LCR23005

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00038048 (CA-00049491-001)

BACKGROUND:

The worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 26 February 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 1st February 2024 the Adjudication Officer issued the following Recommendation:

“I find that the Complaint (CA00049491-001) made pursuant to the Industrial Relations Act is not well founded.”

A Labour Court hearing took place on 29 May 2024

DECISION:

This is an appeal by Ian Campbell of an Adjudication Officer’s Recommendation in relation to a complaint him against his employer. The Adjudication Officer did not recommend in favour of the worker.

The matter before the Court concerns the workers entitlement or otherwise to a subsistence allowance for the period from 11 April 2020 until 11 June 2021 when he was reassigned to work in another location.

Summary of the Worker’s position

The worker was assigned from one station to another during the Covid pandemic. On return to his original base, he submitted claims for subsistence payments amounting to €5,503.55 to cover the period of his reassignment. The claims were declined on two counts, firstly, as the claims were out of time and, secondly, he had no entitlement to subsistence allowances.

The worker submits that he is entitled to subsistence allowances as provided for under the Garda Siochana (Finance) Code which since 2019 forms part of his rights and entitlements under his contract. That entitlement applies under the Code which provides that “subsistence allowances at current rates is payable to members employed on duty away from their permanent stations….” During the relevant period he was away from his permanent location and was not on temporary transfer.

No direction to transfer was given to the worker as he was not moving districts and he remained under the control of his own district Superintendent. During the dispute resolution procedures, it was accepted that the correct processes were not followed by management in relation the move.

Without a clear direction from management, and in the absence of any written instruction about the reassignment, the worker could only rely on the Code for his sole understanding of the absence. The worker cannot be faulted for considering that he was on duty away from his permanent station and not on temporary transfer when the correct procedures were not followed by management.

On return to his base, he promptly submitted claims for subsistence allowances as per the Code. It is common practice within the organisation that subsistence claims are processed in periods in excess of one month from when they are occurred. The Code allows for claims to be made on an irregular basis and states that claims exceeding one year need approval from the Commissioner. Management ruled against the worker due to his failure to follow the Garda Code, while granting themselves substantial leeway for their own non-compliance with the same Code.

During the pandemic garda units were assigned to smaller stations to avoid cross contamination and received subsistence allowances for their absence from permanent stations. The units were rotated to ensure fair distribution of subsistence claims while away from their permanent stations. The Worker cannot be held at fault because his assignment was not rotated amongst other members.

Summary of Management’s Position

Management submits that the worker was on temporary transfer during the relevant period. The transfer, which was predicated on the occurrence the Covid-19 pandemic, exceeded one year in duration. During this time, the worker’s normal place of work was the location that he attended on a day-to-day basis, and that situation is easily distinguishable from that of an employee required to work away from his or her normal place of work.

The worker sought subsistence allowance to be paid in respect of a period during which he did not incur relevant expenses in order to qualify for such payments, as he was not engaged in travel on duty away from the place he attends on a day-to-day basis. The question of whether the worker was on temporary transfer is a factual one. The provisional working arrangement was agreed voluntarily, and the omission of a written instruction cannot be determinative of whether he should receive payments totalling €5,503.35.

Revenue guidelines regarding tax-free payments for subsistence state that “the expenses of subsistence must attach to travelling necessarily incurred in the performance of the duties of the office or employment.”  The worker in this case was not undertaking travel “necessarily incurred in the performance of the duties of the office.” He simply travelled to and from what became his normal place of work for that period. It follows that the worker was on temporary transfer during the relevant period and therefore no subsistence is payable.

The late submission of a large number of claim forms by the worker was unreasonable, and non-payment of the claims was reasonable on that ground alone. He explained that his bulk submission was to avoid the possibility of Covid-19 contamination, yet he made other (uncontested) claims for subsistence during the same period. Any lack of clarity about his entitlements could have been resolved quickly if the worker had submitted claims in a timely fashion.

The failure of management to confirm the nature of the move in writing does not mean that the move was anything other than a temporary transfer. The worker suffered no financial loss as he incurred no expenses, and he is not entitled to subsistence allowances during the relevant period.

Recommendation

The Court heard extensive submissions from both sides and the Court has given careful consideration to the oral and written submission of the parties at the hearing.

This dispute in this case centres around the assignment of a worker to another location, and whether the worker was on temporary transfer, as stated by the employer, or was deemed to be on a temporary absence from his base, as stated by the worker, for the duration of the assignment which lasted for a 14-month period.

The role of the Court in disputes under Industrial Relations Act is to provide its opinion, when requested to do so, in the form of a Recommendation where parties have been unable to find agreement in relation to a workplace dispute. It is not the function of the Labour Court to interpret and determine entitlements under the Garda Code.

It is accepted that the worker in this case was reassigned to another location during the Covid pandemic, following a verbal request from his line manager. That request was made to minimise to minimise the risk of contamination amongst workers in a unit.

The Court heard that hundreds of gardai were moved during this period, although in most cases they were reassigned to other locations on a rotational basis rather than reassigned for lengthier periods of time, as was the exceptional case with this worker.  The Court heard that workers that were temporarily redeployed during Covid-19 were entitled to a subsistence allowance in respect of the first and last days of the period in question plus one additional 12-hour subsistence payment.

The Court is conscious of the exceptional circumstances that arose during this time and the unprecedented nature of the challenges faced by employees and employers with restrictive measures implemented in the public interest to minimise the spread of disease.

The Worker submits that he cannot be faulted for considering that he was on duty “other than temporary transfer” due to the failure of his superior to properly communicate the nature of the move.

Management’s position is that the worker was aware that the situation was by mutual agreement, that he benefited from reduced travel because of the move, and that a failure to issue a written instruction to him confirming the temporary transfer does not render the transfer anything other than a temporary transfer.

This dispute was exacerbated by the fact that the worker did not submit his claim for subsistence payments for some 14 months after his initial re-assignment. The Court heard that it was common practice to let expense claim forms accumulate before submitting for approval. Such a practice was not refuted by management.

In the view of the Court, this dispute could clearly have been addressed at a much earlier stage if the worker had submitted his subsistence claims in a timely fashion.

The Court heard that normally a written instruction issues to a worker in circumstances where he or she is transferred another location. In this case, that clearly did not happen.

In the view of the Court, notwithstanding the exceptional circumstances that arose at the time, given the chain of command nature of the employment, management should have followed normal practice and procedures and confirmed the instruction in writing. Had the instruction been in writing no confusion could have arisen over the nature of the assignment.

Having regard to unique circumstances of this particular case as outlined at the hearing, the Court recommends that the worker is paid the sum of €400 in full and final settlement of this matter.

The Court so recommends.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
5 July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.