Overpayed

themadchef

Mods if this is against the charter apologies in advance.

Curious situation ive been told of by a friend. She was contracted to work 6 hours a week by an organisation. On their first meeting she was told to fill in time sheets refelcting i suppose what days etc the hours were done and return same to the head office.
Here's wher it all goes a bit mad. She knew how much she was getting an hour, and never copped that the payment she was getting into her bank was double? Obviously there was a serious mess up in wages dept (paid for contract + the time sheet). Even worse its almost 3 years later before company notices it. :eek: and she kept quiet for what ever reason.

I'm thinking the company will try to recoup this money someway. But i'm also thinking as they did tell her to fill out time sheets they were partially to blame. I mean why in gods name would she not say oh by the way you over paid me last week at the start??

I'm in no way looking for legal advice, it sure wasin't me and i'm certain she is going to her solicitor as it's not a small sum of money!.

I just though it was a very unusual thing to happen to someone and wonder what other people would have done if it happened to them. A week overpaid i understand but 3 years :D i bet she will have to pay it back.

Mr. Presentable

It depends on the company, but I'd say they'll request a refund. How this will happen, however, may be decided by arbitration. This is, though, if she knew she was being overpaid she could in fact be prosecuted as this would be theft.

Maximilian

If you get paid money by mistake that you were not entitled to then of course you have to repay it.

patrickolee

Its happened to me twice. Once I was been paid extra every month, the other time it was a bonus payment. I told my employer about the monthly pay about 3 or 4 months after it started happening. I hadnt noticed. They took the extra back over the next few months, hadn't spent the money in any event so it didn't matter. The second time was a bonus payment, I said nothing and they made the whole office redundant as part of a 'world wide restructuring' about a year later so.... I guess it's safe to spend now!

OP, your friend should not have let it go for over 3 years, but I'm sure they'll let her pay it back gradually.

themadchef

I think it was madness too, but she is of the impresson that if they told her to fill out the time sheets then she is keeping it as it was not her fault. It's alot of money when you add it up over 3 years. If they try to take it back by taking say €20 a week form her wages i know she will quit, leaving them with little else to do but take her to court for it. Thing is she really will take it that far with the firm belief (from whoever she's talking to) that she is correct in her actions.

I think most people would have said something about it much earlier and not wait for them to find the error. What a mess.

mountainyman

She has to pay the money back but she does NOT have to pay it back as a lump sum. Your friend should write to the company and:
[1] Allege that the overpaid amount was her correct pay force them to produce documentary proof that i wasn't
[2] Write a letter headed without prejudice alleging that she is poverty stricken and offering to pay back less than the full aamount
[3] Offer to pay back a tenner a week for a year

They made the mistake and while they are entitled to their money back they cannot hugely inconvenience your friend in her giving it back.


MM

ejmaztec

Is there no statute in Ireland covering this? I know that in the UK, keeping quiet about being overpaid is considered fraudulent under their 1968 Theft Act. I'd be surprised if there were not something similar here.

PeakOutput

from the time she realised she was being over paid and kept quiet its theft imo and while if i ran a business and someone said they hadnt noticed for a few months id probably let it go(assuming i could afford to) but if we found out by ourselves that they were taking double pay for 3 years and knew they were taking double pay id do everything in my power to get it all back.

shes a dishonest person imo and deserves to be fired

Tom Young

Yes the Criminal Justice (Theft and Fraud Offences) Act 2001 applies similarly. There is a balance however between mistake and theft. Forming the intention to defraud and unwittingly accepting enrichment etc.

ejmaztec

I can't see that she wouldn't have realised that her pay was doubled, and was probably hoping that the windfall would continue undiscovered until she retired.

Tom Young

I'd have thought liability would accrue from the date of knowledge/discovery.

Victor

There is of course the matter that it has gone on so long. Is there a case for legitimate expectation? She has always been paid X, why should it change?

Its a little like transport workers who used to earn more than half their income from overtime and other non-core payments, e.g. level crossing gate keepers who, by virtue of the job, usually got a residence, but were only paid £120 a week in 2000. The level of wage to income was so disparate that the usual rule of "overtime hours are not a right" had to be looked at.

However, if this organisation is a charity, I would be slower to accept the above reasoning.

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Separately, there is the matter of what time period it should be repaid over.

Tom Young

Victor wrote: »

There is of course the matter that it has gone on so long. Is there a case for legitimate expectation? She has always been paid X, why should it change?

Not at all. Legitimate expectation is an instrument of the 'E' word, that being Estoppel. At no point do we see a situation where Estoppel feature, by deed, records or representation. Unless you can find same?

Key elements of a cliam of promissory estoppel are:

1. a pre-existing legal relationship between parties
2. an unambiguous relationship
3. reliance by the representee (and possibly detriment)
4. some element of unfairness or unconscionability
5. the estoppel is being used not as a cause of action but as a defence or as a rule of evidence to stop the other party raising a defence
6. remedy is a matter for the court

Delany notes that "the essential basis [Estoppel by
representation] is the making of a representation by a person whether by words or conduct of an existing fact which causes another
party to incur detriment in reliance on this representation".


In general Legitmate Expectation will only apply as an instrument exercisable against Public bodies not indivduals, though that changed in the case involving St. Gerards School.

The Doctrine of Legitimate Expectation needs to be delineated but considered in line with estoppel. The recent case of Dunleavy v Dun Laoghaire Rathdown by Macken J is a very interesting read which vacilates between the two forms. The seminal case in Ireland on this is Webb v Ireland.

In brief this was the case of the Council houses offered for sale at 1990 prices and allowed under Legitimate Expectation to be sold on in 2005/6 at 1990 rates. I think this is under appeal.

This was a case where Plaintiffs were entitled to purchase maisonettes/half house flats at Pearse Close Sallynoggin which each of them currently rent from the Council. In addition the Council was ordered to sell these properties to the Plaintiffs at a price, which reflected the value of the properties in July 1996. The High Court also held that the Plaintiffs were entitled to have the amount of rent that they paid to the Council since July 1996 to the date of completion of the sales offset against the price to be paid for the maisonettes.

There are two other cases, one involved St Gerards School in Bray and the 'sacking' of a junior teacher and also a case involving the department of education and grants/free education for third level.


The reality here is that unjust enrichment has occured and a claimant would have a case to seek restituion based on mistake and the Defendants unjust or percieved unjust enrichment.

It seems the thread has vacilated between Criminal and Civil law in the last/past two posts.

mountainyman

If this was the pay she received than she should maintain that she thought that it was her entitlement.

She must deny any awareness of this purported 'overpayment'.

By the way the organisation are being quite reasonable with 20 euro deduction and if she goes to court a similar outcome is likely.

MM