Complainant

Respondent

Anonymised Parties

Landscape Supervisor

Landscape Contractor

Representatives

Mary Smith, Meath Citizens Information Service

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-00018284-001

04/04/2018

The Complainant commenced employment with the Respondent as a Landscape Supervisor on 13 May 2013.   During the course of the Complainant’s employment with the Respondent, the Complainant attended a number of training courses which were relevant to his work.

On 15th January 2018, the Complainant provided the Respondent with written notice of his intention to resign from his employment. Following notice of the Complainant’s resignation, the Respondent made deductions in respect of training courses from the Complainant’s last two weekly wages.

The Complainant was paid an hourly rate of €14. In the second last week of his employment, the Complainant’s gross wages totalled €476.00. A deduction of €432.01 in respect of training was made from his gross wages leaving him with nett wages of €16.73.

In the last week of his employment with the Respondent, the Complainant’s gross wages totalled €668.88. A deduction of €432.01 in respect of training was made from his gross wages leaving him with nett wages of €192.05.

The Complaint believes that the deductions from his wages in respect of the training courses were unauthorised deductions.   The Respondent disputes this and contends that the deductions for training courses are provided for in the employee handbook which was made available to the Complainant.

The Complainant submits that the training courses which he undertook during his employment with the Respondent, and for which monies were deducted, were all courses he participated in at the request of the Respondent as they were necessary for his work on sites.

According to the Complainant, after the first deduction was made from his wages, he spoke to a Director of the Respondent company about the matter and was informed that the deduction was in respect of training courses undertaken by him during 2016/17. The Complainant contends that he was also informed that a further deduction would be made from his final wages the following week. The Complainant submits that despite his view that the training courses were undertaken at the behest of the Respondent, it was made clear to him that the deductions would not be refunded.

The Complainant submits that he was then presented with a training deduction note detailing the training courses in respect of which the deductions were made. It is the Complainant’s contention that this was the first time that he was made aware that deductions would be made in respect of training courses and that he was never told that his wages for his second last week of employment with the Respondent would only amount to €16.73.   Furthermore, the Complainant contends that no notice of the deductions were given to him prior to the first deduction.

Evidence was adduced that the Complainant’s representative wrote to the Respondent in relation to the matter on 26 January 2018 and received a response to the effect that it was company policy that the cost of any training course paid for by the Respondent would be recouped should the employee leave during the validity of the certification awarded.

According to the Complainant, the Respondent further explained that the policy was detailed in their employee handbook.

It is the Complainant’s contention the he had never been made aware of the Respondent’s training policy and furthermore that the employee handbook was not made available to him at the commencement of his employment or at any other stage during his employment with the Respondent. The Complainant submits that he only became aware of the Respondent’s training policy when the Respondent sent a copy to the Complainant’s representative.

The Complainant further submits that his contract of employment did not contain any reference to the employee handbook. The Complainant contends that the only reference to deduction of monies in the Complainant’s contract of employment relates to deductions for uniform, loans and damage.

The Complainant is of the view that the deductions from his wages are unauthorised deductions.

The Respondent adduced evidence to show that it was custom and practice in its organisation that all employees were required to reimburse the Respondent for any training that was still current if they ceased employment during the currency of the training.

It is the Respondent’s position that the only training course undertaken by the Complainant which was required by them was a manual handling course and that all other courses were taken at the request of the Complainant.

The Respondent contends that the Complainant’s training and the recoupment of costs was discussed with him as part of his annual review on 20 March 2017.

The Respondent submitted a copy of the Complainant’s Contract of Employment which was identical to the Contract of Employment submitted in evidence by the Complainant.  

The Complainant’s Contract of Employment contains a section entitled “Organisation Policies and Procedures” which states that:

“On commencement, a copy of the Organisation's Employee Handbook will be made available to you. This document forms part of your terms and conditions of employment, and you are requested to read it, and familiarise yourself with the policies and procedures held therein. This will form a binding part of your contract. You will be required to sign and return an acknowledgement that you have read and accepted these terms and conditions.”

It is the Respondent’s position that the employee handbook was freely available at Reception for all staff.

Furthermore, the Respondent contends that, as a supervisor, the Complainant would have been aware of the Respondent’s protocols in relation to training, including the practice of making deductions from wages to recoup the cost of training.

The Respondent submits that, following the Complainant’s notice of termination, a conversation took place between the Complainant, his line manager and a Director of the Respondent company at which the proposed deductions from the Complainant’s wages to cover the cost of training were discussed.

The Respondent submits that due to the fact that the notice period of two weeks given by the Complainant was less than the one month period stipulated in his contract, it was not possible to spread the deductions over a longer period.

Section 5 of the Payment of Wages Act 1991 regulates the deductions which an employer may make from the wages of an employee as follows:

(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.

I have considered the evidence adduced by the parties and read the submissions and documents furnished.

In reaching my decision in the case before me, I am guided by the Employment Appeals Tribunal determination in Ryanair Limited v Alan Downey (PW6/2005).   In that case, the EAT was asked to determine if the deduction by Ryanair of the cost of a training course from Mr Downey’s final wages was lawful.

In its determination, the Tribunal held that the deduction from the Complainant's wages was not fair and reasonable and therefore was in breach of Section 5 (2) of the Payment of Wages Act 1991because:

“The deduction from the Complainant's wages had the effect of paying the Complainant no wages in respect of his final period of service, and the Respondent failed to give the Complainant any notice in writing of this deduction. This was not fair and reasonable behaviour on the part of the Respondent.”

In the herein case there is a dispute between the parties as to whether the Complainant was made aware that a deduction would be made from his wages in respect of training courses undertaken by him. There is, however, agreement that the Complainant was not notified in writing that such a deduction would be made.

I find that the effect of the deduction to cover the cost of training meant that the Complainant was paid a mere €16.73 for his second last week of employment with the Respondent for working 34 hours and that he was only paid €192.05 for his last week of employment for working 31 hours.

Accordingly, I find that the deductions which the Respondent made to the Complainant’s wages in his last two weeks of employment were neither fair nor reasonable and were, therefore, in breach of Section 5(2) of the 1991 Act as they resulted in the Respondent paying a paltry sum in wages to the Complainant during that period. Furthermore, the Complainant was not provided with prior written notice of the deductions.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare that the complaint is well founded.

I find that the Respondent is to pay the Complainant €864.02 subject to the normal statutory deductions.

Unlawful deduction for training