The question raised concerns whether it is possible to deduct a public employee, on a unilateral basis, from a day of leave for private reasons by not attending his workplace because of a heavy snowfall in the afternoon and evening of the previous day in some provinces, considering that it is a cause of force majeure that makes it impossible to attend the workplace on the aforementioned date.

First of all, the legal framework for implementation must be analysed. Royal Legislative Decree 5/2015, of 30 October, approving the revised 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 and the development regulations are enacted, the existing regulations on the management, planning and management of human resources shall remain in force in each Civil Service, as long as they do not conflict with the provisions of this Statute " .

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

“1. Officials must reside in the municipal area 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 the residence in a different place, provided that this is compatible with the exact fulfillment of the tasks proper to the position.”

Therefore, the Assistant Secretary of the Department may, depending on the circumstances of the specific case, authorize the residence of a municipal official other than the residence where the office or place of work is located. Residence in a municipality other than the work centre shall not entail a reduction in the performance of duties 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 they arise from them, which will not alter the work schedule or lead to a reduction in functions, so that, in the event of absences from 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, a fact that is understood to have been complied with in the cases that are the object of the proposed consultation, it seems appropriate to point out that the workers to whom the consultation refers provided services in the State Company “Post and Telegraph, S.A.”. These personnel, in accordance with the provisions of the TREBEP, are governed by the specific regime governing the personnel who provide their services in the State Society “Post and Telegraph, 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 their specific rules and alternately by the provisions of this Statute.

Your workforce shall be governed by labour law and other conventionally applicable rules.”

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 Directorate-General of Labour, provides for the registration and publication of the III Collective Agreement of the State Company ‘Post and Telegraph, 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 regulates the issue of paid permits:

“The staff of the company, subject to adequate justification, will have the right to request paid permits for the following times and causes:

" (p) Six days of each calendar year, or a proportional share in contracts of less than one year, for private matters not covered by the above points; where the needs of the service permit, the days of private affairs may be joined to the statutory holidays. "

Article 83 provides for the following acts or omissions considered to be minor offences:

“The following shall be regarded as minor offences:

" (c) Failure to communicate in good time the failure to attend work for justified reasons. "

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

“The penalties that may be imposed depending on the qualification of the offenses 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 holidays or other diminishment of the worker’s rights to rest, or fine if any.”

In view of the above, it can be said that the right of the staff of the State Society to enjoy days of leave for particular matters, the consideration of the lack of communication with due advance of the non-attendance at work for justified reasons such as mild misconduct, the possibility of being sanctioned by written warning or suspension of employment and salary for 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.

Therefore, in the opinion of this Directorate-General, the one-day discount for private matters before the commission of a minor misdemeanour, in accordance with the legislation of application in the first term, that is, the Collective Agreement of the State Society “Post and Telegraph, S.A.”, is not possible since it is not expressly contemplated.

On the other hand, given that it is of subsidiary application and since additional information is 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 Function, which dictates instructions on 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, absences, lack of punctuality and lack of permanence of the staff in their workplace, whatever their cause, must be registered by the employees or public employees who incur them in the system of hourly control that must exist in each centre.

These absences will require immediate notice to the person responsible for the corresponding unit and its subsequent supporting justification. Such 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 under this heading or the medical portion of withdrawal in the terms and deadlines established in the applicable Social Security regime, the provisions of paragraph 12.2 of this Resolution, relating to unjustified absences, shall apply, and pursuant to which the corresponding proportional deduction of assets shall be applied.”

However, the last paragraph of the Working Hours and Hours Resolution must be understood in accordance with the Resolution of 4 January 2010, of the Secretary of State and Finance and Budgets, which gives instructions in relation to the payroll of officials included in the scope 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 updates for the year 2010 the amounts of the remuneration of the staff referred to in the corresponding articles of the General Budget of that Law.

“The difference, on a monthly basis, between the statutory working day and the actual working day performed by the official shall, unless justified, give rise to the corresponding proportional deduction of assets.”

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

From all of the above and according to the criteria of this Centre, it is reported that, once the authorization is granted, if the absences are justified or not, action will be taken in accordance with the legal regime previously established.

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

Outside these cases, if it is deemed appropriate by the management center, 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.

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.