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PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039265 (CA-00050945-001)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015. 

The following is the Court's Decision.

DECISION:

This is an appeal by Patrick Mc Kenny against Adjudication Officer’s Decision ADJ-00039265 given under the Payment of Wages Act 1991 in a claim against his employer Department of Agriculture, Food and Marine that he suffered an unlawful deduction from his wages.  The Adjudication Officer found the complaint was not well founded.

In this Decision the parties are referred to as they were at first instance.  Hence the Department of Agriculture, Food and Marine is referred to as ‘the Respondent’ and Mr Patrick Mc Kenny as ‘the Complainant’. The complaint was lodged with the WRC on the 31st May 2022 and therefore the cognisable period as defined by the Act is the 1st December 2021 to 31st May 2022.

 Background 

 The Complainant is employed as a Veterinary Inspector and has worked for the Respondent since 1998. On the 8th December 2021, the Complainant was rostered to work in a particular office which was a public office. On his arrival at the office, he informed his line manage that he would be working from a different office because of the presence of another individual in the office. The Respondent did not agree to him working from the other office, and are treating the period of time as a half day unauthorised absence.

Agreed factual matrix

 At the commencement of the hearing the parties agreed that the facts set out below are not in dispute between them.

 On the 8th December 2021 the Complainant was rostered to work in the Cavan Office. By agreement he arrived at the office about 11. 00am.   When he arrived in the office, he informed his line manager that because of the presence of another member of staff that he previously had issue with, he was going to work in the Monaghan office. The Line manager did not agree to this.

 The Complainant’s position is that he had an agreement that meant because employee X was present in the office he could leave and work elsewhere. However, he accepted that he received a letter dated 23rd January 2019 from Mr Kevin Galligan Personnel Officer HR Division, which indicated that while there had been a temporary arrangement in place that facilitated the parties not working in the same location, that arrangement was to be discontinued with effect from 23rd January 2019. It was accepted that meant that the arrangement was no longer in place at 8th December 2021.

 THE Complainant received an email on the 8th December 2021 at 14.06 from Ms Maeve Murray his line manager advising that his absence from the Cavan Office where he was rostered to work was notified to National Shared Services Offices (NSSO) as an unscheduled absence from work.

 Ms Murray also phoned him on the same day and looked to meet with him to discuss his absence, but the Complainant declined to meet with her. While there was a dispute over who had initiated the phone call it was accepted that the call took place.

The Complainant was notified by letter of 10th January 2022 that his non-attendance at the office he was rostered to attend at on the 8th December 2021 was being treated as an unauthorised absence. 

A letter was sent to the Complainant on the 9th December 2023 inviting him to a meeting on the 17th December 2021 and providing him with a copy of Civil Service Disciplinary Code.

A further email was sent on the 10th December 2021 offering to defer the meeting of the 17th December 2021 and suggesting an informal meeting to see if the issue could be resolved. 

On the 21st of January2022, the Complainant received a letter stating that the outcome of the disciplinary process was a verbal warning.

 The Complainant was paid in the normal way for the 8th December 2021 and then a half days pay was deducted on the 2nd February €195.67.

On the 7th February 2022, the Complainant sent an email invoking the grievance procedure looking for his pay to be restored as he did not accept that he was on an unauthorised absence on the day in question. As he did not receive a response on the 2nd March 2021 he sent a follow up email. On the 4th March 2022 the Complainant received an email from  Ms Katie O’ Malley asking him to confirm if he wished to move to stage 1.3 of grievance procedure. The Complainant responded by email of the 7th March stating that it appeared to him that the grievance procedure was not being followed and that he would have to look at other options. On the 14th March 2022 he received an email from   Ms Sarah Roche stating that she understood that the Complainant was withdrawing his complaint and the meeting scheduled for 15th March would not go ahead. By email of 21st March 2021 the Complainant replied stating he did not say he was withdrawing hie grievance complaint, and that he had no more to say and was in touch with the WRC about his grievance.

Mr Harmon BL for the Respondent confirmed to the Court that it was not disputed that the Complainant carried out departmental work on the day in question albeit in a different office, but it was not the work he was assigned to or the office he was assigned to on the day in question.

 Summary of Complainants case

Mr Slein BL on behalf of the Complainant submitted that the Respondent was seeking to justify the deduction on the basis of sections 5(a) and 5(b) of the Act, which require that no deduction be made unless the Respondent is authorised or required to do so by Statute or a term of the Complainant’s contract of employment.  In terms of classifying what happened on the 8th of December 2021 as an unauthorised absence, the Respondent is relying on section 16(1) of the Civil Service Regulation (Amendment) Act, 2005. That Act defines unauthorised absence as a refusal to carry out the duty of his grade. The refusal in this case was in respect of the Office the Complainant was to work in, and it is not in dispute that when he went to the Monaghan office, he did in fact carry out work for the Respondent. Therefore, there was no refusal to carry out work, and there can be no unauthorised absence. Even if there was an unauthorised absence section 16 (3) of the 1956 Act provides that where any question arises as to whether there was an unauthorised absence, that question shall be determined by the appropriate authority. That did not happen in this case.  Section 2 of the 1956 Act as amended provides that in this case the appropriate person is the Secretary General of the Department. The Respondent acted prematurely in making the deduction without referring the question of whether the Complainant’s absence constituted an unauthorised absence to the Secretary General of the Department. There can be no doubt that there was a question as to whether or not there was an unauthorised absence.  The Complainant never accepted that it was unauthorised absence as he attended work in the Monaghan Office on the day in question, and on the 7th February 2022 the Complainant invoked the grievance procedure immediately after the deduction was made from his wages. Ms Murray by email dated 15 March 2021, states “ I have considered your request and it remains my position that your absence on December 8th 2021 was unauthorised and therefore a salary deduction was appropriate.” Correspondence was opened to the Court from Mr Kevin Stenson, HR Advisor dated 10 January 2022 to NSSO Absence Management noting that the Complainant disputed the unauthorised absence and asking for guidance on how to proceed and correspondence from Mr Kieran Rourke to Ms Murray asking for clarification about whether the Complainant “was absent as per case raised, or if indeed he worked as outlined”

 In respect of the Respondent reliance on the Complainant’s contract of employment to justify the unlawful deduction it does not say what provision in the contract affords it that authority. The only reference to any place of work in the employment contract is at section 4 which provides:

“Headquarters will be such as may be determined from time to time by the Head of the Department.”

There was no evidence before the Court that any such determination had been made.

 Mr Slein BL on behalf of the Complainant submitted that as the internal process to determine whether or not an unauthorised absence had occurred had not been finalised the wages properly payable to the Complainant in respect of the 8th December 2021 was his full wages and the deduction made was unlawful.

Summary of Respondent’s case 

 Mr Harmon BL on behalf of the Respondent submitted that the unjustified and unilateral decision of the  Complainant to leave the Cavan office on the 8th December 2021, meant that an unauthorised absence from work arose. It is not the prerogative of any individual officer to decide where he works, what duties he will perform or, indeed, who he will and will not work with. The Complainant is subject to the Civil Service Code of Standards and behaviour.  Paragraph 10 of the Code states “Civil servants are required to attend at work as required and not to absent themselves from duty without proper authorisation…” He is also subject to the Civil Service Regulation Act 1956 that provides “ A Civil servant shall not be paid remuneration in respect of any period of unauthorised absence from duty”

An unauthorised absence was recorded on the Department’s human resources and payroll management system for the period of the Complainant’s absence from the Cavan office on the afternoon of 8th December 2021. This resulted in a deduction of €195.67 gross being applied to the Complainants salary and represents a half days salary. In the circumstances the deduction was entirely lawful and justified.

 Mr Harmon BL submitted that the deduction was made in line with section 5(1) (a) and or section 5(1) (b) of the Act. The statute that the Respondent is relying on is section 16 of the Civil Service Regulation Act 1956 (as amended) which provides.

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

(2) A period when a civil servant refuses to carry out the duties of his grade shall as respects the civil servant concerned be considered to be a period of unauthorised absence from duty.

(3) If any question arises in relation to the application of subsection (1) or (2) as to whether-

(a) a particular period of absence from duty of a civil servant is a period of unauthorised absence from duty ,or (b) a particular action taken by a civil servant constitutes a refusal to carry out the duties of his grade , or ( c) a refusal by a civil servant to perform a particular duty constitutes a refusal to carry out the duties of his grade

 The question shall be determined by the appropriate authority.”

Mr Harmon BL went on to say that section 16 (2) provides that a refusal by a civil servant to carry out duties of his grade shall be considered to be a period of unauthorised absence form duty, which is exactly what happened in this instance when the Complainant refused to carry out the duties in the Cavan office which was the work assigned to him on that day. While it is accepted that under the Code the appropriate authority is the Secretary General of the Department it is not accepted that a question rose that required determination by the appropriate authority. The Complainant did not appeal a verbal warning that he received through the disciplinary process arising from the same incident.

 Contrary to what the Complainant is suggesting there is a basis in the employment contract for the deduction in question being made. The Complainant is covered by the Civil Service Code which at section 10, states that Civil servants are required to attend work as required and not absent themselves from duty without proper authorisation.

 In all of the circumstances set out above it is submitted that there was no breach of the Act.

The applicable law

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section 5(6) states,

“Where—  

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Discussion

  The relevant case law is set out in Marek Balan’s v Tesco Limited [2020] 31 E.L.R.125 where it was held that “when considering whether a deduction from wages has been lawfully made, the concept of wages properly payable is central to the Court’s analysis.”

In this case the question arises as to what was properly payable in respect of the 8th December 2021. It is not disputed that a half days pay was deducted on the basis that the Respondent considered the Complainant to be on unauthorised absence in the afternoon after he left the Cavan office where he was rostered to work. Nor is it disputed that he attended the Monaghan office and carried out work there. The Respondent does not dispute that the Complainant carried out work appropriate to his grade, however it was not the work he was assigned.  The Respondent submitted that the Complainant never raised a question as contemplated by section 16 (3) of the 1956 Act as amended and therefore the requirement to refer the issue to the appropriate authority being the Secretary General did not arise.

 However, the Court was provided with copies of correspondence from NSSO to Ms Murray on the 9th December 2021 indicating that the Complainant had contacted them querying the unauthorised absence, and confirming that he had worked.  Correspondence from the Complainant lodging a formal grievance disputing it was an unauthorised absence and seeking to have his pay restored on the 7th February 2022.  Correspondence from Ms Murray, the person who originally made the decision to classify it as an unauthorised absence, dated 15th March 2022 writing to the Complainant stating “I have considered your request and it remains my position that your absence on December 8th 2021 was unauthorised and therefore a salary deduction was appropriate“.

 Section 16 (2) of the Code of Practise states “if any question arises as to whether a particular period of absence from duty of a civil servant is a period of unauthorised absence from duty the question shall be determined by the appropriate authority.”  Based on the documents opened to the Court it is clear that from the 9th December 2021 the Complainant was disputing that he was on an unauthorised absence, and that Ms Murray was aware of that.  The Code does not prescribe that a particular type of question must be raised but clearly states “if any question arises.” The Court decides that the Complainant did raise a question about the validity of classifying what happened on the 8th December 2021 as an unauthorised absence. Therefore, in line with the Code he was entitled to have that question determined by the appropriate authority which in this case was the Secretary General of the Department. Until that process had concluded and determined the issue, the amount properly payable to the Complainant for the 8th December 2021 was his full day’s pay. As that did not happen, the deduction of €195.67 gross was an unlawful deduction and contrary to the Act.

Decision

 Having determined that the deduction was an unlawful deduction, the Court concludes that the amount of compensation which is reasonable in the circumstances of this case is €195.67 gross, being the amount of the unlawful deduction.

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
20 May 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.