Complainant

Respondent

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Aine Feeney SIPTU Workers Rights Centre

Siobhan Egan EMPLOYER HR & Payroll Unit,

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Acts 1969

ADJ-00033555

31.05.2021

The claimant submitted that he was refused travel and subsistence for a course which he undertook in pursuance of his employment. He pursued the matter as a grievance and was approved the travel and subsistence at Stage 3 of the procedure by Mr. X. However, local management failed to implement the outcome of the process.

The respondent submitted that the complaint was not well founded and contended that the EMPLOYER must adhere to the National Financial Regulations at all times and have no scope or authority to sanction and pay more than an employee is entitled to receive.

The complainant’s representative submitted as follows:

INTRODUCTION

The case before you today has been referred on behalf of SIPTU member hereinafter referred to as the Complainant and relates to the failure of his employer, hereinafter referred to as the Respondent, to follow their own procedure. The failure specifically relates to the incorrect application of the provisions of the National Financial Regulation Travel and Subsistence NFR-05[1], as a result of which, the complainant has suffered financial loss and distress.

We are seeking that the Complainant would have the Scheme correctly applied and that he would be compensated for the stress which he suffered as a result of the failure of the Respondent to follow their own procedures and indeed due process. 

BACKROUND

The complainant has been employed by the Respondent since 2002         and has been located  in the West  for the duration of his employment.

The Complainant having applied for a position within a specialised  Emergency Service was successful on completion of the competition and was offered a position on the Training Programme. The training commenced on the 22nd July, 2019 in Co. Dublin, however during week 2 of the training, the participants were informed that the training would in fact be undertaken in Co. Westmeath. Training concluded on the 8th October, 2019.

On completion of the Training the complainant submitted his claim forms for travel and subsistence incurred during the period of the Training. The line manager of the complainant, Mr. C, rejected the claim in its totality, but a short time thereafter agreed to pay part of the claim. Mr. C cited an email for the basis of his rejection[2].

The complainant then initiated the Grievance Procedure and despite the fact that Mr. C had a clear conflict of interest in the matter, having made the initial decision, he proceeded to dispose of the matter at Stage 1 of the Respondents procedure. His outcome issued on the 24th January, 2020            

The Complainant then appealed the outcome and the matter was heard at Stage 2 by Mr. G who did not uphold the Grievance and indeed confirmed in his outcome correspondence[3] of the 31st January, 2020 that he has not made any enquiries with regard to the payment of the expenses to other participants on the training, clearly indicating predetermination in relation to the matter.

The Complainant then appealed the matter at Stage 3 and on the 28th October, 2020[4], some 12 months after the training, the Head of HR Mr/X issued his outcome. Mr X found that the complainant had been correct in his assertion, that his colleagues had received the appropriate payment and that the complainant was in effect the only member of staff attending the training who had not received his Travel and Subsistence. The grievance was upheld.

Despite this finding, in favour of the Complainant, the servants and agents of the Respondent and in particular Mr. C, failed to discharge the sums due to the Complainant.

The complainant reverted to the Education Competency and Assurance Officer (ECAT) with responsibility for conducting the Emergency Training, to verify the terms and conditions associated with said training – Mr. W. Mr. W confirmed in writing said terms and conditions on 16th of March, 2021. The complainant provided Mr. C with this information. Mr. C refused to consider the evidence provided and failed to discharge the sums due to the complainant. 

The complainant instructed his Union to refer the matter to the Workplace Relations Commission (hereinafter the WRC) on the 31st May, 2021[5]

On the 22nd June, 2022[6] correspondence issued to the WRC confirming that a payment had been made to the complainant in settlement of the matter. This payment in the sum of €309.51 did not in any manner reflect the travel and subsistence claimed and the Complainant had not been advised by payroll that this was referable in any manner to the within complaint. Further the Head of HR for the respondent had acknowledged receipt of the relevant claim forms under cover of correspondence and had confirmed that payment would be made at that juncture with immediate effect. The relevant claim forms total €2,325.

UNION ARGUMENTS

Adjudicator we contend that the foregoing is unacceptable behaviour from an Employer of the size and import as the Respondent. Further we contend that the Respondent has available to it resources far in excess of many employers with regard to Policies on which it can rely and indeed with regard to Personnel who could be charged to process matters and deal with same, in the interests of the Workers it employs, independently, efficiently and without bias.

In the Case of A Worker and the HSE ADJ- 00018898[7]the Labour Court noted that the case “arises from a breach by the employer of their own policy”, as we would submit is the position in the within case. In particular the Respondent failed to comply with the terms of its own procedures to the detriment of the complainant.

COMPENSATION

In the Case of A Worker and the HSE ADJ- 00018898[8] the Labour Court found that the “Employer could offer no justification for the breach of their own policy other than it was a regular occurrence”, as we would submit is the position in the within case. In that case the Court awarded compensation of €15,000.

In the Case of A Nurse Manager and A Hospital ADJ-00013782 the Adjudication Officer stated “I believe that it is a shocking indictment of the Respondent that such complaints are dealt with in such a haphazard and laborious manner” and went on to recommend that the complaint be addressed and further awarded the Complainant Compensation in the sum of €5,000 for the unreasonable delay in processing the complaint.

It is clear that the manner of the handling of the within procedure falls into the realm of haphazard and laborious, and the actions of the Respondent forced the Complainant to pursue the matter to the Workplace Relations Commission, adding to the distress which he was already experiencing. 

In the Case of A HR Lead and a Healthcare Provider (HSE) ADJ-00014875[9] the Adjudication Officer recommended compensation in the amount of €10,000 in circumstances where the employer had failed to comply with a previous recommendation for a period of six months after the decision without any explanation to the worker. In this case the sums remain outstanding three years after they fell due and almost two years after it was acknowledged that they should be paid.

CONCLUSION

The Complainant herein is a respected member of staff of the Respondent and has in the course of his employment gained the respect of Management, Colleagues and patients. In pursuance of his expertise for the benefit of the respondent he was subjected to processes which had scant disregard to due process and fair procedure, and more worryingly complete disregard with regard to the terms of the Respondent’s own procedures, policies and precedents with other colleagues.

We are seeking that the Complainant would immediately receive the Travel and Subsistence claimed by him on foot of the claim forms submitted and dated the 13th November, 2020.

Finally, we are seeking compensation for the Complainant herein, for the distress that this entire matter has caused and continues to cause his. This is as a direct result of the failure of the Respondent to follow its own procedures, and for the repeated breach of its own policies.

The respondent submitted the following written presentation on the 24.06.2022:

1 Introduction

 1.1 The Claimant a Paramedic  working in the health sector and  is disputing the payment of travel and subsistence in line with the National Financial Regulations (NFR’s) whilst undertaking training provided by the respondent

 1.2. As part of a stage 3 grievance-hearing outcome dated 28th October 2020, payment was made to the Claimant in line with the National Financial Regulation’s for the agreed period of training.

2Background

2.1InNovember 2020, following the stage 3 grievance outcome letter, the claimant submitted travel subsistence and overtime claims in excess of what was included as part of the stage 3 grievance hearing.

2.2The additional claims were submitted to the respondent’s Employee Relations Manager for clarification and it was confirmed that the additional claim made was outside of the outcome of the stage 3 grievance.

2.3The National Financial Regulations outline the high-level framework hearing within which the internal financial control system of the respondent operates. The regulations ensure that the financial controls in operation within the respondent company are consistent with:

 Irish & EU statutory requirements

Achievement of Best Value for Money

Dept. of Health and Children and Government policies and guidelines

Presently available best practise appropriately interpreted for the Irish Public Health Service context

3.Management Position

3.1 The claimant’s travel and subsistence claims

33X 10 hours subsistence

1 overnight claim

34x 2 overtime hours for travel time

1XClaim to Tallaght

3.2 On the 9th.Dec 2020 , the Employee Relations Manager confirmed that the claim that was submitted  was not what he understood the grievance to relate to at the hearing .Confirmation was sent outlining payment of the following as part of the Stage 3 Grievance decision as per NFR’s

Subsistence is 5 hours only dur to working day – 8 hours

No overtime as this is part of normal travel to work time

Public Transport Rate to apply or journey to Tallaght

3.3Management wrote to the claimant on the 9th.Dec. 2020, confirming what would be paid with respect to the claim.

3.4The NFR sets out the methodology and rules that govern payment :

NFR Travel & Subsistence at Section 5.12.5 sets out that travel and subsistence claims must be completed in full , approved and submitted without delay. All claim forms should be submitted within one month of a trip. Where this is not possible , the NFR does allow claims to be submitted within 3 months.

A person’s base for subsistence purposes is the person’s normal place of work .Normal place of work is defined in section 5.10.9

‘Normal Place of Work’ is the place where the employee normally performs the duties of the office r employment .In most cases this should not give rise to difficulty .This designation is required to complete the process outlined in par.5.8.2 above.

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

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

2.The duties of the employment are performed at the various other premises of the respondent’s/Clients, Suppliers or Agents of the respondent but substantive duties are also performed at the employees main base of employment.

When a person is temporarily reassigned , the reassigned location becomes his/her new base  and as a result , travel and subsistence would not be available under NFR 5 for travel to that new base.

3.5 The claimant did not submit revised claims as per letter of the 9th.December 2020 and reminder copy sent on the 26th.Jan 2021 and the employer was  unable to process the claim.

3.6In the absence of clarification and a revised claim from the claimant, the respondent’s Area Manager in the region was asked to provide clarity with regard to the claim including the training date so that no further delay would occur in the payment and to ensure closure of the matter.

3.7In correspondence of the 30th.May 2022, confirmation was received of the dates (19x5 hours subsistence ho are responsible for ensuring compliance with financial governance.) and the claimant received a payment of €309.51 in June 2022.Confirmation of the payment was made to the claimant via email correspondence from the respondent’s payroll.

4.Conclusions

4.1The respondent  has  processed the outstanding claim as agreed with the claimant  and stage 3 grievance outcome and in line with NFR’s and the respondent’s Governance and Compliance Dept who are responsible for ensuring compliance with financial governance.

4.2The process has been frustrated by the Claimant who did not respond to communication by his line manager on two occasions when requested to submit  revised claims for payment resulting in delays in the processing of same.

The respondent’s representative submitted the following supplementary  submission on the 22nd.Nov. 2022

1 Introduction

 1.1 The Claimant a Paramedic is disputing the payment of travel and subsistence in line with the National Financial Regulations (NFR’s) whilst undertaking training  with the respondent .

 1.2. As part of a stage 3 grievance-hearing outcome dated 28th October 2020, payment was made to the Claimant in line with the National Financial Regulation’s for the agreed period of training.

 2 Background

 2.1 The additional claims submitted to the respondent’s Employee Relations Manager for clarification confirmed that the additional claim were made outside of the outcome of the scope of issues raised during the stage 3 grievance hearing and not in line with the agreed travel and subsistence payment due to those undertaking this specific training.

 3 Management Position

3.1 Additional information by way of email from the complainant’s line manager has been included in Appendix 2. An email of the 11th July 2019 at 16:43 outlines the initial arrangement concerning travel and subsistence payments that can be claimed by the claimant. The claimant acknowledged this email by return at 21:45.

 3.2. Following the grievance process, the Employee Relations Manager confirmed on the 9th December 2020 that the claim submitted was not what he understood the grievance to relate to at the hearing. Confirmation was sent outlining payment of the following as part of the Stage 3 Grievance decision as per NFR’s.

 · Subsistence is 5 hours only due to working day – 8 hours

 · No overtime as this is part of normal travel to work time

· Public Transport Rate to apply on journey to Tallaght 3 3.3. Letter of the 8th July 2022 (Appendix 3), provide a breakdown of the monies claimed and owed as per the agreement in place following the stage 3 grievance process.

3.4. Further correspondence issued by the line manager on the 26th January 2021, provides additional clarification relating to the claims and requested for the claimant to resubmit corrected claims.

 4 Conclusion

 4.1 The respondent must adhere to the National Financial Regulations at all times and have no scope or authority to sanction and pay more than an employee is entitled to receive.

 4.2 The claim for overtime to travel to and from work is not permitted under NFR’s and the additional two hours claimed on top of the 8-hour day is an attempt to formulate a situation whereby the claimant is seeking a 10-hour subsistence payment plus overtime.

 4.3. The claimant’s journey from normal place of work to the reassigned base  is 30km and takes approximately 25 minutes to commute one way or 50 minutes round trip and not two hours as claimed.

4.4. Training undertaken by operational staff within the employment  is always an 8-hour day over 5 days to ensure alignment with their contract of employment and to comply with the European Working Time Directive. Any suggestion that the training occurred for 10 hours each day over 5 days for 4 or more weeks is not correct and the respondent’s rosters do not permit such an occurrence.

Having reviewed the presentations made by the parties and noting the authorities relied upon , I recommend in full and final settlement of this dispute that the respondent pay the claimant the sum of €1,794.39 in accordance with the provisions  of the  relevant National  Financial Regulations.