FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation R-111001-IR-11/EH.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of a Rights Commissioner's recommendation. The Worker was previously employed as a gardening supervisor for a period of 43 years until his retirement. For a period of time during the course of his employment, the Worker was in receipt of an allowance in relation to a Community Employment (CE) scheme. The allowance was due to cease once the period of the CE scheme ended however due to an internal payroll error, the Worker continued to receive the allowance. It is the Worker's contention that by means of a verbal agreement with his Employer, the overpayment was written off and he was not liable to repay the extra amount of remuneration he had received. The Employer disputes this and asserts that the Worker was fully liable to repay the overpaid amount. The overpayment was subsequently deducted in full from the Worker's lump sum he received upon his retirement. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 21st November 2011, the Rights Commissioner issued his Recommendation as follows:
"I recommend that €7,000 net should be returned to *the Claimant and that this should be accepted in full and final settlement of this dispute".
On the 7th December 2011, the Employer appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on 2nd March, 2011.
UNION'S ARGUMENTS:
3. 1. The Worker initially highlighted the payroll error to the Employer and made several attempts to have the overpayment issue rectified.
2. The Employer had ample opportunities to correct the error and recoup any overpaid amount, however it failed to do so until the Worker had reached retirement.
3. The Worker contends that a verbal agreement existed with the Employer which assured him that the overpaid amount would be written off.
4. The Worker has been treated in an unjust manner as a result of the full deduction of the overpaid amount from his pension lump sum.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker failed to engage with the Employer in relation to the repayment of the overpayment received.
2. The Employer strongly contends that there was no verbal agreement with the Worker therefore the overpayment was not written off.
3. The Employer had a Statutory obligation to recover the overpayment.
DECISION:
The case comes before the Court pursuant to Section 13(9) of the Industrial Relations Acts 1946 – 1990 and has been decided in that context only.
On the basis of the information provided and documents submitted by both parties, the Court finds, on the balance of probabilities, that the overpayment was written off by the hospital at a meeting between the union and management in mid- 2007.
Accordingly the Court decides that the HSE should restore to the worker concerned the €12,215.80 that was deducted from his retirement gratuity.
The Rights Commissioner’s recommendation is set aside.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
16th March 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.