A reasonable requirement to repay an overpayment of salary
An employee received a salary increase as a result of an incorrectly applied automatic update within their agency's payroll system. This resulted in an overpayment and the employee incurred a debt to their agency. In the agency's view, the Enterprise Agreement did not entitle the employee to a salary increase, and as such, they had been overpaid and were required to return the money. The agency offered a payment plan, to enable the employee to fairly repay the money over a period of time.
The employee did not agree with the agency's determination that they were overpaid or that they should return the monies. In their view, they had entered into an Individual Flexibility Agreement (IFA) with the agency, which provided them with employment conditions over and above those set out in the Enterprise Agreement.
The employee requested a primary review of the decision by the agency. On review, the agency confirmed their original decision.
The employee applied to the Merit Protection Commissioner for a secondary review of the agency's decision. In the employee's view, they were entitled to the money, and should not be required to repay it. They considered they had entered into an IFA, which entitled them to the salary increase.
On review, we considered a range of evidence and did not agree with the employee that they had a valid IFA. As such, their employment was as per the Enterprise Agreement, which did not provide for salary increases in the employee's circumstances. We came to this view as there was no written IFA in place, and the employee's letter of offer did not make mention of an IFA.
In the course of the review, the employee stated that that their agency did not provide them with procedural fairness during the course of salary negotiations prior to the commencement of their new role. In the context of the negotiation of an employee’s salary and conditions of employment prior to commencement, we found that there was no requirement to provide procedural fairness. This was on the basis that the agency was not considering taking adverse action against the employee, nor was the employee subject to any inquiries or investigation which may have led to any action taken against them. While there was no requirement to provide the employee with procedural fairness in these circumstances, we considered that the process of entering into negotiations regarding employment conditions would have afforded the employee the opportunity to raise any concerns with agency. For instance, if the employee's letter of offer did not reflect their understanding of the terms and conditions of employment, the appropriate time to raise those concerns was prior to signing the letter.
As a result, we recommended the agency's decision be confirmed.