Complainant

Respondent

Parties

Sharon  Jordan

Hse North Dublin Mental Health Services Payroll Department

Complainant

Respondent

Parties

Sharon Kinsella

HSE North Dublin Mental Health Services Payroll Department

Representatives

  Self

 No show

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-00054783-001

31/01/2023

The Complainant stated at the hearing and in her written statement that:

Following a phone call to payroll, I discovered an overpayment occurred on the 13th of May 2019 - 16th of February 2020 of 11,620 euro and 98 cent. There has been many correspondents explaining my situation and inability to pay that large amount back. I had agreed to pay 50 euro every fortnight starting January 2023. I have asked my employer to increase my hours to pay this to allow for this. Payroll have been notified of this in November. This was not my error as there was an error on the payroll system. However, I am being penalized in my wages causing a lot of stress. Furthermore, I need clarification if my tax, hours and superannuation have also been affected in relation to this matter.

This complaint relates to an overpayment. It also relates to an agreement agreed between the parties concerning that repayment. That agreement specified a €50 Euro repayment. At the hearing the Complainant stated that this amount has increased as her salary has increased with pay increases.

The Complainant is currently on sick leave.

The Respondent did not attend. I am satisfied that the Respondent was notified of the date, place, and time of the hearing. The Respondent was also contacted by phone and requested to clarify why they did not attend. An email to that effect was sent to the Respondent:

Dear Sir

I spoke to your colleagues on the phone this morning and they kindly provided me with your email address. Please see correspondence that previously issued in relation to case ADJ-00044131. Can you provide details of who future correspondence should issue to and confirm if you would be willing to attend a relist of this hearing. Kind Regards

The Complainant stated at the hearing that her employer overpaid her for several years. She was shocked when she was presented with the amount.  She entered into an agreement relating to the repayment of that amount and that now has been unilaterally broken by the Respondent.

The Respondent failed to attend at the hearing. I am satisfied that the Respondent was notified of the time, place and location of the hearing.

At the hearing arising from the fact that the Complainant is a lay litigant, in detail the law was explained to her and that an overpayment can be deducted from wages and that does not amount to an unlawful deduction.

Wages in the Payment of Wages Act 1991 (the Act) is defined as:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

Section 5 of the Act states:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

However, in this case over several years an overpayment was made by the Employer, that gave rise to a very substantial amount of money being owed. The parties engaged in discussions to reach a repayment plan and on the face of the records and evidence given by the Complainant arrived at a figure in late December 2022. That figure was reached at the end of 2022 and there was the normal lag between reaching an agreement and implementing that agreement allowing for Christmas Holidays and the time to set up the new arrangement with payroll. During that time a higher amount than was agreed was deducted.

On the 12th of December 2022 the Complainant wrote to her supervisor to state that she would agree to repaying €50 a fortnight until her hours were increased.

On the 15th of December 2022 a deduction amounting to €660 was made to the Complainant’s wages. The pay period was the 21st of November to the 4th of December 2022.

This deduction apparently was made as it related a pay increase and monies accrued based on backpay. The dispute in this case relates to whether that amount should have been deducted.

Payroll administration is typically completed some days before the actual pay date. The agreement that the Complainant stated she concluded with her employer was on or about the 12th of December 2022. It is unlikely that the deduction made in this payroll could have been stopped based on this timeline. The fact is an overpayment of wages has taken place and the employer, while they have not attended at the hearing, on the papers the Employer has been reasonable in making an agreement for repayment-  a relatively small amount is being paid back allowing for the size of the money due to be paid back.

The Payment of Wages Act at section 5(5) states:

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

In this case there has been an overpayment and it is not unlawful to make a deduction so that the overpayment amount is repaid. The Employer has exercised that right to make a deduction where an overpayment has occurred in a reasonable manner and therefore, I do not determine that this complaint is well founded.

The parties took some time to reach an agreement. While it is understandable that the Complainant was taken aback by the amount now owing, due to an overpayment over several years, it remains an amount that can be deducted from wages. The Employer has acted reasonably in how it proposed to recoup the monies due.

Based on the amount owing to the Respondent and the timeline of what was offered by the Complainant in mid-December 2022, which was €50 per fortnight, the deduction of an accrued payment arising from a backdated pay increase was not unreasonable as it was processed in early December 2022 at the latest prior to the Complainant’s offer. Even allowing for the timeline that explains why the deduction was made, the amount being repaid by the Complainant is relatively modest in any case when compared to the amount owed.  Based on the reasonable employer test in these circumstances the deduction of back money is not unreasonable, I find that the complaint is not well founded.

Based on the amount owing to the Respondent and the timeline of what was offered by the Complainant in mid-December 2022, which was €50 per fortnight, the deduction of an accrued payment arising from a backdated pay increase was not unreasonable as it was processed in early December at the latest before the new agreement was put in place. Even allowing for the timeline that explains why the deduction was made, the amount being repaid is relatively modest in any case.  Based on the reasonable employer test in these circumstances the deduction of back money is not unreasonable, I find that the complaint is not well founded. Based on the current level of repayment it will be many years before the overpayment is recouped. I determine that no unlawful deduction has been made and that the complaint is not well founded.

Overpayment