Worker

Employer

Anonymised Parties

A Counsellor

A Health Service Provider

Representatives

Mike McNamara,  Fórsa Trade Union

 Head of HR

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-00045349-001

26/07/2021

The Worker commenced her employment with the Employer in 2015.

She referred the within dispute to the Director General of the WRC on 26th July 2021.

The Worker was represented by Fórsa. The Employer was represented by the Head of HR.

Correspondence containing additional supporting documentation was received from Fórsa post-hearing on 28th July 2022. Fórsa was informed that the adjudication hearing has concluded and the

Adjudication Officer would not be in a position to accept any unsolicited submissions or/and documentation.

Fórsa, on behalf of the Worker submits as follows.

The case concerns the alleged failure by the Employer to adhere to their own financial regulations and to Revenue guidelines arising from the Employer’s refusal to pay travel and subsistence payments to the Worker for days that she is required to do outreach work at other locations outside of her “base location”.

The Worker commenced her employment with the Employer on 29th June 2015. She was assigned to work at Location A. This is where all correspondence relating to her post is directed. This office was used exclusively by her to conduct the business relating to her post. The Worker considered this to be her normal place of work.

According to her contract of employment, the Worker was required to travel to other locations (Location B and C) two days per week. This resulted in her travelling from her base in Location A to another location, which is a greater distance away from her base and from her home.

In line with the relevant regulations, the Worker claimed mileage allowance and subsistence for same, and these were signed off by the then acting Director of Adult Counselling Services, and she was duly paid travel and subsistence (T&S) for the months of July and August of 2015. However, when the Director of Adult Counselling Services returned to work, she immediately stopped the payments of T&S to the Worker for the days that she travelled to Location B and C.

The Worker is required to travel to Location C each Tuesday, which is a return journey of 146km. She is also required to travel to Location B each Thursday, which is a return journey of 94km. Whilst she was initially paid for this travel and subsistence, she was then advised that she has three bases.

On 9th November 2015, the Worker raised the matter with her line manager advising that she was not happy that her T&S was stopped. On 10th November 2015, the Worker wrote to her Line Manager stating:

“I have looked carefully at my contract, it clearly indicates that I am required to work anywhere within the [named] region and I am happy to do this. However, there is no mention of three bases or that travel expenses will not be included.”

Also on 10th November 2015, the Line Manager responded:

“Further to our recent conversation and your correspondence on the issue of travel expenses, I am writing to clarify for your again that your situation of work is referred to as split base between [named Area 1] and [named Area 2], working at [Location A], [Location B] and [Location C]. I have consulted again with HR regarding leeway on this matter and they have advised that [Location B] may be referred to as [Area 2] base, allowing for travel expense claim to be made between [Location B] and [Location C] for the days that your work in [Location C]. In discussion with HR again today, they have confirmed that this arrangement is practice in other services, and not unusual in the [Employer], although it does not appear as written in contracts or policies”.

On 30th November 2015, the Worker met with the Director of HR (DHR) to discuss the matter. The DHR wrote to the Worker on 3rd December 2015, outlining her position.

On 12th January 2016, the Worker responded to the DHR outlining her position regarding the matter of split bases and in particular noting that no such reference was made in her contract of employment. Furthermore, the Worker stated that none of the Employer’s literature on T&S, HR memos or public service agreements make any reference to split bases.

On 9th March 2017, Fórsa raised the matter at the meeting with the DHR. She reiterated her position as that which was set out in her correspondence to the Worker on 3rd December 2015. The DHR subsequently forwarded the said correspondence to Fórsa.

On 28th June 2017, Fórsa referred a complaint seeking adjudication on the matter to the WRC under section 13 of the Industrial Relations Act, 1969. The Employer objected to an Adjudication Officer investigation on the basis that the local procedures have not been exhausted.

Correspondence ensued between Fórsa and the Employer between August and September 2017 as to the stage of Grievance Procedure that the matter should proceed to. Finally, Fórsa got the agreement from HR to have the matter heard at stage 2 of the Grievance procedures by the Head of Service.

On 5th January 2018, the parties met to conduct the grievance hearing. At the hearing, the Worker stated that it was her understanding that her predecessor was paid T&S in the exact same circumstances as hers.

By correspondence dated 28th January 2018, the decision of the Head of Service was delivered. The Head of Service stated that he sought assistance from HR on both a local and national level, and he was advised that as this matter was based on National Guidelines, it should be referred to the relevant National Joint Council, and that such a referral should be made through Fórsa.

On 1st February 2018, Fórsa wrote to the Head of Service requesting a copy of the “National Guidelines” and advice that he received from both local and national HR. On 2nd February 2018, Fórsa received a reply from the National Director of HR explaining that she had spoken with the Head of Service, at his request, before he made his decision on the Worker’s grievance and advised him that she had already given her position in the informal process. She also explained how she had sought and was given direction from the Head of Employee Relations on this matter.

The Worker appealed the outcome of the stage 2 grievance hearing to stage 3, and a meeting was arranged with the Head of HR on 19th April 2018. The Head of HR wrote to the Worker on 24th April 2018 advising that “The grievance issue that you have raised as an individual is not an individual issue only to you. It is the practice in this area and other area of [the Employer] that split bases were identified in the Moratorium. You would not be the only person affected by this decision. In light of the above, my decision is that this matter is more appropriate to a collective bargaining process and I recommend that the appropriate forum is for this to be raised by Fórsa as an agenda item on the national joint council.”

On 4th March 2018, Fórsa Mid-West notified their National Health officers of the situation. Whilst Fórsa understand that this issue may have been given some consideration at the NCJ no circulars have been issued to date.

On 14th May 2018, Fórsa referred a complaint seeking adjudication on the matter to the WRC under section 13 of the Industrial Relations Act, 1969. By correspondence date 26th June 2018, Fórsa was informed by the WRC that the Employer had objected to the Adjudication Officer investigation on the basis that “all local procedures have not been exhausted. This matter is more appropriate to a collective bargaining process and I recommend that the appropriate forum is for this to be raised by Fórsa as an agenda item at the National Joint Council.”

Further engagement with HR continued to take place in tandem with the matter being raised with the NCJ. Fórsa in another region who were engaged in similar dispute reached a local agreement, pending and without prejudice to any subsequent national agreement on the matter.

On 11th February 2021, Fórsa met again with local HR to discuss the matter. It was Fórsa’s position that the Employer should cooperate with Fórsa in referring the matter to a third-party once stage 3 of the individual grievance procedures had been exhausted without agreement.

On 14th January 2021, Fórsa wrote to the Employee Relations Manager outlining two examples of persons experiencing difficulty regarding the issue of T&S. The Manager responded on 24h January 2021 advising that the Employer’s position is that T&S is governed by the NFR.

A further meeting took place on 22nd April 2021 at which Fórsa requested that the Employer locally make a decision on an individual basis or in default of a resolution of the matter to agree to an investigation by an Adjudication Officer under the provisions of section 13 of the Industrial Relations Act, 1969. On 27th April 2021, the Employer wrote to Fórsa confirming that the Employer would engage in a third-party referral to the WRC, if the Worker wished to proceed.

On 25th May 2021, the Employer wrote to Fórsa acknowledging that “the issue of travel and base(s) has formed part of recent national engagement with Unions in a number of fora…It was accepted by all sides that there is a perception of unfairness and that the following principles were proposed to resolve this matter, pending and without prejudice to any subsequent national agreement.”

On 26th July 2021, Fórsa referred a complaint to the WRC.

Fórsa argues that the Worker’s normal place of work is Location A. This is where she carries out most of her work. This is also the address at which she received all correspondence relating to her post.

According to her contract of employment, the Worker is required to work anywhere in the named area. As part of her duties, she is required to travel to Location B and Location C. Initially she was paid T&S. However, she was then told that each time she travelled to one of the alternative locations, that location was considered to be her base for the days she worked there, as she actually has three bases, Location A, B and C. Following discussions with her line manager and HR, it was reduced to two bases, A and B, thereby travel expenses would be paid between Location B and C on the day that she undertook that journey. The Worker rejected the position of management that she could have two bases. It is contended that the Worker’s “normal place of work” or “headquarters” is in Location A. Her Employer has a business premises In Location B and C.

Fórsa relied on the Revenue Commissioners Statement of Practice SP-IT/2/07 which states that “The normal place of work is the place where the individual normally performs the duties of his/her office of employment. The employer’s base may not always correspond with the employee’s normal place of work. For example, a business may have its principal base in one location and have a number of subsidiary bases elsewhere. It is, therefore, possible for two employees who have the same employer, not to have the same place of work”. It does not, however say that an employee can have two or more normal places of work.

Section 4.5.1 of the guideline states that: “Company directors (including non-executive directors) are officers of the company (even where they own, or part own, the companies of which they are directors) and, as such, are subject to the same tax legislation, rules and conditions as employees as regards to the tax treatment of the reimbursement of expenses of travel and subsistence.”

Section 4.5.2 states “The normal place of work of a company director is the place where he/she normally perform the duties of his/her office. This is determined by having regard for the facts and circumstances of each directorship held.”

Section 4.5.3. states: “A director of two or more companies within a Group of parent and subsidiary or associated companies may be regarded as having one normal place of work within the Group. This normal place of work is where the director performs most of his/her duties within the Group. Travelling expenses necessarily incurred in travelling from this normal place of work to other places on the business of the Group in the performance of the duties of the office may be paid tax-free provided all such journeys are necessarily incurred in the performance of the duties of the office and travelling expenses incurred are reasonable.”

Fórsa contends that, if the same interpretation was applied to the Worker’s place of work within a group, then it would be reasonable to suggest that her normal place of work is Location A where she carries out the majority of her duties. This is the headquarters of the operations of her post within the group, and accordingly travelling expenses necessarily incurred in travelling from this normal place of work to other places on the business of the Employer in the performance of the duties of her post should be paid tax-free provided all such journeys are necessarily incurred in the performance of the duties of the office and the travelling expenses incurred are reasonable.

Fórsa relies on a Memorandum issued by the Director of Finance of the Employer to all staff on 14th January 2009 which included a number of circulars. In Circular Travelling and Subsistence Regulations it says that “Officers employed on official business away from their headquarters and officers assigned to field duties will be paid travelling and subsistence expenses within the rates authorised from time to time by the Minister for Public Service.”

The Worker emphasised at the adjudication hearing that her role was not a new role, she replaced a colleague who was paid T&S. She noted that there is no office space for her in Locations B and C and any administrative duties in relation to clients need to be carried out in Location A. It was argued that the Location B as Area 2 base has no office space available to the Worker and cannot be considered a base. There is no administrative support in Location B, closed files are stored in Location A, correspondence and telephone calls are directed to Location A.

In the view if the foregoing, Fórsa seeks a recommendation that:

1.       The Worker’s normal place of work for the purpose of the Employer travel and subsistence arrangements is Location A where she carries out most of the work associated with her post, and that,

2.       The Respondent is directed to reimburse the Worker for all traveling and subsistence expenses necessarily incurred in travelling from this normal place of work to other places of work on the business of her Employer in the performance of the duties of her office, since her commencement date in 2015, and that,

3.       The grievance procedure adopted by the Employer in this case did not comply with best practice, or with its own procedures or with the provisions of S.I. 146/2000, and that,

4.       The procedure employed in this case to date failed to afford the Worker access to fair procedures and deprived her of her right to have the matter dealt with in accordance with the principles of natural justice, and

5.       Require the Employer to pay the Worker an amount of compensation that is just and equitable in the circumstances.

The Employer submits as follows.

The matter relates to the existence of a split base for the purposes of claiming travel expenses.

Background The Worker commenced her employment as a Counsellor in Adult Counselling Services with the Employer on 29th June 2015.  She applied for the role on foot of a National Campaign for Counsellor / Therapists.

The Counsellor / Therapist role approval paperwork completed locally states that the role holder is the sole provider to the Location B/Location C area as well as working in Location A for 2 days per week.  The context for the role appointment was around a waiting list the two relevant areas for adult counsellor / therapist services.

On 10th November 2015, the Worker emailed her Line Manager referencing a conversation of the previous day regarding her travel expenses.  The Worker referenced that in order to do her job she was required to travel weekly to and from Location B and C each week.

The Line Manager emailed the Worker on 10th November 2015 and confirmed that her work situation is referred to as a split base between two named areas.  The Line Manager confirmed having consulted with HR on the matter and confirmed that Location B is the base for one of the two areas and that travel expenses were payable for journeys between Location B and Location C for days when Worker worked in Location C. The Line Manager advised that the practice of having split bases is not unusual in within the Employer and that in fact another colleague who joined in August 2014 is working a split base and does not receive travel expenses for work at their bases.

Whilst the Line Manager was on annual leave, a counsellor covering for her absence signed the Worker’s Travel claim in error.  They were not aware that more recently employed staff in the department were required to work in a split base.

The Worker and her Line Manager met with the Head of HR on 30th November 2015.  The Head of HR advised that the Worker was informed at the commencement of her employment of the fact that she had a split base, something the Worker confirmed she was informed of.  The Worker put forward the view that this was unfair, however the Head of HR confirmed that this situation was not unique to the Worker and that the Employer had issued instructions in 2014 to review the base locations of staff who travel regularly to other work locations other than their official base.

On 3rd December 2015, the Head of HR wrote to the Worker outlining the Employer’s position. She confirmed that a single base of Location B was identified in one of the named relevant areas and that routine expenses in actual course of duty in both areas could be recouped in the normal way.   The Head of HR also confirmed that due to the moratorium and the implementation of Public Service Agreements changes in the Employer organisation, staff have different terms and conditions.  She confirmed that it does not mean that all staff have an entitlement to the higher level of entitlements that some may have on a personal basis.

On 12th January 2016, the Worker wrote to the Head of HR advising that it was verbally mentioned to her at role commencement that her position had multiple bases but that she did not understand the practical implications of this statement.

On 28th January 2018, the Head of Service communicated that the issue should be raised at National Joint Council level. 

The matter was subsequently dealt with within the Employer’s Grievance Procedure with HR hearing the Grievance at Stage 3 on 19th April 2018.

On 27th April 2021, the Employer acknowledged in an e-mail to Fórsa that the Employer would engage in a third party referral to the WRC if the Worker wishes to proceed in this regard.

Fórsa, contested in his e-mail to the Employer of 5th May 2021 that ‘[the Worker] did not then, nor does she now accept that she has a split base’.  Fórsa also advised that the Worker is the only member of Fórsa who has made a complaint of this nature in the last 5 years.

On 23rd August 2021, HR confirmed to the WRC that is does not object to an investigation into this matter.

The Employer’s position

The Worker’s contract of employment states that her assignment will be to two named areas within the Employer’s organisation.

The Employer’s position on this matter from the outset has been that the ‘normal place of work’ is      the place where the employee normally performs the duties of the office or employment and accordingly is where travel and expenses should be rightly claimed from. In this regard, the Worker has consistently been advised that her routine travel expenses should be claimed with Location A as her base on the days she is based in area 1 and Location B as her base on the days she is based in area 2.  

It is the view of the Employer that the Worker’s contract requires her to work and perform substantive duties in both Area 1 and Area 2. It is equally the view of the Employer that there is a clear pattern with regard to the days spent in Area 1 and the days spent in Area 2.

In previous discussions, the Worker has acknowledged that the Employer did advise her of the requirement to operate a split base at the commencement of her employment.

It is the understanding of the Employer that it is agreed among all parties that the Worker is undertaking substantive duties at both areas, Area 1, and Area 2.  Accordingly, it is the Employer’s view that the days spent at each of these two locations constitute time spent at the ‘normal place of work’.

The relevant National Financial Regulations outline the high-level framework within which the internal financial control system of the Employer operates. The following excerpts are pertinent:

Section 5.10.1: ‘Travel allowances are payable only in respect of necessary absence from the normal place of work.’

Section 5.10.7: Travelling expenses will not be paid in respect of any portion of a journey which covers all or part of an officer’s usual route between home and base…’ 

Section 5.10.9: “Normal Place of Work” is the place where the employee normally performs the duties of the office or employment. In most cases this should not give rise to difficulty. This designation is required to complete the process outlined in paragraph 5.8.2 above.

The Employer’s premises where the employee is based will be regarded as the official place of work for the employee where:

(i)            Travel is an integral part of the job involving daily appointments with clients/colleagues/suppliers based in alternative locations.

(ii)           The duties of the employment are performed at the various other premises of the [Employer]/Clients, Suppliers or Agents of the [Employer] but substantive duties are also performed at the employee’s main base of employment. 

Given her split base, the Worker has 2 normal places of work.

The Employer relies further on the guidance in relation to Expenses and Travel is available on the Revenue website, www.revenue.ie. This clearly outlines that ‘Travel to and from work is considered a nonbusiness journey’. In the section relating to Travel and Subsistence, the Overview stipulates that: ‘You can pay your employees’ expenses when they travel on business journeys. You can also pay subsistence if employees are working away from their normal place of work.’

Clarity is provided in respect of what is meant by ‘Normal place of work’ on the Revenue website, as follows:

‘The normal place of work is where your employee works on a day to day basis. This may not always be your (the employer’s) base. Your business may have additional bases elsewhere. In this case, the normal place of work may not be the same for all of your employees. Usually, you will provide the facilities your employees need to perform their duties at the normal place of work’.  

Currently, the Employer has 16 staff working across split bases in the areas the Worker is employed in.

Conclusion

The Worker was clearly advised from commencement of employment and thereafter of the requirement for a split base in order to provide regular and efficient service to the organisation in the context of her post. She was informed that she would be required to work three days per week with a base in Area 1 and 2 days per week with a base in Area 2.  Both these locations therefore constitute her ‘normal place of work’. The Worker’s contract of employment states that her assignment will be to ‘[Employer, Area 1 and Area 2]’. 

The Employer National Financial Regulation re: Travel and Subsistence clearly stipulates in Section 5.10.1 that: ‘Travel allowances are payable only in respect of necessary absence from the normal place of work.’ As the Worker’s ‘normal place of work’ is both Area1 and Area 2, travel expenses are not payable in respect of any portion of a journey which covers all or part of her usual route between home and base.

The above contention is further emphasised by reference to the Revenue website which stipulates that ‘The normal place of work is where your employee works on a day to day basis. This may not always be your (the employer’s) base. Your business may have additional bases elsewhere.’

The Employer has consistently clarified and reiterated its position on this matter from the outset by way of the written 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. The Employer is obliged to adhere to strict guidelines in this regard and cannot deviate from same.

The within dispute relates to the payment of travel and subsistence allowances to the Worker.

I note that the Employer informed the Worker on a number of occasions that the grievance she had raised is not an individual matter and she would not be the only person affected by the Employer’s decision. The Employer’s view was that the matter is more appropriate to a collective bargaining process and the Worker was advised that the appropriate forum was the National Joint Council (NJC).

Fórsa, in its submission confirmed that it engaged with the HR and concurrently raised the matter with the NJC. Fórsa confirmed that the issue may have been given some consideration at the NJC, however, no circulars have been issued on the matter.

It is clear from the correspondence furnished by Fórsa that the matter of a “split base” has been raised in several fora at national level on behalf of staff affected.

Section 13(2) of the Act provides as follows:

“(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

Having carefully considered the submissions of the parties, I find that the present dispute relates to the payment of travel and subsistence allowances to the Employer’s staff working from a “split-base” and the claim has the potential to extend to a broader body of workers. It appears from the submissions that discussions in relation to the matter have commenced under the auspices of the National Joint Council for the purpose of ensuring consistency of application of travel and subsistence payments to staff across the Employer’s organisation.

The Labour Court held in the case of Shannon Airport Authority -v- A Worker AD1383 held that: 

“The Rights Commissioner Service was primarily established to investigate cases of an individual character which prior to its establishment would have occupied the Labour Court’s time unnecessarily. Claims which by their very nature and character have broader implications are inappropriate for the Rights Commissioner Service and are dealt with by the Labour Court. The 1969 Act provided a stipulation that issues concerning such matters as rates of pay, hours or times of work or annual holidays are issues which can have broader implications and are consequently not issues appropriate to the Rights Commissioner Service. In all the circumstances of this case the Court is satisfied that the appeal before the Court concerns issues related to rates of pay and concerns a body of workers acting in concert. It is a claim which if conceded could potentially have broader implications for others. On that basis the Court is of the view that it is precluded by the terms of Section 13(2) of the Industrial Relations Act 1969 from hearing the case.”

I am satisfied that the present dispute relates to issues relating to rates of pay concerning a body of workers which potentially may have implications for other workers in the sector. Accordingly, I find that the issues in dispute clearly fall outside of the jurisdiction conferred upon me, as an Adjudication Officer, under the provisions of Section 13(2) of the Industrial Relations Act, 1969.  

I do not have jurisdiction to inquire into the present dispute as it concerns the rates of pay of a body of workers within the meaning of Section 13(2) of the Industrial Relations Act 1969.

Industrial Relations Act 1969 – Section 13(2) – Payment of Subsistence Allowance - No jurisdiction