Complainant

Respondent

Parties

Patrick  Mckenny

Department of Agriculture, Food and the Marine.

Representatives

Glenn Cooper Dundon Callanan Solicitors

Rory Davern Department of Agriculture

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00050945-001

31/05/2022

The Complainant commenced employment with the Respondent in 1998.  He is a Veterinary Inspector. A complaint was received by the WRC on 31 May 2022.  A remote hearing of the case took place on 15 November 2022.

The Complainant provided a detailed written submission.

The Complainant’s position is that an illegal deduction was made to his pay when he changed his place of work for an afternoon. The Respondent’s position is that the deduction is legal, actioned because of what was deemed to be an unauthorised absence.

In the submission the Complainant explained that he works as a Veterinary Inspector in the Monaghan/Cavan area, reporting to the Supervising Veterinary Inspector (SVI).  There is a main office in Cavan and another office in Monaghan.  The Inspectors work predominantly as field officers, however approximately one day a fortnight they perform their office roles.

The Complainant submits that on 8 December 2021 he was rostered to perform his in-office role and he decided to work the afternoon portion of that day in the Monaghan office.  He submits he did this in accordance with an existing agreement made to reduce tensions between himself and a colleague, although on this occasion the Supervising Veterinary Inspector (SVI) had requested he work at the Cavan office. Despite working that afternoon, the Complainant was subsequently docked his afternoon’s pay by the Respondent.

By way of background, the Complainant submits that there have been several incidents over the years which have resulted in some managers taking a negative attitude towards him. One matter noted was an agreement made between the Complainant and another colleague that they would arrange schedules so that they would not attend the office at the same time, in order to prevent the re-occurrence of difficulties which had risen between them in the past.

On the 8 December 2021, the Complainant attended the Cavan office and realised the colleague with whom he had had difficulties with in the past was also present. On foot of this, the Complainant submits, that in accordance with the procedures he had adopted since 2018, which had been agreed with management, he would work from the Monaghan office in the afternoon. When the Complainant advised the SVI of his intentions, she requested that he remain in Cavan. However, the Complainant submits that due to the Covid situation and the large number of staff present in the Cavan office, he felt it best to work from the Monaghan office.

The Complainant submits he drove to the Monaghan office and worked through the afternoon until he finished at 5.30 p.m., carrying out the same duties he would have done had he been situated in the Cavan office.

The Complainant submits that the SVI subsequently arranged to have his pay for that afternoon’s work deducted from his wages.  The grounds given for the deduction being variously cited as “unauthorised leave”, “unscheduled absence”. The Complainant submits that the reasons given do not stand up to scrutiny as he was neither on leave nor absent from work; he was carrying out his normal tasks, albeit from a different office from the one his SVI thought he should be working from. The sum deducted was €195.67.

The Complainant submits that there is no provision for any such deduction as a disciplinary sanction provided for in the Civil Service disciplinary Code. The deduction was unlawful and a breach of the Payment of Wages Act.

The Complainant gave evidence at the hearing under Affirmation. The Complainant stated that he had bad relations with a colleague going back a number of years. When he arrived at the Cavan office on 8 December 2021, he found this colleague was there also.; he decided the best thing to do would be to do his work from the Monaghan office. There had been some discussion of the situation with his SVI, before he left Cavan for Monaghan. 

The Complainant stated that on that day he completed 100% of the work he would have normally have done. However, he was later deducted the sum of €195.67 through the actions of his SVI.

In concluding, the Complainant stated that he did work on the afternoon of 8 December 2021, completing the tasks required of him. That what the Civil Service Code of Standards and Behaviour means an “absolute absence”, so it does not apply. In summary, he did not refuse to carry out his duties he just did them in a different place.  In order for the Respondent’s position to be upheld the Adjudication Officer must be satisfied that the deduction was fair and reasonable and in line with S 5(2) of the Act.

The Respondent provided a written submission.

The Respondent submits that on 8 December 2021, the Complainant was required on-site in the Cavan office to complete certain specific tasks, which cannot be completed elsewhere. Due to the Complainant’s absence this specific work and other work fell to other colleagues. The Respondent submits that on the day in question the Complainant entered the SVI’s office and informed her that he would leave the Cavan office if another Veterinary Inspector remained in the building. The SVI met the Complainant some five minutes later and asked him if he was leaving, to which he replied he was.  He was asked to reconsider leaving as it was pointed out that the office was already short staffed.  He refused to stay and indicated he was going to the Monaghan office.

Another attempt was made to get the Complainant to stay but he was not for turning. At 2.15 p.m. the SVI emailed the Complainant to let him know that an unauthorised absence would be logged against him that afternoon. This unauthorised absence was confirmed to HR the following day.

A disciplinary process was initiated as a result of the incident of 8 December 2021, which resulted in a finding of misconduct against the Complainant.  This finding was not appealed by the Complainant.

The Respondent position is that an unauthorised absence arises in a situation where an officer does not attend his place of work when scheduled to do so and does not claim either sick leave or annual leave to cover their absence. The Respondent submits that the Complainant’s actions of 8 December 2021, amount to absence without authorisation, in circumstances where he refused to remain in the Cavan office to carry out the duties assigned to him and in his leaving the office without a justifiable explanation.

Regarding the agreement mentioned by the Complainant, the Respondent submits that this agreement had ceased in January 2019.

The Respondent submits that it is not the officer’s prerogative to decide where he works and what duties he performs, particularly in a situation where he was given clear direction to perform specific duties in the Cavan office. Section 10 of the Civil Service Code of Standards and Behaviour states; “Civil Servants are required to attend work as required and not to absent themselves from duty without proper authorisation…”

Regarding the pay deduction the Respondent refers to the Civil Service Regulation Act of 1956 (as amended by the 2005 Amendment Act), to whichthe Complainant is subject, which states:

“16.- (1) A civil servant shall not be paid remuneration in respect of any period unauthorised absence from duty.”

Regarding the disciplinary procedure which took place on foot of the happenings of 8 December 2021, the Respondent submits that this was a separate matter initiated because of the Complainant’s refusal to engage with his manager in respect of the absence.

 The SVI, Ms Murray, the SVI, gave evidence under Affirmation at the hearing.  She stated she was aware that the Complainant had experienced difficulties in working with a colleague in the past.  She outlined that several tasks required of the Complainant were not completed because he had situated himself in the Cavan office for the afternoon of 8 December 2021 and that these tasks had to be done by others.

In cross examination, Ms Murray stated that she was aware that there were issues between the Complainant and a colleague however she denied that she knew the Complainant was trying to avoid a confrontation with this other person on the day in question. She stated that although she accepted that the Complainant was in the Monaghan office, she did not agree with the assertion that he was doing his work. She also stated that she had emailed him at 2.15 to warn him that she was going to record him as being absent but there had been no response.

In closing, the Respondent stated that the work undertaken and described by the Complainant in Monaghan were not the same as those specified to be done by his SVI. There was a valid reason for the recording of an unauthorised absence, that there had been an overpayment and that the Complainant’s reason for leaving the office was not valid. The Respondent is satisfied that the deduction to the Complainant’s pay complies with S 16 of the Civil Service Regulation Act of 1956 (as amended by the 2005 Amendment Act).

Section 5(1) of the Act provides that an employer may not make a deduction from an employee’s wages, except in certain circumstances:

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

In order to arrive at a conclusion a flow of questions must be answered.

(i) Did the Complainant’s action of moving from the Cavan office to the Monaghan office constitute unauthorised absence?

 If the answer to question (i) is no, then the Complainant’s position is upheld and the deduction must be deemed to be illegal. If the answer to (i) is yes then question (ii) must be answered

(ii) Is such a deduction allowed under the Complainant’s contract of employment?

If the answer to question (ii) is no, then the Complainant’s position is upheld and the deduction must be deemed to be illegal. If the answer to question (ii) is yes, then question (iii) must be answered.

(iii) Is such a deduction allowed under the Act?

If the answer to question (iii) is no, then the Complainant’s position is upheld and the deduction must be deemed illegal.  If the answer to question (iii) is yes, then the Complainant’s position is not upheld and the deduction is legal.

Answers to the questions:

(i) Did the Complainant’s action of moving from the Cavan office to the Monaghan office constitute “unauthorised absence”?

It is not the prerogative of an employee to decide, except in exceptional circumstances, what work they will undertake at a given time. Section 10 of the Civil Service Code of Standards and Behaviour states; “Civil Servants are required to attend work as required and not o absent themselves from duty without proper authorisation…”  In this instant case it was made clear to the Complainant that he should remain and complete his tasks in the Cavan office. He decided to disobey what was a clear instruction form his manager. Although the Complainant stated at the hearing that he completed all his work in Monaghan, this was contradicted by his manager.  It is not my role to investigate the minutiae of what was or was not done by the Complainant that afternoon rather it is to decide whether his manager was reasonable in concluding that he had not completed the tasks assigned to him that afternoon. From the evidence adduced I am satisfied that the manager was not unreasonable in reaching a conclusion that the Complainant had not fulfilled his obligations that afternoon.  That being the case, I do not find it unreasonable that the manager categorised this as an unauthorised absence. Therefore question (ii) must be addressed.

(ii) Is such a deduction allowed under the Complainant’s contract of employment?

The answer to this question is, yes. Complainant is covered by Civil Service Regulation Act of 1956 (as amended by the 2005 Amendment Act), this equates to a contract of employment. Section 16 states:

“16.- (1) A civil servant shall not be paid remuneration in respect of any period unauthorised absence from duty.”

It is clear from the above that an officer should not be paid for periods of unauthorised absence, as this was reasonably deemed an unauthorised absence, then the Complainant should not have been paid for the afternoon of 8 December 2021. He was paid but this overpayment was subsequently rectified with the deduction of €195.67.

(iii) Is such a deduction allowed under the Act?

Section 5 1 (b) of the Act states:

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

Therefore, such a deduction is allowed under the Act and the Complainant’s position is not upheld.

I decide that the complaint pursuant to the Payment of Wages Act is not well-founded.

Unauthorised absence, payment, deduction