The Complainant was a warehouse operative who commenced employment with the Respondent company in May 2010. In 2016, the Complainant arranged to travel to Poland for some elective surgery and did not inform the Respondent of the procedure until June 2016 which was approximately two weeks before the scheduled surgery date. The Respondent did not pay the Complainant any sick pay for his period of absence.

The Complainant referred the issue to the Workplace Relations Commission where the complaint failed and so the Complainant then sought to appeal WRC Recommendation under Section 13(9), of the Industrial Relations Act, 1969. In his argument, the Complainant maintained that the staff handbook clearly stated that where an employee complies with the regulations and procedures of the company, payment for certified absence due to illness will be in accordance with service qualifications. However, The Employer contended that the Complainant's actions combined with his lack of communication resulted in non-payment of sick pay.

The Court noted that the Complainant chose the particular date on which to have the operation and was aware that the particular date was in the middle of the company’s busiest time of year. The employer also submitted that the sick pay policy in relation to  elective surgery places an obligation upon the appellant to engage with the employer as regards any planned absence for elective surgery. The Complainant failed to fulfil those obligations.

The Court found that it is apparent that employees of the Respondent company regularly return to their country of origin for elective medical treatments and that the employer has a record of responding constructively to make mutually satisfactory arrangements jointly with the employee whenever engagement takes place in good time.

The appellant was absent for a total of 49 days. In reaching its conclusion, the Court held that there was insufficient information to conclude that the worker advised the employer of his plans to travel for the procedure at any time before June 2016. It was noted that the employer advised the appellant in June 2016 that his absence would not be encompassed by the sick pay scheme and despite this, the appellant booked his flight to Poland after being advised by the employer that his absence would not be covered by the sick pay scheme.

In all of the circumstances, the Court held that it was unreasonable of the appellant to set the date for his surgery in the peak holiday period and similarly unreasonable of him not to engage with the employer as soon as those plans had been put in place. Therefore, the appeal failed and the decision of the Adjudication Officer was upheld.
https://www.workplacerelations.ie/en/Cases/2019/February/LCR21907.html