ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00015976

Parties:

Complaint(s):

Date of Adjudication Hearing: 14/01/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969following 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 dispute refers to the non-payment of a Performance Development Review (PDR) increase; an error to the payment of maternity benefit resulting in a deduction of wages; and the Respondent’s refusal to hear an appeal into the grievance findings relating to the complaint.

Summary of Complainant’s Case:

The Complainant is a Section Manager in a retail outlet. The Complainant has been employed with the Respondent since September 2006. The Complainant experienced difficulties with regards to a payment for her PDR; matters relating to payment of her maternity benefit; and her experiences when seeking to appeal the outcome of an internal grievance about these matters.

Payment of PDR

The Complainant submitted that she was entitled to a PDR payment but this was not paid for a period of eight months. She maintained that she was entitled to a pay increase in July 2016 but did not receive this payment of April 2017.

Maternity Benefit

The Complainant submitted that the Respondent made an error with regards to her payments for maternity benefits where she was advised in June 2017 that she had been over paid €3,225 and then advised that she had been over paid €4,230 due to the Respondent not deducting the balance between her social welfare maternity benefits and her pay for a period of 18 weeks. This was the Complainant’s fourth time to be on maternity leave and she indicated it was not the only errors that had been made by the Respondent regarding maternity benefits.

The Complainant submitted that the Respondent told her to use her holiday pay and any contributions she had made to the Christmas savings scheme to pay off the overpayments. On 22nd June 2017 the Complainant requested a copy of the total payments made, and she agreed to a payment plan at that stage which included offsetting her annual leave entitlements. The Complainant maintained that her July payslip was withheld and there was a wrong deduction of her hours where the Respondent deducted these overpayments in July 2017 without prior information. The Complainant maintained this was contrary to section 5 of the Payment of Wages act. She therefore had to submit a backdated recovery form.

On 17th August 2017 the Complainant came to an agreement where she authorised payments of €150 per month which was to commence from 10th December 2017, however the Respondent commenced deductions from October 2017. The Complainant maintained she did not receive a payslip in October 2017.

The Complainant further submitted that as a consequence of having the deductions taken without agreement contrary to the arrangement she had made in July 2017 she experienced financial difficulty because of the Respondent’s errors which were not of her making, and she had to return to work early.

Handling of the Complainant’s Grievance

The Complainant maintained she submitted a grievance on 21st October 2017 to seek to resolve the matter and the outcome of the grievance was issued on 18TH December 2017. She advised there was no hearing, but the matter was dealt with through a written response. The Complainant submitted that she appealed the outcome of the grievance on 29th January 2018, but the Respondent advised that as her appeal had not been submitted within 14 days she was not granted the appeal. The Complainant maintained this was unfair on her as a grievance should have been dealt with within the time limits, but it took over six weeks for the Respondent to deal with the grievance. She advised on 29th May 2018 there was an appeal meeting and she was informed of the outcome of this on 11th June 2018 where the Respondent was not seeking for the Complainant to pay a balance of €900 that was outstanding to address the error for the overpayment of maternity benefits.

Overall the Complainant was seeking compensation of €8,000 for the difficulties she experienced and the manner the Respondent had handled her grievance.

Summary of Respondent’s Case:

The Respondent acknowledged there was an error made with regard to the incorrect payment of maternity benefits to the Complainant. The Respondent did not accept that there were grounds for the complaint as it had done its best to resolve the matter through its internal procedures. The Respondent advised that the HR Manager who dealt with the matter was on special leave due to a serious personal matter and was unable to attend the hearing. The Respondent acknowledged that a request for an adjournment of this hearing had been granted November 2018 due to the HR manager’s absence.

Payment of PDR

The Respondent advised that the agreed procedure for the PDR process requires an employee to submit evidence each July for the previous 12-month period which they believe they have performed above and beyond the normal day-to-day duties. This evidence is then considered by management to determine if an additional pay increase should be applied. The Respondent advised that this is an additional opportunity over and above any collectively agreed national salary increases.

The Respondent advised that in 2016 the Complainant requested the PDR be carried out and she secured an increase along with another Section Manager in the store. The increase was to be paid from October 2016. The Respondent advised that due to a payroll error the Complainant’s increase was never sanctioned however when it came to its attention the matter was addressed but at this time the Complainant had departed on maternity leave from March 2017. The Respondent acknowledged that the matter was resolved, and the relevant back payments were made. It was also submitted that the HR manager apologised to the Complainant for what happened.

Maternity Benefit

The Respondent advised that the company policy in relation to maternity benefit allows for the payment of full payment for 18 weeks of maternity leave for Section Managers and as the Complainant was on her fourth period of maternity leave she would be aware of these arrangements. The agreement is that the amount of the monthly social welfare maternity benefit is deducted from the full monthly salary paid and this leaves the employee with a full and normal month’s pay for the 18-week period.

The Respondent submitted that due to an administrative error during the Complainant’s period of maternity leave (which was from March 2017 to November 2017) the social welfare amount was not deducted for the months of March, April, May and June resulting in the Complainant having been over paid and that she received her full pay over these months. The Respondent submitted that the Complainant was overpaid by €4,230. The Respondent advised that three other managers who were on maternity leave also had issues with the payroll relating to their maternity pay. When the Respondent became aware of this issue in June 2017 it notified the Complainant and deducted the €4,230 from her July salary. As the Complainant was only entitled to be paid €3,004.26 there was a balance remaining of €1,321.72 that the Respondent maintained the Complainant owed the company. As the Complainant was left with no money for July 2017 she requested an advance of €450 which was arranged, and the Respondent then agreed a loan agreement with the Complainant where the Complainant would repay €150 per month commencing on 10th December 2017. The Respondent advised that it referred to this as a debt amount owing by the Complainant to the company upon her return to work.

The Respondent contended that this was the first error that occurred with the Complainant’s maternity leave and the Respondent apologised profusely to the Complainant for what happened. It confirmed to the Complainant that she could pay the full amount back in monthly instalments in whatever monthly payment she was capable of paying. The Respondent advised that the Complainant was met with the store HR manager on two separate occasions to reiterate this, to offer support, and where the Complainant agreed to pay back €150 per month. The Respondent acknowledged that it commenced deducting the €150 in October in error and notified the Complainant when it became aware of this matter, and has since rectified these payments.

The Respondent advised that the Complainant informed the HR manager that paying back that amount per month was causing an issue for the Complainant and the Respondent offered to reduce the amount to €50 per month but the Complainant said that it would take longer for it to be paid off.

In recognition that the Complainant was discommoded by the error the Respondent agreed to wipe the remaining debt of €900 o which was owed as a goodwill gesture for the inconvenience caused. The Respondent submitted that the Complainant responded that she had used up to two weeks of her annual holiday entitlement to pay off some of the debt and she was seeking a refund of this in addition to wiping the remaining €900. The Complainant’s manager advised that the Respondent could not do both and reiterated its willingness to wipe out the remaining €900 debt. The Respondent maintained that the Complainant did not accept this and continued to pay down the debt.

Handling of the Complainant’s Grievance

The Respondent submitted that on 3rd October 2018 the Complainant’s trade union representative corresponded to the Respondent referring to multiple mistakes that had been made by the Respondent. The store HR manager addressed this at the time with the Complainant and apologised profusely for the inconvenience caused as a result of the error and payments.

The Respondent’s submitted that in accordance with its procedures for internal appeals an appeal should be lodged in writing with the head of HR within 14 days of receipt of a grievance decision. The Respondent maintained that the Complainant’s appeal came almost two months after the grievance outcome was communicated. Accordingly, it maintained the appeal was out of time to lodge and the company adhered to the agreed procedures by rejecting the appeal.

The Respondent submitted that it was still prepared to wipe the outstanding debt from the Complainant which stands at approximately €293.05 and it would refund up to the value of €900 in total to the Complainant which was the original offer made to the Complainant. The Respondent advised that it applied its best efforts to try and resolve the issue following the Complainant’s return to work from maternity leave. Accordingly, the Respondent sought that the hearing would reject the complaint made by the Complainant.

Recommendations:

Section 13 (3)(a)(i) of the Industrial Relations Acts, 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.

Having heard the evidence presented by the parties it is clear that the Complainant had entitlements to receive her PDR pay increase following a successful review; that she had been overpaid her maternity benefit where the Respondent sought to recover the overpayments following consultation with the Complainant; and where the Complainant being unhappy with her experiences lodged a grievance that took some six weeks for an outcome. When the Complainant lodged an appeal, the Respondent refused to hear the appeal on the basis it was not submitted within the required time frame as set out in the grievance procedures.

Payment of PDR

I am satisfied a genuine error occurred where the Complainant did not receive her PDR on time but that the Respondent rectified this matter once it became aware of the error. I recommend this matter be deemed as closed.

Maternity Benefit

I am satisfied that the Complainant was overpaid for her maternity benefit, and where three other employees also experienced errors in pay roll at this time. The Respondent’s error appeared to be a genuine mistake.

Under section 5(1) of the Payment of Wages Act 1991, as revised, an employer is entitled to deduct wages 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. In this case the Respondent was entitled to deduct the amount of the social welfare maternity benefit from the Complainant’s wages as it is part of the contractual arrangements between the parties. In accordance with S5(5)(a)(i)(1) of the Act, an employer may make a deduction from the wages of an employee, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the reimbursement of the employer in respect of any overpayment of wages. The deductions made by the Respondent were therefore lawful.

I accept the payments were made in error and the Respondent sought to recover this payment in one payment during July 2017. It is not clear that the Complainant was fully consulted with before the total amount was deducted. Notwithstanding having recognised what had happened the Respondent arranged to transfer money to the Complainant to rectify the manner the overpayments were taken from the Complainant, and where the Complainant was provided with a number of options into how the overpayment should be repaid. The Respondent agreed with the proposal that the Complainant would refund €150 per week. The Complainant was also offered the option to pay the overpayment back at €50 per week but she declined this offer. Furthermore, I also note that the Respondent apologised for what happened and agreed to write off €900 of the balance outstanding as a goodwill gesture in recognition of the error made.

Having considered this matter I find that the Respondent has behaved reasonably in attempting to rectify its error and I therefore recommend the Complainant accept the €900 write off offered by the Respondent, and in the event that she is paid some or all of the €900 that the Respondent return this to the Complainant without delay.

Handling of the Complainant’s Grievance

The Respondent is obliged to deal with the grievance in accordance with its own procedures. I note that the Respondent took some six weeks before providing an outcome of the grievance to the Complainant. When the Complainant sought to appeal the grievance less than two months later the Respondent refused to provide an appeal on the basis it was not with a within the timeframes required. In light of the Respondent’s delay in providing a response to the grievance in the first instance I find this approach as being unreasonable.

I therefore recommend the Respondent compensate the Complainant one week’s wages for it delays in dealing with the grievance.

Dated:   7th August, 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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