PWD166

Introduction
This is an appeal by John Ryan (hereafter the Complainant) against the decision of a Rights Commissioner / Adjudication Officer in his claim that he was subject to an unlawful deduction from his wages in contravention of s.5 of the Payment of Wages Act 1991 (the Act). The claim was taken against Athlone Institute of Technology (AIT) and Kildare and Wicklow Education and Training Board (KWETB)

The Complainant was employed by the AIT and was then redeployed to the KWETB. However the AIT remained responsible for paying the Complainant’s salary. Pursuant to that responsibility the AIT made the deduction at issue in this case. Consequently, the Court is satisfied that the claim is maintainable as against the AIT only.

The facts
The material facts of the case, as found by the Court or as admitted by the parties, are as follows;

• The Complainant was on extended sick leave and was certified as fit to resume work on 29^thMay 2014. He had some issues in relation to his employment that he wished to resolve with AIT. He called to AIT on 30^thMay 204 for the purpose of having those issues addressed. He remained at that location until 17^thJune 2014 when he reported back to KWETB. He claims that during this period he was waiting to have his employment related issues addressed. There is no issue that the Complainant attended at the College in Athlone on each working day during this period.

  The Human Resources Manager of AIT wrote to the Complainant by email dated 11^thJune 2014 advising him that he was regarded as being absent from his employment without authorisation and that he would not be paid until he returned to his place of work with KWETB.

  By letter dated 13^thJune 2014 the Chief Executive of KWETB wrote to the Human Resources Manager of AIT stating that the Complainant was absent without authorisation from his place of employment and should be ‘removed from the payroll’

  Subsequently, a deduction of €1,548.71 was made from the Complainant’s salary being the amount payable to his for the period from 29^thMay 2014 until 17^thJune 2014.

Conclusion
Section 5 of the Act renders unlawful any deduction from an employee’s wages unless that deduction is authorised by the section. Subsections (1) and (2) of that section are relevant for present purposes. They provide: -

• 
  5. Regulation of certain deductions made and payments received by employers
  (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
  • (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

    (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

    (c) in the case of a deduction, the employee has given his prior consent in writing to it.

  (2) An employer shall not make a deduction from the wages of an employee in respect of—

  (a) any act or omission of the employee, or

  • (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,
  unless—
  • (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

    (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

    (iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

    • (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

      (II) in any other case, notice in writing of the existence and effect of the term,

  and
  • (iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

    (v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

    (vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

    (vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

That submission should be understood as meaning that the deduction was in respect of an omission on the part of the Complainant, within the meaning of subsection (2)(a) of s.5 of the Act, in failing to attend at his designated place of employment. Such a deduction is only permissible if it authorised by subparagraphs (i) to (vii) of subsection (2) of the section. On the facts of the case subparagraph (i) of subsection (2) is relevant for present purposes, that is to say, “the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee”

The Court was not furnished with a copy of the Complainant’s contract of employment. The Complainant told the Court that the only contract that he had received was in respect to his employment with AIT. The Court was told by the representative of AIT that KWETB was the Complainant’s employer and that he had been furnished with a contract of employment by the KWETB. However no such contract was produced.

It was agreed that whatever contract governed the Complainant’s employment it did not contain any express provision concerning the circumstances in which his contractual salary could be reduced or in which deductions could be made from that salary. Nevertheless, it could cogently be argued that every contract of employment must be deemed to contain an implied term that wages are not payable where the employ is absent from work without lawful excuse or authorisation.

In this case the Complainant attended at AIT and remained there for the period in question. The Court is satisfied that the management of AIT knew that the Complainant was attending there and did not take issue with him so doing until, at the earliest, 11^thJune 2014. He was then instructed to return to his place of work with KWETB and informed that if he failed to do he would not be paid. He returned to KWETB on 17^thJune 2014

Section 5(2)(ii) of the Act provides that a deduction in respect of an omission on the part of an employee must be in amount that is fair and reasonable in all the circumstances. On the facts of this case the Court is satisfied that it was neither fair nor reasonable to make a deduction from the Complainant’s salary in respect of the period before issue was taken with his attendance at AIT. Accordingly the Court is satisfied that AIT contravened the Act in respect to the Complainant.

Redress
Section 6(2) of the Act provides for the award of compensation for a contravention of the Act in an amount which, subject to certain limitations, is fair and reasonable in the circumstances. In this case, those circumstances include the fact that the Complainant remained at AIT after he had been instructed to return to EWETB on 11^thJune 2914. Taking that into account, the Court measures the amount of compensation that is fair and reasonable at €1,000. AIT is directed to pay the Complainant compensation in that amount.

Outcome
The Complainant’s appeal is allowed and the decision of the Adjudication Officer is set aside and substituted with this Determination

Signed on behalf of the Labour Court




12th April 2016______________________
JKKevin Duffy
Chairman


NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.