Complainant

Respondent

Parties

Bart  Salbut

McDermott Laboratories Limited T/A Viatris  [amended on consent at hearing]

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Ms Mary Fay BL instructed by       Ms Aisling Muldowney Partner A & L Goodbody LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00067490-001

19/11/2024

This matter came before the Workplace Relations Commission dated 19/11/2024.  The Complainant alleges a contravention by the Respondent of provisions of the above listed statute in relation to his employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 06/03/2025.  

The Complainant commenced employment with the Respondent on 25/04/2022.   The Complainant at all material times is employed as a manufacturing operator.  The Complainant is paid €2,968.00 gross per month for which he works 40 hours. 

The Respondent is a global pharmaceutical and healthcare corporation.

The Complainant in his WRC complaint form submits he was penalised for having exercised his rights under the Sick Leave Act 2022. 

The Respondent raised as a preliminary issue that the WRC has no jurisdiction to hear the within complaint under section 9 of the Sick Leave Act 2022 (“the 2022 Act”) on the basis that section 9 provides that the obligations under the 2022 Act shall not apply to an employer who provides their employees with a sick pay scheme where the terms of the scheme confer benefits that are, as a whole, more favourable to the employee than statutory sick leave. 

It was explained to the parties at hearing, having reserved my position on the preliminary issue, that there would be a hearing scheduled to hear the substantive matter in the event I make a ruling on the preliminary issue that finds that I have jurisdiction. 

It was explained to the parties that in the event I find in favour of the Respondent on the matter of the preliminary issue of jurisdiction there will not be a further hearing as I would then be precluded from determining on the substantive matter. 

To ensure clarity and understanding I reaffirmed that if I were satisfied of jurisdiction the hearing would be reconvened to allow the parties to give evidence on the substantive matter.  If it was clear that I had no jurisdiction there would be no requirement to reconvene to hear the substantive matter and a decision would issue. 

In circumstances whereby the jurisdictional issue may be determinative of the entire proceedings, it will be considered in advance of the substantive matter. 

CA-00067490-001

The Complainant submits he was penalised for not attending an occupational health meeting after he returned to work 8 days beforehand.  The Complainant submits he was receiving calls from OH on the morning of his surgery for hernia so his father rang a manager while he was in surgery and later the call was deemed threatening and he received a formal written warning for him calling the manager to tell him he was getting surgery.  The Complainant submits he got interrogated on why he rang and he told him he rang because the nurse was calling repeatedly then he got accused of accusing the nurse of calling him numerously, and the formal written warning also included him not showing up to the medical appointment after his return to work. 

The Complainant upon inquiry does not seem to accept the company sick pay scheme is more favourable than the statutory scheme whilst at the same time accepting that in 2024 he availed of 24 fully paid sick days whereas the statutory scheme would have provided for 5 days up to a maximum of 70% of daily rate. 

The Complainant relied on the narrative of his WRC complaint form set out above to ground his claim that he was penalised for not attending an OH appointment and did not appear to understand that the OH appointment had no relationship to statutory sick leave or to his claim of penalisation under the 2022 Act which had been explained to him at the outset of hearing as being a net issue comprising specific proofs on which to ground a claim. 

CA-00067490-001

The Respondent submits section 12 of the 2022 Act relating to ‘penalisation’ does not apply because the Complainant was not,at any time material to the within complaint, seeking to exercise or exercising his entitlement to statutory sick leave.   If statutory sick leave was applicable (which is denied), the Complainant had already received 10 days paid sick leave (at full pay), being in excess of his statutory entitlement, by the end of February 2024.    The Respondent submits the Complainant benefitted from a further 14 days paid sick leave thereafter in May and June 2024.

The Respondent submits it is clear therefore both factually, and legally, that what the Complainant was exercising throughout 2024, and in and around the time of any alleged penalisation, was his entitlements pursuant to the more favourable terms of the Respondent’s Sick Pay Policy.

The Respondent submits consequently, the Complainant was not at any material time exercising, or seeking to exercise, his rights to statutory leave under the 2022 Act such as to engage the provisions of section 12.

The Respondent submits without prejudice to its contention that the WRC does not have jurisdiction to adjudicate the Complaint because the 2022 Act does not apply, the Respondent submits the following:

·        that the Complainant has not been penalised, or threatened with any form of penalisation, for exercising or proposing to exercise his right to take statutory sick leave or for any other reason;

·        while the Complainant was issued with a first written warning on 10 October 2024, this was as a result of his failure to attend two appointments with the Respondent’s Occupational Health Specialist on 7 and 27 June 2024 (which is a condition of the Respondent’s Sick Pay Policy) and for an inappropriate tone used on a call by the Complainant’s father to the Complainant’s manager made on the Complainant’s behalf. It was not related to the Complainant exercising his entitlement to statutory sick leave and therefore does not constitute penalisation under the 2022 Act;

·        there is no evidence to support the allegation that the Respondent was penalised in any respect. To the extent the Respondent communicated with the Complainant whilst he was on sick leave, the subject of this communication was the Complainant’s refusal to engage with occupational health (which is a condition of the Respondent’s Sick Pay Policy), and not the Complainant’s exercising of his entitlement to statutory sick leave.

PRELIMINARY ISSUE – JURISDICTION

The Respondent submits that as a preliminary issue, the WRC has no jurisdiction to hear the Complaint under section 9 of the 2022 Act. 

The Respondent submits Section 9 provides that the obligations under the 2022 Act shall not apply to an employer who provides their employees with a sick leave scheme where the terms of the scheme confer, benefits that are, as a whole, more favourable to the employee than statutory sick leave.

The Respondent submits further, “Statutory Sick Leave”, has an express definition under the 2022 Act.  It is defined in section 2 of the 2022 Act as meaning “the entitlement of an employee to be paidstatutory sick leave payment by his or her employer in respect of a statutory sick leave day”.

The entitlement to “statutory sick leave” is not an absolute one.  Section 8 of the 2022 Act makes clear that where a contract of employment contains provisions that are (a) as favourable to an employee, or (b) more favourable to an employee than an entitlement to statutory sick leave in accordance with the Act, “any such provision shall be in substitution for, and not in addition to, that entitlement”.

The Respondent submits that as the Respondent’s Sick Pay Policy is more favourable than statutory sick leave, that the WRC does not have jurisdiction to hear the Complaint, as the 2022 Act does not apply, and it should be dismissed on this basis.

The Respondent submits that in determining whether a sick leave scheme confers benefits that are, as a whole, more favourable than statutory sick leave, section 9(2) of the 2022 Act confirms that the following matters will be considered:

·        the period of service of an employee that is required before sick leave is payable; 

·        the number of days that an employee is absent before sick leave is payable;

·        the period for which sick leave is payable;

·        the amount of sick leave that is payable;

·        the reference period of the sick leave scheme.

The Respondent’s Sick Pay Policy confers the following benefits:

·        13 weeks continuous service is required before sick leave is payable;

·        Sick pay is not paid for the first three days of certified absence, however exceptions may be made to this;

·        8 weeks sick pay in a rolling 12 month period; and

·        Sick pay consists of 100% of gross basic pay less statutory deductions, pension contributions and/or health care contributions.

Statutory sick leave however, currently provides the following:

·        13 weeks continuous service is required before sick leave is payable;

·        Sick pay is paid from the first day of absence;

·        maximum of 5 days of paid leave in any calendar year; and

·        sick pay is calculated at a rate of 70% of normal pay up to a maximum of €110 per day.

It is without doubt that the Respondent’s Sick Pay Policy is clearly more favourable than statutory sick leave, when considered as a whole in terms of:

·        the period for which sick leave is payable, being 8 weeks; 

·        the amount of sick leave that is payable, representing pay at 100% of gross pay; and

·        the fact that sick pay at 8 weeks’ pay is every 12-month rolling period

The Respondent submits that in line with section 9 of the 2022 Act, the 2022 Act does not apply in these circumstances. 

The Respondent further submits without prejudice to the foregoing, that it is not now open to the Complainant, who has benefitted from the enhanced terms of the Respondent’s Sick Pay Policy to date, including 24 days paid sick leave at full pay in the leave year 2024 and prior to the submission of his claim to the WRC, to seek to retrospectively categorise sick leave taken under the Respondent’s Sick Pay Policy as him exercising an entitlement to statutory sick leave.  The Respondent submits under the 2022 Act “statutory sick leave day” has the meaning assigned to it under section 5.

The Respondent submits this provides that, subsection to section 4A, “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 constructed accordingly.”  

The Complainant’s first certified paid absence occurred in February 2024 and he was paid for 24 days sick leave under the Respondent’s Sick Pay Policy, for certified absence between February and June 2024:

·        February 2024 - 10 days 

·        May 2024 - 5 days 

·        June 2024 – 9 days.

The Respondent submits it is clear therefore both factually, and legally, that what the Complainant was exercising in 2024 was his entitlements pursuant to the more favourable terms of the Respondent’s Sick Pay Policy, and not any statutory entitlement to sick leave.

The Respondent submits this goes to the fundamental issue of jurisdiction:

(i)                the 2022 act does not apply and

(ii)              (ii) in any event, section 12 of the 2022 Act does not apply, as any alleged penalisation (which penalisation is denied) does not arise from the exercise, or attempt to exercise, an entitlement to statutory sick leave under the 2022 Act.

CA-00067490-001

The guidance notes for a hearing issued by the WRC in July 2021 states that in the vast majority of cases the AO will take evidence in relation to the preliminary points raised from both parties and then proceed to hear the substantive claims.  The use of the word “majority” is noteworthy.   

I am mindful of the case of Guerin v. SR Technics Ireland Limited [UD969/2009] where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter before moving to hearing the substantive case and given the significant preliminary point raised the Tribunal moved to hear the preliminary matter first and reach a decision on same. 

Furthermore, in the case of Bus Eireann v. SIPTU [PTD8/2004] the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required.”

In the case of Donal Gillespie v. Donegal Meat Processers [UD/20/135] the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be heard together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.”

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J. in B.T.F. v. Director of Public Prosecutions 2 ILRM 367.   In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue…

Following the caselaw outlined above and particularly the case of B.T.F. v. Director of Public Prosecutions I find that there is a “strong case” for determining this matter by way of preliminary decision.

Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

The Relevant Law

I note this claim was filed with the WRC as a claim of penalisation pursuant to the Sick Leave Act 2022 which provides as follows at section 12:

Section 8(1) of the 2022 Act provides that an employer may provide a benefit that is:-

(a) as favourable to an employee as, or

(b) more favourable to an employee than,

an entitlement to statutory sick leave in accordance with this Act, and any such provision shall be in substitution for, and not in addition to, that entitlement.  

Section 9 of the Act provides:

(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. [emphasis added]

(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.

I have carefully considered the benefits of the Respondent’s Sick Pay Scheme vis a vis the Statutory Sick Pay Scheme.

I note both schemes provide the same period of service before sick leave is payable.  I note sick pay is paid from the first day of absence in the Statutory scheme whilst noting sick pay is not paid for the first three days of certified absence in the Respondent scheme albeit exceptions may be made.  The application of a waiting period of three days is consistent with the same condition attached to the payment of Illness Benefit by the Department of Social Protection and I note this has been followed by the majority of employer’s schemes, where the entitlement to paid sick leave commences on day four of absence. 

I note the Statutory scheme provides a maximum of 5 days of paid leave in any calendar year.  I note the Respondent scheme provides for 8 weeks of sick pay in a rolling 12-month period. 

I note sick pay in the Statutory scheme is calculated at a rate of 70% of normal pay up to a maximum of €110 per day.

I note the Respondent scheme provides for sick pay that consists of 100% of gross basic pay less statutory deductions, pension contributions and/or health care contributions.

On a reasonable and objective analysis of the two schemes I am satisfied the Respondent’s scheme is overall more favourable than the entitlements provided for under the 2022 Act.  I recognise the waiting period of 3 days may be considered a disadvantage but I am satisfied any perceived disadvantage is outweighed by the Respondent scheme paying 8 weeks in a rolling 12-month period as opposed to 5 days in any calendar year.  I am also satisfied the amount payable by the Respondent scheme is more favourable than that of the Statutory scheme. 

I am satisfied that the obligations under the Act do not apply in the within case as the Complainant has access to and has benefited from a sick pay scheme which, on the whole, is more favourable than Statutory sick leave.

For the reasons set out above I find the Respondent 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. 

For completeness and for the avoidance of any doubt, if this matter had fallen to be considered under the 2022 Act I note the Complainant submits he was penalised for having exercised his rights under the Sick Leave Act, 2022. 

However, this claim is not borne out by the facts as the Complainant, in fact, and as submitted by him in his WRC complainant form “was penalised for not attending an occupational health meeting”.  I note the Respondent Sick Pay Policy provides as follows at 6.7:-

Procedure

“The Company reserves the right at any stage to refer an employee to a doctor nominated by the Company in order to understand an employee’s fitness to work and to assist an employee’s return to work…”

I note the Sick Pay Policy provides as follows at 13.0

Compliance

“Failure to comply with the terms of this Policy may subject the individual to disciplinary action, up to and including termination of employment.”

I am satisfied, for the avoidance of doubt, the Complainant found himself in a disciplinary process due to his non-compliance with the provisions of the Respondent Sick Pay Policy.  I have addressed this matter as I believe for completeness it is important to do so. 

For the reasons set out above I conclude this complaint as presented is not-well founded.  The Sick Leave Act, 2022 does not apply where the Respondent’s Sick Pay Scheme is more favourable within the meaning of section 9 of the Act and, accordingly, I do not have jurisdiction to hear this complaint.  Accordingly, I am precluded from determining on the substantive matter. 

CA-00067490-001

For the reasons set out above, I decide this complaint is not-well founded. 

Statutory scheme; Respondent Sick Pay Scheme;