ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025690
Parties:
| Complainant | Respondent |
Anonymised Parties | Fuel Depot Worker | Fuel Distribution 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-00032618-001 | 02/12/2019 |
Date of Adjudication Hearing: 18/02/2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed by the Respondent as a driver/operative in the Respondent fuel business and is claiming that two weeks wages were unlawfully withheld from him under the Payment of Wages Act, 1991. The Respondent claims that one week’s pay is outstanding, if any, and that monies were withheld because of damage caused to the Respondent’s premises as a result of erratic driving of a forklift by the Complainant. |
Summary of Complainant’s Case:
The Complainant submits that he was originally employed by the Respondent as a fuel delivery driver. He was unhappy with the Respondent and quit working because the Respondent owed him money for the first two weeks in July 2019, which was not paid. He asserts that he commenced employment with the Respondent on 9 July 2019 and terminated his employment on 11 November 2019. He submits that his net pay is €550 per week but does not know what his gross pay is, because he never received a pay slip from the Respondent. He exhibits bank statements to show that he received his first week’s pay on 31 July 2019. He was paid by cheque for one week on 23 July 2019. He contends he is owed two weeks’ pay, which are wages properly payable to him. |
Summary of Respondent’s Case:
The Respondent submits that there is one week’s pay owed to the Complainant and not two weeks, as the Complainant asserts. The Respondent did not have proof of the gross pay of the Complainant but submits that tax and PRSI were lawfully deducted. The Respondent contends that the Complainant turned out to be a totally unreliable employee who had problems with performance, was careless in his attitude and his attendance at work was erratic. The Respondent submits that in one incident, amongst many, the Complainant caused substantial damage to a warehouse panel whilst driving a forklift truck. The damage came to €1500 which the Complainant promised to repair or replace at his own expense, but never did. |
Findings and Conclusions:
Section 5(1) of the Payment of Wages Act, 1991 sets out the prohibitions on the employer when making a deduction from wages 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 (c) in the case of a deduction, the employee has given his prior consent in writing to it Section 5 (6) of the Payment of Wage Act 1991 states; · “Where— o (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”.
Section 6 provides as follows: Complaint to adjudication officer under section 41 of Workplace Relations Act 2015 · 6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding — (a) the net amount of the wages (after the making of any lawful deduction therefrom) that — (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or · (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount. (2) (a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment. (b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment. The Respondent is relying on an argument that he can justifiably withhold monies from the wages of the Complainant, based on damage caused by the Complainant when working, and on an imputed promise by the Complainant, that he (the Complainant) would reimburse the Respondent or otherwise make good the damage. However, the law is quite clear that such an obligation must be provided for in the contract and the employee must be given written details of the contractual term providing for the relevant deduction in advance. No evidence was provided by the Respondent of such written obligations imposed on the Complainant; by contract or otherwise. I therefore find that the withholding of any wages, properly payable, for such a reason to be unlawful under section 5 of the Payment of Wages Act 1991. The question now to be addressed is to determine the amount of the monies which are properly payable and remain outstanding. No wage slip was produced by either party, but the Respondent confirms that the appropriate statutory deductions are made. The Complainant submits, through bank statements evidence of only one payment of €550 made in July 2019, instead of three payments that were due to him. The Respondent contends that one week’s pay of €550 was paid by cheque on 23 July 2019. On the balance of probabilities, I find that there are two weeks pay outstanding and that the withholding of such a sum is an unlawful deduction by the Respondent contrary to section 5 of the Payment of Wages Act, 1991. I therefore find that the Complainant’s case is well founded, and I order the Respondent to pay the Complainant compensation of a net sum of €1100 equivalent to two weeks normal net salary, after the appropriate statutory deductions have been made. |
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 CA-00032618 seeking Adjudication by the Workplace Relations Commission under section of the Payment of Wages Act, 1991: I find that the Complainant’s case is well founded, and I order the Respondent to pay the Complainant compensation of a net sum of €1100, after the appropriate statutory deductions are made. |
Dated: 2nd September 2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Payment of Wages. |