ADJ-00028176

Complainant

Respondent

Parties

Saad  Khan

Currys Ireland Ltd

Representatives

  Self

Jessica Bielenberg Mason Hayes & Curran

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-00036201-001

17/05/2020

This is a complaint based on deductions made from the Complainants wages at time of the termination of his employment through resignation. The complainant was employed from 2016 until 16 March 2020. The first hearing of the complaint was adjourned as the Respondent was not fully informed of the complaint due to the departure of named previous manager to whom notice was issued. The complainant gave evidence under affirmation and Mr Shortt from payroll with the Respondent gave technical information also under affirmation. Mr Khan put questions to Mr Shortt.

The Complainant had taken time out of his workplace to attend the hearing as a result of which he had to leave after a little over an hour. However, he and the Respondent solicitor expressed themselves satisfied that they had presented the arguments in respect of their respective positions.

The complainant was employed on a contract of 24 hours which he said in practice was effectively full time. He gave the Respondent four weeks’ notice of his intention to leave. The employment ended on March 16th and he subsequently received two payslips dated March 19th and April 16th, 2020. From these two payslips there were deductions amounting to €812.26. These deductions were made without his prior knowledge which he understood to be wrong-that he should have been given notice under the Payment of Wages Act. He spoke to the local and regional manager at the time and they couldn’t explain the figures but implied by their comments that they thought them incorrect. The deductions related to leavers pay was not accepted as all leave was approved by the manager in advance and he did not accept that he would have been allowed to build up such an amount of excess leave taken. He thought the input figures on the second payslip were wrong. He was referred to HR about the deductions and they stopped emailing him. When the term of his contract which provided for a deduction of an overpayment of holiday pay on termination was read to him at the hearing-he replied that it did not mention that there would be notice for any deduction which he understood should have occurred.

The Respondent provided a written submission which explained that the deduction of €536.73 in the first of the two payslips was due to the Complainant having taken 52.11 excess holiday hours up to 17 March 2021. There was an additional holiday payment on the same payslip based on average pay. The deductions on the second payslip were due to the cycles for pay which result in some wages being paid in advance. Other upwards adjustments were also contained in the second payslip. There was no unlawful deduction from either payslip. With regard to notice of the deductions, the Complainant had a signed contract of employment which stated ’If on termination of your employment you have taken more holiday than your accrued holiday entitlement, the Company will be entitled to deduct the excess pay from any payments to you.’

Mr Shortt stated that he had examined all of the records and he could see no error in the figures on the two payslips. He could not explain why the local manager would have approved excess leave to such a degree, but the problem arose because the Complainant left before the end of the leave year.

The holiday year in the Company runs from 1 May to 30 April each year. The Complainant contended that the deductions from his pay on March 19 and April 16 were incorrect in that he could not accept that he had overtaken his allowance of leave which was the basis of most of the deductions and he thought the calculation of parts of his pay were incorrect. This contention amounts in effect to a claim of an over deduction. However other than adding together the two amounts deducted he provided no evidence to support his complaint other than his local managers thought some of the calculations odd or weird. In the absence of any evidence to support his contentions-there is no basis for a finding that there was an over deduction from either of the two payslips in question.

The second main point in the complaint was that he received no notice of the deductions and he believed he was entitled to such notice. Accepting that the deductions were relatively large and unexpected, the complainant is relying on the wrong sections of the Payment of Wages Act in support of his complaint. There are several subsections of Section 5 which provide for advance notice to be given of a deduction even where the deduction is based on a contractual term and these are set out below in subsection (1) to (4) inclusive.

Regulation of certain deductions made and payments received by employers.

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.

(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 of an 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).

However, it is the terms of subsection (5) which apply in this case where the deductions are based on an overpayment for holiday pay based on contractual entitlements and an adjustment for an overpayment of wages related to the pay periods covered by the two payslips.

(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,

There is no evidence on which to find that the amount deducted exceeded the amount of the overpayment.

While finding against the Complainant in this case I have a concern that employees could be allowed to take holidays in excess of their contractual entitlement and to face the type of deduction experienced by this former employee due, it would appear, to a failure on the part of local and regional managers to keep their staff informed of their leave balance at all and to continue to approve such leave to the extent that occurred in this instance.

CA-00036201-Payment of Wages Act 1991

The complaint brought by Saad Khan against Currys Ireland Ltd is not well founded

Deductions from final salary