PWD195

This is an appeal brought by Mr Bernard Stipic (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-000011736, dated 16 October 2018) under the Payment of Wages Act 1991 (‘the Act’).

The Complainant’s Notice of Appeal was received by the Court on 14 November 2018. The Court heard the appeal in Dublin on 23 January 2019.

The Complainant was employed as an Accounts Administrator by Sonoma Valley Limited T/A GSLS (‘the Respondent’) from 27 June 2016 until 20 October 2017.

He resigned his employment by email dated 25 September 2017. However, the Complainant did not attend at the Respondent’s offices after 29 September 2017.

Submissions

The Complainant submits that, on cessation of employment, he was due payment for 14 days’ annual leave. He accepts that he received a gross payment of €720.00 in respect of his outstanding annual leave entitlement on 19 December 2017.

However, in his submission, there was a shortfall of €666.00 in the amount he received. This, he says, is an unlawful deduction within the meaning of section 5 of the Act.

The Respondent submits that it had advised the Complainant that it required him to work during his notice period. However, the Complainant declined to do so and also failed or refused to furnish it with passwords to files that he had been working on.

The Respondent, therefore, engaged professional assistance to unlock the files at a cost of €666.00. This cost was then recouped by the Respondent by way of a deduction from the Complainant’s final salary payment.

The submits that it was contractually entitled to make the deduction and, in that regard, relies on the following paragraph from its Employee Handbook:

• “If you leave the Company without working / giving the required notice and the Company incurs any additional expense because of this or because you have not abided by company policies and procedures in relation to care of your

  vehicle/equipment etc, then these costs will be deducted from any wages or monies owed to you. This is an express term of your Contract of Employment.”

The relevant subsections of section 5 of the Act provide 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.

Discussion and Decision

The Respondent did not comply with the requirements of section 5(2)(iv) of the Act: i.e. it did not furnish the Complaint with particulars in writing of the act or omission and the amount of the deduction at least one week before the deduction.

In fact, the final payslip the Complainant received, dated 19 December 2017, does not include details of the deduction made from his gross pay on that date.

Furthermore, the Respondent did not furnish the Court with any evidence that it has not breached section 5(2)(v) of the Act: i.e. The Court was not furnished with a written receipt to confirm the actual cost incurred by it to unlock the files for which the Complainant failed or neglected to furnish passwords.

Having regard to the foregoing, the Court finds that the deduction of €666.00 from the Complainant’s final salary payment was an unlawful deduction for the purposes of section 5 of the Act.

The appeal, therefore, succeeds and the decision of the Adjudication Officer is set aside. Accordingly, the Court directs the Respondent to compensate the Complainant in the sum of €666.00.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CH______________________
24 January 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.