ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00003102
Complaints
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00004217-001 | 04/05/2016 |
Date of Adjudication Hearing: 19/07/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
1: Summary of Complainant’s Case:
The Complainant was originally employed in a Health Care Support facility (Facility A) in 1992. The Facility supports Clients with a variety of Mental Health issues. It was subsumed into the mainstream National Body in 2010. As part of the Health care remit of Facility A a number of events take place for Clients at off site locations such as meals in local Restaurants. The Complainant is left marginally out of pocket from these Functions as there is a short fall in what is payable from the National Body National Travel and Subsistence Regulations and the practical costs of these Restaurant meals. In his pre formal National Body takeover career and indeed until 2015 the Restaurant meals issue was covered by Petty Cash payments. However since late 2014 the national regulations NFR 15 have applied and the Petty Cash facility no longer possible for this purpose. The Complainant maintained that the previous Petty cash payment arrangement for these types of situations was an effective term of his employment contract and should be upheld. |
2: Summary of Respondent’s Case:
While sympathetic to the Complainant the Terms of the National Regulations covering Travel and Subsistence in the National Body have to be applied. The issue of the Restaurant meals is noted and the representative Managers have been trying to seek a resolution to this issue at National Body Higher Levels but to no avail. |
3: Findings and Conclusions:
The evidence presented indicated that the Complainant as part of his duties has to actively engage with the clients of the Centre in a wide variety of situations both on site and off site. This was an essential part of their rehabilitation or ongoing care. It appeared to me that common sense had always prevailed in regard to the payment of expenses to the Complainant. The now, in my view, over rigid interpretation of NFR -15 (The National Body Financial Regulations) regarding the social functions (Particularly the external Restaurant meals) undertaken by Facility A was effectively proving to be an obstacle to the very purpose for which the Facility A had been established. Section 7 (2) of the Terms of Employment (Information) Act, 1994 is quoted below (2) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3 , 4 , 5 or 6 shall do one or more of the following, namely — ( a ) declare that the complaint was or, as the case may be, was not well founded, ( b ) either — (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5 or 6 , or (ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer, ( c ) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer, ( d ) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977.]
Section 7:2 (c) affords the Adjudication Officer , having firstly determined that the Complaint is or is not well founded ,the power to require the employer to ( c ) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,
In this case I am determining that the case is well founded. The Complainant, in the discharge of his duties to the clients of the Facility had a clear understanding and legitimate expectation that minor expenses incurred, particularly as regards Restaurant Meals, would be reimbursed. The fact that the National Regulations NFR -15 is not able to encompass this almost unique situation should not be to his financial disadvantage.
Accordingly under Section 7:2 (c) I am requiring the Respondent Management is this case to set out in writing, within an eight week period, how they propose to fully and completely reimburse the Complainant for all expenses he incurs in carrying out his duties as regards the Client off site therapeutic activities , especially the monthly restaurant Meals, which he attends . I refer only to the Off Site Therapeutic events that are part of the Clients care programmes.
The reimbursement proposals should not involve the budget allocations for the Clients being in any way reduced. I noted Section 15 of NFR -15 and am confident that it can be interpreted in such a manner as to allow for the reimbursement of the Complainant.
In addition I am making an award under Section 7 :2 ( c ) of an amount of € 250 as Compensation to the Complainant for breaches of Section 5 and 6 of the Terms of Employment (Information) Act, 1994 in the period from 2015 to date.
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4: Decision:
Section 41 of the Workplace Relations Act 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 quires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Act | Complaint/Dispute Reference No. | Formal Decision Refer to Section3 above for detailed arguments. |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00004217-001 | Complaint is well founded. A Respondent Statement under Section 7:2 (c) is now directed. A Compensation Lump Sum of €250 is awarded to the Complainant. |
Dated: 08/11/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee