Discounting days of leave for private reasons when not attending the job on the grounds of force majeure

The question raised is whether it is possible to deduct a public employee, unilaterally, a day of leave for private reasons by not attending his job because of an abundant snowfall in the afternoon and evening of the previous day in some provinces, considering that it represents a cause of force majeure that makes attendance at the workplace impossible on the aforementioned date.

In the first place, the legal framework for implementation must be analysed. Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (hereinafter, TREBEP), provides in the second section of the Fourth Final Provision:

“Until the Civil Service Laws are enacted and the development regulations are in force in each Public Administration, the existing regulations on the management, planning and management of human resources shall remain in force as long as they do not conflict with the provisions of this Statute.”

Therefore, those precepts prior to TREBEP that do not oppose it remain in force, as is article 77 of Decree 315/1964, of February 7, approving the Articulated Law of Civil Servants of the State, which provides:

“1. The officials must Reside in the municipal term where the office, unit or place where they provide their services is located.

2. For justified reasons, the Assistant Secretary of the Department may authorize residence in a different place, provided that this is compatible with the exact performance of the duties of the office.”.

Therefore, the Assistant Secretary of the Department may, depending on the circumstances of the specific case, authorize the residence of an official in a municipal term other than the residence where the office or place of work is located. Residence in a municipality other than the workplace will not lead to a decrease in the performance of functions or alteration of working hours, without prejudice to cases of force majeure.

Therefore, the authorization to reside in a municipality other than the one in which the work center is located entails the study of the concurrent circumstances and that it follows from them, that the work schedule will not be altered nor will lead to a reduction in functions, so, in the face of the absences of the job, whether justified or not, the same rules will apply as if you were residing in the municipality where the work center is located.

Once the appropriate authorization has been obtained, which is understood to have been complied with in the cases that are the subject of the proposed consultation, it seems appropriate to point out that the workers referred to in the consultation provided services in the State Company “Correos y Télégraphs, S.A.”. These personnel, by virtue of the provisions of the TREBEP, are governed by the specific regime that governs the personnel who provide their services in the State Society “Correos y Télégraphs, S.A.”.

Article 5 of the TREBEP regulates the personnel of the State Society of Post and Telegraph:

“The official staff of the State Society of Post and Telegraph shall be governed by its specific rules and shall be subject to the provisions of this Statute.

Your workforce will be governed by labor law and other conventionally applicable standards.”

Article 58 of Law 14/2000 approves the Creation of the Company, subsequently RD 370/2004, of 5 March approves the Staff Regulations of that State Company, however it is the Resolution of 10 June 2011, of the General Directorate of Labor, provides for the registration and publication of the III Collective Agreement of the State Company “Correos y Telemgrafias, S.A.”, currently in force, which expressly refers to the rights and obligations affected in the consultation raised.

Article 58 of the Third Collective Agreement referred to above regulates the issue of paid permits:

“Company personnel, upon appropriate justification, shall have the right to apply for paid permits for the following times and causes:

(p) Six days of each calendar year, or proportional share in contracts of less than one year, for private reasons Not included in the above points; where the needs of the service allow, the days of private affairs may be joined to the statutory holidays.”

Article 83 states what are the actions or omissions considered to be minor offences:

“They will be considered as minor faults the following:

c) Failure to communicate adequately in advance of unattendance at work due to justified cause.”

For its part, Article 86 establishes the corresponding sanctions regime:

“The penalties that may be imposed depending on the qualification of the offences will be the following:

(a) For minor offences:

Warning in writing.

Suspension of employment and salary up to two days.

(…)No sanctions may be imposed that consist in the reduction of the vacation or other lowering of the worker’s rights to rest, or a fine if any.”

In view of the above, it can be said that the right of the State Company’s personnel to enjoy days of leave for private reasons, the consideration of the lack of communication with due advance of the absence of attendance at work due to justified reasons such as minor fault, the possibility of being sanctioned by written warning or suspension of employment and salary up to two days as well as the impossibility that such sanction affects the worker’s days of vacation or rest as well as his assets must be taken into account.

For this reason, in the opinion of this Directorate General, the one-day discount for private matters before the commission of a minor fault, in accordance with the legislation of application in the first place, that is, the Collective Agreement of the State Company “Correos y Telemgrafias, S.A.”, is not possible since it is not expressly contemplated.

On the other hand, given that it is of subsidiary application and since information is additionally requested on how to proceed in the circumstances described in other Administrative Bodies, in general, mention should be made of the eleventh paragraph of the Resolution of February 28, 2019, of the Secretary of State for Public Service, which provides instructions on the working hours and hours of staff in the service of the General Administration of the State and its public bodies, which provides:

“11.2 Likewise, the absences, the lack of punctuality and the permanence of the staff in their workplace, whatever their cause, must be registered by the public employees who incur in them in the system of time control that must exist in each center.

These absences will require immediate notice to the person responsible for the corresponding unit and its subsequent supporting justification. This justification shall be transferred immediately to the competent human resources body. (…)

11.8 In the event of failure to comply with the obligation to submit the proof of absence provided for in this section or the medical part of leave under the terms and deadlines established in the applicable Social Security regime, the provisions of paragraph 12.2 of this Resolution, relating to unjustified absences, and pursuant to which the corresponding proportional deduction of assets will be applied”.

However, the last section of the Working Time and Schedule Resolution must be understood in accordance with the Resolution of 4 January 2010, of the Secretariat of State and Finance and Budgets, by which instructions are issued in relation to the payroll of officials included in the scope of application of Law 30/1984, of 2 August, in the terms of the Fourth Final Provision of Law 7/2007, of 12 April, of the Basic Statute of the Public Employee and the amounts of the remuneration of the staff referred to in the corresponding General Budget sections of the State:

“The difference, in monthly calculation, between the statutory working time and that actually performed by the official will give rise, unless justified, to the corresponding proportional deduction of assets.”

However, where applicable, the regime of misdemeanours and sanctions provided for in the TREBEP, as well as in Royal Decree 33/1986, of 10 January, approving the Regulations on the Disciplinary Regime of Officials of the State Administration, shall apply.

From all of the foregoing and in accordance with the criteria of this Center, it is reported that, once the authorization is granted, in the face of the absences that are justified or not, will be acted according to the legal regime previously established.

Without prejudice to the considerations made, it should be noted that, in the event of incidents of displacement, due to situations such as heavy snowfall strikes or other cases of force majeure, the official must immediately inform the person responsible for the unit concerned and subsequently justify the cause of the delay.

Apart from these cases, if it is deemed appropriate by the management centre, the proportional reduction of assets or the disciplinary regime referred to above may be applicable, without expressly stating in the applicable legislation the possibility of sanctioning the conduct described in the manner referred to in the consultation raised.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.