Complainant

Respondent

Anonymised Parties

A Public Servant

A Government Department

Representatives

Hamilton Turner Solicitors

Andrew Whelan B.L. instructed by the Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00031188-001

30/09/2019

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

CA-00031466-001

09/10/2019

In 2010 the complainant had two periods of sick leave comprising in total one hundred and eighty days’; the first of which followed a complaint of bullying and harassment, and the second being a result of the unsuitability and stressfulness of a new position he was assigned to on his return to work from the first period.

He was given to understand that this period of absence would not be reckonable in any future calculation of his entitlement to sick leave. He was told that this record would be kept on a ‘ghost file’, from which he understood that it would not be referred to in the future.

He was awarded his annual increment in 2011 which indicated to him that his sick leave absence had been disregarded.

In 2014 he was sick again for thirty seven days and while he was paid at the time, on foot of a review which followed the Haddington Road Agreement, payments in the amount of €4934.00 approximately were subsequently ‘clawed back’.

Later, a second amount of €940 was sought.

Had the commitment he was given in 2010 been honoured no ‘clawback’ would have arisen.

The deduction is therefore an unlawful deduction of wages prohibited by the Payment of Wages Act as the complainant has not exceeded his sick leave entitlements when the ‘ghost file’ commitment is taken into account.

The complainant’s sick leave record is as set out above.

However, the respondent can find no record of any agreement to discount the 2010 sick leave absences.

Therefore, he has exceeded the provisions of the sick leave regulations as revised and the respondent has a legal obligation to recoup the overpayment.

Specifically, Circular 07/2018 states;

‘Departments and Officers are under an obligation to seek to recover the amount of overpayment and to correct the mistake in the disbursement of public monies, subject to relevant procedures and practices in Government accounting. Staff members/former staff members/ pensioners have a reciprocal obligation to repay.

The complainant was advised by letter on November 21st 2014 of the overpaid sick leave. Later this was stated to be €5030 and details were supplied as to how this had arisen.

He applied for ‘Critical Illness pay’ which is a form of extended sick pay but he did not meet the qualifying criteria. He appealed the decision but was not successful.

He was then advised of the repayment proposal which involved a weekly deduction of €96.40.

The total sum due, and as a result the weekly payments were reviewed downwards to €3834 and €73.48 respectively.

These deductions began on April 19th, 2019 and are due to continue until April 17th 2020.

The overpayments were a direct consequence of the introduction of SI 124/2014 and the respondent is legally obliged to recoup the monies and has acted lawfully in doing so.

It denies that there was any agreement not to recoup the overpayments and can find no evidence of any such agreement.

The complainant’s case is a simple one.

It is that had the ‘ghost file agreement’ (for convenience of reference) been respected, his sick leave would not have exceeded the threshold which placed him into the overpayment category.

He did not dispute any aspect of the lawfulness of the obligation falling on the respondent to seek repayment of an overpayment; simply its applicability to him.

He faced a number of obstacles in establishing this case.

On the one hand, the situation described by the complainant does not in general seem unreasonable. It might be seen as equitable for an employer to have done so given that the source of his illness and his absence arose from a workplace matter.

Private sector employers who have no sick pay schemes have been known to make payments on a totally discretionary basis where absence followed a work-related injury, for example.

But on the other hand, the suggestion that the respondent, or someone acting on its behalf might have done so is highly improbable.

The respondent operates in a highly structured and regulated public service environment where the possibility of a HR professional agreeing to depart from well established sick leave regulations seems extremely unlikely at best.

Add to this the total absence of any records or any other evidence supporting the ‘ghost file’ theory (including the file itself, which the respondent said it could not locate) and the improbability of this submission grows.

The respondent’s own evidence about the meeting in June 2010 where this commitment was alleged to have been given was vague and unpersuasive. He was a volunatary representative in his trade union and was accompanied at the meeting and yet no record or follow up correspondence was offered to support the ‘ghost file’ submission.

It is hard to believe that some note of the meeting from his side confirming the agreement to discount the sick laeve would not have been made. But none was.

Indeed, the respondent’s note of the meeting on June 21st, 2010 which was submitted in evidence makes no reference to it; it shows the meeting was mainly concerned with the possibility of a transfer of the complainant.

The HR official who allegedly made the commitment has since retired and did not attend the hearing.

Therefore, while there may have been some reference to a ‘ghost file’ (it is unlikely that the complainant imagined this) there was no evidence that this referred to discounting the 2010 sick leave absence.

Even with such evidence the complainant would have faced an uphill battle but in its absence his case falls apart.

Complaint CA-00031466-001 was a duplicate and was withdrawn at the hearing.

Complaint CA-00031188-001 is not well found.

Payment of Wages, sick leave