ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00030547

Parties:

	Complainant	Respondent
Anonymised Parties	Financial Controller	Hotel

Representatives

The claimant represented himself

Michelle Ryan Ronan Daly Jermyn Solicitors

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-00040757-001	03/11/2020

Date of Adjudication Hearing: 02/02/2021

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section6 of the Payment of Wages Act 1991 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The claimant was employed as a Financial Controller with the respondent from the 16.05.2016 to the 12.08.2020.He submitted the respondent was in breach of the Act for reducing his normal gross pay during the months of April to July 2020.

Summary of Complainant’s Case:

In his complaint form the complainant submitted as follows :

“My complaint relates to wages paid from Week 14 (02/04/20) to Week 33 (13/08/2020). The company claimed TWSS for me during this period. They paid my wages by way of adjusting my gross pay downward so that my net pay would remain the same as before the TWSS was implemented. I objected to this with the management of the company but was told they had received advice that this was the correct method to process the payroll.

Regardless of whether I was receiving the same net pay, i was receiving a non taxable amount in my weekly wages ( the TWSS) which I will be liable for tax at the end of this year. If I had been receiving my full gross pay for the period, my net would have been greater than normal but I would have this money to pay the tax due at the end of the year. Also during the period the company implemented a 10% pay reduction for the months of May, June and July. I had no issue with this but at no stage did I give the company permission to reduce my Normal gross pay of €980.77 or my 10% reduced gross amount of €882.69 for the period May to July.

Below are details of my pay received compared to what my actual gross pay should have been. Week 14 Pay date 02/04/2020

Salary Paid 465.25 TWSS Subsidy 350 Total Gross Pay 815.25 Normal Gross Pay 980.77 Shortfall in Normal Gross Pay 165.52

Week 15 Pay date 09/04/2020 Salary Paid 464.85 TWSS Subsidy 350 Total Gross Pay 814.85

Normal Gross Pay 980.77 Shortfall in Normal Gross Pay 165.92

Week 16 Pay date 16/04/2020 Salary Paid 464.84 TWSS Subsidy 350 Total Gross Pay 814.84 Normal Gross Pay 980.77 Shortfall in Normal Gross Pay 165.93

Week 17 Pay date 23/04/2020 Salary Paid 464.85 TWSS Subsidy 350 Total Gross Pay 814.85 Normal Gross Pay 980.77 Shortfall in Normal Gross Pay 165.92

Week 18 Pay date 30/04/2020 Salary Paid 464.85

TWSS Subsidy 350 Total Gross Pay 814.85 Normal Gross Pay 980.77 Shortfall in Normal Gross Pay 165.92

Week 19 Pay date 07/05/2020 Salary Paid 464.85 TWSS Subsidy 350 Total Gross Pay 814.85 Normal Gross Pay 980.77 Shortfall in Normal Gross Pay 165.92

Week 20 Pay date 14/05/2020 Salary Paid 372.34 TWSS Subsidy 350 Total Gross Pay 722.34 Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 160.35

Week 21 Pay date 21/05/2020 Salary Paid 372.34 TWSS Subsidy 350 Total Gross Pay 722.34 Normal Gross Pay 882.69Shortfall in Normal Gross Pay 160.35

Week 22 Pay date 28/05/2020 Salary Paid 372.34 TWSS Subsidy 350

Total Gross Pay 722.34 Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 160.35

Week 23 Pay date 04/06/2020 Salary Paid 372.35 TWSS Subsidy 350 Total Gross Pay 722.35 Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 160.34

Week 24 Pay date 11/06/2020 Salary Paid 372.35 TWSS Subsidy 350 Total Gross

Pay 722.35 Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 160.34

Week 25 Pay date 18/06/2020 Salary Paid 372.34 TWSS Subsidy 350 Total Gross Pay 722.34 Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 160.35

Week 26 Pay date 25/06/2020 Salary Paid 418.7 TWSS Subsidy 350 Total Gross Pay 768.7

Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 113.99

Week 27 Pay date 02/07/2020 Salary Paid

418.7 TWSS Subsidy 350 Total Gross Pay 768.7 Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 113.99

Week 28 Pay date 09/07/2020 Salary Paid 1687.14 TWSS Subsidy 0 Total Gross Pay 1687.14 Normal Gross Pay 1687.14 Shortfall in Normal Gross Pay 0

Week 29 Pay date 16/07/2020 Salary Paid 418.7 TWSS

Subsidy 350 Total Gross Pay 768.7 Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 113.99 Week 30

Pay date 23/07/2020 Salary Paid 418.7 TWSS Subsidy 350 Total Gross Pay 768.7 Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 113.99

Week 31 Pay date 30/07/2020 Salary Paid 418.7 TWSS Subsidy 350 Total

Gross Pay 768.7 Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 113.99

Week 32 Pay date 06/08/2020 Salary Paid 418.7 TWSS Subsidy 350 Total Gross Pay 768.7 Normal Gross Pay 882.69 Shortfall in Normal Gross Pay 113.99

Week 33 Pay date 13/08/2020 Salary Paid 490.18 TWSS Subsidy 350 Total Gross Pay 840.18

Normal Gross Pay 980.77 Shortfall in Normal Gross Pay 140.59

As you can see I was not paid the correct gross pay on 19 of the 20 weeks shown above. I am of the opinion that I am owed this shortfall in Gross Pay as I never consented to this and I require this money to pay the tax due on the TWSS receive in this period.”

At the hearing the claimant submitted that there was no agreement to a reduction in his pay during the month of April and asserted the agreement with the respondent covered the time period from May to July 2020.He asserted his arrangements with Revenue were between him and Revenue and when questioned about the matter of liability for the TWSS payment which- according to the respondent’s representative - should have been notified to him in January 2021,he stated that he had not received any statement of liability and that this may have been because he was jointly assessed with his wife and her returns for 2020 would not be due until much later in the year. The claimant stated that he wanted confirmation that the manner in which the respondent effected the 10% reduction was correct and argued that in effect the reduction exceeded 10% as set out in the foregoing chronology of payments. He asserted that the respondent’s contention that every other employer applied the same arrangements was purely speculative .The claimant submitted that during the period May to July the 10% reduction would have left him with a gross figure of €882 but in actual fact he only received €722.84 per week. He contended that if the respondent had limited the reduction to 10% he would have aggregated credit which he could have offset against any Revenue liability at the end of 2020.

The claimant contends that he never consented to the pay reduction in April and argues that the additional deduction effected in excess of 10% over May, June and July was never consented to. He contends that these monies should be recouped to him to defray the tax due on the TWSS paid during this period.

Summary of Respondent’s Case:

The respondent’s representative made the following submissions:

“SUMMARY

1.1 The Complainant has lodged a claim pursuant to section 6 of the Payment of Wages

Act, 1991 (the “1991 Act”) alleging that he has been paid less than the amount due to

him contrary to section 5 the 1991 Act.

2. BACKGROUND

2.1 The Respondent is a hotel based in the West of Ireland .. The Complainant commenced

employment with the Respondent on 16th May 2016 as a Financial Controller,

pursuant to a contract of employment dated 14th July 2016 . The Complainant’s employment with the Respondent terminated on 12th August 2020 arising from his resignation.

2.2 The Complainant’s salary commenced at €42,000 per annum and had increased to

€51,000 by 2020.

2.3 In April 2020, in light of the national measures taken by way of response to the COVID-19 crisis and the closure of the Respondent’s hotel business, causing the business significant losses, the Respondent made the decision to implement a 10% salary decrease which affected employees, including the Complainant in his position as Financial Controller. This decision was not undertaken lightly by management but in light of the profound effect the COVID-19 crisis had, and continues to have, on the Respondent’s normal business activities, it was deemed necessary to decrease costswith a view to protecting the business going forward. Unfortunately, the Respondent’s business continues to be severely impacted by the ongoing COVID-19 crisis where it has remained largely closed for the majority of the last 12 months.

2.4 A meeting was held on 27th April 2020 between the Complainant and the General Manager of the Respondent Hotel, to discuss the proposed pay cut and explain the basis for the decision. During this meeting, the Complainant was also advised that as a further cost cutting measure, no bonus would be paid for the year 2020. The Complainant confirmed during this meeting that he understood the rationale for the decision and confirmed his consent to the proposed pay cut and non payment of his bonus.

2.5 Following this meeting, the Complainant signed a consent form confirming his agreement to the 10% reduction in his salary with effect from 4th May 2020 and non payment of the bonus. A copy of the signed letter is attached.

2.6 In view of the severe downturn in the Respondent’s business, it was necessary for the Respondent to avail of the national Temporary Wage Subsidy Scheme (“TWSS” or the “Scheme”), put in place by the Revenue Commissioners from 26th March 2020 to support employers in making payments to their employees during the pandemic. A memo was sent to all employees affected by this decision, prepared by the Complainant, a copy of which is attached .

2.7 The Respondent then opted to pay the optional “top-up payment” in the amount of the difference between the TWSS amount and the net pay the Complainant would have received on the reduced pay following the salary deduction to which the Complainant had consented as outlined above. The Complainant’s pay prior to the pay cut put him in the highest tier of the Scheme and so would receive a maximum of €350 per week from the TWSS, plus the top up amount.

2.8 It is submitted that these measures were necessary for the Respondent to continue to keep the Complainant and other employees on the payroll during times of closure and significantly reduced business as a result of the COVID-19 crisis.

2.9 The pay cut applying to the Complainant’s wages was reversed on 3rd August 2020 at which point his full salary was restored.

2.10 The Complainant’s Specifics of complaint set out that his complaint relates to wages paid from 2nd April 2020 to 13th August 2020.

2.11 In this regard, the Complainant is challenging the manner in which the Respondent applied TWSS, namely the adjustment of the Complainant’s gross pay downward in order to maintain his net pay. Specifically, the Complainant took objection to the fact that as he was receiving a non-taxable amount in his wages, being TWSS, he would be liable for a tax payment at the end of the 2020 tax year. The Complainant alleges he did not give permission to the Respondent to reduce his gross pay and accordingly, he submits that he is owed the alleged shortfall as he requires same to pay his personal tax liability. The Complainant raised this issue with his employer the Respondent who confirmed to him that its application of TWSS was correct.

3. THE LEGAL POSITION OF TWSS

3.1 Part 7 of the Emergency Measures in the Public Interest (Covid-19) Act, 2020 (the

“2020 Act”) sets out the provisions relating to the application of the COVID-19

TWSS.

3.2 Section 28(5) of the 2020 Act provides that:

“(5) Where this section applies, then, following the notification by the

employer of the payment of emoluments to a specified employee in the

applicable period in accordance with Regulation 10 of the Regulations, the

following provisions shall apply:

(a) the Revenue Commissioners shall pay to the employer in relation to the

specified employee a sum (in this section referred to as a “temporary wage

subsidy”) of an amount determined in accordance with subsection (6),

(b) the payment referred to in paragraph (a) shall be made by way of bank

transfer to the bank account of the employer, the details of which have been

provided in accordance with subsection (4)(c),

(c) where, under paragraph (a), a payment is required to be made to the

employer in respect of each of 2 or more specified employees by the Revenue

Commissioners, the payments under paragraph (a) may be aggregated by the

Revenue Commissioners for the purposes of compliance with paragraph (b),

(d) on the payment of the emoluments to the specified employee which are the

subject of the notification first-mentioned in this subsection by the employer,

the employer shall include in that payment an additional amount equivalent to

the temporary wage subsidy in relation to the specified employee,

(e) notwithstanding any other provision of the Act, the additional amount paid

by the employer to a specified employee in accordance with paragraph (d)

shall not be regarded as emoluments of the specified employee for the

purposes of Chapter 4 of Part 42 of the Act and the Regulations, but shall be

treated as income chargeable to tax on the specified employee under

Schedule E within the meaning of section 19 of the Act”

3.3 Section 28(6) provides that:

“(6) (a) The amount of the temporary wage subsidy shall, subject to

paragraphs (b) to (f), be determined by the Minister for Finance, with the

consent of the Minister for Employment Affairs and Social Protection, given

with the concurrence of the Minister for Public Expenditure and Reform.

(b) Different amounts of temporary wage subsidy may be determined under

this subsection in relation to different classes of employee.

(c) In determining what is to be the amount of the temporary wage subsidy

under this subsection, the Minister shall have regard to an amount being

determined that, in the opinion of the Minister, would represent a significant

contribution to making good the shortfall in the amount of emoluments that

would otherwise have been payable, as mentioned in subsection (2)(a), to the

specified employee concerned.

(d) In the case where the net weekly emoluments that would otherwise have

been payable, as mentioned in subsection (2)(a), to the specified employee

amount to not more than €586 per week, the amount of the temporary wage

subsidy shall not exceed a weekly amount equivalent to 70 per cent of the net

weekly emoluments that would otherwise have been so payable.

(e) In the case where the amount of the net weekly emoluments that would

otherwise have been payable, as mentioned in subsection (2)(a), to the

specified employee is in excess of €586 per week but not more than €960 per

week, the amount of the temporary wage subsidy shall be that which is

determined from time to time by the Minister for Finance, with the consent of

the Minister for Employment Affairs and Social Protection, given with the

concurrence of the Minister for Public Expenditure and Reform.

(f) A temporary wage subsidy shall not be paid to an employer in relation to a

specified employee where the amount of the net weekly emoluments of that

employee is in excess of €960 per week.”

3.4 As has been set out above, 28(5) of the 2020 Act confirms that payments made under

TWSS to employees are taxable in the hands of the employee but are not subject to

payroll tax deductions by the employer. The subsidy was also liable for USC as part of

the full year reckoning for employees.

3.5 Furthermore, section 28(6) confirms the subsidy is there to supplement net weekly

pay.

3.6 Section 28(18) of the 2020 Act provides that:

“(18) The administration of this section shall be under the care and

management of the Revenue Commissioners and section 849 of the Act shall

apply for this purpose with any necessary modifications as it applies in

relation to tax within the meaning of that section.”

3.7 Accordingly and in line with section 28(18) of the 2020 Act, the provisions of the

2020 Act were supplemented by guidance published by the Revenue Commissioner’s

“Frequently Asked Questions (FAQ V6) on: Guidance for PAYE Employees whose

Employers have been affected by the COVID-19 Pandemic and are availing of the

Temporary Wage Subsidy Scheme (TWSS)” (“the Guidance 1”) and “Frequently Asked

Questions (FAQ V18) Guidance on the Operational phase of the COVID-19:

Temporary Wage Subsidy Scheme” (“the Guidance 2”). A copy of both Guidance

notes published is attached .

.3.8 The Guidance 1 sets out, at page 4, that the aggregate of the subsidy and the top-up

payment from the employer cannot exceed 100% of the employee’s typical weekly net

pay received (average paid for January/February 2020 prior to the pandemic) (defined

as “ARNWP” in the Guidance).

3.9 As such, the top-up amount paid to the Complainant by the Respondent was, in

addition to the TWSS payment, equal to the Complainant’s average net pay following

the pay deduction to which the Complainant consented.

3.10 The position as set out in the 2020 Act has also been confirmed by the Revenue

Commissioners, namely that the tax liability for payments received under the TWSS

falls on the employee and will be payable from January 2021 onwards. (section 20,

page 13 of the Guidance 1 and section 3.11 Guidance 2). Section 3.11 of Guidance 2

provides that:

“The payments are liable to income tax and USC; however, the subsidy is not

taxable in real-time through the PAYE system during the period of the Subsidy

scheme. Instead the employee will be liable for tax and USC on the subsidy amount

paid to them by their employer by way of review at the end of the year. With the

continuation of the TWSS to the end of August 2020, and to mitigate the possible

impact on the employee end of Year review placed all employees that received

payments under either the TWSS or the DEASP Pandemic Unemployment Payment on

a ‘non-cumulative’ Week 1 basis…… When an end of the year review takes place, it

may be the case that an employee’s unused tax credits will cover any further liability

that may arise. Where this is not the case, and should an Income Tax liability arise, it

is normal Revenue practice to collect any tax owing in manageable amounts by

reducing an individual’s tax credits for a future year(s) in order to minimise any

hardship. Additionally, if an individual has any additional tax credits to claim, for

example health expenses, this will also reduce any tax that may be owing. In 2021,

Revenue will make available the employee’s Preliminary End of Year Statement and

following the employee’s completion of their 2020 income tax return, Revenue will

generate the employee’s Statement of Liability for the tax year 2020. The employee

can then pay this liability in full or partially when due. Any remaining unpaid

liability balance will be collected by reducing the employee’s tax credits from tax

year 2022.”

3.11 It is clear from the forgoing that any tax liability arising from the application of TWSS

lies with the Complainant and not the Respondent.

3.12 The Respondent also notes that the Complainant availed of a tax refund during the

period in which the TWSS was applied to the amount of €1,200. This tax refund

would not have been available had the TWSS not been applied. Furthermore, it is

clear that in availing of this tax refund, the Complainant impacted his tax credits for

2020. The Respondent cannot be liable for any liability due in respect of his 2020

income tax return, which has not been provided by the Complainant in respect of the

within complaint.

4. COMPLAINT UNDER S6 OF THE 1991 ACT

4.1 The Complainant’s claim is pursuant to section 6 of the 1991 Act which entitles an

employee to bring a complaint to the Workplace Relations Commissioner where their

employer has contravened section 5 of the 1991 Act.

4.2 It is the Respondent’s position that there has been no such contravention of the 1991

Act such as to give rise to a valid complaint under section 5.

4.3 Section 1(b) of the 1991 Act states that:

“Wages in relation to an employee, means any sums payable to the employee

by the employer in connection with his employment, including any sum payable

to the employee upon the termination by the employer of his contract of

17269419. 7

employment without having given to the employee the appropriate prior notice

of the termination, being a sum paid in lieu of the giving of such notice.”

4.4 Section 5(1) of the 1991 Act states that:

“An employer shall not make a deduction from the wages of an employee (or

receive any payment from an employee) unlessa)

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.”

4.5 Section 5(6) of the 1991 Act states that;

“(6) Where—

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 nonpayment

shall be treated as a deduction made by the employer from the wages

of the employee on the occasion.”

4.6 It is the Respondent’s position that the pay reduction of 10% is not one that could give

rise to a valid complaint under the 1991 Act as the Complainant consented to the

deduction in writing per s5(1)(c).

4.7 In addition, any further deduction by way of “net-down” of the Complainant’s pay

was a requirement put in place by the Revenue Commissioners in order for the

Respondent to avail of the necessary financial supports to continue the business during

the COVID-19 crisis in the form of the TWSS. Availing of these supports was critical

for the Respondent to maintain the Complainant’s position on the payroll and avoid

requiring measures such as redundancy or lay-off.

4.8 It is submitted that the Respondent Hotel correctly implemented and applied the TWSS in the same manner as every other business availing of the scheme.

4.9 In these circumstances, there was no deduction of wages properly payable to the

Complainant such as to give rise to a valid complaint under the 1991 Act.

5. CONCLUSION

5.1 It is submitted that there has been no breach of the 1991 Act such as to give rise to any

entitlement to an award to be made to the Claimant.

5.2 The application of TWSS and calculation thereof was given by Revenue and its

application was proscribed by the rules of the 2020 Act and the Guidance published by

the Revenue in respect of the Scheme.

5.3 The Respondent could not continue to pay a normal gross and then apply TWSS on

top. It is clear from all the foregoing that the tax liability arising is a matter for the

Complainant and not the Respondent.

5.4 It is the Respondent’s respectful submission that the Adjudicator dismiss the claim

against the Respondent considering the above submission and that no award of

compensation be made.

The respondent’s representative submitted that the claimant had failed to present a Revenue statement of liability which would have issued in January 2021 and it was advanced that such a statement would have clarified what if any liability the claimant had since the introduction of the TWSS. It was submitted that the documentation submitted into evidence by the company illustrated that the respondent was obliged to ensure that the claimant’s wages did not exceed his former net wages when TWSS was applied. It was contended that there was no dispute about the claimant agreeing to the pay cut – the respondent was required to adhere to Revenue Guidelines .The claimant had not submitted any grievance throughout the period with his employer and the claimant’s contract of employment was submitted into evidence – which detailed the respondent’s grievance procedures. It was submitted that the claimant applied the salary reduction across the entire workforce including his own salary. The respondent had continued to ensure that the claimant received his net pay throughout this period and it was correctly calculated and applied. It was asserted that the claimant cannot be entitled to a higher amount as asserted by him and it was not accepted that the claimant had not been issued with a statement of liability from Revenue. It was advanced that any other employer would have implemented Revenue guidelines in the same manner as the instant case. The claimant had failed to provide any evidence that he incurred a shortfall or was out of pocket and it was asserted that no deduction had been effected and consequently no breach of the Act had occurred.

The respondent asserted that they were obliged to make the deductions across the entire period in order to comply with Revenue Guidelines on the TWSS which preclude any top up payment by employers which would result in a payment in excess of normal net pay. It was argued that accordingly no deduction was made and the claimant was unable to point to any tax liability owing on the TWSS payment.

Findings and Conclusions:

I note the claimant did consent to the reduction in pay over the May, June and July period with effect from the 4th.May 2020.The matter of the reduction for the April period arose following the receipt of guidelines to employers from Revenue which restricted any top up payment to a limit that ensured the complainant’s net wages - including the TWSS payment and the top up employer’s payment would not exceed normal net pay. This pay reduction continued over the following 3 months to comply with Revenue guidelines issued on foot of the Emergency Measures in the Public Interest (Covid-19)Act, 2020.The respondent further argues that the further deductions set out in the claimant’s complaint form by way of “net-down” of the Complainant’s pay was a requirement put in place by the Revenue Commissioner’s in order for the respondent to avail of the necessary financial supports to continue the business during the COVID-19 crisis in the form of the TWSS.It was argued that no evidence of loss was presented by the claimant and that at this point he would have received a statement of liability from Revenue for any tax owing for the TWSS payment.

The Payment of Wages Act 1991 provides

“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 his employment, whether payable under his contract of employment or otherwise, and
		(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:
		Provided however that the following payments shall not be regarded as wages for the purposes of this definition:
		(i) any payment in respect of expenses incurred by the employee in carrying out his employment,
		(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,
		(iii) any payment referable to the employee's redundancy,
		(iv) any payment to the employee otherwise than in his capacity as an employee,
		(v) any payment in kind or benefit in kind.
		(2) Except in section 5 (5) (f), a reference in this Act to an employer receiving a payment from an employee is a reference to his receiving such a payment in his capacity as the employee's employer.
		(3) In this Act, a reference to a section is a reference to a section of this Act, unless it is indicated that reference to some other enactment is intended.
		(4) In this Act, a reference to a subsection, paragraph or subparagraph is a reference to a subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference

Section 5 of the Act states

.—(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.
		(2) 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 ofan amount not exceeding the cost to the employer of the goods or services, and
		(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.
		(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.
		(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.
		(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).
		(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
		(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,
		or
		(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or
		(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941 , amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or
		(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
		(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or
		(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or
		(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.
		(6) Where—
		(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.

Decision

While I acknowledge the expressed reservations of the complainant about the manner in which the respondent interpreted the Revenue Guidelines on the TWSS payment , I find the claimant did not produce evidence of a deduction having been made in circumstances where the respondent ensured through the top up payment that there was no deficit in net pay to the claimant. Having reviewed the evidence presented at the hearing I am satisfied that the reduction in pay effected by the respondent was authorised by statute - Emergency Measures in the Public Interest (Covid-19)Act – I am further satisfied that the claimant’s assertions that he had an entitlement to retain his gross pay and or his gross pay less 10% to defray his impending revenue liability for TWSS receipts are not sustainable as such a payment would result in an increase in net pay and could not be deemed to be “wages properly payable”.

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.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Accordingly I declare the complaint is not well founded.

Dated: 10th March 2021

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Key Words: