ADJ-00002946

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002946

Complaint(s)/Dispute(s) for Resolution:  

Date of Adjudication Hearing: 29/09/2016

Adjudication Officer: Ian Barrett

Procedure:

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

Preliminary Issue:

At the outset of the Hearing the Respondent raised a preliminary issue concerning the complaint (CA00004092-003) for the alleged non-reimbursement of expenses. The Respondent referred to Section 1 (1) of the Payment of Wages Act which states that “any payment in respect of expenses incurred by the employee in carrying out his employment” shall not be regarded as wages and therefore, the Respondent respectfully requested that the complaint should not be heard. Following a discussion with both parties it was agreed that this complaint would be withdrawn.

Complainant’s Submission and Presentation:

The Complainant indicated his intention to refer to two complaints lodged under the Payment of Wages Act; namely that the Respondent had made an unlawful deduction from his wages in relation to the recovery of charges relating to alleged misuse of his Company mobile phone and that on other occasions he had not been paid his full wages or was paid less than was due to him.

The Complainant was employed as a Business Development Executive by the Respondent (a field sales and marketing company). He commenced employment on the 17^th July 2015 on a fixed term contract, due to expire on the 31^st December 2015. However, on the 23^rd October 2015 the position was made redundant and his employment terminated.

The Complainant alleged that he was not paid for 4 days of work, two days in September 2015 and two in October 2015. He stated that he provided proof that he was working on the days in question and that he was told that he would be paid for this shortfall in his wages (on a date after his employment had terminated) but despite numerous calls to Company representatives the money had not been paid and he has received no explanation for this.

The Complainant’s second complaint refers to a deduction of €497.17 made by the Respondent from his final salary for alleged internet overuse on his Company mobile phone. He was notified in writing about this deduction on the 20^th October 2015, three days before his employment was to cease due to redundancy and seven days before the final payroll run due on the 27^th October 2015.

The Complainant stated that the Respondent did not make him aware that it had a maximum Internet usage policy in place, either in the form of a written document at the outset of his employment or throughout the course of his employment by way of notifications, be they verbal, text, email or otherwise, so that even if he breached Company policy he was unaware of it until he was notified a matter of three days before his employment was being terminated due to redundancy.

In any event the Complainant alleged that the Internet usage in question was work related and not personal, in that he used his mobile phone for GPS navigation purposes on those occasions when his iPad would lose coverage.  

The Complainant concluded by stating his belief that the Company should have procedures in place to prevent situations like this from occurring. He added that the Respondent will claim that his contract of employment makes specific reference to the Company’s right to make deductions from salary to cover the cost of damage, loss or neglect of company assets. However, he contended that he did not damage, lose or neglect any of the assets provided to him by the Company.

He also stated that he did not receive a contract or employment at the commencement of his employment, nor had he any recollection of having signed one. Finally, he stated that he had made continuous efforts over a period of months to have these matters resolved with the Respondent but to no avail, leaving him with no other option but to pursue the matter through the WRC.

Respondent’s Submission and Presentation:

The Representative for the Respondent opened her presentation by stating that the Complainant had been provided with a Statement of the Terms and Conditions of his Employment, a copy which was included in the Respondent’s submission to the Adjudication Officer. She referred to Clause 5, ‘Remuneration’, and the subsection titled ‘Deductions’ that stated that the Company reserved the right to deduct from salary any sum up to an amount greater than was in dispute to cover the cost of damage, loss or neglect of Company assets and if the Company intended to make such a deduction the employee would be notified in writing in advance.

The Respondent also referred to an Employee Code of Conduct document that states under the heading “Protection and Proper use of Assets” that all company assets should only be used for business purposes. Taking the above into account the Respondent contended that it was within its rights to make a deduction for improper Internet usage, as this was in breach of a term of the Complainant’s contract of employment and therefore lawful.

On the matter of the alleged failure to pay for four days’ pay the Respondent alleged that the Complainant has not attended work on these days due to illness. The respondent stated that the complainant was absent from work on four occasions, namely the 7^th, 15^th and 23^rd of September and the 6^th of October 2015. She referred to their detailed submission which includes email and other records that show that the complainant was absent, due to illness, on these dates. As Clause 9 (“Sickness Absence”) of the ‘Statement of Terms and Conditions of Employment’ states that the Company does not make any payment to employees who are absent through illness, the Complainant’s claim should fail in this instance.

Findings:

During the Hearing an examination of the evidence and cross examination of both parties led to the Complainant accepting that the Respondent was within its rights to withhold wages for the four days of non-attendance due to illness and accordingly he withdrew this complaint (CA00004092-002).

Therefore, the complaint relating to the €497.17 deduction from his final pay (CA00004092-001) for the alleged misuse of the Company mobile phone was the only complaint to be adjudicated upon.

Section 5 of the Payment of Wages Act refers to the regulation of deductions made by employers. Subsection 2 of the Act states; “an Employer shall not make a deduction from the wages of an employee in respect of- 

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

(b) Any goods or services supplied to or provided for the employee by the employers the supply or provision of which is necessary to the employment.

However, there are exceptions to this prohibition where such deductions are “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 employer and employee” and if “the deduction is of an amount that is fair and reasonable having regard to all the circumstances”.

I find that the Respondent cannot rely on either of these exceptions for the following reasons:

Reliance on the term of the contract of employment:

The Respondent’s case is substantially based on the following wording in the Complainant’s employment contract:

The Company reserves the right, at its sole discretion, to deduct from any salary due to you, any sum up to and including €1,265 to cover the cost of damage, loss or neglect of company assets. All company assets must be returned in the same condition when assigned to you at the commencement of employment.

On a point of detail, the Respondent’s written notification of the 20th October 2015 (informing the Complainant that a deduction of €497.17 would be made from his next wage payment), referred to the Company’s right to make deductions “in situations where negligence, damage of loss” of Company assets has occurred. Therefore, based on this note negligence had replaced neglect as a factor that might give cause to the Company making a deduction from wages.

In their written submission, the Respondent stated that their right as an employer to make a deduction was “specifically communicated in the Claimant’s Statement of the Main Terms of Employment”.

However, I find that the term (in italics above) in the employment contract fails to communicate, whether expressly or by implication, that excess mobile phone usage (if it occurred) falls into the category of “damage, loss or neglect”, thus authorising the Company to recover any charges as may arise from such misuse by way of a deduction from pay.

Fair and reasonable having regard to all of the circumstances:

I find that notifying the Complainant of a wage deduction for alleged excess mobile phone usage three days before the termination of his employment due to redundancy fails to meet a ‘fair and reasonable’ standard.

The letter of the 20th October states that the reason for the deduction was excess mobile phone usage and went on to state that the “dates of above” were “Oct-15”. However, the Respondent’s submission provides information showing that the alleged excess mobile phone usage took place throughout the Complainant’s employment, from the 17th of July 2015 to the 7th October 2015, a period covering 12 weeks.

The submission also includes a copy of ‘Notification of Salary Deduction’ notice issued to another employee, where a deduction for exceeding the data/phone limit for the month of May 2016 was being made at the end of June. In this case the matter of mobile phone misuse (and the consequences, a pay deduction) was dealt with in a timely manner.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relations to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint in relation to the alleged non-payment of expenses was withdrawn prior to the commencement of the hearing and the complaint relating to a shortfall in the Complainant’s wages (the matter of the Complainant’s absence through illness) was withdrawn during the course of the Hearing.

In relation to the complaint concerning the unlawful deduction from wages for alleged misuse for the Company’s mobile phone my decision is that the Respondent was in breach of the Payment of Wages Act 1991 and shall pay the Complainant an amount equal to the unlawful deduction, €497.17.

Dated: 31 January 2017