ADJ-00031803

Complainant

Respondent

Parties

Timothy  Harrington

Department Of Agriculture Food And The Marine

Representatives

Dan Leahy O'MAHONY FARRELLY O'CALLAGHAN

Desmond Ryan BL instructed by Karen MacNamara Chief State Solicitor's Office

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-00042126-001

25/01/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

The Complainant is employed as a Marine Foreman with the Respondent. He commenced employment on 17 September 2002 and earns a weekly gross wage of €980.86 for working a 39-hour week.

It is the Complainant’s case that the Respondent made unlawful deductions from his wages on 2 October 2020 and continues to make deductions for the total amount of €6,800. He stated in his complaint form that he was given 21 days’ notice.

The Complainant was on sick leave from November 2014  to 22 May 2017 following a workplace issue.  By letter dated 25 March 2020 the Complainant was informed that he exceeded that maximum 183 days sick leave in a rolling 4-year period with reference to the Public Service Management (Sick Leave) Regulations S.I. 124 of 2014.

The Complainant’s solicitor wrote to the Respondent on 9 June 2020 stating that the period the Complainant was on sick leave from 11 November 2014 to 22 May 2017 was directly resulted to the stress and anxiety arising from the workplace bullying which was confirmed by an independent investigation.

An internal review of the complaint was undertaking by the Respondent which resulted in a letter from Human Resources of 28 August 2020 stating that the Complainant had exceeded the terms for granting of sick leave contained in S.I. 124 of 2014. There was reference to a full and final settlement of other legal proceedings. The Respondent referred to Circular 07-2018 Recovery of Salary, Allowances and Expenses Overpayments and advised the Respondent would be recouping overpayments made to the Complainant.

The Complainant received a letter dated 11 September 2020 from HR advising that he had been overpaid by the sum of €6,800 (gross) in respect of sick pay and outlining a recoupment plan to begin on 2 October 2020 with an estimated finish date of 1 October 2021 in accordance with Circular 07-2018.

It is the Complainant’s case that he was on sick leave for 924 days from 11 November 2014 to 22 May 2017 as a direct result of workplace issues which he claims the Respondent accepted responsibility. It was submitted that the Respondent should not be allowed to profit from its wrongdoing by including this period of sick leave in its calculations in accordance with S.I. 124 of 2014.

The Complainant relied on Allen v Independent Newspaper (Ireland) [2001] 2 JIEC 0501 and in particular in the context of Section 7 of the Unfair Dismissal Act 1977 which required that the context of the Complainant’s financial loss must be considered in the context of an act or omission or conduct on behalf of the Respondent prior to the dismissal.

The Complainant further relied on the principles of restitution and unjust enrichment as recognised by the High Court in Hickey & Co Ltd v Roches Stores (Dublin) Ltd (No 1) [1980] ILRM 107. This case involved the Defendants breaking a contract to allow the Plaintiffs to sell fabric in their store, calculating that even after paying agreed damages they would profit from carrying o the business themselves. The Complainant submitted that these principles were applicable to his case as the Respondent should not be permitted to profit and gain credit for the Complainant’s sick leave incurred as a result of failure to address his complaints in the workplace.

The Complainant filed further submissions on 25 May 2021 which related to incidents in 2016 and 2017.

The Respondent objected to reference to previous legal proceedings on the basis the WRC does have not jurisdiction to deal with such matters. The Respondent exhibited the perfected Order of the High Court dated 18 April 2018. 

The time line of events set out by Respondent were similar to that of the Complainant; the Complainant was on sick leave and he was advised by its HR Dept that he exceeded the maximum 183 sick days on a rolling four-year period as set out in the Public Services Management (Sick Leave) Regulations 2014.

The Respondent wrote to the Complainant between 26 January 2020 – 11 September 2020 with a plan to recoup the overpayment of €6,800.60 having regard to the provisions of Circular 07/2018. Payslips were presented evidencing the deductions from the Complainant’s wages. The Respondent put forward the contention that it was perfectly entitled to make the deductions for overpayment from the Complainant.

The Respondent submits that the complaint is “fundamentally misconceived” in that it fails to disclose any cause of action under the 1991 Act. It rejects the allegation that the Respondent’s actions were “wholly unjust and …contrary to national justice” in that it is being allowed to profit from its wrongdoing on the basis of the settlement of High Court proceedings.

The Respondent submitted that it has a full defence to the compliant; the deduction is authorised pursuant to the 1991 Act and pursuant to an instrument made under statute having regard to Circular 07/2018. The Respondent relied on the Labour Court decision in Hosford v Dept of Employment Affairs and Social Protection (9 April 2021). It submits this case clearly illustrates that it is legitimate for the Respondent to recoup the monies owing to it because of the exceeding of the paid sick leave entitlement pursuant to the Circular and demonstrates why the Complainant’s case must fail.

The Respondent rejects the Complainant’s reliance on the Allen decision on the basis section 7 of the Unfair Dismissals Act 1977-2015 is an entirely different statutory regime to section 5 of the 1991 Act. Therefore, the principles applicable in the Allen case are of no relevance to this claim. The same position is repeated in response to the Complainant’s reliance of the Carney decision which was again a case of dismissal as oppose to payment of wages.

The Respondent rejected the claim of unjust enrichment and took issue with the Hickey decision maintaining it was of no relevance to this dispute where there was a claim previously sought for loss of earnings before the High Court. It was submitted that the principle of finality / res judicata applies.

It is important to note from the outset that my jurisdiction is limited only to the claim before me, namely a claim under the Payment of Wages Act 1991. I have not considered any submissions in relation to High Court proceedings as it is simply not within my jurisdiction.

Section 5 of the Payment of Wages Act 1991 provides:-

“5.—(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.”

Having carefully considering the facts of this case in light of the relevant provision it is clear the 183-day limit for sick days as provided for in Regulation 10 of the Public Service Management (Sick Leave) Regulations S.I. 124 of 2014:-

“Maximum period of paid sick leave by reference to 4-year period preceding relevant time

10. Notwithstanding anything in Regulation 9, but subject to Parts 4, 5 and 6, if, in the period of 4 years preceding the first day of the relevant person’s current period of sick leave, there has occurred a period of sick leave that is in excess of 183 days (being a period of 183 days in respect of which remuneration at the full rate or the half rate has been paid) no sick leave remuneration shall be paid in respect of that part of that sick leave that exceeds 183 days.”

Consequently, applying Section 5 (1) (a) there is a clear statutory instrument setting out the sick leave limit and no sick leave payment will be made for sick days beyond the 183 days. The number of sick days taken by the Complainant is undisputed as exceeding 183.

The Respondent wrote on several occasions between January and September 2020 advising of the plan to recoup the overpayment of €6,800.60 having regard to the provisions of Circular 07/2018. At the opening of the Circular it states that it must be read in conjunction with S.I. 125 of 2014 and the Amending Regulations S.I. 384 of 2015. Para. 5.5. of the Circular states:-

“Sick Leave-Related Overpayments

If an overpayment arises as a result of sick leave, the overpayment should be recouped in accordance with the current Circular on the Recovery of Salary, Allowances, and Expenses Overpayments made to Staff Members/Former Staff Members/Pensioners/”

The Circular refers to Circular on Overpayments which states at 1.7; “all monies owed by a staff member/pensioner on foot of their being overpaid for whatever reason must be repaid to the Exchequer as soon as possible, as provided in this Circular.”

From October 2020, a repayment plan was in place for the deduction from the Complainant’s wages for a period up to October 2021 to allow for the recoupment of the overpayment.

In conclusion, the Respondent has acted in accordance with Section 5 of the Payment of Wages Act 1991.

Having heard both parties and carefully considered the submissions , I find the complaint is not well founded. There is clear statutory and contractual entitlement for the Respondent to deduct for overpayments made.

Payment of Wages – Claim not well founded.