ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00017491
Complaint:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00022622-001 | 15/10/2018 |
Date of Adjudication Hearing: 07/01/2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
This case involves a Union claim to prevent a Public Body in recouping an over payment of Temporary Rehabilitation Remuneration (TRR) in the aftermath of a period of sick leave. The Public Body has disputed the claim and has insisted on a re payment plan. Both parties were represented, the Claimant by her Union Official, Liam Conway and the Employer by Maria Daly, Employee Relations Manager. Both parties presented extensive submissions on the day of hearing. |
Summary of Claimant’s Case:
The Claimant is an established Senior staff nurse, now retired. She commenced work with the Employer in 1994-2004 and again 2013-to her date of retirement on grounds of ill health in August 2018, The Claimant worked a 34.5 hr week. Prior to this period, the claimant availed of Temporary Rehabilitation Remuneration (TRR). The Employer has identified an overpayment of €10,000 gross (8,966 euro nett) in this payment and had denied the claimant her lump sum retirement payment pending repayment of the over payment of TRR. The Union, on behalf of the claimant has submitted that this recoupment should be estopped through the medium of promissory estoppel. The Union contended that the lions share of the error fell on the employer and the claimant should not have to repay. The Union also sought a compensatory payment of €5,000 for the Employers non-adherence to the National Financial Regulation (NFR-04), where a deduction was not permitted while a grievance was in being. The Union outlined that the claimant commenced on sick leave in April 2015. She received sick pay for several months until this entitlement lapsed. TRR was sanctioned for the following periods: 12 October 2015 to 11 April 2016 11 April 2016 to 1 October 2017 1 April 2017 to 1 October 2017 1 October 2017 to 31 March 2018 The Claimant had been vigilant in the application of TRR and had relied on the assurances provided by the employer. She had raised several concerns herself during the payment of TRR. On 20 April 2018, the claimant was notified of an overpayment in TRR. “following a recent review of all TRR payments, it has been noted that payment of TRR to you should have ceased on 12 April, 2017….” Limits of TRR were recorded as 547 calendar days on TRR in a rolling 4-year period without discretionary extension beyond these limits. The Employer quantified the overpayment and the claimant was invited to repay the overpayment of €10,673.11 gross. The Union wrote to the Employer on 30 July 2018, stating that the claimant intended to contest the overpayment claiming the scheme was insufficiently monitored. The Union also contended that the Public Body was in fact estopped from recouping the monies through the doctrine of Promissory estoppel /estoppel by representation. The Union argued that the Claimant had taken the public body assurances on the tenure of TRR payment as read and had no cause to doubt their veracity. She had pressed on in her daily life on that basis and expended the monies in a reasonable fashion. The Union relied on the persuasive value in English Court of Appeal case in Avon County Council V Howlett 1986 1 ALER @178. There was a notable delay in receiving a response and the complainant had retired on ill health grounds in the intervening period. The Claimant experienced financial hardship as the Public Body decided to retain her pension payments while the over payment went unresolved. She eventually received her pension regular payment from October 31, 2018. The payment of lump sum remains outstanding. The Union submitted that the Public Body was estopped from recouping the sum sought by them through the doctrine of Promissory estoppel. The responsibility for the overpayment could not be attributed to the claimant, who acted to her detriment in accepting the assurances given on the projected tenure of payment of TRR. The monies were now spent and not properly retrievable. The Union was dissatisfied with the Public Body’s delayed engagement in terms of the grievance procedure which is the hallmark for resolution of these issues within the National Framework and sought compensation for this variance in procedure. |
Summary of Employer’s Case:
The Employer disputed the claim and outlined that the error in overpayment was presented to the claimant with an apology as soon as the error was identified. The Employer had approached the issue reasonably and had sought discussions on agreeing a reasonable repayment plan. This was a National driven objective of the Public Body concerned. The Employer gave some background to the case, where the claimant had commenced sick leave on 15 April 2015. She did not return to work before the confirmation of her retirement on ill health grounds on 27 August 2018. This is the period to the claim. The Employer explained that the sick leave scheme was governed by statutory regulations, Public Service Management (Sick leave) Regulations 2014(S.I.124/2014) operationalised on 31 March 2014. This constituted a period of full and half pay in a 12-month period within a rolling 4 years. Once this is exhausted TRR may apply to employees who have at least 5 years’ service and is paid contingent on the “realistic prospect of an individual returning to work “The ceiling entitlement here is 548 calendar days. The Employer concurred that the claimant was sanctioned for the TRR referred to earlier. It was the Employer position that TRR should have ceased in the claimant’s case from 12 April 2017 and not one year later. The Employer attributed this overpayment as a computation error and sought a recoupment plan from the claimant. The Employer submitted that provision existed to subtract the monies owe from the claimants lump sum in retirement. The Employer contended that the claimant had been allocated over and above her entitlement to TRR and no discretion existed to extend this beyond April 2017. The Employer argued that the Public Body was bound by the parameters of National Regulation on Overpayments which declared a statutory obligation to recoup any overpayments just as they were obliged to make good an underpayment scenario. The Employer disputed the relevance of the doctrine of promissory estoppel to an Industrial Relations case. In relying on the Equitable maxim of “He who comes to equity must come with clean hands “, the Employer argued that the claimant had overlooked her contractual obligation to repay an overpayment and this negated the force of the argument on equity. In relying on Healy and Ulster Bank Ltd and Promontoria (Aran) limited [2018[] IEHC 12, the Employer submitted an extract which ended with: Equity counters injustice that the law, untampered, might otherwise yield; it does not exist to obviate obligations that the law justly imposes The Employer contended that the power of promissory estopped at best amounts to a delay rather than an extinguishment. In this case, it is being wrongly relied on a shield. The Employer employs over 11,000 workers and submitted that it was not acceptable to avoid repayment. In relying on Barge In limited v Quinn Hospitality Ireland operations ltd [2013] IEHC 387, the employer reaffirmed the temporary parameter through time in Promissory estoppel. The Employer is totally dissatisfied that the claimant has not made any gesture on agreeing a repayment of the monies owed to it. The repayment is provided for in Section 5(6) of the Payment of wages Act, 1991.The Employer has reached out to the claimant and her Union to agreement a repayment plan without success. the Employer submitted that the Union letter of 30 July 2018 did not flag that a grievance had been imitated. This letter was not accompanied by a request to meet to resolve the issue.
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Findings and Conclusions:
I have listened carefully to the parties at hearing and I have reviewed both submissions presented at hearing. The first thing I noticed was the marked change in the Employers sick leave and supportive measures scheme shortly after the claimant resumed work in 2013 i.e. 31 March 2014. The second thing I noticed is there was a large field of participants in the administration of the sick leave and supportive measures. This may have broadened the margin for error in the case. Both parties are united and agreed that an error occurred. Neither are agreed on how this should be resolved. Both parties held a very strong conviction on their respective arguments. During the hearing, I established that this was the first face to face exchange on this topic. This was regrettable for both parties and may have unwittingly clouded the potential for an earlier resolution. While I am mindful that the Labour Court insists on a procedural engagement, I note that the claimant is now retired through ill health. I have taken account of this special circumstance. This prompted me to return to the documentation submitted during my investigation. I noted that the Claimant was overtaken by a supervening event through her pre-mature retirement on ill health grounds in August 2018. I asked the Employer whether any special consideration or weighting on repayment was allowed for this classification of worker? By that I meant someone who had prematurely left the workforce with zero capacity to re earn? There was nothing readily available. I can appreciate that the Employer held a legitimate expectation that the Public Body was entitled to be recompensed for an error. I can also appreciate that the Union chose to rely on promissory estoppel as a “cease and desist “cause of action. However, the Courts have expressed some reluctance to apply this in the case of statutory schemes (Power V Minister for Social Community and Family {2006} IEHC 170), in a case where a social welfare allowance was retained in a non-statutory scheme. However, this is a claim advanced under the Industrial Relations Act 1969 and I intend to address it in that vein. During the hearing, I noted that the complainant had been vigilant in her own case. She had asked questions at a time where she had doubts on whether the TRR should have progressed? These questions may not have been heard. I was disappointed that the mistake had gone on so long, undetected. The Union included a letter dated 7 October 2016 which informed the Employers administrative centre of the imminent cessation of TRR on 1 April 2017 (the correct date of cessation) What followed seemed to be a lack of cohesion between the claimants work base and the administrative centre for TRR. I found a lack of shared awareness of the claimant’s pre-existent income protection scheme. I formed the view that in the ordinary course of events, the claimant would have had no difficulty in taking on a repayment plan, but the circumstances presented at the hearing were compelling. I could see that the prospect of finding these monies from much-reduced earnings was causing the claimant much apprehension. This must be balanced against the Employers statutory duty to recoup the overpayment. I have identified a window for potential resolution to assist both parties in this case. During the hearing, the Union explained that the claimant was an ongoing beneficiary of income continuance from her Private Insurer. This was calculated as 75% Salary minus TRR. The Union confirmed that the Private Insurer had stabilised the claimant’s payments from April 2018, that is they paid 75% of salary as TRR was no longer a reckonable feature. When I inquired whether they would now follow suit for the April 2017 -2018? I was informed in the negative. I inquired into what “trigger system” prevailed at Employer level to highlight those who had income continuance and those who didn’t? The Employer confirmed that GDPR Regulations militated against an integrated system which would delineate both categories of worker for administrative purposes. I believe that this resultant disharmony in synapse between these two pay systems goes to the root of this case. It seems that a procedural Algorithm to take account of the diversification in the timing of the three key payments, Sick leave, TRR and Income Continuance would be of enormous benefit here going forward. Back to today, I believe that the claimant has submitted enough grounds for her case to be looked at individually and with a slight degree of latitude. I have found some merit in the main aspect of the Dispute, that of the recoupment of the overpayment. It is important that I reflect on the composition of TRR as a payment not linked to pension contribution, service or pension levy deductions. I have identified that the best way forward is for the Employer to lead in seeking to make representations to the Private Insurer to mirror the Financial supports given by the Insurers to the claimant in April 2018 to August 2018. I cannot support the Union claim for compensation in this case. It befell on both parties to engage on this claim prior to the hearing. I found omissions on both sides in this regard.
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Recommendation:Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I have found merit in the Dispute. I recommend that in the first instance the Employer approaches the Private Insurance company and reaffirms the notification contained in Appendix 14 of the Union submission (letter dated 7 October 2016). The Employer should then emphasise that the circumstances that befell the claimant in TRR in April 2018 were mirrored in April 2017 and request that reciprocal action is taken to cover the mistaken period to allow the claimant to secure a full 75% Salary (through rebalancing of TRR) for April 2017 to April 2018. Once this is resolved, I strongly encourage both parties to engage on a mutually agreeable repayment plan from the re-imbursed monies which emerge from the Insurer. Nothing in this recommendation should be viewed as limiting the opportunity for the claimant to access her Retirement Gratuity. This should be paid without delay. I do not uphold the claim for compensation for reasons already given.
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Dated: 29/04/19
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Over Payment Of pay during sick leave. |