Complainant

Respondent

Anonymised Parties

A Worker

An Employer

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-00022953-001

31/10/2018

The complainant has taken issue with the errors that the respondent made in relation to his annual leave. In 2017 he asked HR how many days annual leave he had left. He was told that he had 3 days left. That was a mistake. He only had zero days left. After taking his holidays he was told that the respondent had made a mistake and that holidays would have to be paid back. This error effected the vast majority of the employees. The complainant was given four options:

-              Take the days as unpaid leave.

-              Reduce his annual leave days the following year.

-              Repay the overpayment.

-              Work the hours back in overtime.

The complainant was the one who sold the new portal system to the employees. On that basis he feels that the respondent should write the days off.

The case before you today concerns a claim by Mr. P and Mr. G (hereinafter the Complainants') against their employer Musgrave (hereinafter the Respondent) under section 13 of the Industrial Relations Act, 1969. The Complainants are seeking two additional days annual leave due to a computer error in 2017. The respondent disputes these claims; the complainant's have been offered equitable remedies that they have declined.

Background:

In February 2017 the respondent introduced an Annual Leave Portal, the purpose of this portal was to eliminate the use of paper request form for annual leave.

The new system developed a fault in the third quarter of 2017, this resulted in employees having their annual leave miscalculated. 65 employees were listed on the Portal as having less than their correct entitlement, 60 were listed as having more than their entitlement and 12 employees had the correct amount.

The respondent became aware of this error in early 2018. Immediate action was taken, a communication was issued to all staff advising them of the error and those directly affected were met with individually.

All errors were corrected by reference to the 2018 leave year, i.e. if the employee received less than their correct entitlement the balance was added on to the 2018 entitlement and if the employee took leave in excess of their entitlement the balance was deducted from the 2018 entitlement.

Background to Complainants'

The Complainants' are employed by the Respondent as General Assistants. Their annual leave entitlement is 21 days. Both contracts of employment contain a clause concerning ‘Pay Errors’ that address the fact that errors in pay can arise from time to time and the mechanism for correcting errors.

Upon discovery of the computer error both complainants were advised that they had taken in excess of their annual leave entitlements (Mr K was listed in error as carrying forward one day annual leave into 2018, upon correction the actual carry forward was - 4.5 days, Mr P was listed as carrying forward -2 days, upon correction the actual carry forward was -5 days).

In local engagement between the respondent and its employees who were affected by the error, a number of options were discussed and agreed to resolve the issue;

(i)            The negative carry forward will be off set against the 2018 entitlement

(ii)           Avail of unpaid leave in 2018 to allow for a work life balance

(iii)          Repay the over payment in increments over several months

(iv)         To work back the days as overtime, for example if 24 hours were owed he could work 16 hours overtime to correct the balance.

All of these were refused by the complainants', they were advised to avail of the grievance procedure, both declined, no grievance was raised.

In August of 2018 SIPTU wrote to the respondent advising that they would be "now referring this dispute to the WRC". The stated position of SIPTU was that as the error was the responsibility of the respondent it was an act of penalisation to correct the error.

The respondent replied by letter dated August 16, 2018; this letter factually explained how the error occurred. The letter also set out the options available to the complainants' as per paragraph 7 above. The respondent asked that SIPTU engage locally prior to any referral to the WRC.

A meeting was convened between the respondent, SIPTU and Mr K on August 23, 2018. The respondent reiterated the options available to the complainants, options that had been accepted by all other SIPTU members affected. SIPTU's position on behalf of two of their members was  

On October 31, 2018 the instant claim was received by the WRC.

Respondent Arguments

It is a long-established legal principle that the employer can recoup an overpayment to an employee. In this case a computer error resulted in a miscalculation of annual leave for 125 employees, the respondent was bound by its rights and responsibilities rights to correct this mistake.

The Payment of Wages Act itself contains provisions concerning the mistakes on the part of an employer in calculating wages. Section 5 (6) states; -   except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

It has not even been suggested by SIPTU that this error was attributable to an error of computation. Therefore the 1991 Act allows the employer to correct the error without agreement. In this case we have not done that (though we reserve the right to) as we have sought an agreed solution.

The respondent acted reasonably in correcting this error. They have not simply deducted leave entitlements or wages, the respondent engaged directly with all affected employees and worked with each one of them to correct this matter. 123 employees and SIPTU members were satisfied with this and reached an agreed method to correct the error two did not.

It is of concern to the respondent in this case that the complainants with the support of their Union refused to raise this matter through the grievance procedure. The respondent operates a comprehensive grievance procedure that has been negotiated and agreed with SIPTU. I wish to draw the adjudicator's attention to the fact that the only formal engagement between the parties prior to this hearing came about at the request of the respondent. This is another example of the unreasonableness of the Union's position.

The options put by the respondent to resolve this issue amicably;

(i)            The negative carry forward with be off set against the 2018 entitlement

(ii)           Avail of unpaid leave in 2018 to allow for a work life balance

(iii)          Repay the over payment in increments over several months

(iv)         To work back the days as overtime, for example if 24 hours were owed he could work 16 hours overtime to correct the balance.

These options remain available to the complainants.

The respondent, having installed a new portal system for the calculation of annual leave discovered that the system was not calculating the annual leave entitlements correctly for the majority of their staff. Out of 137 staff only 12 had their entitlements calculated correctly. Some were given too little annual leave and some too much. Having discovered the error, the respondent acted quickly to rectify the fault within the system. In the interest of fairness, the gave their staff who had been given additional days annual leave, four options:

-              Take the days as unpaid leave.

-              Reduce his annual leave days the following year.

-              Repay the overpayment.

-              Work the hours back in overtime.

All but the two of the staff accepted one of the four options. The complainant is one of the two who did not.

I recommend that the complainant accept one of the four options and does so within two weeks of this recommendation. In the interest of good working relationships, I recommend that the respondent write off 1 day. I also recommend that whatever option the complainant picks, that the entire issue is resolved within 9 months from the date of this recommendation

I recommend that the complainant accept one of the four options and does so within two weeks of this recommendation. In the interest of good working relationships, I recommend that the respondent write off 1 day. I also recommend that whatever option the complainant picks, that the entire issue is resolved within 9 months from the date of this recommendation