ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006762
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 13/06/2017
Workplace Relations Commission Adjudication Officer: Emile Daly
Location of Hearing: Room G.04 Lansdowne House
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant is that following a period of sick leave, the Complainant wished to return to work however due to delays caused by the Respondent, this return to work was delayed and consequently he suffered reduced pay for one month, as he was on a sick pay scheme as opposed to being on full pay. It was agreed that the differential between the full pay that he should have been on and the sick pay that he was on was the net amount of €984.23.
Summary of Complainant’s Case:
- The Complainant worked as a standards officer for the Respondent
- Due to stress caused by a difficult relationship with his manager the Complainant went on sick leave on 26 May 2016
- Under the Civil Service sick pay scheme the Complainant could take 92 days on full pay and a further 91 days on half pay.
- He submitted two sick certificates which lasted up until 4 July 2016
- In the meantime he was requested by the Respondent to attend two medical appointments; one with the occupational health physician and secondly with a psychologist.
- These appointments were held on 22 June and 21 July 2016.
- Both medical reports confirmed that the Complainant was suffering from work related stress and recommended that, if possible, he return to work under a different manager.
- On 13 July the Respondent wrote to advise the Complainant to complete an Income Continuous Application form. This is an insurance scheme whereby if the period of absence from work due to illness extends beyond 92 days the employee’s income is protected from being halved on entering the next 91 days period as set out under the sick pay scheme.
- The Complainant did not apply for this protection because as far as he was concerned from 4 July 2016 onwards he was no longer sick and wished to return to work. He believed that it would have been wrong to be paid out of a sick pay insurance scheme when he was not sick
- On 17 August 2016 the HR manager for Respondent wrote to the Complainant again requesting that he apply for income continuance protection. They also stated that they were considering the advice given by their physician and psychologist about changing his line management. The letter stated that discussions about his possible relocation would take place during the following two weeks and after then the HR manager would write to set up a meeting.
- On 22 August 2016 the Complainant replied to the HR manager and stated that he was not applying for the income protection insurance because he did not consider himself to be unwell. He had been unwell when he submitted his medical certificates from May to July but not presently. He requested that his relocation be addressed as soon as possible in order that he could make a speedy return to work.
- On 19 September 2016 the Respondent wrote to the Complainant stating meetings had been held and that a change of reporting structure was now not considered to be possible, due to conflicting work loads. The HR manager encouraged the Complainant to meet with him again in order to discuss his return to work however before that discussion could happen, he would need to be re assessed by the Respondent’s Occupational Health physician. The Complainant was not contacted thereafter by the Respondent about a medical appointment.
- The Complainant submits that from 19 September, the decision having been taken to not re locate him to a different reporting structure, there was no reason to further delay his return to work. That he had indicated his desire to return to work but that the reasons for delaying this were of the Respondent’s making, namely their wish that he be medically re-examined.
- Therefore the pay reduction from this point until his actual return to work on 20 October 2016 were as a result of the Respondent’s concerns not his, and therefore these deductions should not have been made. Instead they should have had an earlier meeting with him, or at least set up an appointment with the Occupational Health physician (stated as a precondition to any discussions that they might have with him about a return to work) and allow him get back to work. Otherwise they should have treated him as being on garden leave on full pay, instead of sick leave.
- On 19 September 2016 the Complainant wrote to the Respondent. He noted that the delay was ongoing, that he wanted to return to work and that he felt that the ongoing delay was a prevarication.
- The Complainant submits that the breach under the Payment of Wages Act 1991 is that there was a failure to pay him full pay from 19 September until his return to work on 20 October. From 19 September the issue of him being reallocated to a different reporting structure was moot.
- Maintaining the Complainant on a sick pay scheme and consequently reduced pay for this month when he was not sick, when he stated that he wished to return to work and when an appointment for him to be reassessed whilst promised by the Respondent was not then acted upon, is an unlawful deduction under the terms of the Payment of Wages Act 1991
Summary of Respondent’s Case:
- The Complainant did not provide a medical certificate to state that he was fit for work
- At all times the Complainant maintained his desire that he wishes the reporting structure to change. This was requested by the Complainant in letters to the Respondent in August and September.
- As far as the Respondent was concerned, the change in reporting structure was a pre requisite from the Complainant’s point of view for his return to work
- At all times the Respondent’s endeavoured, in good faith, to try to make accommodation for the Complainant. They made every effort possible to follow the recommendations by the Respondent’s medical advisers that the change in reporting structure would occur.
- At no stage did the Complainant communicate to them that he was happy to concede that reporting structure would not be changed. If he had the process would have been shortened considerably
- From 19 September 2016 onwards, after they told him that the reporting structure would not change they communicated in writing but they also had meetings and it took time for the Complainant to accept the fact that his reporting structure would not change. Therefore the delays from this point onwards were not solely as a result of the Respondent’s actions
- They conceded that there was no explanation as to why a appointment to medically reassess the Complainant was not made, after they said it would be made on 19 September.
- The Civil Service Sick Pay Scheme is a discretionary scheme; the Complainant accepted the discretionary nature of it in writing and therefore the payment under the sick pay scheme is a lawful deduction under the Payment of Wages Act 1991.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Payment of Wages Act 1991 prevents unlawful deductions from wages being made.
The Complaint is that an unlawful deduction from the Complainant’s wages was made by as a result of him being kept on a sick pay scheme when he was not sick and wanted to return to work.
The Complainant was absent from work from 26 May 2016 until 20 October 2016. He provided medical certificates supporting his absence up until 4 July 2016. After that point he neither submitted medical certificates nor requested further absences based on work related stress.
In July-August – September the absence was as a result of the Complainant attending, at the request of the Respondent, medical appointments and the Respondent considering the recommendations of their medical advisers.
From 19 September 2016 onwards the relocation request was refused so was moot and on that same date the Complainant wrote stating that he was no longer sick and wished to return to work.
There is no evidence that from 19 September 2016 onwards that the Respondent was still operating on the basis that a relocation of the Complainant was possible. Having made this decision the Respondent had an obligation to the Complainant to get him back to work as quickly as possible.
Therefore of the last month of absence I find that the deductions made from his full salary entitlement are an unlawful deduction under the Payment of Wages Act 1991 and as the claim is well founded, I make an award of €984.23 in favour of the Complainant.
Dated: 16th June 2017
Workplace Relations Commission Adjudication Officer: Emile Daly
Payment of Wages Act 1991 – unlawful deduction arising out of sick pay scheme