PWD188

The Adjudication Officer found that the respondent had unlawfully deducted the sum of €1,461.70 from the wages of the Complainant and ordered payment in that amount to be made by the Respondent to the Complainant.

It is common case that a deduction of €1,461.70 was made from the wages of the Complainant at the point of payment of his final wage payment in August 2016. The complainant commenced employment with the Respondent in 2011 and the employment terminated in August 2016.

Summary position of the Respondent

The Respondent submitted that the Complainant had, in 2016, attended a training course at a cost to the Respondent of €3,000 and that training course had ended two months prior to the termination by the Complainant of his employment. The Respondent submitted that the Complainant had signed a contract of employment upon recruitment in 2011 which provided that, where an employee left the employment within one year of completion of a training programme paid for by the employer, the employee would be liable for the cost of that course on a sliding scale related to the distance in time between completion of the training course and the termination of employment. The Respondent submitted that because the Complainant had left the employment two months after completion of a training course costing the employer €3,000 an amount of €1,461.70 was deducted from the Complainant’s final wages. That deduction was contended by the Respondent to be part payment to the Respondent of a total of €2,400 due under the sliding scale set out in the contract of employment of the Complainant in respect of the training course cost of €3,000.

Summary position of the Complainant.

The Complainant submitted that he had never received a contract of employment and he had never been made aware of a system whereby a liability attached to an employee attending a training programme paid for by the Respondent if the employee left the employment within 12 months of completion of the training programme.

The Complainant submitted that the Respondent had unlawfully deducted €1461.70 from his wages without prior consent from him

The law

The Act at Section 5 provides as follows:

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

    (2) An employer shall not make a deduction from the wages of an employee in respect of—

• • (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,

• • • • (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 the circumstances (including the amount of the 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—

        • • (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,
            

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

    (3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.
    
    • • (b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.
    (4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

• • (a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—
    

    (i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

• • (II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

• • (ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

• • (b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or
    

    (c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941 , amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

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

    • • (i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or
        

        (ii) to which the employee has otherwise given his prior consent in writing,

    and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or
    

    (e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or

    (f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

    (g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

• • • (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or
      

      (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

  then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Act at Section 5 makes clear that a deduction made by an employer is lawful only in circumstances where the employee has given his or her prior consent in writing. That consent may be given in a number of ways including by way of being expressly stated in the contract of employment.

The Respondent in this matter relies upon a contention that the agreement of the Complainant to the deduction at issue was given in writing when he signed a contract of employment upon his recruitment which made express provision for such a deduction.

The Complainant asserts that he was never provided with a contract of employment while in the employ of the Respondent and neither did he give consent in writing or otherwise to a deduction of the kind made by the Respondent and at issue in the within case.

The Court notes that the Respondent was unable to supply a copy of an employment contract signed by the Complainant and was not able to provide the Court with a copy of any consent in writing from the Complainant for the deduction of €1,461.70 made in 2016.

The Court is faced with a total conflict as between the parties in relation to the provision by the Complainant of prior consent for the making of the impugned deduction from his wages. Where an employer makes a deduction from the wages of an employee it is necessary that the employer has a basis in law having regard to the Act for the making of such deduction. The Act requires that the employer must have the prior written consent of the employee from whom the deduction is being made or otherwise be in a position whereby the deduction is lawful having regard to the Act at Section 5. The Respondent in this matter has proffered no evidence to support his contention that the impugned deduction was supported by the prior written consent of the Complainant and consequently has been unable to demonstrate that the deduction of €1,461.70 was lawfully made.

In all of the circumstances the Court finds that the Respondent, in making a deduction of €1,461.70 from the wages of the Complainant in August 2016, was in breach of the Act at Section 5.

Determination

The Court determines that the complaint is well founded and orders the Respondent to pay to the Complainant the sum of €1,461.70 being the amount which the Court considers reasonable in the circumstances. The decision of the Adjudication officer is affirmed and the appeal fails.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
JD______________________
22 February 2018Chairman



NOTE

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