Complainant

Respondent

Anonymised Parties

A Speech and Language Therapist Assistant

A Care Association

Representatives

Ian McDonnell Forsa

Jan Hayden (Ibec)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017151-001

30/01/2018

The Complainant was employed by the Respondent organisation from 1992 (as a classroom volunteer, from 1994 as a classroom assistant (under a FAS scheme) and from 1st January 2007 (as a Speech and Language Therapy Assistant) with the Respondent, under a contract of employment

The Respondent was founded to provide respite and residential care to children with intellectual difficulties and is funded by the HSE. It is also the patron of a special school which provides teaching to children with Autism and Intellectual disability and is funded by the Department of Education and skills.

In the autumn of 2014 it became obvious that the Respondent was in serious financial difficulty, with cost overruns amounting to €2 million. An interim senior management team was put in place by the HSE with a view to reviewing the costs, seeking out anomalies and ensuring that staff were on the correct pay scales.

In 2015 the realignment process commenced and the anomalies discovered included overpayments to staff and underpayments.

The Respondent, in embarking on this process advised a good number of staff that they were overpaid over a long period and in the case of the Complainant she was advised that she was overpaid to the tune of €93,367. This came about because she was said to be on the wrong scale under the HSE scales and that she was paid as a fulltime employee (in terms of hourly rate) while she was employed on a part-time basis (4-day week).

The effect of the realignment on the Complainant was a reduction in her monthly pay from €2341.17 to €1514.14 and a stop put to her progression through her pay scale.

Arising from the above the Complainant’s case is that in 2007 she agreed a contract with the then management team which put her on the scale they considered appropriate to her role and also the hourly rate and progression through the pay scale to which she was assigned.

This change, implemented in April 2018 is severe and repudiates her contract of employment. She says she cannot agree to this and says she should not have to as she has a contract and should not have that repudiated without her consent.

Her pension is also severely affected by the decrease in her pay.

She has not received increments since 2010 and the loss to her as a result is in excess of €10,000.

The Respondent acknowledges that the complaints of the Complainant are true but that there is nothing they can do about this. They are instructed by the HSE to recover the losses incurred and to ensure all staff are assigned to the correct scales and points of scale. They rely on the terms of The Payment of Wages Act, 1991, which allows for the deduction from the wages of employees under Section 5 (c) which states:

“Nothing in this section applies to----(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941, amounts determined by that authority as being due to it by the employee, if the deduction is made in accordance with the relevant determination of that authority”

The Respondent also relies on the terms of the FEMPI legislation justifying the reductions and deductions.

The say that the Complainant and 20 other staff members were anomalies in terms of overpayment and pay. The Association engaged fully with the affected staff. The staff concerned were offered a range of options and with the support of the WRC, agreement was reached with all but 3 staff members, including the Claimant.

I must find that the basis on which the deductions are made are well founded in law. What is difficult to understand is how this was allowed to continue for so long. I note that the issue of repayment of the large lump sum of past “overpayments” has been dropped as a requirement, and rightly so. The Claimant was not aware of any overpayment. She was operating from the assumption that she had a sound contract with her employer. It is this which is most difficult for her to accept and she has not agreed to the changes. She has not given her written permission to these deductions.

The majority of the staff affected by the FEMPI regulations and the directions of the HSE, in this employment, have agreed to accept the terms on offer and in those circumstances I cannot see that there is justification now for the Claimant not also to accept one of the options open to her.

I recommend that the Claimant discuss the options with HR in the Association and select her preferred option.

 I also note that the return to movement through the pay scales, suspended by the FEMPI rules, are due to be resolved through National negotiations and I recommend, in the interests of all affected and particularly those affected as this Complainant has been, that these discussions commence and conclude quickly.