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-00020658-001

19/07/2018

The complainant claims that her employer withheld wages, withheld 6.5 days annual leave and did not give her appropriate statements of wages.

The complainant detailed that she commenced employment as a Laboratory Assistant on 24th September 2007. In June 2015 she was promoted to the role of Assistant Head of Data Approval.

She secured a degree in Chemistry around September 2017 which had been funded by the respondent.   She detailed that there were a number of conditions attached to the funding including that she stay with the respondent for 3 years and that she would be given the position of Chemist after securing the degree. She was not given the position of Chemist and she resigned her position on 23rd May 2018.

She was not able to repay the monies owed to the company nor did she feel she should have to as the respondent failed to keep their part of the agreement, namely they did not give her the position of Chemist which they had promised. She accepted that she secured the salary associated with that of Chemist prior to securing her degree but detailed that she expected there would be a change also in her job title.

The complainant put forward that she had numerous meetings with the respondent but she said they would not engage with her suggestion of a phased repayment of the monies and that they said regularly to her that the monies had to be repaid before she left the organisation. She detailed that on June 24th she did not receive any wages for the previous month and that she did not receive any pay slips. When she left on 3rd July she did not receive pay for the previous pay period and pay slips she received did not reflect that the organisation had withheld payment. She was entitled to receive 6.5 days annual leave but this was also withheld and not reflected in pay slips.

The respondent allowed an amendment to the respondent’s name to the complaint form.

They outlined that the complainant had been a valuable member of their workforce. When she applied for funding for the degree course that she undertook, it was made very clear to her that there were terms and conditions attached to the funding that the complainant secured for her degree. The value of the course was €11,863.70 (£9,830) and clause five of the conditions attached to the funding detailed:

“if the agreement is breached at anytime payment will cease immediately and full reimbursement of fees will be applicable”.

Clause 8 detailed “you must continue with (Respondent) for the duration of the course and for a period of three years upon completion of the course. If you cease employment during these periods, all fees paid are to be refunded to (Respondent).”

The respondent expressed that they were shocked when the complainant announced that she was resigning her position. They engaged in discussions with her and asked her to reconsider and offered her a different role, as they wished to hold onto her.

When it was clear that she was not going to reconsider her resignation, the respondent asked the complainant, on numerous occasions how she was going to repay the monies but she would not commit to any repayment plan. They were left with no choice but to advise her that they would withhold her salary to partially recoup the monies owed.

Details were provided of these emails and notification was given to the complainant around 20th June 2018 that she would not be paid for June (€2,090.82) and July (€1,878.72) as part of the respondent’s plan to recoup the monies owed.

The HR Manager Ms A and the Laboratory manager Mr B outlined that they have responsibilities to the respondent to ensure that they recoup any monies owed to the company. The monies that they recouped from the complainant (€3,969.54) is approximately only one third of the monies the respondent is owed and they highlighted that the complainant has made no attempts, thus far to repay the outstanding amount. €7,8914.16

The complainant was funded for her degree by the respondent, with terms and conditions attached to the funding which she signed up to.

She successfully completed the course and secured a degree around September 2017 and resigned her position in May 2018.   The respondent asked how she would repay the monies and she detailed that she did not have money to pay it back.

While it was presented at the hearing that the complainant felt that the respondent had failed to honour their side of the agreement in terms of giving her an appointment of a Chemist, I note that this was never mentioned by her in correspondence between the parties during her employment when the issue about repaying the money was discussed. I also note that the complainant gave evidence at the hearing that she was willing to pay off the money by instalments but that she also believed that if the respondent wished to secure the monies they should do so through the civil courts.

Section 5 (1) details that “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 writng 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 am struck by how quickly after securing the degree the complainant looked to leave the company. It is also noted that although the complainant mentioned in some emails that she had offered to return the money by instalments, she does not at any stage specify what those instalments will be and that even after the respondent made a deduction on the first occasion, she still made no efforts and has made no efforts since then, to repay any part of the money. Having reviewed all the evidence, I find that the complainant should have been aware from the signed education-funding agreement, dated 4th January 2012, the emails prior to the deduction, and the numerous discussions that took place, that the respondent could and would deduct wage, for the purpose of redeeming the cost of the course.

I find that the respondent did not make an unlawful deduction to the complainant’s wages and the complainant’s claim in relation to the wages deducted fails.

With regards to the deduction of the complainant’s outstanding annual leave; I do not see any provision within the policies, or indeed any mention in the correspondence or discussions between the parties, that allows for or specifies that this would be deducted. I find that the respondent was not authorised to deduct the complainant’s 6.5 days annual leave and this part of the complainant’s claim succeeds.

In relation to the provision of a statement of wages, Section 4 details:

4.— (1) An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees.”

The statement of wages do not meet the standards expected under Section 4.

Although there is a requirement for a “statement (to) be given to the employee”, specifying the gross amount of wages and any deductions, which the employer was in breach of this, I have no jurisdiction to award compensation for a breach of Section 4 (see Lis v Brifol Enterprises Ltd PW72/2005) and accordingly the complainant’ claim for compensation under this part of her complaint fails.

I find that the deductions from the complainant’s wages was not unlawful and this aspect of her claim fails.

I find that the deduction of the complainant’s annual leave was unlawful and I authorise the respondent to pay to the complainant the amount of €848.64 gross.

I find that I have no jurisdiction to award compensation for a breach of Section 4 in relation to statement of wages and accordingly the complainant’s claim for compensation fails.

Payment of wages, deductions, education course,