Complainant

Respondent

Parties

Anna  Gordon

J & J Retail Ltd Jack & Jones

Representatives

  Self

William O'Reilly, RVW O'Reilly Solicitors

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-00042032-001

18/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042032-002

18/01/2021

The complainant was employed as a Sales Advisor with the respondent from 21/09/2020 until 26/12/2020.  Her final pay slip had a deduction of €199.96 and was noted that this was for a uniform.  She was advised by a supervisor that as an employee she had in-store credit to the value of €200 and she used this to pay for goods.  The respondent submits that no such credit existed, and they deducted the value of the goods from her final pay slip.  She submitted her complaint to the Workplace Relations Commission on 18/01/2021.

The complainant commenced employment with the respondent on 21/09/2020 as a Sales Advisor.  She was paid €443.63 gross per fortnight. She was told by a supervisor that employees had in-store credit to the value of €200.  She used this to purchase four items which came to a value of €199.96.  On the day she purchased these she forgot to take them with her.   She returned to the store around 6.20pm and as it was closed she used her key to gain access and collect the bag containing the items.  She had an e mail from a supervisor in relation to the credit and this was confirmed in text messages.

She was advised on 24/12/2020 by an area manager that her employment would cease on 26/12/2020 “as it was not working out.” The complainant did not receive any pay in lieu of notice in her final pay slip.  Her contract of employment states that she is entitled to two weeks’ notice.

The complainant also submits that she never received a copy of the employee handbook despite many requests for this.

The respondent did not attend the hearing, but a legal representative attended on behalf of the respondent.  The respondent’s representative confirmed the dates of the complainant’s employment.  There is no store credit facility to be availed of by staff.  There are clear rules in relation to staff purchases which are made through the store till.  Receipts are provided to staff when any purchase is made. 

This transaction was not brought to the attention of store management.  The complainant, who was a keyholder, was observed entering the premises after it closed and left with four items the total value of which came to €199.96.  The complainant had no permission to take these items. 

The company hand book does allow such deductions and the respondent has a robust HR system in place to ensue all employees are aware of the policies and procedures which prevail.

At the hearing I asked the complainant and respondent if they were in a position to provide a copy of the complainant’s contract of employment and it was agreed that this would be provided within one week.  Neither party provided a copy of this contact within two weeks post hearing.

I have carefully considered and evaluated the documents received and evidence adduced in reaching my determination as set out below.

CA-00042032-001

In her claim the complainant submitted that the respondent made an unlawful deduction from his wages.  Section 1 of the Payment of Wages Act, 1991 defines wages as:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including –

(a)    Any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to this employment, whether payable under his contract of employment or otherwise,”

Deductions made by an employer from the wages of an employee are set out in Section 5 of the Act as follows:

“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.”

Having carefully considered the circumstances involved in the within case I am satisfied that the reduction of €199.96 of the complainant’s final pay slip in December 2020 represents a deduction from her wages.

Taking into account the application of Section 5 (1) (a) as outlined above, I am satisfied that the deduction was not required or authorised by any statute or instrument under statute.

Taking into account the application of Section 5 (1) (b) as outlined above, I am satisfied that there is evidence provided to me that the complainant’s contract of employment contained a term or clause which explicitly required or authorises a deduction from her wages or makes any reference to the likely circumstances in which such a deduction might occur.  The Employee Handbook is silent on this specific point.  The relevant clause states: “The Company reserves the right under Section 5 of the Payment of Wages Act, 1991 to deduct from your salary any monies paid to you as a result of errors in its payment made to you, to include but not limited but not limited to overpaid holidays, expenses, petty cash.  Should you leave the Company having availed of annual leave in excess your holiday entitlements, the Company will deduct any outstanding monies from your last pay cheque.”

Taking into account the application of Section 5 (1) (c) I am satisfied that the complainant did not give her prior consent in writing to the deduction from her wages.

In view of the above findings I must now consider the issue of redress which is outlined in Section 6 (1) of the 1991 Act as follows:

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)                the case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date or 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.”

There is no dispute between the parties in relation to the actual sum which was deducted from the complainant’s wages.  In that context I find the sum of €200 to represent reasonable and appropriate compensation for the complainant.

CA-00042032-002: The complainant is seeking the appropriate payment in lieu of notice when the respondent terminated her employment.  Her contract of employment states that she is entitled to two weeks’ notice. 

The Minimum Notice and Terms of Employment Act, 1973, is an Act that stipulates the minimum period of notice that those who have been employed for a qualified period are entitled to.  The Act, Section 17, 4. 1. defines “continuity of service” as:

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by-

(a)    The dismissal of the employee by his employer, or

(b)    The employee voluntarily leaving his employment.

Section 17. 4. 3. Also notes that “a lay-off shall not amount to the termination by an employer of his employee’s service.”

Section “4.-(1) An employer shall, in order to terminate the contract of employment of an employee who has been in continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of section (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be-

(a) if the employee has been in the continuous service of his employer for less than two years, one week.”

The following are the relevant dates for the purposes of deciding this matter.

Date employment commenced:  21/09/2020

Date of termination of employment: 28/12/2020 [14 weeks]

Based on the calculations above the complainant is entitled to one week’s payment in lieu of notice.

I find that the complaint is well founded and I order the respondent to make a gross payment of one week’s wages consisting of €221.82 to the complainant.

CA-00042032-001: Having carefully considered all of the evidence adduced and based on the findings and conclusions detailed above, I find that the complainant’s complaint under the Payment of Wages Act, 1991 to be well founded and I direct the respondent to pay the complainant the sum of €200 gross. 

CA-00042032-002: I find that the complaint is well founded, and I order the respondent to make a gross payment of one week’s wages consisting of €221.82 to the complainant.

The above amounts are subject to the normal statutory deductions in relation to pay.  These amounts is to be paid no later than six weeks from the date of this determination.

Unlawful deduction.  Payment of wages.  Payment in lieu of notice.