FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation r-117454-ir-11/DI.
BACKGROUND:
2. This dispute arose from the Employer's attempt to recoup from the Worker a payment to which she was not entitled. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 6th December, 2012 the Rights Commissioner issued the following Recommendation:-
- "I recommend that the net sum of €34,960.71 be repaid over an extended period up to the normal retirement date of the Claimant."
On the 24th December, 2012 the Employee 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 the 24th May, 2013.
3. 1. The Worker was repeatedly informed by the Employer that she was entitled to be paid these monies.
2.The Employer also failed to pay the Worker her increments in respect of four years.
3.The Worker should not suffer for the Employer's mistakes.
EMPLOYER'S ARGUMENTS:
4. 1.The Employer acknowledged the administrative error which resulted in the overpayment to the Worker.
2.The Employer is obliged to recover any such overpayment.
3.The Employer has acted in a fair and reasonable manner since discovering this overpayment.
DECISION:
Having carefully considered the documents submitted by the Health Service Executive in this case the Court finds that there is no policy in place that deals with the circumstances that arise in this case. Accordingly, the HSE has identified no policy basis for the decisions it has taken.
However the Court finds that the Worker benefitted from a payment to which she was not fully entitled. The Court equally finds that the Health Service Executive is in large measure responsible for this overpayment.
In all the circumstances of this case the Court recommends that the Worker repay to the Health Service Executive the sum of €15,000 in full and final settlement of this dispute. The Court further recommends that the Worker be given the opportunity to have the monies deducted from her lump sum gratuity upon her retirement from the health service.
The Rights Commissioner's recommendation is varied accordingly.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
9th July, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.