Complainant

Respondent

Parties

Krzysztof  Stojek

DHL Supply Chain Ireland Limited

Representatives

Self-Represented but assisted by Ms E Stojek

Sarah Dowling of IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00069499-001

23/02/2025

The Complainant, a HGV Driver, alleged that the Respondent Employer, a major Distribution /Logistics Company were in breach of the Sick Leave Act ,2022.

The employment began on the 16th December 2019 and continues.

The rate of pay was stated by the Complainant to have been € 913 for a 48 Hour week.

The Complainant was self-represented but assisted by Ms Stojek. He presented an Oral testimony supported by a Written Submission and copy e mails from the Respondent.

In essence his case was that he had been on Sick leave from the 2nd of December 2024 to the 4th February 2025.  He had not received proper Sick Pay for a number of Periods during this time.

The response from the Respondent Employer was that he had been in breach of the Company Sick Pay Scheme and his payment had been stopped as a result. He had been called to a Sick Review meeting on the 23rd January 2025. He had not attended as it was some 45 Klms from his Home and he was still on Certified Sick Leave. In addition, the country was on a Status Red Storm Warning on the day with travel not advised by Met Eireann.

He was never made aware of the Sick Leave Policy by the Company before this incident.

The Complainant contended that the Respondent was in clear breach of the Terms of the Sick Pay Scheme and had failed to comply with Sick Leave Act, 2022.

The Respondent was represented by Ms Dowling of IBEC supported by two Company Managers, Ms H and Mr M.  Oral testimony was given supported by a detailed Written submission.

In essence the Respondent argued, supported by considerable Legal Precedent, that the terms of the Sick Leave Act,2022 did not apply to the Complainant as the Terms of the Respondent Sick Pay Scheme were considerably more favourable to the Employee. Section 9 of the Act refers.

Accordingly, the Complainant was generously provided for in the Terms of the Respondent Scheme. It was acknowledged that he had failed to abide by the Terms of the Scheme and had Sick pay stopped as a consequence. In particular the issue of the Medical Review meeting on the 23rd January was crucial. Failure to attend when requested was a clear breach of the Scheme. He had not availed of any internal Grievance procedure to pursue his complaint.

In particular the Respondent cited Adj-00044889 Leszczynska v Musgrave Operating Partners Irl in support of their arguments. In this detailed case the Adjudicator had ruled that the Employer Sick Leave Scheme was more favourable to the Employee that the Statutory Scheme and the complaint was deemed unsuccessful

3:1      The Legal position.

The preamble to the Sick Leave Act 2022 states that its purpose is,

… to provide that employees shall, subject to certain conditions, be entitled to up to and including 3 statutory leave days [now amended to 5 days.]

Clearly, the legislation is intended to confer a benefit on employees with no contractual entitlement to paid sick leave.  Statutory Instrument 607 of 2022 fixed the daily rate of statutory sick pay at €110 or 70% of the employee’s gross daily rate of pay, whichever is the lesser.  

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.

Section 8(1) 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.   

Ms Dowling for the Respondent submitted that the use of the word “substitution” must be given a plain meaning, signifying an alternative or replacement sick pay scheme.  The significance of this point is seen when analysing the further non-application provision at Section 9 of the Act:

(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.

To determine if the Respondent’s sick leave scheme confers upon its employees benefits that are, “as a whole more favourable,” Ms Dowling said that the following matters must be taken into consideration:

a.      The period of service of an employee before sick leave is payable;

b.      The number of days that an employee is required to be absent before sick leave is payable;

c.      The length of time for which sick leave is payable;

d.      The amount of sick leave payable;

e.      The reference period of the sick pay scheme.

Each of these matters were addressed in the Respondents Submissions.

None the less and legal issues notwithstanding all cases rest on their own factual matrix and this will be considered below.

3:2        Consideration of the Evidence both Oral and Written.

The Respondent’s case was that the provision of a possible, (depending on Service and Grade), 26 weeks full pay and 26 weeks half pay is considerably more favourable to employees than five days’ sick pay in the Statutory Scheme paid at the lesser of €110 or 70% of pay. 

The application of a waiting period of three days in the Respondent Sick Scheme is consistent with the same condition attached to the payment of Illness Benefit by the Department of Social Protection.  This has been followed by the majority of employer’s schemes, where the entitlement to paid sick leave commences on day four of absence.

Under the 2022 Act, employees are entitled to statutory sick leave after 13 weeks and, in the Respondent’s scheme, employees are entitled to paid sick leave after completion of probation (generally 3 months service).   For the Complainant, and for the vast majority of the Respondent’s employees, this condition is irrelevant; however, it must be included as a factor when deciding if, “on the whole,” the Respondent’s scheme is more favourable.

There can be no arguing that a Scheme possibly offering up to 26-week full paid sick leave is more beneficial than five days under the Act and pay at 100% of wages is more beneficial than 70% of the rate.

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 ( Full and Half Pay) to employees who are absent for up to a possible ,depending on Grade ,from  8 weeks full & 8 weeks half pay to a possible 26 full & 26 weeks half pay  in 12 months. 

 In summary the Adjudicator considered the employer’s scheme and compared its benefits with those of the Sick Leave Act.  It is my view that the much more extensive duration of paid sick leave in the employer’s scheme, the amount of sick pay, the initial probationary 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 was not unreasonable, the Adjudication finding has to be that the Respondent’s scheme is encompassed by Section 9(1) of the Act (quoted above) and that its benefits are, as a whole, more favourable to the employee than Statutory sick leave as set out in the Sick Leave Act,2022.

Accordingly, a complaint under the Act as presented has to seen as Unsuccessful.

Sick Leave Act,2022