Worker

Employer

Anonymised Parties

A Social Care Worker

A State Agency

Representatives

Fórsa Trade Union

Internal/Self-represented

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00003278

11/10/2024

The Worker was the subject to two deductions from her salary, while on sick leave, in breach of the applicable Circulars, and without notice or consent. The Worker was out on sick leave in 2022 and she submitted sick certificates, in line with the attendance management policy. However, there was a late return of her sick leave by her Employer resulting in an overpayment. The Worker was put on notice of the overpayment. There were also a second error in which the Worker accrued an additional overpayment when she was paid in error for an Out of Hours shift that she did not work. The Worker does not dispute the overpayment but does dispute the deduction without notice or agreement on two occasions from her pay while she was in process with HR regarding the overpayment. She had to undertake a Stage 3 grievance process to clarify what had occurred and to untangle the figures and dates.

The Employer acknowledges the sequence of events as outlined by the Worker, as being correct. The Employer upheld the Worker’s Stage 3 grievance. The Employer has made a correction to the recording of the Worker’s sick leave dates, and a rebate with regards to – payroll administration for CIP purposes. It has also instituted extra training for line managers with respect to the correct inputting and management of the sick leave policy (timely attendance/absence management returns on the system, with respect to payroll).

The Worker is seeking compensation.

As per the complaint form submitted

The Worker had occasion to utilise paid sick leave in accordance with the sick leave scheme in operation within her employment. Through no fault of the Worker’s her sick leave was not entered into pay systems in the manner expected. The Worker was left in an overpayment situation that when she returned to work, due to the negligent manner in which her sick leave was recorded. The payroll department for the employer deducted overpayment amounts without due regard for the provisions of the rules regarding recoupment of overpayments. Subsequently, the Worker was advised of a second overpayment situation in relation to the payment of an allowance she was paid in error while on sick leave. Again, the Employer recouped the overpayment monies without due regard for the provisions of the rules governing the recoupment of overpayments. The Worker did attend a stage 3 grievance hearing with her company who found in their decision of April 25th 2024 in favour of the Worker’s complaint. Today, the Worker is asking that the Adjudicator would consider compensation for the financial hardship and stress caused to her by the recoupment without engagement of overpayment amounts as well as the Worker having to raise a stage grievance in order to attain information with regard to the circumstances that led to the overpayments occurring.

At the hearing, it was submitted that:-

The Worker was out on sick leave in 2022, and she submitted sick certificates in line with the attendance management policy. However, there was a late return of her sick leave by the Employer resulting in an overpayment. The Worker was put on notice of the overpayment. There were also a second error in which the Worker accrued an additional overpayment when she was paid in error for an Out of Hours shift that she did not work. The Worker does not dispute the overpayment but does dispute the deduction without notice or agreement on two occasions from her pay while she was in process with HR regarding the overpayment.

The Worker gave her consent to an offset. However, there was then a subsequent unauthorised payment taken from her pay without her consent or her knowledge. That is at odds with the applicable circulars, and the custom and practice. There was a further impact caused by how that large unnotified deduction interacted with the application of statutory deductions. It is submitted that overpayment would have offset the amount of statutory deductions. In terms of recoupment, deductions were made from payroll in relation to a large amount in one paycheque -  €1078.54. Then, there was a second overpayment identified for out of hours on call service that the Worker did not do, in the amount of €300. That was deducted in one lump sum from the following paycheque, despite a request by the Worker for that not to happen.

It is submitted that that these events are in breach of the overpayment policy of organisation and in breach of any reasonable approach with respect to recoupment of pay. The Workers union representative cited various approaches – varying between a maximum of 8% (Civil Service) to a suggested 5%. She further emphasised the necessary for notification and consent to put in place a reasonable payment plan.

She outlined the requirement for the Worker to utilise the grievance process and to raise a Stage 3 Grievance, in order to clarify facts, figures, dates and times; and submitted that it was done no more so for the organisation, in order for it to try to untangle the mess. It was accepted that the Employer has acknowledged that it was at fault.

The problem occurred due to a late notification on the system for payroll absences. The Employer, as a result of this, has introduced re-training for payroll returning officers, line managers etc. in order to mitigate against future risk.

She submitted that the Worker was the person who discovered that the original sum notified to her was an overpayment, emphases that the Worker had to go to the extent of formalising a process, to assure herself that the overpayment, and explained that the manner in which the statutory deductions operated/interacted with the large recoupment taken meant there was a compounding effect in terms of the monies the Worker received, with no prior notification and no consent.

She submitted that what was being objected to was the  manner in which the overpayments were deducted.

The impact of the unexpected deductions were outlined. The Worker has bills and a mortgage, and she is a single parent. This is a lone single income household. The deductions and their knock-on impacts caused financial distress. The Worker had to seek a loan in order to ensure that she had sufficient monies to discharge her fixed outgoings that month.

The figures in terms of the original overpayment, and then the corrected figure were outlined (and supporting documentation was submitted in respect of that also).

It was submitted that there is an obligation of the Employer to be mindful of the consequences of any deductions - had the Worker been notified of the amount due for statutory deductions – she should have been notified that they were going to be applied to her next paycheque – she could have been warned and she could have been prepared.

The Employer reiterated that the chronological events as set out by the Worker were not disputed. The Employer submitted that it agreed that notice should have been given. But, it submitted that, as part of the grievance procedure, there was not an opportunity for compensation – that it was not within its gift have awarded any compensation through that process.

At the hearing, the Employer submitted that the facts as set out by the Worker  were agreed in term of the sequence of events. It acknowledged that the Administration of sick leave wasn’t recorded correctly, that there was no prior notification to either the Employer or the Worker. It submitted that the €1078.54 was due to statutory deductions – an underpayment of social welfare rather than an overpayment, but accepted that the outcome was the same. The money was owed. The clarification was provided during the grievance hearing. The Employer consented with the rebate, and the Worker’s sick leave record was updated. In relation to the Critical Illness protocol, the dates were corrected – it was brought back by six weeks. That then was applied as per the protocol with full pay for the applicable period, followed by half pay for the applicable period, all corrected. It was clarified that the system calculated that there had been a period of unpaid leave, but that was addressed and corrected, to correctly reflect that there had been no period of unpaid leave. There was then an offset which occurred. It was submitted that overpayments or arrears were dealt with on a case by case basis, that there was not a specific percentage to be applied, in relation to the recoupment of overpayments. The Employer submitted that it was engaging directly with the Worker throughout this. It acknowledged that it did take some time to get figures confirmed through payroll. However, the Worker was not notified of the recoupments prior to the deductions occurring.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I conclude that there were a number of errors made by the Employer which resulted in a situation for the Worker which was very difficult and frustrating, and unnecessarily financially precarious, at a time of illness.

The Employer did not process the matter in time causing the initial problem, and then did not apply its own policies in respect of recoupment and overpayments, and deducted a significant sum without notice or consent in breach of the applicable circular, and/or any reasonable appraoch. Communication was also poor. There was then a second deduction also unilaterally instituted.

I further accept that the Worker had to utilise the grievance process (a Stage 3 grievance) in order to satisfy herself with respect to the issue of overpayment, and that she did not receive a response to the initial grievance raised (stage 1). I accept that the Employer did engage with her at that stage, clarified the matter, corrected her sick leave record and the application of CIP. I accept that further training had been instituted for line managers in terms of the timely management of the sick leave policy (inputting of attendance management policy) with respect to entries for payroll.

I further accept the Worker’s submission with respect to the impact on her in terms of her financial circumstances, personal and social circumstances – that it put her in a financially precarious position - as well as the stress and frustration of having to pursue the matter while on certified sick leave.

I recommend that the Employer pay the Worker €2,000 in full and final settlement of this dispute within 42 days of the date of this decision.

Attendance policy misapplied; Delay in inputting sick leave by manager resulting in an overpayment; Circular not applied; Unnotified substantial deduction; Second deduction; Impact of two deductions; Stage 3 Grievance Procedure had to be utilised by Worker; No engagement at Stage 1 grievance; Compensation sought;