PWD1620

Background

The Complainant worked as a Grade 111 Clerical Assistant with the respondent. She had been originally employed by the HSE and her employment transferred to TUSLA when that body was established.

When the HSE came into being in 2004 staff transferring from the constituent Health Boards were converted from weekly to fortnightly pay. The affected staff members were given a lump sum payment to alleviate any hardship that might result for this change. It was generally agreed that staff would have that amount deducted from their final salary on retirement or on resigning employment with the HSE or its successors.

In this case the complainant received a payment of €326.25 in or around that time. When her employment with TUSLA ended the monies due were deducted from her final salary. She disputed this deduction. The matter was referred under the Act to an Adjudication Officer who found for the Respondent. The Complainant appealed against that decision to this Court.

Complainant’s Position

The Complainant submits that she had no evidence that the monies deducted from her salary were in respect of the alleged advancement of monies in 2004. She further submits that there had been a series of irregularities with her salary over the years and that these had been referred to an Adjudication Officer who indicated that all payroll issues had been resolved as part of that process. In her words she said “the slate had been wiped clean”. She understood this to mean that no further issues arose regarding over or underpayments of her salary.

Respondent’s Position

The Respondent submits that the transition from weekly to fortnightly pay affected all relevant staff equally. In an effort to minimise the disruption to cash flow resulting from this change the HSE gave all staff an advancement which would, by agreement, be deducted from final salary upon retirement or resignation.

The Complainant was provided with this advancement and the deduction was no more than the authorised recoupment of the monies involved.

The Law

Section 5 of the Act states

• 5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

  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.

Findings of the Court

The respondent relies on section 5(1) (C) of the Act. In that regard the burden of proving that the employee has given prior consent in writing lies with the person seeking to establish an entitlement to make a deduction that would otherwise not be permitted under the Act.

In that regard the respondent told the Court that all staff had been asked, when the impugned monies were advanced to them in 2004, to sign a form acknowledging receipt and authorising deduction from final salary. It was confident that the Complainant would have been provided with such a form and that she would have signed it. However it did not have a copy of the form nor had it any witness that could attest that the monies paid were in the nature of an advancement and that the complainant had authorised repayment by way of a deduction from final salary.

The complainant was not in a position to confirm or deny that she had received the claimed monies and or that she had given written permission for the impugned deduction.

As the respondent did not produce any evidence that the complainant had given her prior consent in writing to the deduction the Court must finds that it was not lawful and that it infringed section 5 (1) of the Act.

Determination

The Court finds that the complaint is well founded. The decision of the Adjudication Officer is set aside. The Court orders the respondent to return the deducted monies to the complainant.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
JD______________________
7 July 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.