ADJ-00003874

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00003874

Complaint for Resolution:  

Date of Adjudication Hearing: 14/11/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly 

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 6 Payment of Wages Act, 1991 following the referral of the complaint to him by the Director General, HE inquired into the complaint and gave the parties an opportunity to be heard by him and to present to him any evidence relevant to the complaints.

Attendance at Hearing: 

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation: 

This complaint was made under section 6 of the Payment of Wages Act 1991. 

The complainant has complained that his employer has made an unlawful deduction from his wages. 

The complainant claims that as a result of being wrongfully placed on sick leave on 7^th March 2016, he exceeded four weeks sick leave which invokes section 2.7 of the Proposal for Organisational Change (PFOC) and removed him from the additional hours / overtime scheme. The complainant claims that this cost him 74 hours overtime at 1.8 the hourly rate as well as two weeks wages, his rent allowance and operational allowance which totalled nearly €5,335. 

Relevant Agreements:

Proposal for Organisational Change in the Respondent Service (2005)

In August 2005, agreement was reached between the Respondent Service and the Trade Union on the Proposal for Organisational Change (PFOC) in the Respondent. The general principles which underpin the PFOC are set out at 1.6 of Agreement. The agreed working arrangements must:-

• strike a balance between the needs of the Service and the needs of staff;

• be consistent with the requisite high standards for health and safety of staff and others;

• take account of the security requirements of the Respondent Service;

• provide that the joint management/staff monitoring and review procedures at local and national level are undertaken in a spirit of partnership. 

The central element of the PFOC Agreement involves the elimination of overtime working and its replacement with an Additional Hours (AH) system. The system is broadly based on the concept of Additional’ hours whereby staff agree to work a given number of additional hours each year and those hours are paid for whether or not they are required to be worked (section 2.1 of the PFOC}. Staff commit to work the additional hours by reference to a banding system comprising four additional hours’ bands, 0, 112, 240 and 360 hours. The detailed arrangements for the working of these hours are set out in section 2.5 of the Agreement. The complainant’s annual liability is 360 additional hours.   The number of hours is divided equally across all quarters, e.g. 90 hours per quarter for those on the 360 hour band. As The complainant fell within the 360 hour band, his AH lability for the quarter 2^nd January 2016 to 1^st April 2016 was 90 hours. 

Additional hours liability and payment for hours

Section 2.5.1 of the PFOC sets out how an individual’s liability will be determined. Prior to commencement of each quarter, officers on 360 band nominate the number of days in that quarter for which they will be available to work AH.   In the within complaint, records indicate that on 9^th November 2015, the complainant indicated his availability for one day in the following quarter. 

Section 2.5.5 sets out the position in terms of payment for these hours. Payment for AH is in addition to basic pay and current allowances and in accordance with section 2.6. The total annual AH liability will be paid for at a premium rate of 1.8 of the appropriate flat hourly basic pay rate or consolidated rate where appropriate.

Failure to attend for AH

The position in relation to failure to attend for AH is set out at sections 2.6.1 and 2.7 respectively 

Section 2.6.1 of the PFOC entitled “Unauthorised Absences” states inter alia: ‘failure to attend for additional hours because of unauthorised absence will result in the officer not being paid for those additional hours. The additional hours concerned will be deducted from the annual liability for that officer and there will be no opportunity to make up for those hours or to be paid for them at a later date”.   Section 2.7 states that where an officer is absent on sick leave on a day s/he was due to work additional hours, that officer will not be paid for those hours and the hours concerned will be pooled for redistribution. Where an officer is absent on sick leave for a period in excess of four weeks, the officer will not be eligible to participate in the (AH) scheme until s/he resumes duty. 

When the officer returns to work, his/her liability for the remainder of that quarter will be allocated by reference to a pro-rata calculation related to the period of the quarter remaining. 

Issues arising during operation of PFOC

Section 2.13 states that specific arrangements for monitoring and review of the operation of the agreement are set out at section 12.   Section 12.3 refers to the establishment of a Joint National Monitoring and Review Committee whose functions include “monitoring and review of the overall operation of the agreed arrangements with view to addressing any difficulties impacting on the Service or staff and interpretation of the agreement”. 

Section 12.4 of the PFOC concerns local monitoring and review arrangements being put in place to address difficulties of a local nature as may arise in the operation of the AH system and states "An issue which cannot be resolved locally within agreed time frames will be referred to the National Monitoring and Review Committee for decision. In the event that a consensus cannot be reached at national level within an agreed time frame, the Chairperson of the National Monitoring and Review Committee will decide the issue" 

Background

The complainant is a serving officer attached to the Respondent’s PSES dedicated support unit within the respondent tasked to escort individuals to and from court, hospital etc.

The Complainant was on certified sick leave from 7^th December 2015 to 24^th December 2015 and again from 18^th January 2016 until 10^th February 2016. During the latter period of sick leave absence, the complainant attended the CMO on referral for an occupational health review. 

In his letter to the RESPONDENT HQ dated 13^th January 2016 the CMO stated as follows “The complainant is medically fit to continue working but not driving passenger service vehicles at the moment. I recommend that he is asked to provide him with an up to date medical report from his specialist in two months time.” 

Given the nature of the work carried out by staff assigned to PSEC, clarification was sought on his fitness to perform full duties in a prison environment. The CMO by letter dated 22^nd January 2016 responded as follows “In addition to my advise about him not driving PSV vehicles for the next two months, I think it would be prudent if he were not to undertake high prisoner risk duties but was restricted to lower prisoner risk duties for the next two months.” 

The complainant went on a further period of certified sick leave on 15^th February 2016 and returned to duty on 7^th March 2016. In the intervening period, management at local and HQ level endeavoured to identify a suitable post for the complainant on his return in order to facilitate his rehabilitation. PSEC management was advised by respondent HQ by e-mail dated 17^th February 2016] that, pending a referral back to the CMO in mid-March, if the complainant presented for duty and could not be accommodated, he should be told to remain on sick leave until he is cleared by the CMO for resumption to work. A suitable post could not be identified within PSEC or local prisons at that time.   While the respondent endeavours to provide accommodations within the constraints of the prison environment, there is no onus on the service to do so – section 37 of the Employment Equality Act 1998 as amended by section 25 of the Equality Act 2004 refers 

On his resumption to duty on 7^th March 2016, the complainant presented a certificate from his GP in respect of his absence from 4^th to 6^th March 2016 together with a copy of completed Department of Social Protection final certificate form, dated 4^th March 2016 indicating The complainant would be fit to resume work on 7^th March 2016. The respondent had no prior notice that the complainant was due to resume duty on 7^th March 2016. 

When he presented for duty on the morning of 7^th March 2016, officials in PSEC Detail Office detailed the complainant on a prisoner escort to hospital. While PSEC management was aware of the CMO advice re. low risk duties and further occupational review, the Detail Office was unaware of this confidential medical information when issuing his detail that morning. When management became aware of his return to duty, The complainant was instructed to return to base where he was informed by management that the CMO had advised, failing reasonable accommodation, that he should remain on sick leave until he was certified by the CMO as fit for full duties. He was accordingly sent off duty on sick leave. Local management requested an early appointment with the CMO as The complainant was at this stage off pay having exhausted sick leave absence entitlements. 

An appointment was made with the CMO for 14^th March 2016 and the complainant was advised accordingly. The CMO’s advices dated 16^th March 2016 were received by respondent HQ on 21^st March 2016 as follows “The complainant is medically fit to resume work as a driver”. The complainant resumed duties on 21^st March 2016 and was placed back on the payroll with effect from that date. 

Policy Document - Accommodations (Rehabilitative/Restricted Duties) (Appendix ‘9’) 

This policy which was agreed with the trade union sets out the procedures to apply in the provision of workplace rehabilitation in respect of the discharge of work duties by injured or sick employees. As stated above, there is no onus on the respondent to provide reasonable accommodation. 

In relation to rehabilitative/restricted duties and fitness to resume duty from sick absence, the policy at paragraph 4.2.10 states that in relation to the identification or otherwise as in this case of a suitable post and rehabilitation plan “If a Plan cannot be agreed and the Officer is not deemed fit for full duty by the CMO, s/he will be required to avail of sick leave until such time as the CMO finds him/her fit for duty…”. 

Allocation of additional hours

The allocation of duties in the environment in which the respondent operate requires advance planning both for the benefit of the staff concerned and the management of the service. In addition to ordinary rostered hours, AH are allocated in advance. In the within complaint, as the respondent and in particular PSEC had no prior knowledge of when the complainant would resume duty, it was not possible to allocate his AH in advance. 

The complainant’s AH liability for the quarter 2^nd January 2016 to 1^st April 2016 was 90 hours. Prior to the commencement of his sick leave on 15^th February 2016, the Complainant had only worked two hours of AH resulting in an AH liability was 88 hours at this point. On his resumption from sick leave on 21^st March 2016, only 12 days remained in the said quarter. 

In accordance with section 2.7 of the PFOC, The complainant was not entitled to full payment for AH in that quarter on the basis that he had been absent on sick leave for a period in excess of four weeks (from 15^th February until he resumed duty on 21^st March 2016). The complainant was removed from the AH scheme on 14^th March 2016 (His remaining liability of 88 AH and the associated payments were removed). In accordance with the PFOC, when he resumed duty on 21^st March 2016, his liability for the remainder of the quarter was allocated to him on a pro-rata basis relative to the period of the quarter remaining. As there was approximately two weeks left in the quarter (13 weeks), his average weekly AH liability equated to 7 hours per week – a total of 14 hours. 

Civil Service Regulations Acts 1956 to 2005

The respondent submits that the complainant as a civil servant is subject to the Civil Service Regulations Acts 1956 to 2005 in accordance with his terms of employment. Section 16(1) of the 1956 Act provides as follows “A civil servant shall not be paid remuneration in respect of any period of unauthorised absence from duty”. 

The complainant was absent from duty on sick leave for various periods since mid-2015 which resulted in his pay being stopped with effect from 16^th December 2015 as he had exceeded his sick leave entitlements. This position remained unchanged in the period 7^th to 21^st March 2016. As such, the complainant was not only not paid remuneration in respect of this period nor was he entitled to be paid remuneration for this period. In the circumstances, there was no unlawful deduction or reduction. The non-payment concerned was authorised by virtue of a term of his employment contract. 

Safety, Health and Welfare at Work Act 2005

The respondent and the Minister as an employer has a general duty under the 2005 Act:

• To ensure the safety, health and welfare at work of his or her employees

• To manage and conduct work activities in such a way as to ensure the safety, health and welfare at work of all employees 

  In accordance with above legislation, the respondent may, for health and safety reasons, prevent an employee from working if it is apparent that the said employee would potentially be a danger to themselves or others. In the context of the within complaint, the respondent was entitled to prevent The complainant from working in the circumstances until he had been assessed by and declared fit to perform his full duties by its occupational health practitioner, the CMO, and The complainant was obliged to co-operate with such assessment. 

  In the absence of such a declaration of fitness to resume full duties, the complainant was required to remain on sick leave absence. While it is acknowledged that this extended his sick leave absence on this occasion beyond a four week period, the employer’s duties under the above legislation provided for such action. Therefore, any deductions in respect of such absences cannot be regarded as an unlawful deduction from pay. 

  Payment of Wages Act 1991

  This complaint is being taken under the provisions of the Payment of Wages Act 1991. Section 5(1) of the above Act sets out deductions that may be made from the wages of an employee. These include any deduction authorised by a term of the employee’s contract. As The complainant is a civil servant and, in accordance with his terms of employment, is subject to the Civil Service Regulations Acts and various circulars governing sick leave and entitlements to remuneration in respect of such absences. As such, the non-payment of remuneration including AH and other allowances was authorised and cannot be regarded as an unlawful deduction or reduction. 

Decision:

Section 41(4) of the Workplace Relations Act 2015 and Section and Section 6 Payment of Wages Act, 1991, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 5Payment of Wages Act, 1991

“An employer shall not make a deduction from the wages of an employee unless’

1. The deduction is required or authorised to be made by virtue of any statute or any instrument made under statute,

2. The deduction is required or authorised to be made by virtue of a term of the employee contract of employment included in the contract before and in force at the time of the deduction or payment, or

3. In the case of a deduction, the employee has given his prior consent in writing to it.

The complainant returned to work on the 7^th March, 2016 following a period of sick leave. He has an extensive sick leave history due to a cardiac condition. That was diagnosed in the summer of 2015. He attended with the CMO on the 13^th January, 2016 in relation to the cardiac condition. He stated that he gave the CMO his consultant cardiologist’s report however, it seems not to have made its way onto this file. The CMO stated that he was fit to return to work but could not drive passenger vehicles. That restriction was extended to “not to undertake high risk prisoner duties” in February, 2016. The complainant was not given a copy of the CMO decisions nor was he informed verbally what they were. In any event he was out on unrelated sick leave from 18^th January to the 7^th March, save for one day, the 11^th February, 2016.

Due to his extensive sick leave history by March, 2016, the relevant time period of this claim, he had exhausted all of his sick leave entitlements. On the 7^th March, 2016 when he turned up for work he was placed on a CMH run. Whilst out on that run the respondent discovered that the CMO had not certified him fit to return to full duties. He was called in and placed on unpaid sick leave pending the CMO’s report on his fitness to resume duties.

He attended with the CMO on the 14^th March, 2016 and was certified by the CMO fit to return to full duties on the 16^th Mach, 2016. That decision was furnished to the relevant section until the 21^st. He resumed work on the 21^st.

The complainant’s contract of employment specifically states “the appointment is subject to the Civil Service Regulation Act, 1956 and 1958 and any other Acts for the time being in force relating to the civil service.

The respondent’s insistence that the complainant be certified fit to return to work by their CMO is governed by a Department circular of which the complainant and all other employees were made aware at the time of its introduction. I am satisfied that to meet the requirements of the circular the CMO and only the CMO could certified the complainant fit to return. His own doctor’s reports are not sufficient. Even though the complainant did not receive the CMO’s reports from January and February, which he should have, he was fully aware that the CMO had taken charge of his medical situation. Had he read the circular he would have known that in such circumstances he couldn’t return until certified by the CMO.

Whilst I find the respondents handling of the situation less than satisfactory, I find that they did not breach Section 5 of the Act and the deductions (non-payment) were lawful in circumstances where he had exhausted his sick leave entitlements and had not be certified fit to return to full duties by the CMO.

According, the complainant’s case fails. 

Dated:   05 April 2017