Act

Complaint Reference No.

Date of Receipt

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

CA-00016415-001

20/12/2017

The complainant claims that part of his wages was not paid by his employer. He said that the circumstances that gave rise to the non-payment of wages is in connection to the wearing of particular “apparel” during work in June 2017.

The respondent said that it took issue with the complainant and a number of his co-workers for not wearing the correct attire and after a lengthy stand-off between the parties, which culminated in a half day of industrial action by the complainant, he was docked the equivalent to four hours pay.

The complainant claims that there are certain Industrial Relations issues between the parties. However, he said that this case is simply confined to an unlawful deduction by the respondent of €53 from his wages, which he claims was not paid to him as expected on 7 July 2017.

The complainant claims that there is a longstanding dispute between the respondent, and many employees, including himself, regarding the ‘wearing of standard issue work pants’ when working outside during the summer months. The complainant claims that following many meetings and exchanges between the respondent and its employees, the employees took Industrial Action by way of a half day work stoppage on the morning of 23 June 2017.

The complainant said that he was never advised that if he did not return to work that he would be docked a half days’ pay. The complainant said that he was then not advised in writing or by any means of communication prior to pay day on 7 July 2017 that his pay would be deducted for the Industrial Action taken on 23 June 2017.

In his submission the complainant argues that the money that was deducted from his pay are “wages”, which is specifically defined within the Act. He also claims that the said deduction of those wages is in breach of the Act in particular Section 5(1)(a), (b), (c) and Section 5(2), where he claims the legislation is prescriptive with regards to the necessary steps, in particular, prior notification must be given of such a deduction in writing at least one week before an employer intends making a deduction from an employee’s wages. He said this did not happen on this occasion, which is a breach of the Act.

The respondent is a local authority and said that the complainant is employed as a Driver.

The respondent said that this issue had been ongoing for some time and in 2016 a safety management meeting was held and it was found that the “standard issue work pants” would be required for all outdoor work due to health and safety grounds. This was communicated to all staff via their line managers in September 2016. This was followed up by a further instruction by the respondent’s Health & Safety Advisor in May 2017. Following a further query on the matter in June 2017 the respondent sent another email to all line managers to instruct all outdoor staff of this rule. Further meetings were held with the employees’ trade union officials where the respondent outlined the rule again.

The respondent said that on 23 June 2017, 48 employees, including the complainant, were involved in Industrial Action in the form of a work stoppage for about 4 hours that morning. The respondent said that the employees involved in the Industrial Action were not paid for the time that they had made themselves unavailable for work. The respondent claims that no deductions were made to the complainant’s wages, as the complainant is paid hourly and he was paid for the hours that he actually worked.

The respondent said that a further meeting was held with the complainant’s Trade Union on 26 June 2017 where the respondent informed the Trade Union that employees who participated in the Industrial Action and work stoppage would not be paid for the hours they did not make themselves available to work.

In the respondent’s legal submission, it claims that Section 5 set out the regulation regarding certain deductions made and payment received by employers. It, in particular, referenced Section 5(5) which states that,

“(5) Nothing in this section applies to–

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

[…]

(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.”

The respondent claims that Section 5(5)(a) and (e) allows it to make the appropriate deduction in cases where an employee fails to make himself available for work due to Industrial Action, as is the situation under consideration in this case.

I have carefully considered all the submissions and facts presented to me. I have taken note of all the evidence adduced at the hearing.

The Law

Section 5 of the Payment of Wages Act, 1991

5- Regulation of certain deductions made and payments received by employers

(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—

(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.

(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).

(5) Nothing in this section applies to–

(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–

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and

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

or

(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 2001 (as amended by the Local Government Reform Act 2014), 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.

(6) Where—

(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.

It is clear that section 5 of the Act – sets out the regulations governing certain deductions and payments received by employers. In particular, I note section 5(1) prohibits an employer from making a deduction from the wages of an employee unless conditions prevail, such as, the deduction is required or authorised by statute or legal instrument or by virtue of the employment contract of employment, etc. Section 5(2) further restricts an employer from making deductions, in particular, and as raised by the complainant, Section 5(2)(iv) requires certain steps to be taken before these deductions can occur in particular “… the employee must be 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 …”, which, it is agreed by both parties, was not the case in the complaint under investigation here. However, I note Section 5 (5)(a) reads “Nothing in this section applies to– (a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where …” and it lists the situation that it does not apply to. Therefore, it is quite clear that this section (section 5) does not apply to or govern deduction made by employers from the wages of its employees in certain circumstances. These circumstances include at Section 5(5)(e) where “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”. Such matters have been previously addressed in case law and in particular in Beaumont Hospital V McNally PW29-33/96.

I note there is unequivocal evidence from both parties that the complainant was on Industrial Action on the morning of 23 June 2017. That is not in dispute. Accordingly, from the simple interpretation of the language used in Section 5(5)(a) and Section 5(5)(e), I determine that nothing in Section 5 of the Act applied to situations where a deduction is made of an employee’s wages where that employee has taken part in strike or industrial action, as is the case here. Therefore, the conditions set out in Section 5(2) do not apply. Put simply, the respondent was entitled to deduct from the complainant’s wages without prior notice because the complainant had engaged in Industrial Action and there is no obligation for the respondent to apply the provision of safeguards of Section 5 and in particular Section 5(2) as referred to by the complainant. Accordingly, I, therefore, find that the complaint made pursuant to the Payment of Wages Act is not well founded.

I find that the complaint made pursuant to the Payment of Wages Act is not well founded.

Section 6 of the Payment of Wages Act, 1991 – Industrial Action – deduction of wages - not well founded