ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001363

Complaint for Resolution:

Date of Adjudication Hearing: 13/06/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The Complainant commenced work as a Chef at the respondent hotel on June 1, 2015. He worked a 45-50 hr week and received € 493.00in nett pay. The complainant had worked at the hotel previously and had left in March 2015.

The complainant contended that he was owed €1,470.00 in unpaid wages and overtime and he sought compensation as redress. He ceased working at the Hotel due to difficulties in his work environment on August 19, 2015.

He told the hearing that his last payment received to his bank account of €490 nett was dated 2 August 2016 and payments stopped after this date. He received a payment in October 2015, for what he understood to be statutory entitlements but strongly contended that he was owed 3 weeks pay in respect of unpaid wages and overtime.

He received a document from the respondent prior to the hearing which he did not understand. This document referred to an overpayment to the complainant during his initial employment at the Hotel .The complainant had no knowledge of this overpayment or any agreement on repayment.

Respondent’s Submission and Presentation:

The Respondent disputed owing any outstanding wages to the complainant .He told the hearing that the respondent had shown great kindness to the complainant during his first period of employment and was pleased when he got an opportunity to work at a 5 star Hotel . The Hotel equally welcomed him back in June 2015.

The respondent submitted that two mistakes had occurred during the complainant’s initial period of employment which ceased in March 2015.

The respondent detailed the variable number of hours worked by the complainant during the course of his second period of employment as 523.75 plus 8 hours of public holiday .He was paid €526.17 in October 2015 in respect of statutory entitlements owed.

The hotel had been inspected by WRC and all records for the complainant were included in the inspection and validated by the WRC. They found nothing untoward.

The respondent confirmed that he had deducted the outstanding amounts owed by the complainant from his first period of employment. This deduction occurred following the “walk out” of the complainant on August 19. The complainant was not pursued by the hotel for pay in lieu of notice but the respondent was clear that an agreement had sprung into being on the complainants return to employment in June that he would repay the overpayment over the course of 12 months. He submitted a detailed letter of explanation of the background of the overpayment which confirmed that the complainant in fact owed the hotel €285.58, having taken account of the sequence of deductions which took place from the final salary. A P45 was submitted for the complainant.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages Act 1991 requires me to make a decision in respect of this claim.

Legislation involved and requirements of legislation:

Section 5(1) of the Act provides that an employer shall not make a deduction from the wages of an employee unless:

(a) The deduction is required or authorised to be made by virtue of any statute or any instrument made under statute.

(b) The deduction is required or authorised to be made by 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

Section 5(5) of the Act, Nothing in this section applies to -----

1. A deduction made by an employer from the wages of an employee, or any payment received by an employee by the employer where----

1. The purpose of the deduction or payment is the reimbursement of the employer in respect of an overpayment or an overpayment in respect of expenses incurred by the employee in carrying out his employment

5 (5) d A deduction made by an employer from the wages of an employee in pursuance of any arrangements

1. Which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract has given his prior consent in writing or to which the employee has otherwise given his prior consent in writing.

Decision:

This case has been complicated by the absence of a signed contract of employment or a signed statement of terms of employment. Neither party submitted these documents in evidence. There were no payslips available for inspection where I may have been in a position to review the incorporation or otherwise of the purported agreement on the legacy of the 2014/2015 overpayment. Instead, I listened carefully to both parties and I reviewed the document submitted as background for the respondent’s solicitor. I accept that a conversation may have occurred between the respondent and the complainant on the matter of an overpayment, but crucially, this conversation was not committed to a record that is now retrievable by either party.

It seems unusual to me that there were inconsistencies on the calculation of the termination payments for the complainant during his exits in 2015. If the outstanding amount was known by the respondent, it should have been addressed within that initial period of termination. I am surprised by this omission.

I must therefore accept the evidence of the complainant that he was not party to an agreed repayment plan on his recommencement of employment in June 2015. There was no written evidence of this agreement, neither was there documented evidence of any prior deductions before August 19. This does not tie in with the one year projection of planned repayments as submitted by the respondent .Therefore, I find that the complaint is well founded in that the complainant was subjected to an illegal deduction from his wages in breach of Section 5 of the Act and the respondent cannot rely on the defence of Section 5(5) of the Act.

I award the complainant compensation of two weeks pay to the amount of €986.00 to be paid by the respondent.

Dated:   27^th July 2016