ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027387
Parties:
| Complainant | Respondent |
Anonymised Parties | Trainee Tax Consultant | Professional Tax Consulting |
Representatives | none | none |
Complaints:
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-00034941-001 | 01/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034941-002 | 01/03/2020 |
Date of Adjudication Hearing: 15/01/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 identifies those instances wherein deductions can be made and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required and authorised to be made by virtue of a term of the employee's contract of employment and which was included in the contract before, and in force at the time of the deduction or payment;
The employee has given his prior consent in writing;
Section 5 (2) notes in general terms that the Employer shall not make a deduction from the wages of an employee in respect of any act or omission of the employee. The Employer shall also not make a deduction on respect of 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.
However the Act does provide that (with reference to the foregoing) the deduction will not be unlawful if 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 (i.e. it is on notice), and that 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).
Also, before the time of the act or omission or the provision of the goods or services, the employee has been furnished with prior notice of the effect of any term in the Contract.
It is further noted that 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.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 1st of March 2020 was submitted within the time allowed.
The Complainant has additionally brought a Complaint concerning a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more;
Section 86(1) of the Workplace Relations Act of 2015 amended Section 19 of the OWT Act (Section 1A) and provides that where an employee is absent from work by reason of certified illness then Annual leave continues to accrue as if the Employee was at the place of work and at the Employer’s disposal
Section 20 of the OWT Act has been amended to ensure that leave should ordinarily be granted within the leave year to which it relates (this can extended to a further six month period after the end of the leave year where the employee has so consented).
Where an Employee has been ill and unable to take annual leave by reason of the certified illness during the leave year or the six months thereafter then the leave can be taken within the 15 month period after the end of the leave year (Section (20)(1)(c) of the OWT Act)
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six-month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
Background:
The Complainant was engaged as a tax trainee with the Respondent company and after 7 months he tendered his resignation. The issue which came into focus was the loss of the value of an academic course the Employer had paid for and which the Complainant was not completing. |
Summary of Complainant’s Case:
The Complainant gave evidence on his own behalf and this was tested by the witness for the Respondent Employer. The Complainant did not provide me with a submission per se. I was provided with some documentation including the Contract of Employment and some other relevant papers. |
Summary of Respondent’s Case:
The Respondent Managing Director (BM) gave evidence on behalf of the Employer and this was in turn challenged by the Complainant. It is noted that the Respondent provided me with a written submission after the hearing which sought to articulate those points already made at the hearing. |
Findings and Conclusions:
I have carefully considered the evidence I heard in the course of this hearing – heard remotely on the 15th of January2021. The Complainant was engaged by the Respondent company on the 26th of August 2019. The Contract of Employment appears to be limited in time for a three-year period with the Complainant described as a Tax Trainee. The Contract states the Annual Salary as being €25,000.00 to be reviewed annually. In addition, the Respondent agrees to pay the fees associated with the tax course and exams the Complainant would be studying for and sitting as part of his training (with the Institute of Taxation). It is worth noting that the Employer states that any repeats would be funded out of the Complainant’s own pocket. The Respondent states that it sees the payment of €2,100.00 up front for the Academic year 2019 to 2020 as creating a mutual obligation on the parties. The Complainant described a fairly casual approach to the course as he was already exempt from having to sit parts of the course by reason of qualifications previously held by him as he had studies Accountancy in the UK. In fact, he says, they discussed his doing a diploma course which would be more advantageous for him. As it happens, and for reasons unexplained, the Complainant handed in his resignation on the 28th of January 2020. In his letter he expresses his gratitude and indicates a willingness to work out his Notice period up to the end of February 2020. The Complainant’s evidence is that BM ‘s reaction was that he would have to refund the academic fees which had been paid on his behalf. The Complainant says that he objected to this and that BM said she would think on that issue. It seems no further communication was had in this regard. On receiving his payslip at the end of February, the Complainant noted that the sum of €1,050.00 had been deducted. This was to his mind a unilateral deduction and he had not given permission for same. The Complainant did not return to the workplace thereafter although he had previously agreed to work through March of 2020. The Respondent witness is very clearly of the view that the Complainant knew or ought to have known that the deduction would be made and that the Complainant owed the outlay. She was of the view that the Complainant could have completed the course even if he was no longer in the workplace. The Respondent has invited me to consider that the academic fees should be seen as part of the remunerative package and as an overpayment for the purposes of the Act wherein it states at - Section 5 (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….. The Respondent has also asked me to consider that the payment of fees is part of an arrangement as provided for in the following part of Section 5 (5). (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 Whilst I can appreciate the point that the Respondent is making, I am not satisfied that the payment could be described as an overpayment of wages in circumstances where the Complainant’s remuneration has been clearly identified in the Contract of Employment at a rate of €25,000.00 per annum (payable pro rata each month). The Contract of Employment is silent on the issue of what will happen if an academic course is not completed or otherwise abandoned. This figure nominated as salary (the 25,000) cannot be arbitrarily interfered with and his full salary became payable at the end of February for the previous month of work. Any deduction is unlawful. Whether it was open to the Employer to make a deduction in pursuance of an arrangement defined in Section 5 (5)(d) is, to my mind, academic where the employee has not given written permission for the deduction. In fact, it seems on the evidence that the sum of €1,050.00 was deducted without reference to the Complainant without any reference or conversation and was quite shocking to him in the circumstances where he presumably had obligations to meet. In the circumstances, I find the Complaint under the payment of Wages to be well founded. There was further disagreement between the parties regarding accrued Annual leave and the Complainant presented evidence that he was owed 2.2 days of annual leave. I note that his last payslip had purported to pay holiday due and owing (€156.00) though I do not know what that figure represents. The Complainant tells me that he is owed €250.00 less the amount paid – meaning he is owed €94.00. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00034941-001 The Complaint herein is well founded, and I award €1,050.00 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00034941-002 The Complaint herein is well founded and I award €94.00 |
Dated: 15th June 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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