Worker

Employer

Anonymised Parties

A Storeman / Driver

An Employer

Representatives

 SIPTU

none 

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019685-001

11/06/2018

The Worker commenced his employment with the Employer in June 2009. He referred his complaint to the Director General of the WRC on 11th June 2018 seeking payment of meal allowance and public transport cost at €8.80 per day with full retrospection. The Worker also sought compensation for stress suffered.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.

SIPTU on behalf of the Worker submits as follows:

The Worker is seeking the payment of meal allowance of €14.11 per day (and not meal allowance and cost of public transport of €8.80 as indicated in the Complaint Form) for the period from November 2016 to December 2019.

The Worker was employed in Location A. He was on sick leave between July and November 2016. He returned to work on light duties as per the Occupational Health advice. As no light duties were available at Location A, he was offered and accepted a position at Location B. The Worker claimed and was paid subsistence in respect of his absence from Location A until September 2017 when he was informed that his workplace was Location B, and he was not entitled to a subsistence payment. The Worker disagrees, he claims that his workplace is Location A and, as a result he is entitled to subsistence payment for his daily absence from Location A. Numerous meetings were held between the Worker and HR at which the Worker was informed that his workplace was Location B and not Location A, hence he has no entitlement to subsistence.  

The Worker submitted his claim forms for August 2017 to December 2019, but these were not approved. The Worker claims that Ms R of HR returned all his forms to him but only one form, for August 2017 was signed and approved. He returned the form in April 2019 for payment and the subsistence was paid to him.

The Worker feels mistreated. He said that it is not his fault that he has a disability and that he didn’t do anything wrong. He claims that had he claimed mileage instead of accepting public transport payment it would have been more expensive for the Employer. He noted that he had expected it to be a short-term arrangement, three months rather than 3 years.

SIPTU argued that at no stage was the Worker informed that he was not entitled to the payment or that the money already paid would be recouped. The SIPTU representative claimed that he did not receive any correspondence from the Employer and had no sight of any correspondence referred to by the Employer.

SIPTU also expressed its unhappiness with HR being involved with the Worker’s health matters and argued that it had “nothing to do with HR”. SIPTU argued that the arrangement was “not based on disability”.

SIPTU alleged that the Employer did not engage in any meaningful negotiations.

SIPTU is seeking €6,062 in subsistence payment and a compensation for stress suffered.

The Employer submits as follows:

The Worker commenced employment with the Employer in 2009 in a named location (Location A).

From 26th July 2016 until 30th October 2016, the Worker was absent on certified sick leave, and had a further absence from 10th November 2016 until 20th November 2016. The Worker was assessed by the Employer’s Occupational Health Department on 10th November 2016 with a recommendation that he was “fit to return to work on modified duties with immediate effect”.

In November 2016, SIPTU wrote to the HR requesting that the Worker be facilitated with modified duties. On 17th November 2016, the then Head of HR advised SIPTU that the Worker could be facilitated with an alternative role on modified duties as recommended by Occupational Health with immediate effect based in Location B. In further correspondence between the Head of HR and SIPTU on 18th November 2016, the specifics of the modified duties were outlined to include ‘our agreement on a red circled personal to holder basis due to the unique set of circumstances’ that applied. The role location, the Worker’s line manager and assignment duration were set out by email on 18th November 2016 from the Head of HR to SIPTU including confirmation that:

‘[the Worker] will remain on his existing basic salary and annual leave and in addition due to the unique circumstances in this case (without precedent) will receive the fixed payment of 44 euros per week which is the public transport rate to travel to [Location B].’

On 7th September 2017, the Worker’s line manager advised HR that the Worker had been claiming subs for each day he was in Location B. The Head of HR in correspondence dated 9th September 2017 confirmed that ‘the subs claimed should be treated as an overpayment and recouped.’

A meeting took place on 28th November 2017 between SIPTU and HR which the Worker attended. The Head of HR confirmed that payment of subsistence is not an entitlement under the Rehabilitation Back to Work Scheme.

The matter of subsistence claims for the Worker was discussed with SIPTU on 28th November 2017 and by way of letter dated 15th December 2017 when the Head of HR updated SIPTU of her meeting with Mr S and Mr N, two managers. The Head of HR confirmed in her letter that:

“[Mr S] also confirmed that it was not his understanding that [the Worker] was getting a subsistence payment as a routine due to his facilitation of returning to work on modified duties.”

The Head of HR wrote to the Line Manager on 29th March 2018 confirming that ‘subsistence is not paid to [the Worker] because his location has changed to facilitate him on modified duties’ and also confirmed an entitlement ‘to subsistence as a direct result of his duties in [Location B], i.e., he is away from his base for at least 5 hours at least 5 kms doing a delivery or collection, then this is claimed in the normal way.’

The Worker attended the Occupational Health Department in April 2018, June 2018, September 2018 and March 2019, who recommended modified duties to continue.

The Worker attended the Occupational Health Department on 17th September 2019, and he advised of having been offered a position in Location A that he could fulfil on modified duties which he intended to accept.

SIPTU requested the intervention of the WRC on this matter on 27th June 2018 which was objected to by the Employer due to the local procedures not having been exhausted.

On 1st November 2019, the Head of HR wrote to SIPTU following a meeting on 24th October 2019 regarding the claim for the payment of subsistence. He confirmed that the amount of €2,123.65 was erroneously processed and represented an overpayment. SIPTU had proposed an amount of €4,500 in full and final settlement of the Worker’s claim regarding ‘outstanding subsistence allowance payments.’ The SIPTU proposal was rejected by the Head of HR who agreed to a WRC referral.

The Employer’s position

The Employer facilitated the Worker’s return to work following a long terms absence due to sick leave in November 2016, in line with the Rehabilitation of Employees Back to Work after Illness or Injury Policy & Procedure. The terms of the return to work on modified duties were clearly outlined in writing to SIPTU in correspondence dated 18th November 2018.

An overpayment was discovered for Subsistence Claims approved erroneously.

Mr G, a manager confirmed to the Head of HR on 24th October that he had met with the Worker on the previous day “to re-affirm the position that he was not entitled to claim subs” and that “a recoup of overpayment needs to be agreed”.

The Employer has on numerous occasions clarified the terms of the Worker’s facilitated modified duties role.

There is no entitlement for staff to claim subsistence from a previous role base whilst facilitated with a change of base due to the modified duties recommendation from Occupational Health.

The Employer relies on the following passages from the relevant National Financial Regulations re: Travel and Subsistence:

“In no case may subsistence allowance be paid to an officer continuously for a period longer than six months in one place without special authority from the DPER. This authority should be obtained prior to the expiry of the six-month period.”

“Daily Travel between Normal Base and Temporary Centre: The ordinary rate of day allowance is not applicable to temporarily transferred officers who are able to travel daily between their homes and the office to which they are temporarily attached, or in other cases of repeated daily visits to the same place. In such cases, the pay of a day subsistence allowance will depend upon whether the officer is in fact put to substantial extra expense for meals in consequence of his absence from his normal base. In each case where an allowance is justified, a special rate will be fixed.”

The Employer relies also on the Rehabilitation of Employees Back to Work After Illness or Injury Policy & Procedure which outlines appropriate measures the Employer is obliged to take to enable a person who has a disability to have access to employment, to participate or advance in employment and to undertake training. The policy does not stipulate an entitlement to subsistence payments.

Conclusion

The Worker was facilitated with an alternative modified duties role following a recommendation from Occupational Health. Management undertook to reasonably accommodate the Worker, an alternative role was offered and accepted by the Worker.

The Employer agreed to the Worker receiving a fixed payment of €44 per week (i.e., the public transport rate to travel to Location B due to the unique circumstances in this case, without precedent being set for future claims).

The Employer clarified its position through the various correspondence and meetings as listed above.

The Employer is not in a position to concede to this cost increasing and precedent setting claim which would have far reaching implications for the organisation.

In relation to the payment made to the Worker in April 2019, at the hearing the Head of HR said that she would question why the claim form was put forward for payment if there was knowledge that there is no entitlement. She noted that the Employer is a huge organisation and payroll department would not routinely contact managers querying claims.

The Head of HR challenged the SIPTU statement that they had no sight of any correspondence and had no knowledge of the lack of entitlement to the subsistence payment, given the volume of correspondence.

The Head of HR addressed the SIPTU comments that it was “not a disability situation” and expressed her hope that the decision of Occupational Health is not called into questions.

While acknowledging that the Worker was a hard-working employee, the Head of HR emphasised that the Employer is operating within financial guidelines and the Worker has no entitlement to claim subsistence if moved to another base as part of the rehabilitation plan.

The Worker’s complaint, the subject of this dispute, relates to the subsistence payment for the period between 21st November 2016 and 6th December 2019.  

There was no dispute that the Worker was absent on certified sick leave between 26th July and 30th October 2016, and 10th and 20th November 2016. The Worker was assessed by the Occupational Health Department and it was recommended that he was fit to return to work on modified duties. It was also not in dispute that there was no suitable role available at the time in the location the Worker was employed at. As a result, the Worker was offered a temporary position in Location B which he accepted.

The Employer outlined in its correspondence dated 18th November 2016 that the Worker “will remain on his existing basic salary and annual leave and in addition due to the unique circumstances in this case (without precedent) will receive the fixed payment of 44 euros per week which is the public transport rate to travel to [Location B].”

It appears that the Employer did not envisage an entitlement to travel and subsistence payment for the Worker in respect of his absence from Location A as a result of the temporary transfer to Location B. Rather, it appears that, as a gesture of goodwill, the Employer offered the Worker a payment in respect of the cost of public transport.

I note the relevant passages from the National Financial Regulations Travel and Subsistence the Employer relied upon.

The Employer confirmed that normal travel and subsistence rates, as prescribed by the Regulations applied during the period from November 2016 to December 2019 to the Worker’s absences from Location B in the performance of his duties.

The Worker argued that at no stage was he informed of a transfer to Location B. He claimed that at all times his base remained Location A and, as a result of daily absences from Location A he was entitled to travel and subsistence payment for the whole period from November 2016 to December 2019.   

Having carefully considered the parties submissions, I find that the Employer offered the Worker a temporary position in Location B to facilitate his return to work on modified duties. The Worker accepted this temporary move. The Employer clearly outlined to the Worker that “in addition due to the unique circumstances in this case (without precedent) will receive the fixed payment of 44 euros per week which is the public transport rate to travel to [Location B]”. It is clear that this payment was offered as a gesture of goodwill and was not an entitlement. Neither the Worker nor his representative questioned that at the time.

Having considered the submissions of both parties and for the reasons stated, I do not recommend in favour of the Worker.

I do not recommend concession of the Worker’s claim.

Subsistence payment – transfer-