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-00020522-001

13/07/2018

The Complainant has been employed by the Respondent since November 2010. He claims that on 7th June 2018 the Respondent deducted an amount of €201.94 from his pay.

There was no appearance by or on behalf of the Respondent. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing.

On 20th October 2018, the Respondent applied for a postponement of the hearing. The Respondent informed that it has only one HR representative available on the day and they are attending at the Labour Court. The application for postponement was refused. The Respondent wrote back to the WRC on 8th November 2018 requesting that the application be re-considered on the basis of the Labour Court engagement. The Respondent was advised in writing by the WRC that the application for postponement was refused on the basis that the WRC hearing was set on September 26th 2018 and the Labour Court hearing was set subsequent to that, on the 10th October 2018.

On the morning of the hearing day, prior to the commencement of the hearing an employee of the Respondent attended briefly to inform that the Respondent would not be in attendance. Mr. H explained that he is not, in any way, connected with the matter. He clarified that he was driving in the vicinity of the hearing venue and was instructed by the Respondent to call in and inform the Adjudication Officer that the Respondent would not attend. He was not in a position to provide any further explanation. He made an unsuccessful attempt to contact the Respondent representative by telephoning them.

I waited some time to accommodate a late arrival. In the circumstance, I proceeded to hear the case before me in the absence of the Respondent.

The Complainant submits that, as part of his normal roster he was due to work on public holiday falling on Monday 7th May 2018. The Complainant submits that he attended for his shift as per his normal roster and remained at work for the duration of his shift. The Complainant claims that he submitted his time sheet in accordance with the hours of work that he had undertaken and was paid accordingly on his next pay date, 24th May 2018.

The Complainant submits that on 27th May 2018 he received an email from management to advise that a process had been put in place to recoup an overpayment on the May public holiday and requesting the Complainant to submit a new pay/ timesheet. The Complainant submits that he responded to advise that his pay sheet reflected the hours of work that he had undertaken.

The Complainant claims that he received further email on 22nd and 23rd May 2018 which indicated that he would be returned for annual leave even though he had attended work. The Complainant responded to confirm that he was seeking advice on the matter.

The Complainant submits that the Respondent proceeded to implement the disputed deduction on 7th June 2018.

The Complainant noted that at the time management were in discussions with the trade union in relation to amending existing rosters, but no final agreement had been reached and the arrangement remain as per previous agreement.

The Respondent did not forward any written submissions in response to this complaint and did not attend the adjudication hearing.

Section 2 of the Payment of Wages Act, 1991 defines “wages, as follows:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.”

Section 5. Regulation of certain deductions made and payments received by employers stipulates:

“(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.”

(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.”

Based on the uncontested evidence of the Complainant I find that the Complainant worked on 7th May 2018 and was paid his public holiday benefit entitlement on 24th May 2018. I find that the benefit was properly payable to the Complainant.   Thus, I am satisfied that the deduction of the benefit on 6th June 2018 does amount to an unlawful deduction within the ambit of section 5 of the Payment of Wages Act and that the claim must succeed.

Based on the uncontested evidence of the Complainant I declare this complaint well founded. I order the Respondent to pay the Complainant the sum of €€201.94.

Public holiday benefit-deduction- payment of wages act