ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016689

Parties:

	Complainant	Respondent
Anonymised Parties	Project Consultant	Recruitment Agency

Representatives

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00021677-001	07/09/2018

Date of Adjudication Hearing: 14/11/2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.

In particular, the Complainant herein has referred the following complaint:

A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.

Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.

Section 5 (1) states that an employer shall not make a deduction from an employee unless

The deduction is required by Statute or Instrument;

The Deduction is required by the Contract of employment;

The employee has given his prior consent in writing.

In a preliminary way, I am satisfied that a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 7th of September 2018 was submitted within the time allowed.

Background:

The Complainant has been working with the Respondent company since 2016. In and around early June 2018 the Complainant notified his Employer of his intention to leave the Employment as he had been engaged elsewhere. The Complainant went on a period of Notice which required that he stay at home on Garden Leave.

Summary of Complainant’s Case:

The Complainant was in receipt of a basic monthly salary of €2,500.00. Provision is also made in the Contract of Employment, for Bonus payments subject to personal objectives set by a Supervising Manager.

The Complainant was due his final pay on the 26th of June 2018 and was surprised to note that the basic salary had been deducted by the sum of €1,800.00. No body from the Respondent Company had communicated with the Complainant to state that this was happening or why it was happening.

Summary of Respondent’s Case:

The Respondent did not have a representative at the hearing. There is however some correspondence on file which sets out the rationale for the Deduction. I understand that Employees sometimes get paid Commission (on particular client deals) in advance, but that if there is a difficulty with getting Fees (from the client) the Employer seeks to recoup same.

Findings and Conclusions:

I am satisfied that the Complainant’s consent was not sought and that the Deduction was made out of the Complainant’s basic salary without any advance warning and gave rise to a consequent hardship. It is a requirement under the Act that written consent be given before any such deduction can be made. The Complainant accepts that the Employer subsequently made good a part of the deduction and that the figure of €1,260.00 was paid to the Complainant in September of 2018.

There continues to be a shortfall.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Pursuant to Section 6 of the said 1991 Act, I find the complaint herein to be well founded and I direct that the Complainant be paid the sum of €600.00 in respect of deductions made to date.

Dated: 17/12/18

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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