Worker

Employer

Anonymised Parties

An Employee

An Employer

Representatives

John Cleary SIPTU

Valerie Madigan

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 - 00003515

05/12/2024

The Worker attended the hearing and was represented by his union representative. He made comprehensive submissions on the Worker’s behalf and highlighted the relevant correspondence between the parties. I also had the benefit of hearing from the Worker, his line manager and a colleague.

The Employer attended the hearing and was represented by an employee representative who made comprehensive submissions on behalf of the Employer and highlighted the relevant correspondence between the parties. I also had the benefit of hearing from the Employer’s Interim HR Manager.

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

The dispute referred to the WRC by the Worker is that the Employer unfairly and in an  unreasonable way removed a long standing financial benefit from the Worker. The Worker sought a recommendation that in circumstances where he suffered financially due to an error on his employer's part, and through no fault of his own, he be compensated accordingly. Furthermore, the Worker sought a recommendation that if the conclusion was that an overpayment occurred, in the circumstances of the instant dispute, the Employer should not seek a financial recoupment of any overpayment.  

The Employer denied that the Worker had an entitlement to the financial benefits he received during the material time. The Employer submitted that when it was highlighted through an internal review that the Worker was in receipt of shift allowance that should not have been paid to him while he was in the temporary role the Employer had no choice but to immediately take steps to stop the payment of the allowance and that it had an obligation to seek a financial recoupment of the monies paid to the Worker in error.

The Worker commenced employment with the Employer in April 1997. The Worker stated that he had been in receipt of shift allowance from as far back as 2003 and that he received the allowance when regularly working the 8-8 shift.

The Employer detailed the Worker’s career progression and stated that the Worker’s permanent position attracted shift allowance due to the nature of the roster, which included shifts ranging from 12-8, 8-4, 4-12, 8-8.

In April 2022 an invitation was issued to existing staff to apply for a temporary post. From a consideration of the terms and conditions for the temporary post it would appear that the weekly working hours were 39 hours with a 5/7 roster and shift pattern of 8-8pm. The Employer explained that this meant that the successful candidate could be required to work between the hours of 8:00 am to 8:00 pm Monday through Sunday. There was no mention in the advertisement or job specification that the post would attract shift allowance. According to the Employer this was a promotional opportunity with associated higher salary and the grade for the post did not attract a shift allowance. The Worker was successful at interview and accepted the post.

Prior to the Worker taking up the post he had a conversation with his line manager regarding shift allowance and he believed that he had a red circle agreement in relation to shift allowance. He also had a conversation with the Interim HR Manager. Whilst he accepted that allowances and the fact that he would be down money in his pay packet were discussed, he stated that he was never explicitly informed that he would lose his shift allowance and when he took up the temporary post he continued to be paid shift allowance so he assumed that the HR Manager was referring to a different allowance and that his assumptions regarding a red cicle agreement were correct.

According to Employer’s written submissions, during the course of what was a described as a formal meeting with the Worker, the Interim HR Manager advised the Worker that he would lose all his allowances with the exception of unsocial hours payment and the Worker stated that he was aware of this but was happy to proceed as the post was a promotional opportunity with an increase in basic pay and he wanted to progress careerwise. At the hearing the Interim HR Manager accepted that it was an informal conversation in relation to allowances and that she was not aware at the time the conversation took place which allowances the Worker was entitled to however she stated that she wanted to make sure the Worker was aware that he would lose his allowances going forward and he was going to be down money if he took up the temporary post.

The Worker was appointed into the temporary higher post on the 27th June 2022 and he continued to receive shift allowance until it was stopped on the 12th May 2024 after he was informed by the Employer that the said allowance was not supposed to be applied to the new role and that it had been paid to him in error. The Worker stated that he was extremely disappointed by this as he had been in receipt of this allowance since early 2000s.

The Worker initiated a grievance through the Employer’s internal grievance procedure in May 2024.  His grievance was not upheld on the 26th July 2024. He appealed that decision and the appeal was not upheld on the 17th October 2024. As part of the internal grievance process it was highlighted that the Worker was not entitled to be paid shift allowance in the higher post but was entitled to, and should have been paid, unsocial hours allowance. 

It was submitted on behalf of the Worker that the stress of the financial hardship he had to endure and the bad faith manner in which the Employer engaged with him led to him suffering significant stress and poor mental health necessitating him to take sick leave. 

The matter of recoupment of the overpayment of the shift allowance paid to the Worker in error was only raised by the Employer for the first time in the conclusion of its written submissions furnished to the WRC on the 14th May 2025.

I have perused the documentation furnished to the WRC and have considered the parties written and oral submissions as well as the oral evidence proffered by and on behalf of the Worker and the Employer. I conclude that there is no evidence of a specific arrangement or red circle agreement that would carry over the shift allowance from the Worker’s permanent position to the temporary post. I therefore I do not recommend in favour of the Worker in relation to this aspect of the dispute. However, taking into consideration the oral and written submissions and the documentation furnished to me by the parties, on a once off basis and without creating any precedent, after the unsocial hours allowance due and owing by the Employer to the Worker is offset against the overpayment of shift allowance, I recommend that in the particular circumstances of the instant dispute, that the Employer not pursue a financial recoupment from the Worker in relation to any overpayment made between the 27th June 2022 when the Worker took up the temporary post and the 12th May 2024 when the payments were stopped.