Complainant

Respondent

Parties

Alicja  Stadnicka-szymus

An Garda Siochana

Representatives

  Self-Represented

Jo De Lamar

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-00045795-001

24/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00047884-001

31/12/2021

The complainant submitted her first claim under the Payment of Wages Act on the 24th of August 2021 therefore the cognizable time period of the complaint dates from the 25th of February 2021.

She submitted a second claim under the Payment of Wages Act on the 31st of December 2021 therefore the cognizable time period of that complaint dates from the 1st of July 2021.

At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.  The parties are named in the heading of the decision.

The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation.  All participants who gave evidence were sworn in under oath or affirmation.

The complainant is Polish, and the hearing was conducted with the assistance of an Interpreter.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00045795-001

24/08/2021

The complainant submits that

She has been employed by the respondent as a cleaner since April 2007

She has had a number of periods of sick leave from May 2019 to January 2022

The respondent deducted €2,188.32 from her wages on 11/06/2021 due to an overpayment while on sick leave

She does not know how this overpayment came about or how it was calculated

The respondent submits that

The complainant has been in the employment of An Garda Siochana since the 30th April 2007 and works as a full time cleaner on 36 hours per week

She also works in her capacity as a service attendant at other local Garda Stations

 In recent years, the complainant has unfortunately incurred a number of periods of illness absence, most recently in November 2021 to February 2022.

The complainant is subject to the Public Service Management (Sick Leave) Regulations 2014 as well as the sick absence policy as set out in the Garda Staff Handbook, DPER Circular 05/2018 and HQ Directives 026/2014 and 064/2020 in regard to the reporting of sick absence and the right to paid sick leave.

In addition, An Garda Siochana are entitled to recover overpayments of salary under Section 5 of the Payment of Wages Act 1991, DPER Circular 07/2018 and the AGS Management of Overpayments Policy document.   Payment of salary is through the Payroll Shared Services Centre (PSSC).

 An Garda Siochana are notified by the PSSC when an overpayment has been incurred and are then required to notify the employee that an overpayment has occurred, the amount and reason for the overpayment and outline how the monies will be repaid.

During the course of May 2021, the complainant was absent due to illness and an overpayment occurred due to human error on the part of the PSSC, in effect the complainant was paid twice for one month and one week on that occasion.

 An Garda Siochana have been at pains to try to explain certain policies and requirements to the complainant in order to assist her with her queries and to prevent further overpayments occurring. For example, the complainant did not seem to understand that Illness Benefit must be paid to the employer and not to her directly where she is in receipt of pay nor that it is not An Garda Siochana that notify Welfare of illness but the complainant’s GP.

Another matter is that Payroll is run in advance and as a result where an employee has exhausted all paid sick leave entitlement and is off sick without payroll being notified in sufficient time, the employee will be paid in error, this is then an overpayment and must be recouped by AGS.

 Another misunderstanding that appears to have occurred is that overpayments appear on the payslip as deductions even though no monies have actually been deducted.

Contrary to what the complainant states on her complaint forms, no deductions, illegal or otherwise had in fact been deducted from her salary on the 11/06/2021 or the 10/12/2021.

 The complainant was notified of the overpayments and the requirement to repay the overpayments by letter and by phone. Under the Policy, a response is required within 14 days and the minimum amount repayable is 10% of salary.

However, in the complainant’s case, the special hardship provisions were utilised, and a special arrangement was made in regard to the repayment of the May/June/July 2021 Overpayments.

Once this was agreed with the complainant, deductions were then made from salary of this amount.  Many attempts were made to meet with the complainant but unfortunately, times and dates convenient to both sides could not be found, despite offering a number of dates.

 Most recently, again in an attempt to finally resolve the matter and ensure that the complainant understood the sick policy and the reasons why she had incurred overpayments, correspondence was translated into Polish and issued to the complainant by registered post.

The complainant was off sick from the 18th of May 2021 to the 21st of May 2021 and resumed employment on the 24th of May 2021 as per HRMS sick records.

 The record shows that at the time the complainant was absent on sick leave she had exhausted her entitlements to paid sick leave under the paid sick leave scheme having accumulated 199 days sick absence since 2017.

Entitlement to paid sick leave is set out in a number of documents namely, · DPER Circular No 05/2018, DPE056/046/2014, ‘Arrangements for Paid Sick Leave’ ‘New Public Service Sick Leave Scheme for All Civilian Staff in An Garda Siochana.’ · Public Service Management (Sick Leave) Regulations 2014, Regulation 9 and 10 · Garda Staff Handbook at pages 23-26

The entitlement to paid sick leave under the Sick Leave Scheme in all the above documentation is as follows;

a) Paid sick leave up to 3 months (92 days) on full pay in a rolling one-year period followed by

b) Paid sick leave up to 3 months (91 days) on half pay in a rolling one-year period, Subject to a maximum of 6 months (183 days) in any rolling 4-year period.

c) Temporary Rehabilitation Remuneration which may be paid for up to a maximum of 18 months (547 days)

d) Critical Illness Provisions (CIP) is an extended paid sick leave scheme which may be payable where a civil servant is critically ill or suffered a serious illness.

 In regard to the above period of absence on sick leave, it is accepted that PSSC made an over payment due to human error in that the complainant continued to receive full salary even though she had exhausted her paid sick leave entitlement and then in addition, was further paid arrears for the same period in error. Essentially paying her twice over.

As per the email from PSSC giving an explanation of why the overpayment occurred.  It states, ‘On week 27 Pay Day 02/07/21, we were instructed by HR to place The complainant back on full pay from the 24/05/21. Therefore, off pay was negated from 24/05/21 and core paid arrears had already received that pay.    In this instance, a PC 1300 with a negative figure should have been input.

Therefore, due to human error on P/D 02/07 the complainant got paid her salary for w/e 02/07/21 plus all the arrears from 24/05/21 to 25/06/21 which she had already received as pay and should not have got.

The explanation for the overpayment supplied by PSSC above and referred to in this complaint was subsequently notified to the complainant in two emails from the Overpayments Section.   Firstly, an email was sent to an EO in Newcastle West Garda Station to give to the complainant dated 16th of July 2021 and further relayed to the complainant directly by email dated 9th August 2021.

Therefore, the complainant had received a full and complete explanation of the reason for the overpayment by July and August 2021.

The complainant states that an illegal deduction was made on the 11/06/2021 of €2,188.22.

This is simply not correct, and the complainant was informed in clear and certain terms in no less than 4 separate emails by three different people in response to her query that No Deductions had been made from her salary.

On the 30th of June 2021 the complainant received four separate emails stating categorically that no deductions had yet been made from her salary.

A letter was eventually issued to the complainant dated 21st September 2021 by the Overpayments Unit setting out the overpayments referred to above and the exact dates these overpayments were incurred and confirming the total amount of the overpayment to be €2,279.43 gross.

This letter also constituted ‘notice’ of overpayment and notice of the requirement of An Garda Siochana to recover this overpayment. It also set out a number of possible ways in which the complainant could repay the outstanding overpayment either by a 10% gross salary deduction or by cheque.

Alternatively, the complainant was also informed in this letter that should she have difficulty paying the minimum 10% that there is an option to have a financial needs analysis carried out through the Employee Assistance Service and a lower repayment amount may be possible. 

This letter complies with Section 5 (5) (a) (i) of the Payment of Wages Act 1991 in that any proposed deduction was for the sole purpose of the reimbursement of an overpayment of wages as per S5 (5) (a) (i) (l) and the amount of the deduction did not exceed the amount of the overpayment as per S5 (5) (a) (ii).

 Such deductions are authorised under Circular No: 07/2018 - DPE189-002-2016 Ref ‘Recovery of Salary, Allowances and Expenses Overpayments made to Staff Members/Former Members/Pensioners’ issued pursuant to Section 17 of the Civil Service Regulation Act 1956 (as amended). This Circular set out the rights and obligations of employers in the public sector in regard to overpayments and clearly sets out how such overpayments should be recouped.

An Garda Siochana complied fully with Circular 07/2018 in the procedures it followed as set out above and pursuant to Section 3 ‘Procedure for the recoupment of overpayments and Section 5 ‘Exceptional and Hardship arrangement’.

 In addition to Circular 07/2018, the procedures set out in the Garda Siochana ‘Management of Overpayments Policy’ was also fully complied with, in particular section 3.1 Overpayment Recovery Procedures and Methods of Repayment.

The complainant’s contract also states that ‘the appointment is subject to the Civil Service Regulation Acts 1956 and 1958 and any other Act for the time being in force relating to the Civil Service.’ Circular 07/2018 issued pursuant to Section 17 of the Civil Service Regulation Acts 1956 and 1958.   Finally, the recovery of overpayments is also provided for in the Staff Handbook. 

 Following the issuing of the letter dated 21st Sept 2021 (above) by the Overpayments Section notifying the complainant of the overpayment dating back to May/June 2021 and the requirement to recoup the overpayment referred to in this complaint, meetings took place with her Employee Assistance Service (EAS) Representative and a reduced repayment plan was agreed to.

 Agreement was reached to repay €10 per week to recoup the overpayment of €2,279.43. This was confirmed in an email to the Complainant from the Overpayments Section dated 5th October 2021.

 Contrary to what the complainant claims, no deductions had been made from her salary up to this point and only following agreement did an instruction then issue from the Overpayments Section dated 4th October 2021 to the PSSC to deduct €10 per week.    Further proof of the instruction to deduct the €10 amount is contained in the ‘ PSSC Payroll Amendment Form’ dated 5th October 2021.    This means that the first deduction for the overpayment incurred in May/June 2021 was not deducted from salary until after October 5th, 2021.   Under the repayment plan, it will take 227.9 weeks or 4.38 years for the complainant to repay the overpayment incurred.

It must also be noted that following the complainant’s sick absence in May 2021 referred to in her complaint, the complainant exercised her entitlement to apply for Critical Illness extended Sick Leave Pay on the 12th of July 2021. 

 In a letter dated the 5th of November 2021 from the Sick Absence Section, the complainant was notified that she had been awarded Critical Illness payment backdated to her illness falling between the 4th of July 2019 and 3rd January 2020.

This means access to an extended 183 days paid sick leave on full pay in a 12-month period followed by 182 days half pay, subject to a maximum of 365 days paid sick leave in a rolling 4-year period. This letter confirms that Payroll were instructed to restore her to full pay for the relevant period and repay any arrears outstanding.

 This demonstrates clearly that the complainant, being successful in accessing the Critical Illness Provisions was restored to full pay retrospectively and any resulting arrears were paid to her.

Therefore, she can show no losses resulting from the actions of An Garda Siochana. Entitlements and Access to Critical Illness Provisions as stated above are set out in the following documents.

· DPER Circular No 05/2018, DPE056/046/2014, ‘Arrangements for Paid Sick Leave’ · HQ Directive 026/2014, ‘New Public Service Sick Leave Scheme for All Civilian Staff in An Garda Siochana’, at Paragraph 2.3 · Public Service Management (Sick Leave) Regulations 2014, Part 4, Regulation 12 and 13 · Garda Staff Handbook at page 25 · Critical Illness Protocol – Criteria and Procedures

The Law

The Payment of Wages Act 1991 states at section 5 and 6 as follows:

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. 

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction,

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The complainant in this case submitted that the respondent deducted €2,188.32 from her wages on 11/06/2021.  It transpired that the complainant had been on sick leave on a number of occasions since commencing her employment with the respondent and had during the period in question exceed the maximum number of paid sick days.

The respondent advised the hearing that contrary to what the complainant stated on her complaint form, no deductions, illegal or otherwise had in fact been deducted from her salary on the 11/06/2021.   The respondent went on to explain that during the course of May 2021, the complainant was absent from work due to illness and an overpayment occurred due to human error on the part of the PSSC, in effect the complainant was paid twice for one month and one week on that occasion.   The respondent advised the hearing that overpayments appear on the payslip as deductions even though no monies had actually been deducted.

The respondent advised the hearing that the complainant was notified of the overpayments and the requirement to repay the overpayments by letter and by phone. Under the Policy, a response is required within 14 days and the minimum amount repayable is 10% of salary.

However, in the complainant’s case, the special hardship provisions were utilised, and a special arrangement was made in regard to the repayment of the May/June/July 2021 Overpayments.

I note the respondent’s position that on the 30th of June 2021 the complainant received four separate emails stating categorically that no deductions had yet been made from her salary and that a letter was eventually issued to the complainant dated 21st September 2021 by the Overpayments Unit setting out the overpayments referred to above and the exact dates these overpayments were incurred and confirming the total amount of the overpayment to be €2,279.43 gross.

Following the issuing of the letter dated 21st Sept 2021 (above) by the Overpayments Section notifying the complainant of the overpayment dating back to May/June 2021 and the requirement to recoup the overpayment referred to in this complaint, meetings took place with her Employee Assistance Service (EAS) Representative and a reduced repayment plan was agreed to. See emails between EAS and Overpayments Section. 

 Agreement was reached to repay €10 per week to recoup the overpayment of €2,279.43. This was confirmed in an email to the Complainant from the Overpayments Section dated 5th October 2021.

 I also note the respondent’s position that contrary to what the complainant claims, no deductions had been made from her salary up to this point and only following agreement did an instruction then issue from the Overpayments Section dated 4th October 2021 to the PSSC to deduct €10 per week.

 Further proof of the instruction to deduct the €10 amount is contained in the ‘PSSC Payroll Amendment Form’ dated 5th October 2021.    This means that the first deduction for the overpayment incurred in May/June 2021 was not deducted from salary until after October 5th, 2021.

I also note that following the complainant’s sick absence in May 2021 referred to in her complaint, the complainant exercised her entitlement to apply for Critical Illness extended Sick Leave Pay on the 12th of July 2021. 

 In a letter dated the 5th of November 2021 from the Sick Absence Section, the complainant was notified that she had been awarded Critical Illness payment backdated to her illness falling between the 4th of July 2019 and 3rd January 2020.

Having regard to the submissions made and the evidence adduced I am satisfied firstly that the amount of €2,188.32 was not deducted from the complainant’s wages on 11/06/2021.   I note that the complainant in June 2021 was notified of an overpayment and that arrangements were made to recoup that overpayment and agreement reached with the complainant that this be repaid in amounts of €10 per week but that such recoupment only commenced in October 2021 following agreement with the complainant.

Accordingly, I am satisfied that the respondent did not contravene Section 5 and that no illegal deduction was made from the complainant’s wages.

I am satisfied from the totality of the evidence adduced that the respondent did not contravene Section 5.   Accordingly, I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00047884-001

31/12/2021

The complainant submits that

She has been employed by the respondent as a cleaner since April 2007

She has had a number of periods of sick leave from May 2019 to January 2022

The respondent deducted €350 from her wages on 10/12/2021

It is also submitted that her income was lower than normal for 3 weeks as follows; 10/12/21 – €113.60,  17/12/21 – €31.70 & 24/12/21 – €31.70.

In addition, she submits that she was forced to transfer her Social Welfare illness benefit to her employer and disagrees with this as she submit that she should be allowed to retain this payment

The respondent submits that

The complainant has been in the employment of An Garda Siochana since the 30th of April 2007 and works as a full time cleaner on 36 hours per week

She also works in her capacity as a service attendant at other local Garda Stations

 In recent years, the complainant has unfortunately incurred a number of periods of illness absence, most recently in November 2021 to February 2022.

The complainant is subject to the Public Service Management (Sick Leave) Regulations 2014 as well as the sick absence policy as set out in the Garda Staff Handbook, DPER Circular 05/2018 and HQ Directives 026/2014 and 064/2020 in regard to the reporting of sick absence and the right to paid sick leave.

In addition, An Garda Siochana are entitled to recover overpayments of salary under Section 5 of the Payment of Wages Act 1991, DPER Circular 07/2018 and the AGS Management of Overpayments Policy document.   Payment of salary is through the Payroll Shared Services Centre (PSSC).

 An Garda Siochana are notified by the PSSC when an overpayment has been incurred and are then required to notify the employee that an overpayment has occurred, the amount and reason for the overpayment and outline how the monies will be repaid.

 This, the Complainant’s second complaint to the WRC, states that her employer made an unlawful deduction from wages on the 10th of December 2021 of €350.

The complainant also states that the employer is retaining her Illness Benefit payment and she submits that she has a right to this payment to be paid to herself.

The complainant sets out what her income was in November and December 2021 and notes that her income was lower than normal for 3 weeks as follows; 10/12/21 – €113.60 17/12/21 – €31.70 24/12/21 – €31.70.

 The complainant was on sick leave during these dates and was on sick leave from the 9th of November 2021 to the 14 February 2022.

Civil and public servants who are eligible to paid sick leave are required to claim Illness Benefit from the DEASP and mandate the illness benefit payment directly to their employer. In An Garda Siochana, this requirement is provided for in HQ Directive 096/2013 and HQ Directive 038/2018 as repealed by HQ Directive 064/2020. ‘Staff are not entitled to be paid both salary and Social Welfare Benefit for periods of sick leave absence.’ (HQ Dir 096/2013) ‘In accordance with HQ Directive 096/2013, all employees availing of sick leave will continue to be paid at the appropriate rate of sick pay in the usual manner by An Garda Siochana. However, payment is subject to the condition that employees claim Illness Benefit from the DEASP. All monies claimed are to be mandated to the Garda vote.’ (HQ Directive 064/2020)   This is required regardless of whether an employee is on sick absence with full pay, half pay or on Temporary Rehabilitation Remuneration (TRR). This shows that the complainant is not entitled to have Illness Benefit paid directly to her while she is an employee of An Garda Siochana.

The reduction in salary for the three weeks as stated by the complainant in her complaint was due to the fact that she had exhausted her paid sick leave entitlement.  The complainant received an email dated the 15th of November 2021 from the Civilian Sick Section explaining clearly how the reduction in salary came about.   Specifically, the letter points out that the complainant had exceeded the duration of the Critical Illness scheme previously awarded to her which ran to the 3 January 2021. The complainant then reverted to ordinary illness entitlements of 92 days full pay and 91 days half pay, subject to a maximum of 183 days in the previous 4-year period.

The complainant, when she went off sick from the 9th of November 2021 had already exceeded the 183 paid sick days allowable. Therefore, she was taken off payroll and was instead in receipt of the Temporary Rehabilitation Remuneration (TRR) payment. See ‘PSSC Payroll Amendment Form.  Furthermore, the complainant was advised in this letter to avail herself of her entitlement to seek payment under the Critical Illness Provisions, which she was entitled to do again.

The complainant exercised her right to apply for payment under the Critical Illness Provisions and her application was received on the 3rd of December 2021.    Following this a letter dated the 13th of December 2021 was issued to the complainant informing her that her application was successful, and her illness had been reclassified as Critical Illness.    As a result, the complainant was given access to the extended paid sick leave scheme under the Critical Illness Provisions under the Protocol, as was the case with her previous Critical Illness payment. The payment was backdated to the start of her illness absence on the 9th of November 2021 and would apply for 12 months.  The letter also confirmed that the Payroll Section had been instructed to restore the complainant to full pay with effect from the 9th of November 2021 and to pay any arrears owing.    The Absence History submitted shows all sick absences and notes that all such absences were ‘PAID’.

Due to the complainant’s second sick absence from the 9th of November 2021 and prior to being awarded extended paid sick leave under the Critical Illness Provisions, a second overpayment was incurred due to late notification to payroll.

 As salary is paid in advance, payment would have been made to the complainant when she went out sick on the 9th of November even though she had exhausted her paid sick leave entitlement and should only have been in receipt of TRR payments. The complainant was notified of this situation in a letter from the Sick Absence Section dated November 2021.

The overpayment amount of €1,298.81 gross was then notified to the complainant in a letter dated the 17th of November 2021 by the Overpayments Section, this letter constituted notice of the overpayment and the need to repay the overpayment.     Following this, due to the fact that the complainant was awarded Critical Illness payment and put back on full pay backdated to the 9th of November 2021, the NSSO informed the Overpayments Section that the overpayment incurred in November 2021 was being cancelled, dated 17th December 2021.    A letter then issued to the complainant on the same date from the Overpayments Section confirming that the overpayment no longer applied.

As explained above, the complainant incurred a number of overpayments due to human error and due to payroll not being notified in sufficient time to halt payment where payment was not due to the complainant. This overpayment appeared on her payslip as a ‘deduction’ when it was realised, however, this is merely to show that an overpayment has been made.

An overpayment in early 2021 had resulted in an agreement that the complainant would repay €10 per week.    This commenced in October 2021 and is the subject of a separate complaint and decision. No deduction was made prior to the notice letter going out and the agreement being reached to repay €10 per week. An instruction was only then issued to Payroll by the Overpayments Section to make a deduction from salary, and this was not until 5th October 2021.  The complainant also availed of her entitlement to seek payment under the Critical Illness Provisions and was successful on both occasions, resulting in having her salary backdated and any arrears owing paid to her.

The Law

The Payment of Wages Act 1991 states at section 5 and 6 as follows:

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. 

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction,

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The complainant in this case submitted that the respondent deducted €350 from her wages on 10/12/2021.   She also submits that her income was lower than normal for 3 weeks as follows; 10/12/21 – €113.60, 17/12/21 – €31.70 & 24/12/21 – €31.70.

In addition, she submits that she was forced to transfer her Social Welfare illness benefit to her employer and disagrees with this as she submits that she should be allowed to retain this payment

It transpired that the complainant had been on sick leave on a number of occasions since commencing her employment with the respondent and had during the period in question exceed the maximum number of paid sick days.

The complainant incurred an overpayment in her salary in early 2021 which it was agreed would be repaid in amount s of €10 per week from October 2021.  This was the subject of a second complaint and is dealt with in a separate decision.

 The respondent advised the hearing that due to the complainant’s second sick absence from the 9th of November 2021 and prior to being awarded extended paid sick leave under the Critical Illness Provisions, a second overpayment was incurred due to late notification to payroll.

 As salary is paid in advance, payment would have been made to the complainant when she went out sick on the 9th of November even though she had exhausted her paid sick leave entitlement and should only have been in receipt of TRR payments. The complainant was notified of this situation in a letter from the Sick Absence Section dated November 2021.

The overpayment amount of €1,298.81 gross was then notified to the complainant in a letter dated the 17th of November 2021 by the Overpayments Section, this letter constituted notice of the overpayment and the need to repay the overpayment.     Following this, due to the fact that the complainant was awarded Critical Illness payment and put back on full pay backdated to the 9th of November 2021, the NSSO informed the Overpayments Section that the overpayment incurred in November 2021 was being cancelled, dated 17th December 2021.    A letter then issued to the complainant on the same date from the Overpayments Section confirming that the overpayment no longer applied.

As explained above, the complainant incurred a number of overpayments due to human error and due to payroll not being notified in sufficient time to halt payment where payment was not due to the complainant. This overpayment appeared on her payslip as a ‘deduction’ when it was realised, however, this is merely to show that an overpayment has been made.

No deduction was made prior to the notice letter going out and the agreement being reached to repay €10 per week. An instruction was only then issued to Payroll by the Overpayments Section to make a deduction from salary, and this was not until 5th October 2021 contrary to what the complainant states in her complaint.    The complainant also availed of her entitlement to seek payment under the Critical Illness Provisions and was successful on both occasions, resulting in having her salary backdated and any arrears owing paid to her.

The respondent advised the hearing that contrary to what the complainant stated on her complaint form, no deductions, illegal or otherwise had in fact been deducted from her salary.

 The respondent went on to explain that during the course of May 2021, the complainant was absent from work due to illness and an overpayment occurred due to human error on the part of the PSSC, in effect the complainant was paid twice for one month and one week on that occasion.   The respondent advised the hearing that overpayments appear on the payslip as deductions even though no monies have actually been deducted.

The respondent advised the hearing that the complainant was notified of the overpayments and the requirement to repay the overpayments by letter and by phone. Under the Policy, a response is required within 14 days and the minimum amount repayable is 10% of salary.

However, in the complainant’s case, the special hardship provisions were utilised, and a special arrangement was made in regard to the repayment of the May/June/July 2021 Overpayments.

A letter was eventually issued to the complainant dated 21st September 2021 by the Overpayments Unit setting out the overpayments referred to above and the exact dates these overpayments were incurred and confirming the total amount of the overpayment to be €2,279.43 gross.

Following the issuing of the letter dated 21st Sept 2021 (above) by the Overpayments Section notifying the complainant of the overpayment dating back to May/June 2021 and the requirement to recoup the overpayment referred to in this complaint, meetings took place with her Employee Assistance Service (EAS) Representative and a reduced repayment plan was agreed to. See emails between EAS and Overpayments Section. 

 Agreement was reached to repay €10 per week to recoup the overpayment of €2,279.43. This was confirmed in an email to the Complainant from the Overpayments Section dated 5th October 2021.

 Contrary to what the complainant claims, no deductions had been made from her salary up to this point and only following agreement did an instruction then issue from the Overpayments Section dated 4th October 2021 to the PSSC to deduct €10 per week.

Having regard to the submissions made and the evidence adduced I am satisfied that the respondent did not contravene Section 5 and that no illegal deduction was made from the complainant’s wages.

I am satisfied from the totality of the evidence adduced that the respondent did not contravene Section 5.   Accordingly, I declare this claim to be not well founded.