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Was it a COT3 or a compromise agreement please? This is an important question.
You did contact her after 2 1/2 years and provide evidence that the employee is owed money by the organisation.
Court settlements probably take no account of monies owed to the employee under statute.
She probably could go back to court to recover what she is owed based on the company evidence.
Newspapers love these human interest stories
Just an opinion.
Thank you all for your advice & contribution regarding this subject.
Base on the breakdown /analysis stated by the employee, our record shows that:
Her accumulated annual leave [porata holiday] has not been paid.
The outstanding accumulated arrears (Salary increase) have not been paid.
In our opinion, we believe that the settlement [out of court] had covered any outstanding with respect to her payment on or before her dismissal.
But, after contacted her requesting for refund of the ‘overpayment’; the employee has sent two letters requesting for her outstanding payment prior to her dismissal. Despite, the company is trying to let matter rest by keeping silent on the issues. In are second letter, she was claiming vindictive and further harassment.
Is it advisable for the company to reply her that we are not going to meet her request?
Is it advisable for the Company to keep silent without replying her letter /request further?
Does she have legal right to go back to the court in order to request for her outstanding payment?
Can the employee claims vindictive and further harassment in the court as stated in her letter?
Is it advisable for the Company to pay her and let the matter rest?
Your advice with respect to above questions would be helpful.
Agree fully with Lorranie.
My practical advice to the company would be to let the matter rest (based on the limited amount of information I have read here).
The legal position will depend entirely on the nature of the compromise agreement (COT3 agreement if drafted by ACAS). It will state what claims are excluded and should not universally exclude all claims.
The best thing you can do is see a solicitor, taking copies of all the correspondence and the compromise agreement & seek individual advice.
I would echo the concerns expressed above that your company might lose more than it gains from pursuing the matter or ignoring/disputing the employee's claims but a solicitor with full access to the paperwork is better placed to give specific & reliable advice.
I'm not an expert by any means but surely it may cost more to attempt to retrieve the 'over payment' than what you may get in return.
Does the company really want to run the risk of additional costs/losses, whilst looking petty and vindictive?
Sometimes these things need to be put to bed so to speak.
The employee should have been paid any outstanding accrued annual leave and any salary arrears owing at the time of the dismissal. If she didn't receive these then she has a fair right to challenge the employer. I think in these circumstances the employer should walk away and reflect on lessons learnt. As Kate says, to pursue this employee for a salary overpayment (particularly when it actually looks like she was underpaid) does look like victimisation.
Martin Riley, I do enjoy your contribution /advice within this Forum /media -it gives legal points.
Can you and others in the Forum contribute -suggestion /advice on the above subject "OVERPAYMENT’ REQUEST /REFUND AFTER OUT OF COURT SETTLEMENT".
Your advice would be helpful.
Wow, this person was dismissed 2 1/2 years ago, won a settlement from the company because they didn't think they could prove their grounds for dismissal were fair, and they're still harrassing her?! They sound pretty vindictive!
An employee has been dismissed as a result of allegations of non-standard performance which did not meet company’s requirement (‘misconduct’). Regarding her dismissal, employee took the company to the employment Tribunal.
Unfortunately, evidence provided by employee’s line manager appeared to be weak, thus we requested for out of court settlement. Therefore, she was settled. Five months after the settlement, Company discovered that ‘overpayment’ had been made to the employee’s account two years ago as part of her last wages during her leaving.
With respect to this ‘overpayment’, the Company contacted her --requesting for the refunds. In her response to our letter, she claimed that there was no evidence of ‘overpayment’ as alleged; rather she asserted that she was short pay for her last salary, and she attributed the overpayment as part of her accumulated Salary increase arrears.
Further, she requested for an outstanding payment that was not pay before her leaving; which are: annual leave [holiday in Porata], and Salary increase arrears which was paid to other employee before her leaving.
The Company has the opinion that she has been settled (out of court), she should still has to refund the ‘overpayment’. Though, the requested overpayment is less than the total amount further requested by her.
Does employee has right to request for any outstanding payment after out of Tribunal settlement?
Does Company have obligation to pay the requested outstanding accumulated arrears (Salary increase), and holidays?
Should we take the employee to the court or Tribunal for the refund of the ‘Overpayment’?
Apparently, as part of the settlement agreement, none of the parties (employee & employer) has right to revisit the dismissal case again.
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