Complainant

Respondent

Anonymised Parties

A Clinical Nurse

A Public Body

Representatives

Liam Conway,  Irish Nurses and Midwives Organisation

  Employee Relations Manager

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00042146-001

26/01/2021

On 26 January 2021, the Union on behalf of the Worker lodged a complaint seeking investigation of a Trade Dispute. On 23 February 2021, the Public Body confirmed that they were prepared to participate into an investigation into this Dispute.

The case came for hearing on 11 February 2022 and both parties were represented. The Worker, a Clinical Nurse by her Union, the INMO and the Public Body by their Employee Relations Office.

Both parties compiled and submitted helpful submissions and each party submitted a copy of a previous Adjudication Recommendation on which they sought to rely.

The Union identified that the Worker in the case had commenced employment on a 34-hr basis as a Theatre Nurse on 27 August 2017. She commenced on point 1 of salary scale, while her past service was reconciled for pay purposes. The letter of appointment reflected 34 hrs per week.

She had previously worked at another Hospital in the City which ran a different pay roll where hours were enumerated on the pay slip.

On 11 June 2019, the Worker was notified of two-year evolution of overpayment of €8619.20 gross.

This overpayment arose when you received an increment and instead of it being set up based on 34 hrs it was set up at fulltime rate of 39 hrs   

The Worker received an apology.

The Worker set about a validation exercise as she recalled confirmation of the 34-hour commitment on correspondence. She could not secure this validation and had recourse to seeking the information under the Freedom of Information Act, 1997. Numerous correspondence received as a result, confirmed that 34-hour commitment.

The Worker raised a grievance in accordance with the National Financial Regulations Policy on 5 March 2020. By then the Worker had already allocated her wages and spent what was referred to as an “overpayment”. She submitted that pay slips issued during this period did not delineate hourly rates or hours worked. This has since changed.

The Union submitted that efforts to secure meetings were delayed by the Employer. The parties met on November 24, but no resolution followed. The Union referred the case to the WRC on 26 January 2021.

In the interim, the worker was appointed to an enhanced position which attracted an upward alignment of salary, arrears of €1313.61 are still being held by the Public Body.

The Union has sought the application of the legal doctrine of Promissory Estoppel in this case

…. where a party relies to their detriment on the faith of a belief, which was known or encourages by another, the other party cannot insist on their strict legal rights, for to do so, would be inconsistent with the belief that was encouraged

The Union contended that the Worker had acted to her detriment arising from assurances given that she had been paid properly. The Worker was simply unable to return the money on a “full recoupment “basis as requested, given her special circumstances.

The Worker is very distressed at the way this issue unfolded. She acted genuinely and was not a participant in the error in payment and disputes the fairness of what she is being requested to do by her employer. She remains aggrieved at the procedural delays in her seeking to resolve the matter.

She intends to remain an employee of the Public Body but wishes to resolve this issue without having to repay the requested sum.

The Union requested that I consider a previous Adjudication Recommendation ADJ 25717, which they referred to a hearing and which they submitted post hearing.

The Public Body has disputed the Union claim. They confirmed that an overpayment was identified, the Public Body apologised for the delay and brought the matter to the Workers attention.

The Public Body has actively pursued consensus for a reasonable repayment plan in accordance with the National Financial Regulations Policy on management of Overpayments.

The Public Body chronicled the Workers commencement in employment, where she sought to work 34 hrs a week, but wasn’t immediately accommodated. The Worker elected to work 30-hour week x 19 weeks until she commences 34 hrs in January 2018.

The Employer brought the deficit in hours 30-34 to her attention and she worked back the additional hours over an agreed extended period.

The Employer runs a manual system for pay and as result of an administrative error, the complainant was returned for 39 hours pay instead of 34 hrs. This resulted in an established overpayment of €8,619.20, which was notified to the Worker on 11 June 2019. The Employer set out their obligations under Section 4.1.1 of the National Financial Regulations and sought engagement on a mutually agreeable repayment plan.

The Worker began working with her Union through the Service and did not come back to the Pay Roll Dept.

The grievance which followed was adjourned considering the Emergency Period of Covid 19 until such time as current restrictions are lifted.

The Employer has kept communication lines open, but no resolution has followed outside a suggestion to offset the enhanced role arrears of €1, 313.61.

The Employer is bound to operate the terms of the National Policy on Overpayments. They have apologised for the error but have a statutory responsibility for the proper management of public funds which necessitates a re-imbursement in a timely manner to the Paymaster.

The Employer disputed the application of the doctrine in Equity of Promissory Estoppel in this case and said it was misconceived as the worker could not satisfy the baseline of coming to equity with the “clean hands “She had absorbed the overpayment which moved her outside the equitable remedy.

The Employer was seeking the repayment in full through the medium of being fair and reasonable. They had no lea way on quantum but were prepared to consider exploration of a mutually agreeable repayment plan.

The Employer requested that I consider a previous Adjudication Recommendation ADJ 17491 referred to a hearing and which they submitted post hearing.

I have carefully considered both parties stated positions in this case. I have read the Adjudication Recommendations and the National Financial Regulations relied on. I have also had regard for the circumstances prevailing in the Irish Health Service during the early days of the Grievance i.e., March 2020, that of a moratorium on procedural progression in grievances.

I have found the efforts to secure a chronology of documents through FOI to be radical and measures short of that should have been open to the parties.

This case came before the WRC on 26 January 2021 and acknowledge that the parties have been seeking to resolve the matter.

I understand how this overpayment occurred. I fully accept that the Worker was not responsible for this error. I found shortfalls in the documentation submitted on employment of the Worker on 21 September 2017. It did not mention hours of work and raised an early opportunity for a margin of error.

My jurisdiction in this case rests under Section 13 of the Industrial Relations Act, 1969 and my Investigation is directed under the pillars of “fairness and reasonableness “

The Legal doctrine of Promissory estoppel is an effective tool within legal arguments. However, this is a Trade Dispute, and I am considering this claim through Industrial Relations Concepts.

I accept that the Employer activated the National Policy on overpayments promptly on discovery of the overpayment and felt slighted when the worker sought to direct her response to the service area rather than the human resource area.

Neither party could possibly know how the case would be overtaken by the challenge of the National Pandemic. I appreciate that the Worker was aggrieved by the prospect of being asked to repay a very large sum. I can appreciate that this was a frightening development in her working life.

I did probe the parties at hearing, if either party had any lea way in terms of compromising the case.

I accept that the Worker has personal circumstances which make repayment a big ask. I also accept that the National Financial Regulations are on a contractual footing which was accepted by the Union at hearing.

I read the National Policy which seems to have at its heart a targeted approach to a consensus on repayment on time rather than quantum. That is the Employers observed position.

I did identify that there was provision in the policy for considering a positive change in role/grade as a basis for negotiations. I also identified opportunity for application for a derogation from National Officers.

I realise that both parties have approached the case with a certain disappointment in how the other party addressed the case. For my part, I accept that the case is now properly before the WRC and I would prefer to move forward onto the fair and reasonable corridor, if possible.

I observed that the Worker was very apprehensive regarding the prospect that a disruption of an unwieldy repayment would have on her everyday management of finances. I also observed that the Employer had no lea way on quantum but had some scope on scheduling a repayment plan.

The parties are engaged in active employment. The Worker has advised that she intends to stay with the employer which gives some scope to considering what might follow in terms of a way forward.

I fully accept that the pay roll system has since changed to permit individualised recording of hours of work and pay. Instances of recurrence are therefore much reduced.

I have found that there was an inordinate delay from June 2019, notification of overpayment to March 2020, grievance. The Union has explained that this was necessary to allow a FOI request to provide access to a dossier on recruitment etc. This should not have needed that level of elaborate Inquiry and the local service ought to have issued that documentation much earlier. However, as stated, nobody could have predicted the destabilising effect of the Pandemic on the trajectory of the case.

While I have found some merit in the Dispute, I find that the Employer is entitled to recoup an over payment albeit, fairly and reasonably.

The cases put forward by the parties are not 100% comparable to this case

In ADJ 17491, an employment had been brought to a premature ending through illness, which reduced the scope to repay monies from salary. I take on point the Employer argument on the supremacy of IR argument over the legal doctrine.

In ADJ 25717, the overpayment of in excess of 14 k ran over a protracted time frame on inactivity on agreeing repayment. In fairness, to the parties in this case, they have been speedier.

I inquired into the projected upward alignment of salary which may apply to the worker. I was informed of October 1, 2022, 1% on base pay.

The residue of the arrears remains on hold at the Employer Payroll.

I have found some merit in this dispute.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found some merit in the Dispute.

I have found that the Employer has an entitlement to recoup the over payment. I wish to hand the following Recommendation to the parties for their consideration.

The repayment of €8619.20 is to be predicated on a “going forward “basis.

1 The arrears of €1,313.61 is to be reconciled to the Employer within 21 days of this Recommendation.

This would leave a residue €7305.59 gross, for which I would like to propose two options for consideration.

1 That the Worker repays the sum of €202.93 gross monthly for 36 months until the residue is repaid.

Or

2 That the Worker consider working one day per month to be returned separately and credited to the residual amount until the residue is repaid.

I am informed in suggesting  that approach by reference to the worker working back extra hours at the commencement of her tenure in 2017 /18.

I would also recommend that if either of these options is accepted as a way forward, that the Employer would issue an annualised statement of account until the matter is concluded.

Management of an Overpayment of Wages