ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000067

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 15/12/2015

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant is employed as a Special Needs Assistant (SNA) in a National School in Co. Kildare. He commenced in this role in June 2002. He works 35 hrs per week. He is paid fortnightly and his gross pay is €1,376.73 per fortnight. The claim made was that unlawful deductions had been made from his salary without proper notice.

The representative for the Complainant stated that two claims had been entered but that the first claim was entered was out of time. The second claim relates to the period 4/6/15 to 13/8/15, to the amount of €6,590.14.

The Complainant was absent from work from 6/1/15 to 2/6/15 due to stress. Initially he did not contact the school nor did the school contact him. On 11 March 2015 the Complainant received a letter from the Chairman of the school's Board of Management (BOM) requesting that he attend an occupational health assessment. The Complainant complied with this request. The outcome of the assessment was that he was "not currently in a position to return to work".   Around 26/27 March the Complainant met with the Chairman of the BOM and the school Principal. It was agreed by the Chairman and the Principal that €500 would be given to the Complainant to help with the financial hardships he was enduring. That amount was transferred from the school account to the Complainant's account the following day. Around this time his wages had stopped being paid entirely without any reason being given.

Another medical assessment was completed on 8 May 2015 the outcome of which was an indication that although the condition had improved he was not yet fit to return to work. The Complainant returned to work on 2 June 2015.   However, deductions continued to be made to the Complainant's salary, again without explanation. The Complainant contacted the Principal regarding the deductions but she said there was nothing she could do. The Complainant contacted the Dept. of Education directly but did not receive any satisfactory explanation. By the end of August his full salary was reinstated.

The Complainant now seeks repayment of the salary that was not paid to him in the period.

Respondent’s Submission and Presentation:

The Respondent was represented by an official from the Department of Education and Skills. She commenced by explaining that salary payments are administered by the Dept. on behalf of the school based on information it receives from the school.

At the outset of her submission the Respondent stated that there had been a miscalculation but that it was never the Dept.'s intention to do anything other than pay the Complainant the rightful amount.

In her submission the Respondent outlined the rules of the Sick Pay Scheme applicable to SNAs. The Public Service Management (Recruitment and Appointments) (Amendment) Act 201, provided the Minister for Public Expenditure and Reform with the power to make regulations that set out the specific details of a Public Service Sick Leave Scheme. These regulations are contained in SI 124 of 2014. In regard to SNAs the regulations were implemented with effect from 1^st September 2014. It was up to the BOMs that the contents of the ensuing circular were brought to the attention of SNAs in their employment.

The Respondent went on to explain in detail the sequence of event which lead to deductions being made to the Complainant's salary. The problems arose because the medical certificates were not received each week for the period 5/1/15 to 22/3/15, and the receipt of the first certificate for 23/3/15 to 29/3/15 had to be deleted and re-entered into the system to ensure the correct calculation of the sick leave periods when certs for the period from January to March were received.

Such an occurrence can create difficulties for the very complicated computer system which is used to pay 75,000 staff. When records are not submitted in time and in chronological order, it can cause difficulties and may result in under or overpayments. Unfortunately problems were experienced in this case. It was not until notification was received from the WRC that the Payroll Section, became aware that a problem existed.

The Respondent confirmed that a refund of €4,788.02 will be made to the Complainant in his salary on 31 December 2015.   In addition a repayment of approximately €814 relating to social welfare deductions will be repaid to the Respondent in January 2016.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Is the Respondent due a repayment of salary as claimed?

Legislation involved and requirements of legislation:

S5 (1) of the Act states that, "an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute."

Decision:

Complaint CA-00000103-001: Is out of time and thus fails.

CA-00000103-002: This is an unfortunate case where a lack of communication has both created and prolonged a period of confusion relating to the Complainant's salary. If the Complainant had contacted school or if the school had contacted the Complainant in January 2015 it is unlikely that the situation outlined above would have happened. Better communication between the school and the Department as the situation continued after the Complainant's return to work might have resulted in the issue being resolved before the Complainant processed a claim to the WRC. I also believe the BOM should have had a representative present at the hearing of the case.

The Complainant also contacted the Dept. after his return to work to try and have matters resolved but this attempt was unsuccessful. If his enquiry had been followed up a swifter resolution may have resulted. The Respondent has undertaken to repay the outstanding amount due to the Complainant as soon as possible.

My decision is that the Complainant be paid a refund of salary to the amount of €4,788.02 and that this should be paid to him in his pay on 31 December 2015. An additional amount of €814 (approximately) relating to social welfare deductions be repaid to the claimant as soon as possible in January 2016.

Dated:   20 April 2016