InBrief – Sick Leave through Custom and Practice

The Workplace Relations Commission (“WRC”) was recently asked to consider the case of an employee who sought payment during a period of absence during sick leave, despite the contract of employment and company handbook clearly stating such payments would not be made (A Maintenance Technician v A Food Company – ADJ-00004713).

The employee was involved in an accident at work had been on sick leave from January 10, 2016 to facilitate surgery and subsequent recovery. His last payment from the company was received on 21 January 2016, incorporating 10 days absence from work. The employee submitted medical certificates to cover the period of absence. He anticipated further payment on 18 February, but nothing followed.

On 3 March 2016, the employee’s Solicitor made a formal application for paid sick leave in line with custom and practice established by the employer in paying staff whilst on leave due to injuries sustained at work. The employee contended that the non-payment of wages constituted a deduction for the purposes of the Payment of Wages Act, 1991.

The employer drew the attention of the hearing to the employee’s contract of employment: “Payment is not normally made during periods of absence through illness”.

The employer drew further attention to the “Employee Guidebook”: “Payment is not made during periods of absence through illness. Any payment which is made is at the discretion of the manager involved. ……Any payment which is processed while on sick leave will be minus the employee’s social welfare entitlement for the sick days in question.”

By the date of the hearing, the employee had been on unpaid sick leave for a period of 9 months, without an identifiable return to work date. Despite the provisions of the contract and handbook, the WRC ordered the employer to pay the employee a period of 4 months paid sick leave minus social welfare periods within 6 weeks of this decision, on the basis that the custom and practice of the company had been to make such payments.

Printable Version: InBrief – Sick Pay through Custom and Practice

The material contained herein is for general information purposes only and does not constitute legal or other professional advice. All rights reserved. If you require advice or further information, please contact Barry Crushell, Carmel Byrne, or your usual Aperture Partners contact. ©Aperture Partners 2017.

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