FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CARLOW COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. An appeal of a Recommendation of a Rights Commissioner's Decision r-132787-ir-13/JT.
BACKGROUND:
2. The Claimant is employed by the Council. In 2010 he was appointed to the post of Acting Foreman. In 2011 the period of acting was extended for a further 12 months. In 2012 the Claimant received a letter from the HR manager stating there was an administrative error and that his allowance was being reduced.
- The Employer said a review was undertaken of the Claimant’s work in 2010. It was agreed that he be paid at the acting Assistant Foreman’s rate to reflect the duties undertaken by him. A subsequent audit disclosed that he was mistakenly placed on the Acting Foreman rate. He was so advised and the rate adjusted. Management sought to recover the overpayment he received while in receipt of the Acting Foreman rate of pay.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 4thOctober 2013 the Rights Commissioner issued the following Recommendation:-
- The Respondent’s internal document shows that the recommendation was made for the level of Assistant Foreman; the Claimant was advised verbally and in writing that it was at Acting Foremen level. However, the Claimant was put into the position after the foreman retired. Therefore it was reasonable for him to believe he was Acting Foreman and he claimed to do more duties now that the Foreman. The Claimant had a legitimate expectation. I recommend that he is not required to reimburse any of the overpayment.
On the 6th November 2013 the Claimant 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 15th January 2014.
WORKER’S ARGUMENTS:
3. 1. The claimant was appointed Acting Foreman by Managers Order that specified that he be placed on point 6 of the scale. This order was renewed on several occasions. The Claimant undertook the work of an Acting Foreman and was paid accordingly.
2. The claimant was not paid in error as he was properly appointed and discharged the duties of the post. Accordingly he cannot be under a duty to repay monies that were properly authorised and paid to him.
3. The claimant maintains that he continues to carry out the work of an Acting Foreman and should have the allowance restored to him.
EMPLOYER’S ARGUMENTS:
4. 1. The Claimant was paid the acting allowance in error until September 2012 when the mistake was identified in the course of an audit.
2. The Council is merely seeking to recover monies paid in error to the claimant. The Council is willing to enter into an arrangement with the claimant whereby the monies may be paid in instalments over a reasonable period of time. The Council attributes no blame or culpability to the claimant.
3. The Council does not accept that the additional duties/responsibilities undertaken by the Claimant can justify payment of the Foreman rate.
DECISION:
Having considered the submissions of both parties the Court finds that the Claimant was paid as an Acting Foreman in accordance with the terms of a series of successive Managers Orders to that effect. Accordingly the Court does not accept that the monies were paid in error or as a result of an administrative error. The Court decides that there is no basis for seeking to recover monies from the Claimant that were lawfully paid to him.
The Court further finds that the Claimant was, by Manager’s Order, regraded to the post of Acting Assistant Foreman. The Court finds that he should be remunerated accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
6th February, 2014.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.