Complainant

Respondent

Anonymised Parties

A Paralegal

  A Company

Representatives

  Appeared In Person

Roy Horan , IBEC Executive

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-00044752-001

23/06/2021

 This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

This matter came before the WRC dated 23 June 2021 as a complaint submitted under the Payment of Wages Act, 1991. The Complainant, a then Paralegal submitted that the Respondent had made an unlawful deduction of €775.00 from his final wages on leaving the Company.

The Respondent operates a Leasing and Finance Business and has denied the claim.

In the run up to the scheduled hearing in this case, the Complainant wrote to the WRC and sought that the decision in the case be anonymised on a plea of special circumstances. I requested that he approach the hearing and make his oral submissions there as I was not prepared to address the issue on an ex-parte basis.

The Respondent Representative approached the hearing and requested that the Respondent be facilitated in submitting a clean written submission as an earlier version had been compromised by an erroneous inclusion. I noted that the Complainant had drawn attention to the error. I accepted and facilitated the revised copy.

Both parties have submitted written submissions. The Complainant presented as a Lay Litigant. The Respondent was represented by IBEC.

By way of background, I offered the Parties time aside from the hearing to explore any potential for resolution in the case, but this offer was not accepted.

The Complainant was employed as a Paralegal on two successive fixed term contracts from 15 August 2019 to 11 June 2021. He worked a 45-hour week in return for a gross monthly salary of €3,500.

Application for an Anonymised Decision:

The Complainant submitted a written and oral plea that the decision in the case should be anonymised due to special circumstances.

He outlined that as a now Trainee Solicitor, he believed that the outcome of the case may have an adverse impact on his professional reputation. He explained that he had wanted to take the case but had become very anxious on progressing the case. He believed that taking the case may affect his employability down the line due to his proximity to employment lawyers and the Law Society, which frequently reports on cases. He submitted that he felt vulnerable.

He added that his name was rare and would thus be easily identifiable in his world of work. He contended that as the Respondent was a global entity, which already enjoyed a certain amount of anonymity.

Substantive Case:

The Complainant worked for the Respondent on two successive Fixed Term Contracts. During the second contract, the Complainant availed of an Education Assistance on “an exceptional basis “This facility was typically the sole preserve of permanent workers.

In the Complainants case, this covered

1 Support for a Property Law exam

2 Registration and payment to the Law Society examinations and preparatory courses

€355 preparatory courses   €420 on exam fees

The money was transferred to the Complainants bank account to reimburse course and exam fees advanced by the Complainant. Approval was based on the “actual knowledge that the relevant employment contract was due to expire on 11 June 2021 “

It was the Complainants case that the Respondents retrieval of €775 on expiry of the second contract of employment constituted an illegal deduction of wages and a contravention of the Payment of Wages Act, 1991. He had not agreed to the deduction, and he had received inadequate notice of the deduction.

The Complainant commenced work with his current employer, a Law firm on 28 June 2021

Evidence of the Complainant:

The Complainant outlined that both fixed term contracts undertaken had set expiry dates. He submitted that he left the business on the natural expiry of the second contract. He submitted that this was not a resignation.

The Education Assistance Programme was available to permanent workers at the firm.

 He understood that his work commitment and record during Covid 19 pandemic opened the door for him to be granted an exemption and access to the scheme as a temporary worker. He received the education supports and they were signed and approved by a Senior Manager, Ms B.

The Complainant was planning to depart the business for new work. On April 29, 2021, he queried whether a deduction would be applied to his salary on departure?

On June 10, 2021, the day before he left, he was informed by the Respondent on a Teams meeting, that €775 was being taken from his final payment He sought to query this with Ms A, but she failed to engage.

He was unable to reverse the decision to deduct the wages.

The Complainant denied that he had been offered a 3rd contract. He confirmed that he had not resigned his employment.

During cross examination, the complainant re-affirmed the contractual tenures, but could not recall a conversation with Ms A that recoupment of the education assistance was directly linked to his leaving the business. He stated that Ms A could not provide him with a concrete answer, that pay roll was closed and unchanged in respect of the deduction. He added that she had not outlined the four grounds leading to recoupment.

In clarifications, the complainant confirmed that he had not had a response to 11 June email. The conversation with Ms A lasted 5 to 10 minutes on the 10 June. He had not consented to the deduction

He confirmed that there were 3 Paralegal positions. The Complainant did not see the application of the grievance procedure as relevant as he viewed the matter as contractual.

He understood that he had received the education support payment as a benevolent mechanism. This was the sole education support demonstrated by the Respondent towards the Complainant during the course of his employment.

He became aware of the education support scheme from the handbook and by word of mouth and understood that he was granted the unique access due to his loyal commitment to the Company during the Covid 19 Pandemic.

Application for an Anonymised Decision:

I canvassed the Respondent for their views on the complainant application for an anonymised decision. The Respondent did not take issue with the request.

Substantive Case:

The Respondent operates a Leasing and Financial Business and has denied any contravention of the Payment of Wages Act, 1991.

The Respondent Representative confirmed that during the course of two successive contract s, the complainant made two applications for educational support for a cumulative €775 .00 The scheme was exhibited in the written submissions.

Application 1: 5 February 2020    €105    Property Law

Application 2    24 June 2020   € 670 FE-1 exams, EU, Tort and Contract Law and preparation course

The Respondent quoted from the Education Policy and emphasised the Respondent held authority to recoup all financial assistance.

I confirm I have read and understood the Company Education Assistance Policy. I understand I will be required to refund all financial assistance to the Company within 12 months… of the scheduled completion date of the programme, should any of the following events occur

·        Failing to complete the course

·        Failing the exams

·        Resigning

·        If my employment is terminated by the Company for disciplinary reasons including gross misconduct.

To the extent permitted by law, the Company will make recovery from any entitlements due to be paid to me (including final salary) after the occurrence of one of the situations outlined above …….

The Complainant resigned his position at the firm on 29 April 2021. The Respondent acknowledged that the topic of contract renewal was being explored but the complainant was not interested in staying on with the company. He was not offered a third contract.

On 10 June 2021 the Respondent confirmed that the amount of €775 would be recouped from the Complainants final salary. The employment ceased the next day.

The Respondent contended that the complainant resignation triggered a breach of the Education Assistance Payment scheme. The deduction of €775 was permitted by way of the contract of employment. The Respondent had engaged with the Complainant and explained the obligations around the recoupment of the financial assistance.

The deduction was affected on 15 June 2021 from the final salary payment.

It was the Respondent case that consent had accompanied the deduction via the complainants stated commitment to be bound by the terms of the financial assistance programme on both application forms exhibited.

The Respondent submitted that the contract of employment contained a deduction clause, the amount of that deduction was fair and reasonable having regard to the Complainants wages and did not exceed the financial assistance expended.

The Respondent rejected the complainants claim for compensation of €1,500 as the Adjudicators sole scope in the case focussed on the nett weekly wage that would have been paid in the week preceding the deduction and at its height compensation could not exceed €1, 227.81

The Respondent sought that the case be dismissed.

Evidence of Ms C, Human Resources

Ms C outlined that she had taken over in her role in early May 2021. She categorised the Education payment as a payment to support education, structured to retain employees.

Ms C outlined that contract were made available at the company well in advance of the renewal day.

It was her understanding that the complainant had not actioned a grievance in relation to his dissatisfaction surrounding the deduction relied on in the case.

Ms C contended that the deduction made was a lawful deduction and it would not have arisen if the Complainant had stayed on in the employment.

During cross examination, Ms C re-affirmed that had the complainant accepted a third contract, he would not have faced the deduction. Ms C confirmed that the Policy reflected a 12-month window in time.

In clarifications, Ms C confirmed that notice of deduction was issued on 10 June 2021, that Ms A was the decision maker.

She explained the terms of eligibility for exemptions from the scheme as contractual. performance and extended tenure.

There were stated criteria applicable for KPI measurement.

An Outcome to Application for Anonymisation of Decision on Special Circumstances

I have addressed this issue as a Preliminary Issue and took a brief recess to consider both parties stated positions in this matter.

In my preparation for the hearing, I had read the seminal case of Zalewski v   Adjudication Officer and ors at the Supreme Court, 6, April 2021 once again.

The circumstances of this case had led to a finding that Section 41(13) of the Workplace Relations Act, 2015 was found to be repugnant to the Constitution, when it provided that hearings at Adjudication at WRC were to be held otherwise than in public.

Overarching legislative changes followed by means of Section 12 (a) and Section 14 of the Workplace Relations Miscellaneous Provisions Act, July 2021. SI 396/2021

12A) (a) An adjudication officer may require a person giving evidence in proceedings under this section to give such evidence on oath or affirmation and, for that purpose, cause to be administered an oath or affirmation to such person.

(b) A person who, in or for the purpose of proceedings under this section, gives a statement material in the proceedings while lawfully sworn as a witness that is false and that he or she knows to be false shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months, or both, and

(ii) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 10 years, or both.]

  (13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public. 

(14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission. 

Special circumstances are not defined in the Workplace Relations Act, 2015, as amended.

At the hearing of the instant case, I was met by a very cogent application by the Complainant for an anonymised decision. The Respondent did not oppose the application.

In light of the profound consideration of the matter of public hearings in O ‘Donnell J in Zalewski, set out below I felt obliged to probe the Complainant submission in pursuance of anonymisation.I placed the parties on notice of my objective here.

Approached through the lens of Article 37, I cannot accept that there is a justification for a blanket prohibition on hearings in public before the adjudication officer.  Article 34.1 makes clear that public hearings are of the essence of the administration of justice.  In some cases, this may be practically important because the publicity may bring forward further relevant evidence and witnesses, or because it will allow a party (whether an employee or employer) to achieve public vindication.  It may, furthermore, have the general public benefit that it allows the public to see justice administered, which might, for example, make it easier for a judgement to be made on the fairness, competence, and efficiency of the decision-maker.  However, the requirement for a public hearing does not require any functional justification: from time immemorial, it has been regarded as fundamental to the administration of justice, and as establishing a principle from which any exception must be justified.  Jeremy Bentham said that: -

“[w]here there is no publicity there is no justice.  Publicity is the very soul of justice.  It is the keenest spur to exertion and the surest of all guards against improbity.”

The Complainant presented as a bona fide complainant keen to have his case heard but was clearly anxious and reticent in relation to his concerns that the eventual decision would in some way cause him reputational damage or professional notoriety, which may in turn lead to a risk to his employability in a small pool of legal practitioners in Ireland.

I identified a high level of anxiety in the Complainant. He said he felt vulnerable as a Trainee Solicitor. He was clear in his articulation of the anticipated risks to his personal and professional reputation in the face of a WRC decision.

I considered the oral and written submissions made and confirmed that I would be prepared to grant special circumstances so as to anonymise the decision on the following grounds. In so doing, I was mindful of achieving a balance between Article 6 and Article 8 of the European Convention of Human Rights.

1 I accepted that the high level of anxiety exhibited by the Complainant was linked to his fear of exposure at the decision-making stage. He had sought to mitigate this by protecting his privacy in my decision. I noted that while he was a Trainee Solicitor, he was in essence a Lay Litigant.

2 I did not accept that his proximity to a Law firm would compromise him at decision making stage. I reminded the Complainant that he was exercising a right under the grievance procedure.

I enquired as to whether being a participant in a real-life case energised the Complainant or allowed him to gain insight into the experience of a claimant? He said that it did not.

3 I did not accept his submissions in relation to the Law Society or the uniqueness of his name.

4 I rejected his submissions on the suggested presence of the “corporate veil of protection “he attributed to the Company. I affirmed that I viewed the Respondent as a stand-alone company for the purposes of the instant case.

I have taken account of O Donnell in Zalewski when he said that “proceedings may, but not must be heard in public “I have also taken account of Section 14(a) (b) as part of the post Zalewski Legislative changes from July 2021.

14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission. 

I have granted the special circumstances sought by the Complainant on the high level of anxiety and vulnerability alone exhibited by him. I viewed this elevated level of anxiety as constituting special circumstances on which to grant an anonymisation of decision. I accept that the Complainant wished to protect his personal privacy at the Decision stage .and the Respondent did not counter argue in response. I thought it in the best interests of the parties concerned to anonymise the decision .in the hope that I could inquire freely into the events at the centre of the case and consequently gain the parties full co-operation.

 I conveyed my decision to the parties in the aftermath of a short private consideration and both parties agreed to advance the case on that basis.

The Case has been renamed as:

A Paralegal v A Company

 I concluded by reminding the parties that an anonymisation at First Instance hearing could not be automatically presumed by either party at Labour Court on appeal.

Substantive Case:

I have been requested to decide on whether the recoupment of €775 from the Complainants final salary constituted a contravention of the Payment of Wages Act, 1991.?

In reaching my decision, I have had regard for both written submissions and oral evidence adduced.

1. Grievance Procedure

I wish to state at the outset that I have identified that this matter of a inter party dispute would have had a natural home in the Company Grievance procedure. On review of this document, I was drawn to the Scope of the Policy

This Policy applies to all employees, whether full time, part time, fixed term or permanent

The Complainant in the case was an undisputed fixed term worker. There is an onus on all parties to seek to exhaust local remedies before having recourse to the WRC. I do not accept the Complainant contention that the matter was not “a fit “for the grievance procedure. I am also reflective that the email thread reflected a certain pressure point placed by the Complainant on the Respondent on seeking to resolve the matter. I would have much preferred to see both parties engaged on this issue under the auspices of the company grievance procedure.

I accept the Complainant evidence that he emailed Ms C on 29 April 2021 seeking a position on

 whether any education assistance payments will be recouped from my final salary payment?  

I accept that Ms C was in transition professionally at that point, but I found the process surrounding the pathway from the April 29 email to the Teams meeting of June 10 to meander into an uncoordinated response.

On one level the Manager who endorsed the application for education assistance, expressed a projected reservation by means of an email around a likely recoupment. On another level, the Complainant was referred to page 34 of the handbook which references the terms of the financial assistance programme. From my point of view the issue drifted unnecessarily and this prompted me to inquire further into the circumstances of the recoupment. I will return to this. I have concluded that the Complainant was left in an unenviable position in the immediate aftermath of the Teams call on June 10, one day before he was expected to leave.

The Education Assistance Programme

The Education Assistance Programme was designed for permanent employees who have completed their probation.

Applications open in January and must be submitted by 31 March annually. A  conflict subsequently arose here for me .

Applications must be accompanied by signatures from a Manager and Team Member before Human Resources

Final approval rests with the CEO and Chief Human Resource Officer and are reviewed on an exhibited criterion.

Approval is to issue by May 30.

Applications after March 31 are realigned to the next application process except at the discretion of CEO

Recovery of Costs are set at “within 12 months of scheduled completion date of the programme/course……”

This applies to either or

1 failing to complete the course

2 failing exams

3 resigning

4 terminations for disciplinary reasons

This prompted me to review both application processes attributed to the Complainant

1.      9 February 2020

2.      24 June 2020   Course duration July -October 2020. Study leaves and exam leave cited as 11-13 August 2020 and unnamed dates to be confirmed

I then reviewed the Complainants contract which was silent on the specifics of the Education Programme but referred to the over arching presence of the employee handbook in which the scheme is set out.

I have considered the complainants evidence in the case. He said that he believed that he had been granted a special entry mechanism to the education scheme as a direct consequence of his flexibility and high attendance at the Office during the Covid 19 pandemic. This was not a shared view by the respondent, who understood that he was a beneficiary of the education assistance programme which ended in an unavoidable recoupment on conclusion of his employment.  I did not have he benefit of records of the approved funding to consider the matter further in terms of the origin of that approval .

Both parties accept that the complainant was a fixed term worker and not an employee in possession of a contract of indefinite duration. Yet, the scheme as described on page 34 of the handbook was directed solely at permanent workers.

In addition, I was not provided with a record of the Complainants approval for the education package, just his application. Neither party reflected on what special circumstances arose so as to permit approval outside the narrow window of time allowed for approval i.e., January – March annually.

Based on the evidence before me, I have to conclude that the Complainants position vis a vis accessing the education assistance programme was based on good will and was in essence an anomaly external to the provisions of the Education Assistance form. I appreciate that the approved form for access to the education support programme was relied on, but put simply, the complainant was ineligible for that scheme and his application was processed outside the official time frame without a visible presence of CEO approval.

 It seemed to me that the Company was keen to support the Complainant in his progression to become a Solicitor, which was laudable, however, I could not identify a defined record of this approval outside of the Complainants evidence that he understood that he had been admitted to the scheme on a benevolent basis. He did not broaden this discussion at hearing. Neither party reflected on the application for exam leave which accompanied both applications. This was not a component of the eventual deduction but does appear to have accompanied the payment of €775.

I also noted a clear disparity in the education programme form exhibited by the complainant which referred to a twice a year application opportunity, January and July and the applications forms exhibited by the respondent which narrowed the application to before March 31 annually.

This strengthened my view in the lack of a transparent foundation to the whole application and approval process of the education assistance provided to the complainant .

The context for the payment of education assistance supports is therefore within the realm of goods/services provided by the Respondent to the Complainant on two separate occasions during his 22-month tenure at the Company.

The Payment of Wages Act, 1991 prohibits deductions from wages outside of very particular circumstances. I must inquire as to whether the Respondent withholding of €775 from the Complainants final salary fell within the particular circumstances permitted under the Legislation.?  

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).

……..

(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

…………

(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.

The Contract

The contract provides for a clause on “deductions “which permits the Respondent to deduct “all sums which you owe at any time “namely overpayments, sick pay, tax, prsi, usc, allowances or expenses. The contract also contains a clause on “survival of obligations “post termination of employment.

I have found that the approval to release the education assistance to the complainant to be incomplete and not covered by a bone fides agreement. This places the payment into the realm of a grey area for the Complainant as a fixed term worker at the company. 

 The payment is, however, subject to the rigours of Section 5(2) (i) of the Act as set out above.

I have found that the Complainant was actively seeking an update on his 10% bonus payment and the status of his standing under the education programme from April 29 onwards. I accept that he received a short clarification and a statement of intention to pursue further clarification on May 4 from the Respondent.

It is not lost on me that the Complainants position regarding extending his tenure at the company was fluid at that point. He had notified the Respondent of his intention to take up new employment, but still made a proposal for his retention which did not materialise in the long run. This may well have clouded the potential for a more robust response from the Respondent much earlier than June 10.

The Complainant was highly aggrieved following the teams meeting of June 10. where he was notified of the intention by the respondent to recoup the monies associated with the education programme. The Respondent went on to clarify that had the complainant extended his tenure at the Company the deduction would not have arisen. This goes to the core of the case.

I am satisfied that the wages of €775 were properly payable to the Complainant on 15 June 2021 Sullivan v Dept of Education [1998] ELR 217 applied.

In applying section 5(2) (b) to the facts of the case, I have not found that the deduction is required to be made by an express or implied term of contract. I am strengthened in my view of this as no effort was made to recoup the exam/study leave.

I am not satisfied that the amount of the deduction was fair or reasonable.

In Ryanair v Downey [2006] 17 ELR 347, the EAT found that a €5,000 training cost deduction from final salary contravened the legislation in resulting in “a no wage zone “amounting to an unfair and unreasonable action, bereft of the obligatory one weeks’ notice

I have rejected the submitted alignment with the approved education assistance programme for permanent workers. I find that that the complainant was not furnished with a copy of the term relied on by the respondent.

I have also found that the Complainant was not furnished at least one week before the making of the deduction with particulars in writing of the amount of the deduction.

I accept the complainant evidence that he had not received a response to his email of June 11, 2021.

In conclusion, it is clear to me that the deduction was a unilateral action and as such amounts to a plain contravention of Section 5(2) the Act

I understand that the Respondent expressed a strong view that the recoupment was grounded in the Complainants cessation of employment and thus interrupted tenure. However, the administration of the deduction veered outside actions permitted by the Act.

In a recent Labour Court case of Homebond Technical Services ltd and David Faulkner PWD 222, the Court concluded that

 That the Respondent in that case had relied on provisions in a handbook and in a contract, neither of which were specific enough to enable them to act as they did

The Court went on to find that the Complainant in that case was entitled to avail of the protections in the Act as the Respondent had failed to attain the authority necessary under the act to make the deductions concerned.

In the instant case, I have found that the parties got lost in a vacuum in communication from April 29 onwards. The Complainant received hi s10 % bonus on agreed criteria on completion of his second fixed term contract.  This stood in sharp contrast to the treatment of the education programme, the contents of which must have by then been of clear benefit to this company.

Neither party exhibited a record of resignation, and the email of April 29 cannot be safely regarded as a resignation, but rather an exploratory exercise in financial standing on conclusion of employment .

I was not satisfied with the approach adopted by the complainant aimed at securing the return of €775, in particular in the aftermath of his employment. I have found that he could have activated the grievance procedure at an earlier date when it was clear that a satisfactory response was not forthcoming to the April 29 request for clarification. I was not satisfied at the veiled threats directed at the Respondent and would hope that the complainant reflects on these comments.

However, I find the claim to be well founded. The Respondent has contravened Section 5(2)(b) of the Act.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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 Section 5 of the Payment of Wages Act, 1991.

I have found that the claim is well founded. I order the Respondent to pay the Complainant €500.00 in reasonable compensation for the contravention of Section 5 of the Act.

Deduction of Wages via Education Assistance