Casual assistant resigned from employment after refusal or parental leave

L0347

 

The complaint

A former Casual Social Assistant (CSA) complained that she lost the opportunity of full time employment (as a public officer) because she had earlier been forced to resign her employment when her request for parental leave was unjustly refused.Despite that the act complained of occurred more than several months before

Despite that the act complained of occurred more than several months before complainant lodged her complaint, the Ombudsman considered that there were enough grounds which warranted the waiving of prescription in terms of the Ombudsman Act.

Complainant was a part-time CSA at St Vincent de Paule Residence (SVPR). Her personal file showed that she was an employee at this Residence as per notice sent to Employment and Training Corporation (ETC) on her start and cessation of such employment. Her salary was paid by Government and the relative payslips indicated her as an employee. The documents sent by the Department of Social Security also recorded her as an employee of the Department for the Care of the Elderly.

In 2008 complainant gave birth to twins and was granted maternity leave. On termination of this leave, she contacted the Management at SVPR but was told that since she was not a public officer, she was not entitled to parental leave. Having to care for two infants she had no option but to resign.

Although no record was found in her personal file of a written application for parental leave, a document dated a few days before her resignation signed by the Manager Nursing Service (MNS) at SVPR and addressed to the Principal Permanent Secretary strongly suggested that there had been a query on the matter. This letter referred to previous correspondence with the Management and Personnel Office
(MPO), and included mention of a circular which the Office of the Prime Minister (OPM) had declared as not applying to Casual Social Assistants. Once these employees were paid by the Department for the Care of the Elderly, the MNS asked how could it be that they were not Government employees. He concluded his letter as follows:

“I really want to clear my conscience that I have encountered some form of injustice and did nothing about it.”

MPO’s reply dated 9 June 2008 referred to the Budget speech for 2003 which stated that CSA’s were no longer to be considered as self-employed but as parttimers with all the pertinent rights under the Employment and Industrial Relations Act. However, since they had been engaged following a public call to provide a service and therefore were not considered to be part-time Government employees as they mwere not engaged through the Public Service Commission (PSC), the Public Administration HR Office (PAHRO), which succeeded MPO, argued that they were not entitled to the benefits listed in the Public Service Management Code (PSMC). PAHRO added that for further clarifications on the conditions of their service, this Office should seek information from the Ministry for Social Policy which had engaged them.

Since this case concerned a refused family friendly measure, this Office requested PAHRO to clarify the date when these were extended to employees in the public sector who were not engaged through PSC. This clarification had been sought since perusal of section 4.8.4 of the 9th Edition of PSMC dated 1 June 2008 (i.e. 9 days before MPO’s letter cited above), which dealt with Parental Leave, had a footnote
which stated “Applicable to public sector employees”. Public sector employees are not appointed through the PSC. PAHRO replied that the Budget speech for 2007 extended the applicability of family friendly measures to all public service and public sector employees and that this became applicable as of 1 January 2007. At this stage, the Ombudsman requested explanations from the Principal Permanent
Secretary as to why, considering that:

• by letter dated 9 June 2008 PAHRO had referred to a change in status of these Casual Social Assistants for that of providing a service to that of employees, and entitled to benefits under legislation;
• all documents referred to these persons as employees in the Ministry responsible for Health and the Elderly;
• the MPO letter dated 9 June 2008 excluded these employees from the benefits under PSMC on the grounds that they were not engaged through the PSC;
• no consideration had been given to paragraph 4.8.4 of PSMC of 1 June 2008 (i.e. before the 9 June letter) – this paragraph clearly stated that the provisions in respect of parental leave apply (also) to public sector employees; and the Budget speech for 2007 extended family friendly measures applicable to public officers were to apply also to the entire public sector whose employees are not engaged through the PSC – should the MPO letter of 9 June 2008, excluding employees not engaged through PSC from related benefits, not be considered as being contrary to Governments’ 2007 declared policy as also clearly stated in the Family Friendly Measures Manual issued as a Government document?

The Ombudsman pointed out that complainant’s resignation was submitted one month after MPO’s 9 June 2008 letter which letter was in response to a query from the Nursing Manager at SVPR where complainant worked. The query was raised at the time when complainant’s maternity leave was due to expire and she had to decide whether, following refusal of her query for parental leave, to give priority to her family needs of caring for her new born twins, or return to work. The Ombudsman believed it likely that complainant had made enquiries about parental leave but was brushed off because she was not a public officer engaged through the PSC.

In his reply the Principal Permanent Secretary referred to the Budget speech when CSA’s ceased to be considered as self-employed and became part-timers. He confirmed that the status of CSAs was regulated in November 2010 when they were absorbed as public officers (Social Assistants) – a status which they did not enjoy before.

The Principal Permanent Secretary added that CSAs had not, before November 2010, been considered as public sector employees and he did not consider that it could be argued that the extension of family friendly measures also to public sector employees meant that it applied also to the CSAs. He further added that the Budget speech determined that the CSAs would not have been eligible to benefit
from parental leave entitlement as provided in PSMC but only to rights under labour legislation (EIRA). It was only in 2007 that the PSMC included public sector employees as entitled to parental leave.

In conclusion the Principal Permanent Secretary stressed that conditions of employment are always evolving but the changes could not be applied retrospectively.

The Ombudsman found it difficult to understand the official side’s contention which effectively meant that in 2007 Government extended parental leave entitlement to the public sector employees who were not engaged through PSC but barred its own employees who were casual or part-time from such benefit on the basis that they were not engaged through PSC. The Ombudsman further opined that this was not a case of applying new conditions retrospectively. However, the official side maintained its stance.

Considerations and comments

The Ombudsman found that there were strong and valid indications that the MPO ruling dated 9 June 2008 was linked to complainant’s right or otherwise to parental leave. This ruling excluded Government employees who had not been engaged through PSC from parental leave. Complainant was not a public officer engaged through the PSC, indeed, like other CSAs, she was originally a self-employed person providing a service to Government. She became a part-time Government employee following the budget speech of 2003. The Budget speech of 2007 marked a significant development – it extended family friendly measures under PSMC to the entire public sector.

In 2008 complainant gave birth to twins and utilised her right to maternity leave under the employment legislation. There was no reason to doubt, and indeed official documents support the notion that she sought to obtain parental leave to give priority to her newborns in line with Government’s official family friendly measures.

In the opinion of the Ombudsman, the MPO ruling dated 9 June 2008 clearly suggested that it was a confirmation of an earlier verbal (negative) opinion by another MPO Official to the SVPR Management that since the CSAs were not engaged through the PSC, they were not public officers and therefore not eligible to the family friendly measures applicable to the Public Service. This ruling failed to consider the fact that the Budget Speech for 2007 (one year earlier) had abolished the concept that family friendly measures were limited to public officers engaged through the PSC.

Moreover the 9th edition of PSMC was dated 1 June 2008 – ( a few days before the MPO ruling of 9 June 2008) had incorporated the 2007 Budget declaration. Once the public sector employees had become eligible to parental leave despite their not being engaged through PSC, it was beyond comprehension why the MPO had at that time based its ruling on the fact that the CSAs had not been engaged through
PSC.

The Ombudsman found it difficult to understand that Government’s 2007 budget decision to extend parental leave to public sector employees was intended to be interpreted as barring its own employees (who were casuals but had been engaged for a number of years) from such benefits. In its reply Government did not address this point, but referred to these employees as having been regularised through the PSC only in November 2010 and one could not apply entitlement to new conditions retrospectively. In essence, the authorities stuck to the concept that prior to November 2010, family friendly measures for Government employees were limited to public officers engaged through PSC.

In this context reference must be made to a ruling from this Office in 1997 in respect of Case No 1777 where a female employee was refused the benefit of availing herself of maternity leave on the grounds that she was a part-time employee despite that she had for a number of years, been working a full forty-hour week. MPO had at that time resisted her request and only approved it following the decision of the Ombudsman which sustained her complaint. That decision led the MPO to issue a new circular to cover employees who were not public officers. At that time, maternity leave was the only family friendly measure in force.

In the Ombudsman’s opinion, the official stance ceased to be relevant when in November 2007 Government removed the requirement of engagement through PSC in order to benefit from Family Friendly Measures – a declaration which was endorsed in PSMC edition dated 1 June 2008. Complainant had sought parental leave subsequently. The Ombudsman further considered that it was inconceivable
for the authorities to argue that its Government part-time employees were, as a consequence of the Budget speech and of the PSMC, specifically excluded from such benefit.

The implication of the 2008 decision by MPO had a more serious impact because complainant had no option but to resign. Her family needs were very pressing and the new born twins needed her care. As a result, she lost her chance of a permanent appointment when in November 2010 her colleagues (CSAs) were absorbed as public officers in the grade of Social Assistants in Scale 20.

Conclusions and recommendations

In the light of the above findings the Ombudsman concluded that:

• there was enough circumstantial documentary evidence in favour of complainant having sought to apply for parental leave which was refused by MPO because she was not engaged through PSC – this despite that the 2007 Budget speech and PSMC 9th edition which preceded such decision, extended family friendly measures (including parental leave) to public sector employees who were not
engaged through the PSC. Government’s stance in respect of its employees who were not engaged through PSC was unacceptable.

• Government’s argument that improved conditions in the public services cannot be applied retrospectively misses the determining issue in this case. What was at stake here was complainant’s loss of her entitlement to go on parental leave in 2008 when Government had, one year earlier, extended such entitlement to employees in the public sector who were not public officers since they were not engaged through the PSC. What happened in 2010 was a development which aggravated the consequences of the 2008 decision. The Ombudsman did not believe that Government wanted to exclude its own employees who had not been engaged through the Public Service Commission when it extended such right to public sector employees. This would have been an act of improper discrimination.

The Ombudsman, therefore, upheld the complaint. He recommended that theOffice of the Prime Minister liaises with the Public Service Commission as to the best way to redress complainant’s grievance in the light of the fact that CSAs engaged before 2010 had been appointed public officers and that she was unjustly deprived of this opportunity following the decision to exclude her from the family friendly measures benefit of parental leave that was applicable to her, resulting in her being forced to resign from Government service.

This recommendation was accepted and implemented.

 

 

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