ADJ-00029279

Complainant

Respondent

Anonymised Parties

A Public Health Nurse

A healthcare Provider

Representatives

Liz Curran Irish Nurses and Midwives Organisation

Claire O'Rourke HSE

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

CA-00039231

19/08/2020

The Complainant has been employed as a Community RGN with the Respondent since the 30th April 2007.  As well as her RGN qualifications, she also holds a Paediatric qualification which she utilises during the course of her work.  She submitted that on the 4th November 2019 she was advised by her former HR Manager, by telephone, that she had been paid the Specialist Qualification Allowance (SQA) “in error” throughout her employment in that service and that as a result of same, there was an overpayment of €27,423 gross to her which would now be recouped. 

She submitted that this was confirmed to her by her Acting General Manager in writing on the 18th November 2019.  The Complainant submitted that she is contesting management’s contention that she should be required to repay this money as the error was not of her making and it would be financially onerous on her to do so.  She contends that the Respondent estopped from recouping the sum of €27,423 by the “Doctrine of Estoppel”.  

The Respondent is a Public Health Service provider and as such the Respondent submitted that they had a responsibility for the stewardship and proper management of public funds granted to it for the provision of health and personal social services.  The Respondent submitted that in that context they have an obligation to recover any outstanding overpayments as expeditiously as possible and that in this instance they had done so based on their own National Financial Regulations which have been drawn up in line with the provisions of the Payment of Wages Act, 1991 and the Statute of Limitations Act, 1957.  Based on this contention they submitted that they contended that the case should not be upheld. 

The Complainant completed her General Nurse training between 1994 and 1997 and is a Registered General Nurse (RGN) since 1997.  Between 1999 and 2000 the Complainant completed her post graduate diploma in Sick Childrens’ Nursing and is a Registered Sick Childrens’ Nurse “RSCN” since 2002.  The Complainant commenced employment with the Respondent on the 30th April 2007 as a community Registered General Nurse (RGN).  

From the commencement of her employment as an RGN in the community, the Complainant was recognised as being dual qualified by her employers and was paid the Specialist Qualification Allowance in addition to her RGN salary.  The Complainant received payment of the Specialist Qualification Allowance from the 30th April 2007 to the 29th September 2019 inclusive.  

The Complainant submitted that she had no awareness regarding any alleged overpayments being made to her until contact was made by way of telephone call to her on the 5th November 2019 from her then HR Manager.  She submitted that in this telephone conversation she was advised by her HR Manager that she had been paid the Specialist Qualification Allowance “in error” throughout her employment and that as a result of same, an overpayment of €27,423 (gross) had been made to her which was now to be recouped.  

The Complainant submitted that she then received a letter dated the 18th November 2019, from her then Primary Care Manager, notifying her that overpayment had been made and that “the reason for this overpayment is, you are employed as a staff nurse … however qualifications such as RSCN (Registered Sick Childrens’ Nurse) does not attract a qualification allowance in the community” and that “the dates of which the overpayment has occurred are from the 30/04/2007 to the 29/09/2019 inclusive, as from the 30/09/2019 the qualification allowance was ceased, as we could not continue to pay you in error.  The gross amount overpaid is €27,423”.  

The Complainant submitted that she then wrote to her Primary Care Manager on the 2nd December 2019 advising that she was dissatisfied with the letter of the 18th November and advising, that from her perspective, “… me receiving the allowance in the first instance was a management decision, I did not seek the allowance” and that “I have undertaken child health activities over the years as requested by my line managers and continue to be available to provide these duties and responsibilities.  Nothing has changed over the 11 years”.  In this letter the Complainant also advised her former Primary Care Manager that “… it appears that you are satisfied that a deduction was made from my salary without prior notice or consultation … therefore I am left with no option but to make a formal grievance” under the Respondents Grievance and Disciplinary Procedures.  The Complainant submitted that no formal grievance hearing was convened in this matter by her employers within the timeframe contained in the procedure, or at all.  

Upon receiving no response to her letter, the Complainant submitted that she wrote again to her Primary Care Unit Manager on the 6th January 2020.  In this letter the Complainant referred to her earlier letter of the 2nd December and advised that she had received no response to same and advised that she was looking forward “… to receiving a satisfactory response from you as soon as possible as I wish to have this matter resolved and my allowance to be reinstated immediately”.  The Complainant submitted that she received no response to either of these two letters and so the INMO wrote on her behalf to her Primary Care Unit Manager on the 14th February 2020 in support of her position and confirming that the Complainant had previously advised her Primary Care Unit Manager that she had “in fact, since 2007, undertaken child health duties at the request of her nursing line managers … and has done so with their full knowledge as she is qualified as a Registered Sick Childrens’ Nurse and so is eminently qualified to conduct these duties” and that “… the criteria for payment of the SQA to any nurse is simply that the nurse holds an NMBI level 2 qualification (such as registration on a second division of the NMBI register and is deployed on duties relevant to that qualification by their Director of Nursing – or Director of Public Health Nursing in this case”.  In this letter the INMO also advised that the Complainant “clearly satisfies the above criteria for the payment to her of the SQA and therefore should not have had the payment of the allowance stopped from the 30th September 2019, but should also not be requested to repay the value of the Specialist Qualification Allowance paid to her between the 30th April 2007 and the 29th September 2019 inclusive”.  The Complainant submitted that on the 5th March 2020 the INMO received a response from the Complainants’ former Primary Care Unit Manager (now acting General Manager Primary Care) which again rejected the Complainant’s position in this matter.  In this letter the Acting General Manager apologised for the non- response to the Complainants’ letters of the 2nd December 2019 and the 6th January 2020 respectively and advised that the Complainant “works as an RGN in the community … while the role occasionally may involve seeing children and carrying out such duties as weighing a baby in the absence of a PHN on site … or to undertake wound dressing for a child from time to time, such care events do not require a paediatric qualification ….  While I appreciate (the Complainant) is available to undertake duties within her scope of practice, she is not required to do so as part of her RGN role”.  This letter went on to advise the Complainant that the payroll department had been informed of the overpayment and would be in contact with the Complainant to arrange a repayment schedule that was suitable.  The Complainant submitted that the dispute of this case was originally scheduled to be heard via an Adjudication Officer of the WRC on the 2nd June 2020 but a deferral of this hearing was agreed between the parties at the request of the Respondent due to business difficulties which had occurred at that time.  On the 9th June the INMO wrote to the Employee Relations Manager on the Complainants’ behalf and in that letter contended that the Respondent was estopped from recouping the same sum by the Doctrine of Estoppel.  Promissory estoppel or estoppel being representation can arise if a person by words or conduct makes a representation of existing fact which is the person to whom the representation is made relies upon to their detriment.  In other words, if a person makes a promise, and if it is made knowing or intending that the other party will act upon it, and the other party does act upon it to their detriment, the person making the promise will not be allowed to resile from the position previously taken.  

The Complainant submitted that it was clear from the facts of this case that representations made to the Complainant by her employer, gave her a legitimate expectation that she was in fact entitled to continue with payment of the Specialist Qualification Allowance up until the point when she was notified in writing that it would cease on the 18th November 2019.  The Complainant submitted that she has at all times acted in a genuine fashion and has in no way contributed to the situation she now faces.  She submitted that it is the case that she acted to her detriment as a result of a reliance on the assurances given to her by her employer.  The Complainant submitted that in this case she organised her affairs as best she could and in doing so, she used the entirety of the income of the Specialist Qualification Allowance she received in the pursuit of her normal daily activities like any normal working person with a family.  She submitted that authorities indicate that expenditure of monies in general is sufficient to constitute detriment.  The Complainant submitted that the Respondent is now seeking to recoup €27,423 in circumstances where she has expended the monies in the normal course of her life and that she is now facing an extremely serious financial situation which sees her being forced to pay money she no longer has and to do so out of prospective income.  The Complainants’ representatives contended that if the Respondent were to succeed in enforcing the recoupment of the alleged overpayment, it would give rise to a grossly inequitable and profoundly unconscionable situation which they believed to be at stark odds with both the law and the employers’ duty of care.  

The Complainants’ representatives opened the case of Avon County Council versus Howlett 1983 WLR at 612 from the Court of Appeal in England where the court refused to allow the recoupment of an overpayment where (i) the employer has led the employee to believe that he is entitled to keep the money as his own, (ii) the employee receiving the overpayment of money has in good faith ordered his position as a result and (iii) the overpayment was not caused primarily by the fault of the employee.  The Complainant representatives believe that the Doctrine of Estoppel was suited to this case so as to prevent the Respondent from exercising their ability to recoup the overpayment which in turn would cause great injustice to the Complainant. 

The Complainants’ representatives submitted that it has long since been established that where a party relies to their detriment on the faith of a belief, which was known or encouraged by another, the other party can not insist on their strict legal rights, for to do so, would be inconsistent with the belief which was encouraged.  The representative contended that the actions of the Respondents in this case in the form of representations made, gave rise to a legitimate expectation that the monies paid were properly at the disposal of the Complainant and that this expectation was subsequently relied upon and consequently the Complainant has acted to her detriment in disposing of the monies in the normal course of her daily life.  The Complainants’ representatives submitted that in the current case, the Complainant was operating under representations from her employer for a period of over 11 years, i.e. the payslips which were made available to her which gave her a reason or belief that the monies being paid to her were justifiably in her possession and consequently hers to do with what she wished.  Such were the actions of the Respondent in making available the monies with accompanying documentation that this amounted to a representation on the part of the Respondent to the Complainant in this case.  The payment of monies in such a context have been found to amount to a representation previously and indeed the Complainants’ representatives contended that this falls into the category of a direct representation.  The Complainants’ representatives further contended that in this case the Complainant, having had monies paid to her with an accompanying assurance from her employer, relied on this assurance in the conduct of her affairs.  The Complainants’ representatives pointed to the extensive analysis on the issue of reliance in the context of an overpayment of remuneration by Slade LJ which they contend is persuasive in this case in so far as the Learned Slade LJ clearly recognised the establishment of reliance, as a necessary consequence, following an establishment of an assurance, on the facts of a particular case. 

The Complainants’ representatives contended that authorities indicate that once an assurance can be established, then reliance can be automatically presumed and so they contend that in this instance the actions of the Respondent as referred to above gave rise to an assurance and consequently reliance.  The Complainants’ representatives contended that the Complainant acted to her detriment as a result of her reliance on the assurance given that the monies received were hers to use as she saw fit.  They contended that in this case the overpayment occurred in a period in excess of 11 years during which time the Complainant conducted her affairs in accordance with the remuneration she was receiving and further understood to be correct.  In this sense all of the monies paid had been disposed of in the course of her normal daily activities.  The Complainants’ representatives contended that authorities indicate that the expenditure of monies in general are sufficient to constitute detriment and further in a context similar to the one at hand, Slade LJ again recognised the expenditure of monies in the normal course of daily affairs to be a natural consequence for persons facing recoupment of overpayments. 

 In relation to severity of detriment, it can be seen in the facts of this case, that the Complainant has expended €27,423 which by any estimation is a significant sum of money for a person who is remunerated as the Complainant is.  Indeed, the Complainants’ representatives contended that while authorities recognise the importance of significant detriment when seeking relief, further authorities have recognised the importance of assessing the situation at the instance when the person was given the assurance i.e. the Respondent in this case seeks to resile from it.  In this latter context the Respondent is now seeking to recoup €27,423 in circumstances where the Complainant has expended the monies in the normal course of her life and furthermore is in a worse financial position than when the overpayment was actually made.  Consequently, the Complainants’ representatives contended that when assessing the detriment which has been suffered by the Complainant, reference not only to her experience since the overpayment commenced but also having regard to her current circumstances it can be seen that she faces a devastating position which makes it entirely unconscionable for the employer to seek repayment of the monies.  The Complainants’ representatives also submitted that a specific circumstance in which the Doctrine of Proprietary Estoppel arises is in relation to a unilateral mistake, where one party has made an error as to the nature of his rights, the crucial factor being that the detriment is suffered by the party who innocently relies on the mistaken assumption that he or she has rights in relation to the property referred to, in this case the monies paid by the Respondent.  

In conclusion the Complainants’ representatives submitted that in this case the Complainant had clearly acted in a genuine fashion and has in no way contributed to the situation she now faces.  In reliance on the only indication she had of her salary, that is the documentation issued by the Respondent with each instalment, she organised her affairs as best she could and in doing so, like any normal working person, she expended the entirely of her income in the pursuit of her normal daily activities.  The Complainants’ representatives submitted that the Complainant is now faced with an extremely adverse situation which sees her being forced to repay monies she no longer has and to do so out of prospective income in the context of her current financial and family circumstances.  The Complainants’ representatives pointed out that she now has two young children to support.  The Complainants’ representatives pointed out that in this instance if the Respondent succeeds in enforcing the recoupment of the overpayment, this will give rise to a grossly inequitable and profoundly unconscionable situation, one they believe is at stark odds with both the law and the employers’ duty of care to a long serving and distinguished worker.  The Complainants’ representatives submitted that as a result of a unilateral mistake made by the Respondent as to her remuneration, the Complainant is now faced with an extremely detrimental situation which would see her having to repay €27,423 out of an already stretched and impeded salary.  They submitted that the Doctrine of Estoppel operates to prevent a party relying on strict legal rights where to do so would be unconscionable and in circumstances where there was an assurance, reliance and prospective detriment to one party and where overall the insistence on those rights would be unconscionable.  In this context, the Complainant seeks that the Respondent be estopped from recouping the sum of €27,423 and that the Complainant not be required to repay this sum to her employer. 

The Respondent submitted that the Complainant is employed by them as a Registered General Nurse and that she holds a permanent contract of employment.  They submitted that on the 4th November 2019 the former HR Manager contacted the Complainant to advise that an issue had arisen resulting in an overpayment of a nursing qualification allowance being made payable to her for the period 30th April 2007 to the 29th September 2019.  In correspondence dated the 18th November 2019, the Primary Care Unit Manager wrote to the Complainant referring to the previous telephone call and confirming to the Complainant how the overpayment had occurred.  The Respondent submitted that the Complainant was incorrectly paid the Specialist Qualification Allowance “SQA” upon her commencement of employment in 2007.  The Respondent submitted that the SQA is payable to all nurses employed directly on duties in specialist areas of clinical practice appropriate to the qualification held in accordance with the Department of Health and Children Circular 112/99 and that the SQA is payable to nurse and midwives who have a qualification recognised by the Nursing and Midwifery Board of Ireland (NMBI) as a category 2 course or equivalent.  The Respondent clarified that the allowance is payable only to nurses that are deployed on duties relevant to their qualifications and is payable to nurses and midwives up to an including CNM2 grade.  The Respondent further clarified that the NMBI determines if a particular qualification is category 2 or equivalent and the Director of Nursing in each service determines if the nurse or midwife is deployed on duties relevant to the qualification held.  The Respondent submitted that the Complainant works as a Registered General Nurse in the community and that there is no requirement for an RGN to have a specialist qualification to undertake that role. 

The Respondent further submitted that when the Complainant commenced employment on the 30th April 2007 she was paid a Specialist Qualification Allowance and that this payment was an administrative error.  The Respondent acknowledged that the role of the RGN may occasionally involve seeing children, carrying out such tasks as weighing a baby in the absence of a Public Health Nurse on site, making note of a baby’s weight and communicating it to a Public Health Nurse and that these tasks do not require a paediatric qualification.  The Respondent submitted that the criteria for the payment of a SQA to any nurse is that the nurse is deployed on duties appropriate to the qualification they possess and be directed by the Director of Nursing or in this case the Director of Public Health Nursing to undertake such duties and that at no time does the Director of Public Health recall any instance in which the Complainant would have been requested or directed by the Public Health Nurse Management to undertake the duties of a Public Health Nurse in relation to statutory child health assessments.  The Respondent acknowledged that the Complainant is available to undertake duties within her scope by virtue of her qualification, however she is not required to do so as part of her RGN role.  The Respondent clarified that the remuneration for a Specialist Qualification Allowance as per agreed National Agreement equated to €2791 per annum and with effect from the 1st March 2019, €3,349 per annum as per Labour Court recommendation 21900 and 21901.  The Respondent clarified that the dates in which the overpayment occurred were for the period 30th April 2007 to the 29th September 2019 inclusive (12 years and 5 months). The gross amount overpaid to the Complainant during the period amounts to €27,423. 

The Respondent confirmed that when the administrative error was realised the Complainant was immediately made aware of same by way of a telephone call from the former HR Manager.  Subsequently the Primary Care Unit Manager issued a formal communication to the Complainant on the 18th November advising her accordingly.  The Respondent pointed to National Financial Regulations NFR04 in relation to overpayments and underpayments and set out that this document places a lawful obligation on the Respondent to refund or recoup such payments (a copy of same was provided).  The Respondent submitted that in this case once the error was detected in the Complainants’ salary, management informed the Complainant of same and advised that the payment of the allowance would cease and consequently that payment ceased on the 30th September 2019.  The Respondent submitted that in line with the aforementioned regulations on recoupment of overpayments, the local management notified the payroll department of this overpayment.  

The Respondent submitted that in correspondence dated 14th February 2020, the Complainants’ representatives made representations on behalf of the Complainant confirming the Complainants’ position and refuting the entitlement of the employer to seek the recoupment of the payment of the Specialist Qualification to her retrospective to the 30th April 2007.  In addition, her representatives sought to have the Specialist Qualification Allowance reinstated to the Complainant on the basis that she is a Registered General Nurse and a Registered Sick Childrens' Nurse “who continues to be available to conduct child health duties as and when assigned to her as she holds a relevant qualification to do so, and these functions are within her scope of practice”.  The Respondent submitted that the Primary Care Unit Manager responded on the 5th March 2020 acknowledging receipt of the correspondence and again confirmed that the duties of an RGN in the community do not meet the need for such qualifications and that while the Complainant is available to undertake duties within her scope, by virtue of her qualification, she is not required to do so as part of her RGN role.  Accordingly, confirmation was provided to the Complainants’ representatives of managements’ intention to pursue the recoupment of the overpayment in line with the National Financial Regulations.  The Respondent submitted that in correspondence dated 9th June 2020 the Complainants’ representatives wrote to the Employee Relations Manager on behalf of the Complainant requesting that the local management be estopped from recouping the sum, by the Doctrine of Promissory Estoppel.  The Respondent submitted that the Doctrine of Promissory Estoppel prevents one party from withdrawing a promise made to a second party, if the latter has reasonably relied on that promise, a promise made without consideration is generally not enforceable.  Promissory Estoppel requires (i) an unequivocal promise by words or conduct, (ii) evidence that there is a change in position of the promise as a result of the promise (reliance but not necessarily to their detriment and (iii) inequity of the promiser to go back on the promise.  The Respondent contends that there is no withdrawal by them of a “promise” made.  This overpayment issue arose as a result of an administrative error.  The Respondent submitted that it is clear that the Respondent is lawfully entitled and obliged to recover such overpayments just as an employee is entitled to seek payment of any underpayment.  Indeed, if the error resulted in the Complainant being underpaid, the Respondents submitted that the Respondents’ representatives would be contending if not insisting that the error be rectified immediately and insist on full repayment of any underpayments discovered regardless of the timescale involved.  The Respondent advised that on the 12th June 2020 the Employee Relations Department responded to the Complainants’ representatives confirming the content of the National Financial Regulations and advising that the Respondent has responsibility for the stewardship and proper management of public funds granted to it for the provision of health and personal social services.  The Respondent submitted that although every effort is made to avoid such occurrences, in the event that an employee receives an overpayment, it is the policy of the Respondent to recover the outstanding overpayment as expeditiously as possible.  The Respondent noted that while the Employee Relations Representative took note of the representations made, that the overpayment was not primarily the fault of the Complainant, the crux of the matter was that the Complainant was in receipt of an allowance that she was not entitled to, resulting in an overpayment.  In those circumstances, the Respondent believe they have no option but to recover the overpayment in line with the National Financial Regulations.  The Respondent submitted that the Complainant was requested to make direct contact with the payroll department to discuss and agree an easy repayment plan and the Respondent submitted that at all times they believe they have acted in a fair and reasonable manner since the discovery of the overpayment.  

In conclusion, the Respondent submitted that the payment of the SQA giving rise to the current dispute, was made in error and that the gross overpayment amounts to €27,423.  The Respondent accepted that the Complainant may have had an expectation that she had an entitlement to the continuous payment of same but nonetheless, this does not preclude the Respondent from rectifying the error, nor to seek recoupment of the monies overpaid.  In relation to the recoupment of such overpayments, the Respondent can confirm that the payroll department are willing to devise a flexible easy repayment plan for the Complainant to agreed deductions from her salary over an extended period of time.  The Respondent submited that a ruling in favour of the Complainant would in effect result in a precedent being set by the Workplace Relations Commission that the Respondent cannot recoup overpayments in line with the National Financial Regulations and so the Respondent would hold the view that the Commission does not have jurisdiction to veto the application of the National Financial Regulations as these are part of the overall system of corporate governance and internal control within the Health care provider.  The Respondent submitted that for all of the above reasons they request that the adjudicator rule in favour of the Respondent. 

The evidence: 

In the course of the hearing the Complainant confirmed that she was aware of other situations where community RGN’s were in receipt of the Specialist Qualification Allowance, particularly in relation to duties associated with geriatric patients in the community.  She also confirmed that she had been deployed to undertake additional duties associated with children as a consequence of her qualification by the previous Director of Public Health Nursing and she contended that the payment was not an error but was made specifically because she was in receipt of the allowance and because she was deployed on relevant duties from time to time by the Director of Public Health Nursing.  

The Respondent did accept that she did have the qualification allowance and that she may have been from time to time deployed on certain duties but that her main role was that of an RGN and that she did not have any contact with children as part of that role and therefore she was not required to hold such a qualification in order to carry out her role.  The current Director of Public Health Nursing gave evidence that she took up post in 2012, that she was not aware of the origin of this payment, but that when the matter came to her attention, she had contacted her predecessor who she said was very clear in relation to the assignment of duties.  The HR representative for the Respondent confirmed that she was not aware of how the matter came to light, that there had been significant changes in personnel in HR and payroll and that the matter should have been audited over time but as a consequence of changes to the payroll system, an extensive audit had been carried out and she was of the view that this was how the error may have come to light.  In response to questions from this adjudicator in relation to how the payment was set up in the first place, the HR representative confirmed that she understood that it was set up either locally or regionally and by a clerical officer, possibly at grade 4 level and that the payment of the allowance would not have been checked further at that time.  The HR representative confirmed that it was understandable that the Complainant had an expectation that she had been paid correctly, however the overpayment must be paid once it came to light as the Respondent had a responsibility for the correct stewardship of public funds and that the Respondent was willing to have the amount repaid over an extended period in order to minimise any hardship. 

In considering this matter I have carefully considered the submissions made by both parties, the evidence provided at hearing and the supporting documentation provided.  I noted that the Complainant was in receipt of the Specialist Qualification Allowance from the very commencement of her employment on the 30th April 2007 and that she remained in receipt of that allowance until the 29th September 2019, a period of 12 years and 5 months.  I noted that she did not seek payment of the allowance and that the allowance was set up as part of her initial set up on the payroll system.  I noted that this payroll set up was completed by a junior member of staff, with, what appears to be, no arrangements in place for sign off of payment of the allowance.  

I noted that during that period the Complainant received a total of €27,423 which she submitted she has now disposed of in the normal course of her daily living.  I noted that the Complainant was in no way responsible for the error which occurred, and I accepted her bona fides that she believed that she was being paid correctly from the outset and particularly as she continued to be in receipt of the remuneration for a period of 12 years and 5 months.  I noted that she also submitted that she undertook duties relevant to her qualification allowance from time to time at the request of the former Director of Nursing for Public Health. 

I noted that the Respondent was not in dispute in relation to the facts of the matter, in relation to how the error occurred, in relation to the expectation of the Complainant that she was in receipt of correct remuneration and that the value of the overpayment was not in dispute, nor the duration of the payment error.  However, I noted that the Respondent held the view that they were obliged to recoup the overpayment based on the National Financial Regulations.  I clarified the status of that document during the course of the hearing, and it was confirmed to me that the document was an internal policy document.  I noted also that the Respondent acknowledged that the previous Director of Nursing for Public Health had confirmed that she had, from time to time, directed the Complainant to undertake duties associated with her qualification, however I noted that the previous Director of Nursing for Public Health was not in attendance at the hearing and therefore any evidence provided could only be considered as hearsay.  

I am persuaded by the legal precedent opened before me by the Complainants’ representatives in relation to the Principle of Estoppel and in this context, I particularly noted that in this instance the Complainant did not contribute to the error that occurred, that she understood from receiving payslips on a monthly basis which reflected the payment of that allowance that she was correctly in receipt of that remuneration.  I further noted that there was no indication for an extensive period of 12 years and 5 months that there was anything incorrect in relation to this payment and I noted that the employer did accept that from time to time the Complainant had been involved in duties associated with children, although there is some dispute in relation to the extent of that involvement.  I noted further that the Complainant indicated that she had disposed of the income received and that in so doing she has now acted to her detriment.  I noted that she is now no longer in receipt of the allowance and therefore has a lower income level than she was accustomed to throughout her employment and that in addition she now has parental responsibilities to discharge which make further claim on her earnings.  In this context I accept the position that she is in a far worse position to repay the monies now than had the error been identified at an early stage in her employment.  In relation to the financial regulations, I noted that this document, while helpful, is an internal policy document and therefore does not have legal standing as set out in the Respondent submission.  I noted that the regulations set out it’s first purpose as “To establish control procedures which minimise the occurrence of payroll overpayments”; and that the regulations do go to some efforts to set out the care and attention required in submitting forms to payroll.  I noted, the evidence given at hearing that the set-up form was completed by “probably a junior member of staff”.  The Respondent representative could not answer whether or not the form had been checked or authorised by a more senior member of staff and acknowledged that they had not seen the documentation which gave rise to the error.  It seems to me that it was imperative, prior to deciding that this was an overpayment, it was essential that the Respondent representatives establish who had signed off the payment in the first instance.  It was clear to me that this was never done. Taking this into account and the fact that the Complainant did carry out some specific child related duties at the request of the former nursing management I am not convinced that the Complainant was not approved for this payment as per the terms of the circular. 

However, I also considered very carefully the question of the ability of the Respondent to recoup monies that have been overpaid and I do not accept that a decision in this case creates a precedent to prevent the Respondent from so doing.  In the normal course of events, one would expect that an overpayment would be identified at an early stage and indeed long before 12 years had elapsed 

Taking all of the above into account, I have formed the view that it would be unreasonable and indeed unconscionable to seek the repayment of the monies in all of the circumstances that now exist.  In those circumstances I find that the Respondent should be estopped from recouping the overpayment. 

I have found that to seek to recoup the payment from the Complainant after such an extensive period would be unreasonable and unconscionable and, in these circumstances, I recommend that the Respondent accept the Principle of Estoppel and not pursue any further the recoupment of the monies associated with the overpayment of the Specialist Qualification Allowance, i.e. €27,423. 

Overpayment, principle of estoppel