ADJ-00015109

Complainant

Respondent

Anonymised Parties

Civil Servant

Government Service

Representatives

Ken Stafford Management Consultancy Services

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00019652-001

08/06/2018

The Complainant is employed as an Assistant Principal Officer. He has alleged that the Respondent has made an illegal deduction from his wages.

The Respondent submission contains errors, and statements which are factually incorrect and/or unsupported. It makes various assertions which are devoid of evidence, and that are no better than wishful thinking. The Submission appears padded, presumably to try to distract the reader from the weakness of their position on the core issue. Nothing is set out to explain how any Appendix relates to or compares to the Complainant.

-          Nothing is highlighted to show which part(s) of the item is being relied on.

Assertions for which there is no supporting evidence

We submit that all of the following verbatim extracts from the Submission are no more than statements of what Revenue would like to have been the case, but which they can not demonstrate were actually the case. Some of the assertions are repeated ad nauseum.

Many of the assertions are manipulations and distortions of the facts, designed to mislead the Adjudicator.

These assertions are stated as though they were established facts, and they are not.

The relevant Section Number is shown in (), and key extracts are underlined.

-          (3) The Complainant was .. placed on .. the 8th point of the scale – in order to receive the benefit of the extra duty allowance in the calculation of starting pay on promotion.

-          (3) The extra duty allowance .. was included in the calculation of starting pay .. on a mark time basis.

-          (5) He continued to receive the benefit of the extra duty allowance .. on the basis of a marking time basis.

-          (6) The salary point .. was no longer correct …

-          (6) in error .. the Complainant received the extra duty allowance on a double basis ..

-          (7) the salary point he was placed on in error

-          (7) His point on the salary scale was not re-adjusted as it should have been due to an administrative error.

-          (8) All of this section.

-          (9) All of this section

-          (10) other similar cases

-          (11) More repetition of overpayment, error,

-          (12) More repetition of error

-          (13) The position of the Complainant is that he is entitled to the extra duty allowance both in his starting pay .. and when he returned to the allowed post. NOT TRUE. This is a deliberate misrepresentation of the Complainant’s position.

-          (13) More repetition of overpayment, error, etc.

-          (14) More repetition of overpayment, error, etc.

-          (15) Circular 10/2017 and 07/2018 .. mandate the recovery of overpayment. Presumably it is accepted that there must be proof that there was an overpayment!

i.                     Admissions by Respondent which support the Claimant’s Position

-          (4) The placement of the Complainant on .. LS12 .. was not noted within the Human Resources Management System as being on a mark time basis.

-          (6) This error occurred as the LS12 .. was not reflected as marking time on HRMS.

-          (11) cannot benefit in principle twice .. .. practice established within the respondent .. : further evidence thatthe Respondent could not produce a written rule to support their actions.

-          (24) This was an overpayment by way of the established practice within the Respondent. More confirmation that there was no proper basis or authorisation for the respondent’s actions.

Given the acknowledgement that the deductions from the Claimant’s salary are grounded only on the “established practice”, we say that the following important questions have not been addressed by the Respondent:

-          When was the first occasion on which this practice was applied?

-          What process was applied in the making of the first decision?

-          What authority did this decision have?

-          Where is the documented decision?

It is submitted that there had to be a first occasion when the practice arose.

It is further submitted that the lack of evidence of any authority or proper consideration of the first occasion suggests that it may simply have been an individual’s arbitrary decision, based on facts that most likely differed from those in the Complainant’s situation.

As with unfounded rumours, repetition can give an unwarranted credibility to whatever story is being told. And as with rumours, the ill-considered repetition must not be allowed to justify the story being accepted as fact.

ii.                   Legal Submissions

[(17 to (24)] The reliance on 5(5)(a)(i), and on the claim that an overpayment took place, is entirely misplaced. It is of fundamental importance that the entity making the deduction has established that there was an overpayment. This Respondent has not done so.

(21), (22) and (23) are dealt with additionally in the next section.

[(25) to (31)] These are repeats of earlier points, and entirely fasil to prove that an overpayment was made.

1.       APP.7   Sunderland Polytechnic v. Evans

a.       This is a UK case, and the Respondent has made no effort to demonstrate how this might be relevant in the Republic of Ireland. I fail to see how anything in Hansard (the House of Commons record), or any debate in the House of Lords, could have relevance in RoI.

b.       This matter was decided in the Employment Appeal Tribunal, on appeal from an Employment Tribunal. The UK EAT does not set precedents for the WRC.

c.       There was a clear basis for a deduction from the employee, and the only argument was about whether it should be a half-day or a full-day.

d.       If the Respondent is trying to rely on the decision that the original Tribunal had no jurisdiction, then that is plain groundless: the basis for lack or jurisdiction was that the Claimant had participated in Industrial action.

This decision is entirely irrelevant to the Complainant’s situation and claim.

2.       APP.8     S.I.P INDUSTRIAL PRODUCTS LTD. V. SWINN

a.       This is another UK EAT appeal decision on an earlier Industrial Tribunal decision – not relevant in RoI.

b.       The matter under dispute related to a wage deduction made on foot of fraud by the employee.

c.       The EAT decided that the Industrial Tribunal (Not the Employment Tribunal) did not have jurisdiction. There was and is no equivalent to the Industrial Tribunal in RoI.

d.       It is impossible to determine what the Respondent considers relevant in this UK decision.

e.       We note the following in the decision: “The dispute is a common law contractual dispute which can be resolved by civil proceedings in the High Court or the County Court”. Is the Respondent telling the Complainant that he might have to go to an Irish civil court with his claim?

3.       APP.9   ADJ-00005536

a.       That this WRC decision is included as having some relevance is, frankly, bizarre.

b.       There was a disciplinary procedure against the employee, out of which it was determined that the employee’s subsistence allowance was overpaid (that in itself is a peculiar outcome of a disciplinary process).

c.       The clear overpayment to the employee, was caused by misrepresentation on his part.

d.       What on earth has this to do with the Complainant’s situation?

4.       APP.10   PWD1822

a.       This one is included in the hope that its superficial similarity to the Complainant’s claim will be persuasive to the Adjudicator. In fact, it actually demonstrates the very point that the Complainant is making – that there needs to be some proper basis on which a wage deduction is made – in this instance an Employer Union Agreement.

b.       The Labour Court, on appeal, had the opportunity to study the Agreement between the Employer and SIPTU, and make their determination accordingly. No such agreement exists in the Complainant’s case.

c.       We note that whilst the original overpayment was €3,569.93 the employer reduced the amount to be deducted to €1,289.00 -little over 1/3rd of the original. We do not know if the Respondent in this claim wished to draw the Complainant’s attention to that approach by an employer.

5.       APP.11   PWD1643   (Incorrectly listed in the Respondent Contents as PWD1825)

a.       Again it is very difficult to see any relevance to or connection with the Complainant’s situation.

b.       This claim relates to an increase in pension deductions in Tourism Ireland’s Superannuation Scheme – the existence of which would suggest that this employee was not a Public Servant.

c.       The Court was able to make a definitive determination, as it found that the increased deductions were authorised by virtue of a Statutory Instrument. This again demonstrates that some authority is needed in order to validate such deductions. No such authority has been produced by the Respondent in regards to the Complainant‘s situation and claim.

6.       APP.12   PWD1825

a.       This LC decision has no relevance to the Complainant ’s situation or claim.

b.       The matter at hand was a claim by an employee that he was entitled to additional payments.

c.       The Court based its determination on the terms of a Collective Agreement between the Government and ICTU. (The Claimant was not a member of a Trade Union.)

d.       The Court decided, based on the Agreement, that the employee was not entitled to the additional payments. Thus, again, there was a proper foundation for their determination. The Respondent in the Complainant’s claim seems unable to accept that there has to be proper authority for their deduction, and all they have is capricious decisions by a few individuals.

7.       APP.13   IEHC 347 [2015]

a.       This is a 17-page High Court decision. We have no idea what possible relevance it has to the Complainant’s situation or claim.

b.       The particular matter related to a decision by the Employer to apply an across-the-board wage reduction to employees. (This representative was directly involved at the time, so has substantial knowledge of the matter.) This decision was immediately disputed by SIPTU (who were not recognised by the Employer), representing a portion of the workforce. The Employer lost the PoW claims at the Rights Commissioner, and appealed the RC decisions to the EAT.

The Employer argument was that they had applied “wage reductions” as opposed to “wage deductions”.

c.       The HC decision was simply to refer the matter back to the EAT. How does this decision in any way enlighten the Adjudicator in respect of our WRC claim?

Preliminary Observations

a.       The agreement at the WRC hearing was that the Respondent would forward precedent examples to the Claimant, and the Claimant would then respond.

The respondent sent 4 items (labelled A, B, C and D) that it considers to be precedents, and has also included two Court decisions. We are responding to all of these in this document.

b.       We note that the “precedents” are light on certain detail, and especially light on what communication took place between the employee and the employer. There is not one copy of any communication from the employee.

c.       It would appear that in the case of A, B and D, none of the issues went to the WRC or whatever body was operative at the time, so there is no precedent WRC decision on the matter. (In the case of C, events have not played themselves out, and we explain this below.)

d.       We note that all four cases offered as precedents are based on employment in Revenue, so that none are from any other section or department of the Civil/Public Service. Any rules on Pay Scales, Promotion, Allowances etc. are not specific to Revenue, and apply across the Civil Service/Public Sector. This would further suggest that what was done to the Claimant, and apparently to others, is confined to Revenue, and based solely on unsupported opinion rather than authorised and established Public Service practice.

e.       With some unease we must submit that these follow-up items continue a pattern of obfuscation by the Respondent – in the absence of verifiable facts they have tried to muddy the waters, to make it as difficult as possible for the Claimant to understand their reasoning (such as it is), and presumably in the vain hope of confusing the Adjudicator.

We must further submit that some of their behaviour is bordering on dishonesty, and we will justify this in the following response.

Case A

The first sentence disposes of this “precedent” as having any relevance to the Complainant’s situation: they assert that this employee was promoted on a “Marking Time” basis, and this seems to be supported in the Corepay screenshot; no such evidence has been submitted for ’ the Complainant s situation – because it does not exist. “Mark Time” and “Notional Pay” did not apply to the Complainant, there is no evidence that it did, and there is no evidence that it was the intention to apply these to the Complainant.

Other points

a.       The attached letter of 28th June 2016 is revealing, in that it makes clear that his opinion is grounded on the “mark time” aspect, as recorded on Corepay, but NOT recorded anywhere for the Complainant It also refers to “current policy”, but not to whatever this supposed policy is based on. This is the Public Service, not some minor employer making policy on the hoof.

The letter also includes: “..it was inappropriate for an officer to receive a double benefit ..”. Aside from the fact that we reject the double benefit argument, it is absurd for a decision to be supported on the based on someone’s opinion that something was “inappropriate”.

b.       It would appear from the dateline that this “error” went unnoticed for 11 weeks – peculiar if the “correct” pay methodology was so well-known and established.

c.       Nothing in the documentation provides any authority for what was none to this employee, and if he/she accepted the situation that is not proof that the Respondent’s actions were legitimate.

Case B

It is clear from the screenshot that this employee was placed on “Mark Time” and “Notional”, and we must emphasise again that the Complainant was NOT. (And there is no evidence that this was simply due to an “error”.)

There is a complete absence of a copy of any communication from the employee, and just one document from the Respondent.

Again, nothing in the documentation provides any authority for what was done to this employee, and if he/she accepted the situation that is not proof that the Respondent’s actions were legitimate.

The respondent’s position seems to be: we did it and we were right to do it. So there!.

Case C

The Respondent’s legal team must not know the meaning of Precedent. (Viz: an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances).

This “precedent” post-dates the events relating to the Complainant, so can not be a precedent. It is somewhat disingenuous of the Respondent to try to slip this in as relevant evidence.

There is further duplicity in this inclusion, as this particular employee is on record as reserving her position on the matter, and this is known to the Respondent.

We do not see a need to comment on the content of C, as its inclusion is invalid. We also note that no copy of any communication from this employee has been included with the documents.

Case D

Again the employee record shows that Mark Time and Notional Pay were recorded. Further, the cause of the reduction in pay was nothing to do with allowances, but was due to the implementation of the Haddington Road Agreement.

We note that this case is well padded with irrelevant documentation.

Dunnes Stores v. Margaret Lacey and Nuala O’Brien

Difficult to understand what point the respondent was trying to make in this instance. The employees’ pay wasincreased, but they were trying to achieve an even higher rate.

The HC ruled that there was not a deduction, but that has no relevance to the Claimant’s situation.

The Claimant has suffered a deduction from his wages, and that is simple fact.

Sullivan v. Dept of Education

After careful study of this EAT determination we can see nothing that would in any way be adverse to the Claimant’s situation and claim.

This final submission is in response to the submission by the Respondent, dated 31st October 2018.

I find this submission extraordinary in its duplicity and I will explain this characterisation in what follows:

a.       The Respondent has been determined from the outset to restrict the Claimant’s ability to study the Respondent’s position, starting with their refusal to allow the Claimant the opportunity to see their submission before they presented it at the WRC hearing. This was at a minimum discourteous, and certainly in breach of normal procedures at such a hearing. The effect was that the Claimant was prejudiced by their behaviour, as he only had the opportunity to study their submission after the hearing. The Respondent seems to be suggesting that if they can obstruct the Claimant’s opportunity to study their submission that that should be the end of it – tough luck on the Claimant. Their counsel should have known better.

b.       The Respondent seeks to limit the Claimant’s response to their “4 precedent cases” to that matter only, and nothing further should be permitted. How then do they explain that they included items in addition to the so-called precedent cases?

c.       The Respondent does not even address the fact that they included a case that is demonstrably not a valid precedent, nor do they address the fact that they withheld relevant and significant matters relating to that particular employee’s position on the matter.

d.       The Respondent asserts that the opinion put forward on behalf of the Claimant are not expert opinions. Wishful thinking. These opinions were from people closely associated with public Service employment. Does the Respondent think it credible to suggest that the opinion of a former HR Director of the HSE should not carry any weight?

What is also absurd in Respondent’s reasoning is their claim that our submitted opinions are effectively invalid, when they have relied throughout on the opinion of Public service personnel to support their action against the Claimant – and we were not afforded the opportunity to challenge these individuals. The entire process is characterised by Revenue claiming that their opinions have value, and those presented by the Claimant have none.

The respondent’s actions were “justified” by people in DPER/People Point. These people were not in attendance at the hearing – if the respondent wants opinions ignored then these can be ignored, and the respondent’s defence falls entirely.

e.       The Respondent objects to the expert opinions because they were “individuals who were not present”. Where are the respondent witnesses who can give evidence of their direct involvement with The Claimant’s situation? The Respondent has repeatedly claimed that a mistake was made: By whom? When? Was it an error of omission or of execution? The Respondent has been silent on precisely how the alleged error came about. If an instruction was given on the matter, the person who gave the instruction should have been at the hearing, and so should the person to whom the alleged instruction was given.

f.        The Respondent objects to Mr. M’s opinion, because it was based on the salary being unconditional. It was unconditional. No evidence has been adduced to show that it was in any way conditional.

g.       The Respondent again tries to rely on the canard that the Claimant was on a mark-time basis. The Respondent has not produced an iota of evidence that the Claimant was on mark-time, and the actual evidence shows that he was not in any way recorded as being so, nor was he ever even told verbally that he was so. The Respondent’s item 3 is just a re-has of the same unsupported contentions as before.

The Respondent asserts: “This payment was conditioned (sic) on any return to an allowed post – where the extra duty allowance became payment separately – losing the benefit of the extra duty allowance in the salary scale” (and other similar assertions). There is no evidence whatever of this being the case, and the actual evidence shows that no conditions were attached – and the respondent accepts that nothing to support their contention was recorded.

h.       The Respondent’s items 6 and 7 are more re-hashing of assertions for which no evidence has been produced. (See the questions in 3. Above.)

i.         The Respondent’s items 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 are just repetition of what was already said, presumably in the hope that the repetition will lend some credibility to unwarranted claims. Under the rules that the Respondent is attempting to impose, these items should not be allowed anyway.

And it is not a “fact” (in 8.) that “an officer is not entitled to receive the benefit of the same allowance more than once”. The evidence submitted by both parties unquestionably shows that it was simply an opinion.

And Circular 34/77 does not support the action taken by the respondent against the Claimant. The respondent’s actions were based on unjustified extrapolation, and on opinion.

j.         We must repeat that there was no over-payment, so all the arguments presented about the respondent’s right to take back wages are false.

k.       It would appear from all the Respondent’s correspondence that the actions they claim were justified only applied in Revenue. Their “precedents” were all from Revenue. Revenue is an integral part of the Public Service, and all rules and regulations are common across the Public Service – and are supported always by Circulars. This Revenue-only practice has always been suspected by the Claimant, and nothing submitted by the respondent causes him any change of mind.

In general, it is noted that the Respondent wants to apply High Court-type procedures to the Claimant, whilst they do not adhere to such procedures.

The Complainant is engaged at the Assistant Principal officer level within the respondent. He is engaged at the Assistant Principal officer level in a role which attracts an extra duty allowance. The allowance is payable due to the nature of the work and the requirement that an officer in that role is required to give full flexibility in regard to their attendance (including weekend attendance) as the requirements of the job dictate. The Complainant applied for and was successful in a competition for assignment to this role.

Prior to his promotion to the position of Assistant Principal, the Complainant was engaged in the position of Higher Executive Officer (HEO), on the 9th point (LSI 2) of the HEO salary scale LSI2 being €58,294 and also received an extra duty allowance of €19,635.68 per annum as a separate payment. This allowance was payable for the nature of the work and the requirement to give full flexibility with regard to attendance as the requirements of the job dictates. His total salary was €77,929.68 per annum inclusive of the extra duty allowance.

On 10 October 2016, following a competitive application process for promotion from Higher Executive Officer to Assistant Principal, the Complainant was promoted to Assistant Principal and placed on the salary scale of LSI2, €76,224-the 8th point of the scale- in order to receive the benefit of the extra duty allowance in the calculation of his starting pay on promotion. Had the Complainant not been in receipt of an allowance in his point on the salary scale and or it was not factored into his point on the salary scale, he would have commenced at the first point of the pay scale at the higher grade post promotion at the time being €65,000. The extra duty allowance which applied to the Complainant was included in the calculation of starting pay in the position of Assistant Principal on his promotion on a mark time basis. When a person who is in receipt of an allowance is promoted a calculation on their notional pay is also carried out i.e. where they would be placed on the higher pay scale if they had not been in receipt of the allowance and their annual progression up that pay scale. The person then marks time and does not receive annual increments until their notional pay matches their actual pay. In cases where an officer is on a mark time basis and returns to an allowanced post they return to their notional pay when they take up duty in the allowanced role. A copy of the email of 22 July 2016 from Corporate Services Division of the Respondent notifying the Complainant of his starting salary on promotion is attached   to these submissions.

However, the placement of the Complainant on the salary point at LSI2 (by case ID 908575) by the Respondent was not noted within the Human Resources Management System (HRMS) as being on a mark time basis.  

From 10 October 2016-16 July 2017, the Complainant was on promotion assigned to a new role in the Meath District. He continued to receive the benefit of the extra duty allowance payment as part of his salary (in his salary scale) on the basis of a marking time basis.

In 2017, following an internal competition for the allowanced post, the Complainant accepted the allowanced Assistant Principal post.   From 17 July 2017, the Complainant remained on the salary of LSI2 €78,451, and received the extra duty allowance of €19,635.68 separately, reflecting his allowanced post. This salary point (LSI2) was no longer correct due to the Complainant’s re-assignment to an allowanced role as the salary point he was incorrectly placed on post this assignment was inclusive of the extra duty allowance. Therefore, in error as by way of overpayment from July 2017-April 2018 the Complainant received the extra duty allowance payment on a double basis- as a separate extra duty allowance in addition to receiving the same extra duty allowance in his salary point. This error occurred as the LSI2 point the Complainant commenced on in October 2016 was not reflected as marking time on HRMS.

From July 2017, the Complainant should have instead been placed on point 1 of the salary scale for the grade of Assistant Principal, which was €13,358 less than the salary point he was placed on in error at this time and received the extra allowance payment as a separate payment. Instead for the period of July 2017-April 2018, the Complainant received the extra duty allowance payment in his salary point and by way of separate payment. His point on the salary scale was not re-adjusted as it should have been due to an administrative error.

The correct salary point the Complainant should have been placed on from July 2017 was to avoid any accrual of a double benefit of an extra duties allowance. Since July 2017 and to April 2018, therefore, the Complainant received an overpayment in salary on the basis of his being placed on an incorrect salary point in error and receiving the extra duty allowance on a double basis.

As part of a general review of allowances by the Respondent in 2017, the double payment of the extra duty allowance paid to the Complainant post July 2017 due to an administrative error became apparent by reason of his marking time not being noted on the HRMS.

Ms A O’G of the Corporate Service Division has worked in personnel within the respondent for over 6 years. Included in her responsibilities is the management of 300+ allowanced posts. Ms O’G will give evidence of her dealings with the allowance case of the Complainant and other similar cases (going back to 2007) where an officer is reassigned to an allowanced role, having left that role to take a promotion, and who cannot retain the benefit of the same allowance twice. She will also give evidence of the practice, principle and policy established within the respondent and being an established policy and practice of the Department for Public Expenditure and Reform and previously the Department of Finance that an officer cannot benefit from an allowance twice. The practice within the respondent is where an officer accepts a position which attracts an allowance, that portion of the allowance still being benefitted from should be discounted and the position on the pay scale be reached as if the allowance is not included.

On 23 February 2018, Ms A O’G of the Corporate Service Division of the Respondent spoke to the Complainant to inform him of the overpayment of salary since his assignment to the allowanced role. On 13 March 2018, Ms A O’G spoke to the Complainant to inform him that he had been placed on an incorrect salary point in July 2017 in error. She explained to him that as his salary point from July 2017 already included the extra duty allowance, his salary point would be readjusted as an officer cannot benefit in principle twice from the same allowance whilst performing the duties that attract the allowance. He would continue to receive the extra duty allowance separately. Ms O’G received confirmation of the practice established within the respondent and the civil service generally from the Department for Public Expenditure and Reform (DPER). Ms O’G did so in order to ensure her approach to the non payment of the same allowance twice was correct and fair.   Ms O’G is aware that this principle has been applied to other officers in receipt of allowances. Ms O’G clearly informed the Complainant that an instruction would issue from the Revenue to PeoplePoint to correct the error. A copy of all correspondence between Ms O’G and the Complainant is attached , together with confirmation received from DPER of 6 March 2018 .

The position of the Respondent has been fully explained to the Complainant, in all correspondence, most recently in the letter to the Complainant of 18 June 2018. In practice, from July 2017 the Complainant should have been placed on a salary point, which was €13,358 less than the salary point he was placed on in error, LSI2 which is the highest point of the AP salary scale. Since 23 March 2018, the Complainant has been correctly placed on the second point of the AP salary scale €68,216 and has received the extra duty allowance separately. A copy of this letter of 18 June 2018 is attached to these submissions.

The position of the Complainant is that he is entitled to the extra duty allowance both in his starting pay on promotion and when he returned to the allowanced post. This is a fundamentally misconceived position and seeks the payment of the extra duty allowance on a double basis. This position ignores that that the Complainant’s salary point from July 2017-April 2018 was inclusive of the extra duty allowance-in error. Due to this overpayment-the Complainant’s salary scale was readjusted in April 2018 as an officer cannot benefit in principle twice from the same allowance whilst performing the duties that attract the allowance. The Complainant continues to receive the extra duty allowance as a separate payment and is on the correct salary point. The Complainant also contends that no justification has been received for the deduction and this is again, incorrect, as Ms O’G has explained to the Complainant on a number of occasions the reason for the necessity for the recoupment of overpayments made to the Complainant both orally and in writing.   Where a promotion position salary scale has benefitted from the allowance in the calculation of starting pay, and subsequently an officer moves to a post which attracts the same allowance, the officer’s pay must be recalculated to ensure the benefit of the allowance is not applied twice. Unfortunately, in error, this principle was not applied to the Complainant and the recoupment of the overpayment to the Complainant is to rectify this situation.

Due to the overpayment in salary to the Complainant in error by the Respondent from July 2017-April 2018, the Respondent through PeoplePoint has commenced a process to readjust the salary to the correct point and the recovery of the over payments. The Complainant’s salary was re-adjusted from 26 March 2018 and this resulted in a reduction in salary at the rate of €508.59 per fortnight.   The Complainant has been notified that recovery of the gross amount overpaid between July 2017 and March 2018 of €8,898.64 pursuant to Circular 10/2017 and now Circular 07/2018. It is proposed that as the recovery of overpayment the Respondent will deduct the sum of €341.07 gross per fortnight from the Complainant’s salary until the amount of €8,898.64 gross has been recovered-being the full amount of the overpayment. The deduction is to reflect the correction of the point on the salary scale of the Complainant. A copy of correspondence between the Complainant and PeoplePoint is attached to these submissions.

Circular 10/2017 and Circular 07/2018 on the Recovery of Salary, Allowances, Expenses Overpayments made to Staff Members/Former Staff members/Pensions mandate the recovery of overpayment from staff members. These circulars are issued pursuant to section 17 of the Civil Service Regulations Act 1956 as amended. These circulars permit the recovery of over-payments, which is prescribed as “money is paid in excess of what is due in the appropriate salary, allowance, or expenses payment and is recoverable in principle”. It is also clearly prescribed that staff members have an obligation to repay overpayments and this must be paid as soon as possible. The recoupment is also necessary to ensure that the respondent’s pay policy-and that of DPER-is applied.

The WRC complaint form lodged on behalf of the Complainant was received by the WRC on 8 June 2018, such that the relevant period over which jurisdiction can be assumed is 9 December 2017-8 June 2018.

Legal submissionsAbsence of jurisdiction

In these proceedings, the Complainant seeks to recover the overpayments recouped by the Respondent for the period of 26 March 2018-8 June 2018 as an unlawful deduction within the meaning of section 5. As will be submitted, no jurisdiction exists for this claim under the Payment of Wages Act 1991 as any recoupment of an overpayment of wages is excluded from the Act by reason of section 5(5)(a)(i) of the Act. The Complainant has been informed of this position by Ms O’G.

A number of situations are excluded from the general scheme of protection from unauthorised deductions within the 1991 Act. One of the express exclusions from the 1991 Act is where an employee seeks to recover overpayments as an unlawful deduction.

This claim is prohibited in its entirety by reason of section 5(5) of the Payment of Wages Act 1991 which provides as follows:

(5) Nothing in this section applies to–

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of–

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment.

Once it is established that the purpose of the deduction is to recover an overpayment and the amount recovered does not exceed the amount of overpayment, as is the case in the instant proceedings, the WRC has no jurisdiction to determine the legality of any deductions made. The overpayment which has and is being recouped by the Respondent lawfully arising for the period when the Complainant received the extra duties allowance on the double, in breach of the established policy both of the respondent and DPER that an officer cannot benefit in principle twice from the same allowance whilst performing the duties that attract the allowance. The exact amount of the overpayment is being recouped. In this regard, reliance is placed on the English decision of   Sunderland Polytechnic v Evans [1993] IRLR 196 , which considered section 1(5)(a) of the Wages Act 1986 which is precisely the same in its terms as section 5(5) of the 1991 Act. Section 1(5)(a) of the Wages Act 1986 provided as follows:-

(5) Nothing in this section applies — (a ) to any deduction from a worker's wages made by his employer, or any payment received from a worker by his employer, where the purpose of the deduction or payment is the reimbursement of the employer in respect of — (i) any overpayment of wages,

In the Sunderland Polytechnic case, the employer had deducted a whole day's pay from a worker's wages even though she had only gone on strike for half a day. The employee claimed this amounted to an unauthorised deduction from her wages. However, the EAT held that since the deduction fell within section 1(5), which excludes deductions on account of the worker's participation in strikes or other industrial action, the tribunal had no jurisdiction to hear the claim.

The approach adopted in Sunderland Polytechnic was also followed by the EAT of England and Wales in SIP (Industrial Products) Ltd v Swinn [1994] IRLR 323 in which the employee had dishonestly obtained money from his employers by altering receipts for diesel fuel. The employee was dismissed and the employer withheld monies due to him for holiday pay and wages. The employee claimed that this was an unlawful deduction. The employer argued that it was entitled to withhold payment under the Wages Act 1986 on the basis that the deduction was in respect of an overpayment of expenses incurred by the employee in carrying out his employment. The EAT held that the determining factor is the purpose of the deduction and provided the payment was an overpayment, no jurisdiction existed for the claim to be considered under the equivalent legislation to the Payment of Wages Act 1991. The EAT held as follows:-

“(2) Section 1(5)(a ) to (f ) covers cases of the kind described whether the deduction is lawful or unlawful. Section 1(5) disapplies the provisions of section 1(1) in cases where there is “any deduction,” lawful or unlawful, falling within any of the specified categories. In those cases the industrial tribunal have no jurisdiction to inquire into or determine the issue of lawfulness or unlawfulness of the deduction: see Sunderland Polytechnic v. Evans [1993] I.C.R. 392, which did not follow an earlier decision of the appeal tribunal in Home Office v. Ayres [1992] I.C.R. 175. The industrial tribunal in the present case could not have been aware of the decision in Sunderland Polytechnic v. Evans, since it was not reported until after the decision of the industrial tribunal.

(3) The wording of section 1(5)(a)(ii) is wide enough to take this deduction out of the jurisdiction of the industrial tribunal. The employers made a deduction from the employee's wages, but the purpose of that [1994] ICR 473 at 478 deduction was the reimbursement of themselves. The reimbursement sought was in respect of an overpayment. That overpayment was in respect of expenses. Those expenses were incurred by the employee in carrying out his employment. The reason for making the overpayment was the dishonesty of the employee. The provision includes “any overpayment” in the category made “for any reason.”

(4) The purpose of the deduction thus falls within the wide words of section 1(5)(a )(ii).

The industrial tribunal erred in law (a) in entertaining a complaint on the question whether a deduction made for the purposes of reimbursement within the meaning of section 1(5)(a ) was a lawful deduction and (b) in holding that it was an unlawful deduction. The determination of the question whether or not it was an unlawful deduction does not fall within the statutory jurisdiction of the industrial tribunal. The dispute is a common law contractual dispute which can be resolved by civil proceedings in the High Court or in the county court.”

In A Lecturer v A University[1], an Adjudication Officer was satisfied that as the overpayments had to be recouped by the employer, the claim of the Complainant under the Payment of Wages Act 1991 was not well founded. In Aer Lingus v Matchett,[2] (Appendix 10) the Labour Court held clearly that “section 5 does not apply to a deduction made in respect of an overpayment of wages, where the amount deducted does not exceed the amount due to the employer”. It found that as the salary of the Complainant was not his appropriate salary point and was an error on the employer’s part, it was not unlawful for the deduction to be made. This equally applies to the current case.

From the foregoing case law, it is submitted that once it is established the recoupment by the Respondent is for the purpose of recouping an overpayment of wages from the Complainant-as per section 5(5)(a)(i) of the Act-no jurisdiction exists for the claim of the Complainant to proceed. The Complainant benefitted incorrectly from the extra duty allowance on the double for the period of July 2017-April 2018 as it was included in his salary point (an incorrect salary point on the salary scale) and paid as a separate payment. This was an overpayment by way of the established practice within the Respondent-as confirmed by DPER. The purpose of the deductions from the Complainant’s wages is the recovering of overpayment and the precise amount of the overpayment is being recouped. It is submitted, therefore that no jurisdiction exists for this claim to be considered by the WRC.

STRICTLY WITHOUT PREJUDICE TO THE FOREGOING

Deduction is a lawful deduction

The deductions from the Complainant’s wages made on behalf of the Respondent to the Complainant’s wages from 26 March 2018-9 June 2018 are lawful deductions are they are deductions required by statute by reason of the requirements of Circular 10/2017 and now Circular 07/2018 for the Respondent to recoup the overpayment of wages paid to the Complainant for the period of July 2017-April 2018. Circular 10/2017 and Circular 07/2018 on the Recovery of Salary, Allowances, Expenses Overpayments made to Staff Members/Former Staff members/Pensions mandate the recovery of overpayment from staff members.

Section 5(1) of the Act provides as follows:

(1) 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,(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or(c) in the case of a deduction, the employee has given his prior consent in writing to it.

The circulars are issued pursuant to section 17 of the Civil Service Regulations Act 1956 as amended. These circulars permit the recovery of overpayments which is prescribed as “money is paid in excess of what is due in the appropriate salary, allowance, or expenses payment and is recoverable in principle”. It is also clearly prescribed that staff members have an obligation to repay overpayments and this must be paid as soon as possible. Section 17 of the 1956 Act as amended prescribes that the Minister is responsible for the following matters:-

(a)    The regulation and control of the Civil Service,

(b)    The classification, re-classification, numbers and remuneration of civil servants,

(c)     The fixing of-

(i)                  The terms and conditions of service of civil servants, and

(ii)                The conditions governing the promotion of civil servants.

Clearly, therefore, the Circulars are issued for the regulation of the regulation within the Civil Service and terms and conditions of service of civil servants-including in respect of the recoupment of overpayment of wages. These must be applied by the Respondent in order to recoup the overpayment of wages to the Complainant and he-as per the Circular- has an obligation to repay the overpayment. On that basis section 5(1)(a) is applicable-being a deduction required by statute or any instrument made under that statute. The Circular issued is a Circular issued pursuant to a power conferred on the Minister under the 1956 Act and as such constitutes an instrument made under statute for the purposes of section 5(1)(a). Further, the Statutory Instruments Act 1947 defines an instrument as “an order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute.” The Labour Court has held, as per Tourism Ireland v Farrelly [3] the definition in the 1947 Act “is a broad definition”. In Dublin and Dun Laoghaire Education and Training Board v Flynn, [4]  the Labour Court found that a Circular was an instrument issued by the relevant Minister under statute and fell within the parameters of section 5(1)(a) of the Act.

Insofar as the Complainant contends that he has not provided his consent in writing to the deductions made, this is not necessary for section 5(1)(a) to apply. In Earagail Eisc Teo v Doherty [2015] E.L.R. 326, Kearns P. held that the exceptions listed at (a), (b) and (c) of subs. (1) were “clearly not to be taken conjunctively”. The word “or” was expressly used and it was clear that each paragraph concerned separate instances which might give rise to an exception to the rule that an employer shall not make a deduction from the wages of an employee.

Conclusions:-

1.       From the foregoing it is submitted:-

a.       No jurisdiction exists for the within claim as the subject matter of the claim is the recoupment of overpayment of wages;

b.       Strictly without prejudice to the foregoing, the deductions made to the Complainant’s wages are lawful as they are required by statute.

Alleged illegal deduction from wages.