Complainant

Respondent

Anonymised Parties

A Public Servant

A Public Service Agency

Representatives

self 

Cathy Smith B.L instructed by the Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00035704-001

31/03/2020

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

CA-00035704-002

31/03/2020

The complainant says that the respondent has made an unlawful deduction from his wages.

He further says that he has been paid less than he was supposed to be paid, contrary to the provisions of the Payment of Wages Act, 1991 arising from a deduction of €247.35 that was made from his wages on February 27th  2020.

The complainant accepts that he took an uncertified/ self-certified sick leave day on December 20th 2018 which put him one day over his allowance for the year but that he was paid for that day.

He received a letter in January 2019 advising him of the overpayment and telling him that the respondent’s Human Resources department was arranging to recoup the overpayment in accordance with section 5.5 of the Payment of Wages Act, 1991.

He was also told that there was no discretion in the application of self-certified sick leave limits.

He received a second letter in January 2019 in which he was told that he was not due pay for his absence on 20/12/2018 and had been overpaid. Again, it was stated that arrangements were being made for the recoupment of this.

However, no recoupment took place until February 2020 and the complainant was aggrieved that he was not given prior notice of the actual intention to do so, and, for example to allow him to agree alternatives, such as a schedule of deductions to minimise the impact on his income.

The facts set out above are not in dispute between the parties.

The Respondent accepts that a deduction in the amount of €247.35 was made from his wages on February, 27th  2020 but disputes that this was an unlawful deduction. The complainant accepts that he took an uncertified/ self-certified sick leave day on 20 December 2018 over the allowance permitted and that he was paid for that day.

However, there is no breach of the Payment of Wages Act, 1991 on the part of the Respondent as there was no unlawful deduction from the complainant’s wages.

Nor is it true that he was paid less than he was supposed to be paid.

While the Complainant claims that he did not receive notice of the deduction, he was on notice of the fact that he had exceeded his self-certified sick leave and that this disentitled him for pay for that day.

He was aware that it would be recouped both from relevant regulations and from the letters in January 2019.

On February 10th  2020, the respondent activated the process to recoup the ten hours' pay from the complainant  and this deduction (totalling €247.35) was duly made in his salary paid on February 27th  2020.

The delay in making the deduction was due to general administrative backlogs resulting from staffing problems. The notification on February 17th 2020 to give effect to the deduction in respect of the complainant and a number of others was not passed on to the complainant. 

However, this does not constitute a contravention of the Payment of Wages Act, 1991 and there was no unlawful or unauthorised deduction from his salary.

In conclusion, the Respondent accepts that a deduction in the amount of €247.35 was made on  February 27th  2020. However it says this was not an unlawful deduction, but was a lawful deduction being a recoupment of an overpayment of wages which was required to be made in accordance with regulations and with the terms and conditions of the complainant’s employment of which he knew.

Further the Respondent notified the Complainant of the overpayment, the reason for it and the fact that it was required to be recouped.

The main objection on the part of the Complainant appears to be the delay in recoupment. However, delay in recoupment is not a breach of the Payment of Wages Act, 1991 nor does it convert a lawful deduction into an unlawful deduction.

There is no breach of the Act and the complaint is not well founded.

As set out above the facts in this case were not in dispute.

The complainant did not dispute that the day’s pay was due to be repaid.

Indeed, he confirmed in the course of the hearing that what had upset him was the lack of consultation regarding the manner in which the recoupment was ultimately effected. This was the reason he made the complaint.

He had every right to be upset.

There is no excuse for the manner in which this was handled by the respondent. Having failed to recover the payment within a reasonable time, it then, and without any notice over a year later deducted the payment.

It would have been a simple matter to refresh its notification as a matter of common courtesy as well as good industrial relations. It is disingenuous of the respondent to rely on the correspondence issued to the complainant in January 2019 as ‘notice’. No reasonable person would regard it as adequate in the circumstances.

However, the matter for decision here is whether it represents a breach of the Payment of Wages Act and I find that it does not.  The complainant is not entitled to a remedy under this legislation. The deduction was lawful.

(There were two complaints CA-0035704-001 and 002 but one is a duplicate based on the same set of facts). Neither is well founded.

For the reason set out above Complaints CA-0035704-001 and 002 are not well founded.

Payment of Wages, deductions