Complainant

Respondent

Parties

Stephen  Kierans

Falcon Electrical

Representatives

Brian Nolan Connect Trade Union

N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00042275-001

02/02/2021

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

CA-00042275-002

02/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00042275-003

02/02/2021

The Complainant commenced employment as an electrician on 10th June 2020. He was paid €733.20 per week. Further to his departure from the Respondent on 7th August 2020, he was not paid either his outstanding wages or his holiday pay and was also not paid in respect of a public holiday.

The Complainant commenced employment as an electrician on 10th June 2020. According to his contract of employment, he was due to be paid €18.80 per hour or €733.20 for a standard 39 hour week.

Further to his departure from the Respondent on 7th August 2020, he was not paid either his outstanding wages for the period from 4th to 7th August or his holiday pay and was also not paid in respect of a public holiday to which he was entitled despite an assurance from his employer on 10th August that he would receive these wages.

CA-00042275-001: 

The Complainant stated that as he was employed by the Respondent on 3rd August 2020, a public holiday, he was entitled to be paid for the day but did not receive this payment. He is claiming that this should have been paid on 21st August and that he is entitled to €150.40 in respect of this day.

CA-00042275-002:       

The Complainant stated that he was not paid the wages he was owed for the period from 4-7th August 2020. He was due to receive these outstanding wages of €582.80 on 21st August but these were not paid.

CA-00042275-003:    

The Complainant stated that he was not paid the accrued holiday entitlement he was owed for the period from when he started work on 10th June 2020 to 7th August 2020. He stated that he worked 335 hours in the period.

The Respondent stated that the Complainant presented himself as a fourth year apprentice but failed to provide any evidence of this. Notwithstanding this failure, despite numerous requests to do so by the Respondent, he was paid at the 4th year rate (Solas Phase 6), namely €18.80 per hour, until his departure from the company on 7th August.

Further to his departure, the Complainant produced the required documentation from Solas on 19th August which the Respondent asserted proved that he should not have been paid the 4th year rate and should only have received the Solas Phase 4 rate of €10.57 per hour.    

The Respondent asserted that the failure by the Complainant to provide evidence of his academic statues led to a substantial overpayment in the amount of €4,277.85 and that he is not therefore owed any money.

The Law

Section 5 (1) of the Payment of Wages Act 1991 states:

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 (2) of the Act further states that:

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,

Application of the Law

I note that neither the Respondent or the Complainant suggested that that any of the three effective “deductions”, namely those in respect of the outstanding wages, accrued holidays and public holiday were agreed in advance between them.

I also note that there was no evidence presented to me to suggest that there was a provision in the contract of employment that allowed for the deduction of an overpayment.

Moreover, I note that that the Complainant was not notified at least one week in advance in writing of the deductions from the wages due to be paid on 21st August, as is required by the provisions of the Act outlined above.

Accordingly, I must find that that there was no prior agreement in respect of deductions surrounding overpayments, nor was there the required prior notification of the deductions.  

CA-00042275-001:

I find that this complaint is well founded for the reasons set out above and that the Complainant should be paid €150.40 in respect of this complaint.

CA-00042275-002:       

I find that this complaint is well founded for the reasons set out above and that the Complainant should be paid €582.80 in respect of this complaint.

CA-00042275-003:    

I find that this complaint is well founded for the reasons set out above and that the Complainant should be paid €529.03 (28.14 hours) in respect of this complaint.

Overpayment