PWD2023

1. Appeal of Adjudication Officer Decision No. ADJ-00019848.

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 3 December 2019. A Labour Court hearing took place on 21 July 2020. The following is the Determination of the Court:-

DETERMINATION :

This is an appeal by Pascal Hosford (the Complainant) against an Adjudication Officer’s Decision ADJ-00019848 given under the Payment of Wages Act 1991(the Act) in a claim that his employer the Department of Employment Affairs and Social Protection (the Respondent) made an unlawful deduction from his wages when they failed to exercise their discretion and pay him in line with the exceptional circumstances clauses of the sick leave policy.

Background

The Complainant was employed in a managerial role by the Respondent from in and around October 2013 until 1st November 2019 when his employment ended. The Complainant lodged his complaint with the WRC on the 14^th February 2019 and therefore the reckonable period as set out in section 41 (6) of the Workplace Relations Act 2015 is 15^th August 2018 to the 14^th February 2019.

The Complainant was a Civil Servant during the reckonable period. It was accepted by both parties at the commencement of the hearing that he had a contractual entitlement to the benefits set out in the Civil Service sick leave scheme. The terms of that sick leave scheme were set out in circular 05/2018 Arrangements for Paid Sick Leave.

Complainant’s Case

The Complainant was placed on Temporary Rehabilitation Remuneration (TRR) in or around the 21^st May 2018 in accordance with Circular 05/2018 in circumstances where the number of days he had been absent from work had exceeded 183 days over a 4-year period. It is the Complainant’s case that at that point he should have had the provision set out in appendix 3 paragraph three applied to him which state:

• “The decision on whether to award extended paid sick leave is a management decision. Whilst management must primarily consider the Occupational medical advice, management should consider all the circumstances of the case.

  Thus. Although an employee may not meet the medical criteria outlined above, management may still make a decision to award in exceptional circumstances.”

It is not disputed by the Complainant that the Chief Medical Officer (CMO) had found that he did not meet the medical criteria. It is the Complainant’s submission that he met the requirement for exceptional circumstances in that:

1) the CMO had indicated that he had no objection if the Respondent wanted to pay it;

2) the Complainant had to take sick leave as he had a case pending before the Labour Court and he did not think it was appropriate for him to be in the Office in circumstances where he might have to question his work colleagues and;

3) as somebody who had previously made a protected disclosure the discretion should have been exercised in his favour.

The Complainant informed the Court that he had set this out in his application for extended sick leave pay.

Respondent’s case

It is the Respondent’s case that the Complainant was paid in accordance with his contract and the sick leave scheme and that no contravention of the Payment of Wages Act 1991 arises. The Complainant’s application to be granted extended sick leave was processed in the normal manner and in line with Circular 05/2018 which requires that:

• “In exercising this discretion management must demonstrate the reasons why they are awarding an extended period of paid sick leave although the individual does not meet the requirements set out at 2.1.4(ii) above. In this regard management should establish the following :-

  That there are exceptional circumstances; and

  that those exceptional circumstances relate to the illness, injury or condition of the person; and

  that those exceptional circumstances warrant the granting of the extended paid sick leave.”

It was the Respondent’s submission that having considered the Complainant’s application, the Manager concluded that no exceptional circumstances had been established that would warrant the paying of extended sick pay. The basis of his conclusion was that the circumstances outlined by the Complainant enumerated at 1,2,3 above were not circumstances relating to any illness, injury or condition of the person.

The applicable law

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section 5(6) provides;

• “Where—
  • (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

    (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

  then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

It appears to the Court that the question it is being asked to determine in this case is whether a discretionary payment under the sick leave scheme can form part of wages that are properly payable as set out in section 5(6) of the Act.

The provisions of section 5(6) of the Act were considered by MacGrath J in an appeal on a point of law from a decision of the Labour Court in the case of Marek Balans v Tesco Ireland Limited [2020] IEHC 55. In that case MacGrath J re-affirmed the proposition that in a section 5(6) application the first matter that should be determined by the Court is what wages are properly payable under the contract of employment.

In this case there is agreement between the parties that the terms of the sick leave scheme set out in circular 05/2018 form part of the contract of employment. It is clear from the wording of the circular that the award of extended sick pay is a discretionary matter to be determined by management having regard to certain criteria set out in the circular itself. Extended sick pay only becomes properly payable when management, upon the proper exercise of its discretion, agrees to award it.

In the case to hand no submission was made or evidence put forward that the management discretion had been applied in a manner that was inconsistent with the circular or how it was applied to other members of staff or that it was applied in an unreasonable or capricious manner. No evidence was put forward to suggest that the application in this case was not considered in the same manner as all other applications. In the circumstances there is nothing to suggest that the discretion allowed to management under the scheme was not applied in a fair and reasonable manner and in accordance with the Complainant’s contractual entitlements. The Court determines that in respect of the reckonable period the Complainant was paid the wages that were properly payable to him arising from his contract and therefore, there was no breach of the Act.

The Decision of the Adjudication Officer is affirmed. The appeal fails.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
H.M.	______________________
14/08/20	Deputy Chairman