Complainant

Respondent

Anonymised Parties

Senior Midwife

Health Services Provider

Representatives

Mr. David Miskell, Irish Nurses & Midwives Organisation

 Self-Represented

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-00032752-001

05/12/2019

The Worker is a long-standing and senior member of the Respondent’s management team. On 5th December 2019, the Worker referred a “trade dispute” within the meaning of the Acts to the Commission. The Employer positively elected to engage with the trade dispute by way of correspondence dated 16th December 2019. A hearing in relation to the same was convened and finalised on 3rd December 2020. The hearing was conducted remotely, with neither party experiencing technical issues during the same. 

In summary, the Worker contended that the Employer was acting unreasonably in seeking to recover an overpayment of wages. The Employer’s position was that they were entitled to recover the overpayment and had sought to negotiate the same with the Worker.

No issue as to my jurisdiction to hear the dispute were raised at any stage of the proceedings. 

In June 2014, following an internal audit, it was discovered that the Worker had been received an overpayment of wages to the value of €14,213.40. This overpayment accrued over period of seven years and arose as consequence of the continued payment of an allowance that should have been discontinued.

When the issue was first raised, the Worker accepted that overpayment and met with the Employer in an effort to resolve the issue. When these initial meetings did not resolve the issue, a senior Human Resources Director correspondence with the Worker engage in an effort to resolve the issue approximately one year later. Again, the Worker sought to engage with the Employer, with no concrete proposals for repayment being suggested or agreed. In 2016, the Worker’s trade union representative corresponded with the Employer seeking further engagement. No contemporaneous response was received to this request and the matter lay dormant for a number of years. 

The matter was not raised again until January 2019, when a Human Resources Manager wrote to the Worker seeking a meeting to resolve the matter. This correspondence alleged that the Worker had failed to engage with the Employer in relation to the issue, much to the consternation of the Worker. Following receipt of this correspondence, a meeting was arranged for 29th January. When this meeting did not resolve the issue, the Worker’s representative wrote to the Employer seeking a further meeting between the parties. In June 2019, the Employer responded stating that they were bound to recover all overpaid wages as expeditiously as possible and stating that they would be in touch to arrange a meeting in relation to the same. During a meeting of 22nd August, the Employer stated that it was bound to collect the overpayment as expeditiously as possible and did not propose any timeline or make any form of proposal relating the collection of the same. In December 2020, given that matters had not progressed in any material fashion, the Worker’s representative lodged the present dispute with the Commission.

The Worker’s representative submitted that the Employer operates a specific policy for situations were an overpayment arises. This policy states that in cases of an overpayment, the Employer will correspond with the Worker setting out a proposed repayment schedule. In the present case, while the Employer issued correspondence stating that the overpayment was due and owing, no proposed payment schedule was ever suggested. Likewise, no payment schedule was ever suggested during any of the meeting held over the six-year period this matter was being discussed.

In the circumstances, the Worker’s representative submitted that it was unreasonable for the Employer to continue to seek repayment of the outstanding wages and the debt should effectively be forgiven. In support of this submission, the Worker’s representative had stated that the Worker had retired by the date of the hearing (but prior to the lodgement of the present dispute). In such circumstances any proposed repayment would have to be deducted from her pension lump sum, greatly impacting her ongoing financial security.

By response, the Employer stated that they discovered an overpayment to the Worker of €14,213.40. In such circumstances the Employer has a duty to recover the overpayment as expeditiously as possible. Since the discovery of the overpayment, the Employer sought to engage with the Worker on numerous occasions to arrange a meeting with their finance section to make arrangements to repay the balance. While the Worker, through her representative, met with various representatives of the Human Resources department, this was not the correct course as they did not have the authority to propose a payment schedule.  

With the present matter, the parties are at odds regarding the proposed repayment of wages that were received in error. In this regard I note that both parties’ issues numerous correspondences and held multiple meetings over the course of a number of years without resolving the matter.

The first point that must be noted in relation to this dispute, is that it was not caused by any fault or negligence on the part of the Worker. The overpayment of the bonus was entirely the fault of the Employer, as was the fact that it went undetected for so many years. This oversight on the part of the Employer led to the Worker finding herself in the unfortunate situation whereby she owed a significant amount of money to her employer. In such circumstances, it would be reasonable to expect that the Employer would seek to address the issue carefully and would propose a re-payment plan that would cause the minimum amount of financial hardship to the Worker. As matters transpired, this is not what occurred, and the Employer did not propose any form of repayment schedule during the dispute. In failing to do so, I note that the Employer is in breach of their own policy regarding such matters

I also note that the Employer was not particularly pro-active in their endeavours to resolve the issue, with lengthy gaps occurring between correspondences and meetings. Indeed, it is apparent that it fell to the Worker, through her representative, to pursue the matter and seek to have the matter resolved. This delay is all the more unreasonable in circumstances whereby the Worker was approaching retirement, with her ability to agree to a long-term repayment schedule suffering a consequent reduction with the passage of time.

The Employer has submitted that the fact that the Worker’s representative corresponded with the wrong department (HR as opposed to finance) caused a significant portion of the delay. Having reviewed the relevant documentation, I find that this is not the case. Throughout the process, representatives from the Employer’s HR department met with the Worker and her representative and positively engaged in the process of resolving the issue. In doing so, it is apparent that the HR department assumed at least some responsibility in the resolution of the matter. Even if this was not the case, any reasonable employer would simply pass the Worker’s correspondence to the relevant department and allow the process to resume from there.

Having regard to the foregoing, I find that it would be unreasonable to expect the Worker to repay the entirety of the outstanding balance. Nevertheless, the Worker did receive wages in error, and for a number of years she did enjoy a benefit to which she agrees she had no entitlement. In light of the same, I do not agree with the Worker’s submission that the entirety of the outstanding amount should be effectively forgiven.

Having carefully considered the submissions of both parties, I recommend that the total of the repayment be reduced to €5,000. I further recommend that the Employer set out a re-payment schedule to the worker within 21 days of the date of the recommendation.  

Having carefully considered the submissions of both parties, I recommend in favour of the Worker. I recommend that the amount of outstanding wages be reduced to €5,000, with the Employer issuing a proposed payment schedule to the Worker within 21 days of the date below.

Over-payment of wages, Delay, payment schedule