work. These were certified. The Respondent does not draw a distinction between certified absence through ill health and any other absence – wilful or otherwise. This is the Respondent’s prerogative, though the Complainant suggested it created tension in the workplace for everyone.

For the purpose of the claim before me I can only look at the last period of certified sick leave which occurred in the May of 2024. The Complainant was not paid for this period of absence. The Complainant was not paid pursuant to her statutory entitlements under Sick Pay scheme nor was she entitled to sick pay pursuant to the in-house sick pay scheme.  This latter disentitlement arises by reason of the fact that the Respondent’s absence management policy outlines that sick pay will not be paid in cases where employees are in disciplinary action due to absence.

The Respondent asserts that the Complainant cannot receive a payment as directed by Statute (as per the Sick Leave Act) where teh employer provides employees with a sick leave scheme the benefits of which are more favourable.

The Respondent has cited the decision of Karolina Leszczynska v Musgrave Operating Partners Ireland ADJ-00044889 in which decision, the Adjudication Officer found that:

‘There can be no arguing that eight weeks’ paid sick leave is more beneficial than three days and pay at 100% of wages is more beneficial than 70%. With the respondent’s scheme, the policy of not paying sick pay for the first three days of absence is a disadvantage for an employee who is absent for a maximum of three days once in 12 months. It is my view that this is outweighed by the policy of waiting until the fourth day, and paying sick pay to employees who are absent for up to eight weeks in 12 months. I find also that the eight weeks’ sick pay outweighs the requirement to have six months’ continuous service, compared to the 13 weeks required under the Act’.

‘I have considered the employer’s scheme, and I have compared its benefits with those of the Sick Leave Act. It is my view that the duration of paid sick leave in the employer’s scheme, the amount of sick pay, the 26 weeks’ service requirement and the three-day waiting period combine to provide benefits that, on the whole, are more favourable to employees than the benefits provided in the Act. In summary, while the complainant’s case is not unreasonable, and her claim raises an important legal point, 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 accept the correctness of the assertion that the Complainant cannot receive a payment as directed by Statute (as per the Sick Leave Act) where an employer provides employees with a sick leave scheme the benefits of which are more favourable. However, in this instance the Respondent has, by operation of the Respondent’s own internal processes, specifically excluded the Complainant from being in any way eligible to any entitlement to the workplace sick pay scheme for a period of six months from January of 2024. The issue of drawing a comparison is therefore moot. The Complainant in May of 2024 was only protected by Statute and not by the in-house policy.

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

CA-00064763-001    - The complaint herein is well founded, and I find that it is just and equitable that the Complainant is entitled to an award of compensation to be paid by the employer in the amount of €500.00.