Complainant

Respondent

Anonymised Parties

Worker

Employer

Representatives

James Mc Evoy Work Matters Ireland

Paul Hardy 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complainant seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969

CA-00049491-001

04/04/2020

The Complainant is seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts and has submitted that he is entitled to subsistence allowance for the period from 11th April 2020 until 11th June 2021 (CA-00049481-001).

The Complainant commenced employment with the Respondent on the 24th June 2003. The Complainant was employed as a member of Redacted and was based in redacted.

The Complainant was reassigned from his permanent station to  redacted on the 11th April 2020 due to the pandemic. The Complainant worked at redacted until the 11th June 2021. Upon returning to redacted the Complainant submitted 37 FMS2 forms presenting claims for his subsistence allowance covering his period at redacted and amounting to €5,503.55.

On the 5th August 2021 the Respondent declined to pay the claim on the basis that these claims were out of time and the Complainant was not entitled to subsistence as he was on temporary transfer.

Following this decision, the Complainant submitted a formal written grievance and the internal dispute process consisted of three separate meetings each chaired by a different and progressively more senior officer.

The first meeting was held on the 3rd December 2021 and was chaired by redacted who did not uphold the complaint on the grounds that he believed the Complainant was aware  that the situation was by mutual agreement, the Complainant benefited from reduced travel because of the move, the Complainant never raised the  issue of subsistence prior to being allocated to redacted and the Complainant sought payment only after he had returned to redacted.

The Complainant submitted that none of the redacted findings negate the Complainants entitlement under the relevant code. In particular the fact that the complainant agreed to the move does not mean that he cannot claim subsistence or that he was on temporary transfer.

A second meeting to address the Complainants grievance was held on the 27th of January 2022 and this meeting was chaired by redacted who did not uphold the complaint on the grounds that the Complainant was on temporary transfer during his time at  redacted  and he did not give a satisfactory explanation for the delay in submitting his claim. However, the redacted did accept that the correct process was not followed in relation to the move but suggested that this error does not establish the entitlement on behalf of the Complainant.

The Complainant submitted that given the absence of the necessary documents the redacted cannot ascertain the garden that the complainant was on temporary transfer although his rationale was that the Complainant remained under the control of his permanent station.

A third meeting to address the Complainants grievance was held on the 8th of February 2022 and this meeting was chaired by redacted who did not uphold the complaint on the grounds that across the Public Service subsistence allowances are paid only for ‘necessary absence from base’,  he did not accept the failure of the Complainants superior to confirm in writing, the nature of the move, means that the move was anything other than a temporary transfer, he noted the complaint did not include a complaint in relation to messing facilities and he was satisfied that the guidelines issued by the Director of Finance on the 13th of January 2021  rendered the Complainants claim void.

The Complainant submitted that, inter alia, the failure of his superior to properly communicate the nature of the move is significant and the Complainant cannot be faulted for considering that he was on duty other than temporary transfer.

The Complainant submitted that the complainant was away from his permanent station and was not on temporary transfer and therefore entitled to his claim for subsistence allowance.

This Complaint was received by the Workplace Relations Commission on the 4th April 2020.

The Respondent accepts the background facts and the timeline in relation to the Complainant’s engagement with the Respondent.

The Respondent submitted that at all stages that at stages one and two of the dispute resolution process the investigating officer found that the Complainant had been on temporary transfer at redacted and that subsistence allowance was therefore not payable. Further, at stage three of the dispute resolution process the investigation officer found the Complainant was on temporary transfer during this period and he could not accept an omission to issue a written instruction to the Complainant to temporarily transfer him could render redacted other than his base for a  14th month period.

The Respondent further submitted that the non payment of the aforesaid claims was reasonable considering the delay in the Complainant making such an application.

It is the Respondents position that the Complainant was on temporary transfer during the April 2020 to June 2021 period and therefore subsistence allowance was not payable.

I have carefully listened to the evidence tendered and submissions made in the course of this hearing by both parties.

In relation to disputes under the Industrial Relations Acts,  the Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations ( and also extends to processes brought under Section 13 of the Industrial Relations Act 1969 )as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

As already stated and as per the Labour Court’s position confirmed in Bord Gais Eireann -v- A Worker AD1377, my role in the context of a dispute relating to disciplinary action is confined to considering the reasonableness of procedures adopted in the particular circumstances, as opposed to placing myself in the role of the employer and making findings of fact in relation to the matters alleged.  I am further guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary or grievance matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.

In the circumstances of this matter, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent, in relation to the ongoing dispute, conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

Accordingly, having examined the process in question and upon consideration of both parties evidence and submissions, I am satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. Therefore, I find that this complaint is not well founded.

I find that the Complaint (CA-00049491-001) made pursuant to the Industrial Relations Acts is not well founded.