Review case—hours of work and unauthorised absence

An Executive Level 2 employee sought review by the Merit Protection Commissioner of agency decisions regarding hours of work and unauthorised absence, alleging failure to consider their circumstances.

The employee was absent from the workplace for an extended period. On seeking a further period of leave, the employee was advised that the request was approved, but that further leave was unlikely to be granted unless there were exceptional circumstances. Four months prior to the return date the employee expressed interest in a voluntary redundancy and was advised this was not an option. In response, the employee advised that if a voluntary redundancy was not an option, then they would be seeking to apply for part-time work arrangements on return. The employee noted they may also be interested in a job-share arrangement. The employee indicated they would submit a proposal in the coming weeks, but did not do so.

Three weeks before they were due to return to work, the employee emailed their manager to advise that they had only been able to secure before and after school care for their children for two days per week. As a result, the employee proposed working part-time for two days per week, extending their leave, or investigating a job-share arrangement. The employee's manager responded to these proposals two days later. The manager provided comprehensive information as to why the employee's position could not be performed in part-time hours of less than 30 hours per week, but suggested that the employee could work school hours only for three days per week, and full-time on the two days when before and after school care had been arranged. The manager also explained the workload factors that meant further leave could not be approved and advised that, while there was not sufficient time to put a job-share arrangement in place prior to the employee's return, this option could still be explored.

In a subsequent conversation with the manager, the employee said that it was their preference not to return to work and once again asked about being given a voluntary redundancy. This was not an option as the role needed to be filled. The manager made attempts to engage with the employee and discussed other potential work patterns, including the possibility of working at least one day per week from home, but was of the opinion that the employee did not attempt to, or appear to want to, explore different ways to come up with a solution that would meet both the business needs and the employee's personal circumstances.

On the day before the scheduled return, the employee advised that they were unable to commit to working 30 hours per week, were seeking a review of action, and did not intend to return to work until the review had been conducted. When the employee failed to attend work the following day, the human resources manager informed the employee that making an application for review did not prevent the agency from proceeding with an action, or implementing a decision. The human resources manager directed the employee to return to work the following day and advised that if they did not the absence may be considered to be unauthorised. The employee did not subsequently return to work.

The Merit Protection Commissioner did not agree with the employee's claim that the agency's response to the flexible working arrangements request was centred on the agency's requirements and did not give sufficient consideration to the employee's circumstances. In the view of the Merit Protection Commissioner, the manager gave consideration to the requirements of the role to determine the minimum number of hours that were needed to perform the role, and also considered how the employee might be able to work those hours given the employee's circumstances. It was evident that the manager sought to engage with the employee and that the proposals put forward by the manager offered sufficient flexibility to accommodate the employee's personal circumstances. It was also evident that the employee did not genuinely engage with the manager regarding the issue. In these circumstances, it was the Merit Protection Commissioner's view that the decisions that it was necessary for the employee to return to work for a minimum of 30 hours per week, and that the absence from work was unauthorised, were appropriate.