INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
NORTH TIPPERARY COUNTY COUNCIL
(REPRESENTED BY LGMA)
- AND -
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Mr Shanahan
1. Appeal of Rights Commissioner's Recommendation r-107507-ir-11.
2. This dispute concerns the Council making deduction from the Worker's salary in respect of an overpayment of a travel and subsistence allowance. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 29th November, 2011 the Rights Commissioner issued the following Recommendation:-
- "The respondent is statutorily obliged to introduce the deductions ... It is entitled to make the error and to seek to recoup the amounts paid in error ... I do feel that in the circumstances outlined here the respondent should be in a position to accept repayment of the amounts paid in error on a €50 per fortnight basis. I so recommend."
On the 6th January, 2012 the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 10th October, 2012.
3. 1. The overpayment was a result of a error made by the Council.
2. The error was undetected by the Council for several years.
3.The Worker is being unfairly penalised because of the Council's error.
4. 1.The Council made an overpayment of expenses in error to the Worker.
2.The Council has sought to recoup the overpayment through a deduction of salary.
3.The Council does not have any discretion in this matter.
This is an appeal by a worker of a Rights Commissioner’s Recommendation against his claim relating to an overpayment paid to him when the Council failed to apply a deduction to his site allowance payments in accordance with Circular 03/2009.
The Appellant appealed the decision on the basis that it was not the fault of the Council that he was paid an incorrect amount of site allowance when it omitted to make a reduction to the allowance deductions as required by Circular 03/2009, from 12thMarch 2009. He submitted that the Department of Environment, Heritage and Local Government’s Circular (the Department) did not clarify for the Council that such deductions should be made until it sent an email to all local authorities in August 2010, this coupled with an inadvertent Circular issued by the Department on salary scales which displayed an incorrect site allowance meant that it was the Department and not the Council who made the mistake. In such circumstances, the Appellant submitted that no monies should be sought from him to recoup the sum involved.
Having considered the submissions of both sides the Court notes that Circular 03/2009 imposes a statutory obligation on Local Authorities to reduce Travelling and Subsistence Allowances and “other allowances derived from travel and subsistence allowances”. In such circumstances the Court concurs with the Rights Commissioner’s findings and upholds his Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
13th November, 2012______________________
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.