ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019550
Parties:
| Complainant | Respondent |
Anonymised Parties | Sales Representative | Marketing Company |
Complaint(s):
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-00025464-001 | 01/02/2019 |
Date of Adjudication Hearing: 16/07/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 1st of February 2019 was submitted within the time allowed.
Background:
An issue arose between the Employer and the Employee as to who should pay for Car repairs on a Company Car. The Complainant’s salary was deducted the full amount spread out over three monthly wage instalments. |
Summary of Complainant’s Case:
The Complainant was represented and comprehensive submissions were opened to me along with all relevant supporting documentation. The Complainant believed he was not responsible for a broken clutch and that the Employer could not expect him to cover the cost of any repair on a vehicle that the Employer was in an lease hire agreement with. |
Summary of Respondent’s Case:
The Respondent was represented and comprehensive submissions which were prepared by said representative were opened to me. The Respondent accepted the Garage’s assertion that the damage to the vehicle had been caused by the Employee. The Respondent relied on the Contract of Employment regarding damage to company assets. |
Findings and Conclusions:
I have carefully considered the evidence adduced herein. The Complainant worked as a travelling Sales Representative with the Respondent Company since 2011. The Employer provided the Employee with a company car under a lease hold arrangement. The Complainant had been driving a company car since the start of his employment. He had been given a car in 2015 which he drove for two years and which said vehicle had developed a serious clutch problem in November of 2017 necessitating it’s being brought into the company approved Garage to be repaired. I have no idea what the Complainant said to the Garage and that information is not recorded. It is not clear if he was interviewed at all as to what happened. The only detail is a loss of power in the 3rd and 4th gear and this detail was provided in an email to the Employer. The same email dated the 14th of November 2017 form the Garage Technical Manager states that there was “Clutch Slippage” caused by outside failure and the cost of repair to be borne by the Employer. There is no comprehensive report outside of the few sentences in the email. I have no idea what physical tests and analysis were conducted on the vehicle part. The Respondent HR witness stated that there followed a protracted period of dialogue with the Garage challenging and/or seeking clarification of this diagnosis though this correspondence had never been seen by the Complainant and his representative and was not available at the hearing. The cost of repair was to be between €700 and €800. It is not clear to me when and how the Complainant was notified that he would be bearing the charge of the expense. It is common case, however, that it was not until the 13th of April 2018 ( some five months after the Garage had seen the vehicle ) that he was so notified. Two things remain explained. Why was there a five-month delay in notification and why was the physical clutch disposed of in the intervening time? I have no idea what efforts, if any, were made to retrieve the said clutch after the Complainant challenged his liability to pay for the replacement part. I should also state that I acknowledge that the six-month cut off point had not been reached at that time and that the deduction was not made for another seven months. There then followed a period of time when both parties obtained third party reports on the likelihood of the damage coming about by reason of wear and tear or by reason of bad driving. To my mind, neither report can be 100% accurate in circumstances where the conclusions are based on photos of the parts and not on the parts themselves. The fact that two professionals can have such differing results is evidence only of the fact that the photos cannot provide sufficient proof either way. On balance, I therefore find that the Employer did not have emphatic proof that the clutch problem was created by the Complainant over and above the possible pre-existence of a faulty part. There is nothing in the Contract of Employment or in any other understanding as between the parties that could possibly allow for the deduction of wages arising out of the guesswork of third parties looking at static photos. The deduction was therefore not fair and reasonable in all the circumstances and the deduction is thereby rendered unlawful and the Complaint is well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00025464-001 The Complaint is deemed to be well founded, and I direct that the employer pay to the employee an amount of €900.00.
|
Dated: 26/07/19
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
|