Complainant

Respondent

Anonymised Parties

A Truck Driver

A Haulage & Transport Company

Representatives

Self-Represented

Managing 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-00018022-001

16/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018022-002

16/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018022-003

16/03/2018

The issues in contention concern the recovery of monies arising from the repair of accidental damage to the Respondents’ vehicles and Customer premises by the Complainant.

1:1       CA -00018022-001 -Payment of Wages Act, 1991.

The Complainant accidentally damaged a door on his Truck trailer on the 09/02/2108. In addition, in the same incident, damages had been caused to the façade of a major Supermarket customer of the Respondent’s trucking service. He was deducted €400 from his wages for this damage.

1:2       CA -00018022-002 -Payment of Wages Act, 1991.

It was alleged that on the 28 October 2017 the Complainant reversed his truck into another trailer. He was deducted €400 for these damages.

1:3           CA -00018022-003 – Holiday Pay Complaint.

On leaving his employment the Complainant requested his full Holiday Pay entitlement. His Holiday Pay was refused as he had an alleged balance of €3,000 outstanding for damages to vehicles.

It was accepted that no formal written contract of employment existed between the parties and there was no paperwork to support any agreement regarding deductions from Driver’s wages for damages to vehicles.

However, there was a strong verbal commitment, a verbal contract, between the parties that non- minor accidental damage to vehicles would be recovered by deductions from the Driver’s wages. Minor damage could result in the driver losing his monthly bonus and more serious damage would result in a wage deduction being made.

A written statement was received from the Respondents’ Transport Manager Mr. DL which corroborated the above. He had explained in Polish to the driver concerned the policy at the start of the employment.

On the Complainant leaving the employment he had told the Manger, Mr. DL, that he would “settle up” for the damages caused to the vehicles and that the damage to the Supermarket façade could be covered by the Respondent keeping his holiday pay.

3:1     The Law / Payment of Wages Claims

Deductions from Wages are largely covered by Section 5 of the Payment of Wages Act,1991. Section 5(2) refers to deductions related to Acts or Omissions of the Employee.

2) 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 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.

In the case in hand it was clear that there was no written contract of employment and no written policy covering deductions for damages to vehicles or premises. The Employee was not furnished as required (Subsection iv) one week in advance of the details of the damages and the basis of the deductions to be made.

The Respondent is clearly at fault here.

However, in considerable Oral evidence and exchanges between the parties it was clear that the Complainant was not denying the damages caused and that he had offered restitution to the Respondent. He had attempted to carry our repairs to the Supermarket facade himself.

It was not contested that the Complainant had texted the Manager with words to the effect that “Driving was not for him”. He had resigned to establish his own Painting & Decorating Business.

While contested the Respondent maintained that he had presented the Complainant with an envelope with the Holiday pay but the Complainant had been happy to use this to offset outstanding damages.

The first two deductions were of €400 each which was considerably less that the costs of repairs to the Vehicles and the Supermarket facade. The Responded stated that he had no wish to lose the services of the Complainant and had arranged extra training for him.

On balance I found the evidence of the Respondent credible but there was also a recognition, on his part, that there was nothing in writing as required by the Act.

3:2       Conclusion on Payment of Wages Act,1991 claims CA -00018022-001 and 002

Section 6 of the Act provides for

6. F4 [ (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

( a ) the net amount of the wages (after the making of any lawful deduction therefrom) that —

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

According I find the Complaints to be well founded, on largely Technical/Paperwork grounds. The Respondent is clearly at fault.

However, the Complainant clearly understood the system in place and had accepted liability. The size of the Deductions made by the Employer (€ 400 x2) were not unreasonable in terms of the overall damages bill.

In terms of Section 6(1) of the Payment of Wages Act,1991 the Adjudication Officer can direct the Respondent employer to make “Reasonable compensation”. A compensation lump sum of €100 in respect of each complaint is ordered as being “Reasonable in the circumstances”

3:3       CA -00018022-003 – Holiday Pay Complaint.

The Law – Organisation of Working Time Act,1997. Section 23 states

Compensation on cesser of employment.

23

23.— F12 [ (1) (a) Where —

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

3:4     Conclusion to Holiday Pay Complaint.

In the case in hand the Respondent did not deny his liability to pay annual leave and stated that he had an envelope with €700 Euro ready to pay to the Complainant when he had called to collect his P45. The Respondent had been informed by his Manager, Mr. DL, that, in the course of his resignation, the Complainant had assured the Manager that the damages to the Supermarket could be partially offset by his outstanding holiday pay. The conversation had been entirely in Polish. The Complainant did not specifically deny that this conversation had taken place or that its reported contents were roughly correct.

The evidence was technically hearsay as the Manger, Mr. DL, did not attend the hearing. On request from the AO to the Respondent he submitted a signed statement to this effect after the hearing.

At the Oral Hearing the Complainant was, I felt, evasive on this point of trading off his holiday Pay against the Supermarket damages.

I took the view that on balance the Respondent Manging Director who was giving direct Oral evidence was more credible. I came to the view that the Complainant had been treated fairly and reasonably throughout the proceedings.

The Complainant was also reasonable and it was clear that he felt that setting up and running his own Paint and Decorating business was more his chosen vocation that driving heavy goods vehicles.

The requirement of the Act had been complied with to the extent that the Holiday Pay had been offered but had been declined by mutual agreement at the time. A verbal bargain had been struck between the parties to cover the non-payment of the Holiday pay the liability for which was openly accepted by the Respondent. I did not see any evidence of undue duress being placed on the Complainant at this time.

Accordingly, I did not find in favour of the Organisation of Working Time Complaint as presented.

Act

Complaint/Dispute Reference No.

Summary decision/ refer to Section 3 above for detailed arguments.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018022-001

Claim is well founded. Compensation in the amount of €100 is awarded.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018022-002

Claim is well founded. Compensation in the amount of €100 is awarded

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018022-003

Claim is not well founded and is dismissed.