Complainant

Respondent

Anonymised Parties

Sales Assistant

Fuel / Grocery Retailer

Representatives

Self

Company Director

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-00014155-001

22/09/2017

The complainant was employed as a Sales Assistant by the respondent who operated a garage / grocery store business. The complainant commenced employment on 13 January 2017 and the employment terminated on 21 July 2017. The complainant worked full-time and was paid €323.75 gross per week. The complaint arises from the decision of the respondent to withhold the complainant’s final payment following the termination of his employment.

The complainant was advised that he would not receive his final week’s pay, outstanding holiday pay or minimum notice pay until he paid €651. 12 which was due to the employer as a result of “drive-offs” which had occurred during his employment.

The respondent did not abide by their own procedures in this regard.

The complainant refused to sign a document allowing the respondent to deduct this money from his final payment.

The respondent has suffered significant loss of revenue due to customers not paying for motor fuel.

It clearly states in the complainant’s contract that responsibility for “drive-offs” lies with the sales person who served that customer.

The contract further states that failure to abide by the procedures would result in the staff member being required to cover any monies lost.

The staff member is also advised that he / she is responsible for shortages that occur on their till during their shift.

On the termination of the complainant’s employment the amount owed by the complainant in this regard totalled €651.12.

Attempts to recover this amount from the complainant have been unsuccessful and therefore the respondent is justified in withholding his final payment.

The director of the respondent who attended the hearing stated that the title of the respondent was XXX Ltd. and this title is also on the complainant’s contract

The complainant was employed for a period of just over six months by the respondent. He was issued with a contract of employment which he signed on the first day of his employment on 13 January 2017. The contract includes the following clause:

Responsibility

You are responsible for all drive offs that occur during your shift at the tills. It is your responsibility to ask all customers if they have purchased fuel.   Failure to do this will result in you having to cover any monies lost. You are also responsible for all unders which occur on your till during your shift if the unders occurred are more than €5.00. It is your responsibility when cashing cheques to follow our instructions, if these instructions are not followed and cheques are returned from the bank then you are responsible for them also.

In order to manage this more effectively the following new process is been put in place.

Once your total owed excesses €50 the due amount will be deducted from your wages.

You will be informed of the amount been deducted before the deduction is made and you will be allowed to clear the total within 7 days if you prefer, if the total is not cleared within 7 days the amount will then be deducted in one amount or in smaller amounts over a number of weeks.

How the deduction is made will be totally at the discretion of the company.

The complainant was also issued with a further document in this regard which stated as follows:

For the attention of all staff.

Due to the large increase in drive offs this year the following procedure has been put in place.

Any staff member that serves a customer and fails to take payment for fuel will receive a written warning, as per your contract if you receive three warnings you will have your employment terminated.

You will also be charged for these drive offs and we will not be making any attempt to recover the drive off through the Gardai.

Only drive offs where customers do not come into the store will be sent to the Gardai.

If a customer comes into the store and tells you that they do not have fuel when they do, it is your job to use the camera system to inform the manager or supervisor on duty at the time that this customer claims not to have fuel. The CCTV is provided so that you are aware of what’s happening outside and it’s clear that most staff turn on pumps without using the system and without caring.

So if you value your position start to carry out your job as per your training and contract.

This procedure starts with immediate effect, so start asking all customers if they have fuel and monitoring who it is you are turning pumps on for.

When the complainant’s employment was terminated on 21 July 2017 he was advised to return to the premises one week later to collect the pay due to him together with his P45 form. When the complainant returned the following week neither was ready for him and he was advised by a manager that his “unders” had not been calculated and that this information would be e-mailed to him. On 26 July 2017 the complainant received the information and, according to his evidence, learned for the first time that the respondent claimed that a total of €651.12 was due to be paid by him in respect of till discrepancies and drive offs. The respondent has since that time refused to make any payment to the complainant.   In November 2017, after the matter had been referred to the WRC the complainant was contacted by the respondent and asked to sign a document authorising the company to use his final week’s pay to pay off the amount that it was claimed was owed by him.   The complainant refused to sign the document. The final payment due was €610.00.

The respondent’s director stated in evidence that there were two types of drive off, one where a person put fuel in their car and then drove off without entering the shop and the second where a person entered the shop and paid for some items but not for the fuel. Staff were required to check visually who was at the pump before turning on the system and when a customer approached a till to ask them if they had got fuel.   When a drive off occurred the duty manager would check the CCTV system to identify if the sales assistant had carried out this procedure and that if they had not done so then they would be deemed to be responsible for that drive off as per their contract.

Section 5(2) of the Payment of Wages Act, 1991, states:

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 of the circumstances (including the amount of 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 –

(l) in case the term referred to in paragraph (i) is in writing, a copy thereof,

(ll) 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 by the employee, the deduction is of an amount not exceeding the amount of 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 became known to the employer or, as the case may be, after the provision of the goods or services.

The complainant stated in evidence that he had always asked customers at his till if they had got fuel and that he was unaware that he owed any money to the respondent while he worked for the company. The director said that the managers would have been able to determine if the complainant had spoken to a customer when they viewed the CCTV and they had obviously decided that on the dates in question this had not occurred. No managers were in attendance at the hearing to give evidence in this regard. The director accepted that no warnings had been issued to the complainant as regards the amounts due but that he would expect staff to enquire in the office about this matter. Similarly, staff could request to view the CCTV footage upon which the manager had determined their liability but accepted that there was a time limit within which to do this before the recording was wiped.

I have examined the sheet on which the payments due to the respondent by the complainant are calculated and note that within two weeks of his start date the amount due was already in excess of €50.00. According to the clause in the complainant’s contract this should have triggered the process leading to a deduction from his wages. Similarly, warnings in relation to drive offs should have commenced within a matter of weeks. It is clear to me therefore that the decision to withhold the complainant’s final payment is not a deduction made by virtue of a term in the complainant’s contract.   It is conceded that no notification as to this matter had been given to the complainant in this regard. In addition, the complainant gave evidence that he had abided by the policy in respect of questioning customers and no evidence to the contrary was presented to the hearing. In these circumstances I find this complaint to be well founded.

With respect to the process that the director outlined as regards deductions / warnings it is expected that the principles of natural justice would apply and that, at the very least, the procedures contained in the Code of Practice on Grievance and Disciplinary Procedures (S.I. No 146 of 2000) would apply.

Complaint No. CA-00014155-001:

This is a complaint under the Payment of Wages Act, 1991. For the reasons set out above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €610.00 as compensation in this regard.