ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00024755

Parties:

	Complainant	Respondent
Anonymised Parties	CE Supervisor	CE Scheme

Representatives

Eddie Mullins SIPTU

No Representative

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00031500-001	10/10/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00031500-002	10/10/2019

Date of Adjudication Hearing: 06/02/2020

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant claimed that her Employer did not properly pay due and made deductions from her wages without her consent. The Complainant submitted her claim on October 10th 2019. The claim reference number (CA-00031500-001) was withdrawn subsequent to the Hearing by the Complaints Representative by email to the WRC dated March 27th 2020.

Summary of Complainant’s Case:

The Complainant was employed as a CE Supervisor from September 1st 1992 to November 8th 2019.

In November 2018 her weekly pay was 772.50 Euros per week. In three subsequent weeks her pay was reduced to 530.94 Euros per week.

In December 2018 her wage was reduced to 424.75 Euros per week for a week.

In the last three weeks of December 2018 her pay was increased to 478.97 Euros per week.

The Complainant stated this was a non payment of wages properly due for payment and a recurring deduction from her wages.

SIPTU engaged with the Employer and the Department of Social Protection (DSP) on behalf of the Complainant on a number of occasions but Management suggested any communication should be with the DSP and the DSP stated the Complainant was not their employee.

The Complainant was suffering under work related stress at the time and this was evidenced by a medical report. The Complainant also had a major personal tragedy at the time (Details were provided to the Adjudicator). The Complainants Representative argued at the Hearing that the delay in submitting the claim was due to reasonable cause due to these circumstances.

Summary of Respondent’s Case:

The Respondent was notified of the Hearing and sought a postponement which was not granted by the WRC. By letter dated March 5th 2020 (however I feel this date is an error and was Feb 5th 2020) the Respondent stated the Company was no longer trading, that the Complainants contract was annually renewed, that funding was governed by DEASP on a yearly basis, that the Complainants wages were cut due to a directive by the DEASP and that the Complainant voluntarily signed an agreement to the deduction of wages and they could not attend the Hearing due to personal reasons.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 5 of the Payment of Wages Act 1991 states the following:

“ 5.—(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

(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.

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

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

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941 , amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(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.”

It is clear from the uncontested evidence of the Complainant, and while I note the Respondents letter no evidence was produced at the Hearing to counter the Complainants evidence, that she did not agree to this deduction in wages in writing or was not paid the wages properly due for payment. The Complainants initial case relates to November and December 2018. But she stated this was a recurring breach of the Act after these dates. Under the Workplace Relations Act 2015 Section 41 a Complainant must submit a claim within six months of the breach (Sec 41.6). However, Section 41.8 allows an Adjudicator extend this time to 12 months for reasonable cause. The claim was submitted on October 10th 2019. Based on the uncontested evidence of the Complainant regarding her illness, submission of a medical certificate for the period in question and family circumstances I find these to be reasonable cause to apply Clause 41.8 of the Act. Based on her uncontested evidence, I decide that she is entitled to be restored to wages of 772.50 Euros per week for any week that she was not paid that amount between November 12th 2018 and the date of the claim, October 10th 2019. I find the Complainants claim under the Payment of Wages Act 1991 well founded. (CA-00031500-002).

Dated: 2nd September 2020

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Wages not properly paid.