Complainant

Respondent

Parties

Karl  Bird

Mde Installations

Representatives

Self-Represented

Ms. Claire Louise Mooney, Copacetic Business Solutions Ltd

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-00042239-001

01/02/2021

The Complainant commenced employment with the Respondent on 14th September 2020. The Complainant’s tenure with the Respondent was brief, with the employment being terminated eleven days later, on 25th September 2020.

On 1st February 2021, the Complainant lodged a complaint under the Payment of Wages Act with the Commission. Herein, he alleged that the employer had made an illegal deduction from his wages. Specifically, he alleged that the Respondent had deducted the sum of €1,794.00, or the totality of the his wages earned during his brief employment. By response the Respondent submitted that the deduction was permitted within the terms of the Payment of Wages Act.

A hearing in relation to this matter was convened and finalised on 6th September 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

The Complainant commenced employment on 14th September 2020. At the commencement of his employment, the Complainant undertook a period of training as dictated by the Respondent. This training occurred during working hours and took up the entirety of the working day.

On 25th September 2020 the Complainant met with two members of the Respondent’s management team. At this point, the Complainant was informed that his employment was to be terminated with immediate effect. He was informed that he would receive any payment owed to him to that point in due course. Despite numerous enquiries in relation to this issue, the Complainant did not receive his outstanding wages and in fact, never received any payment from the Respondent at all. The Complainant calculated his outstanding wages at €1,794.00 based on a contractual rate of pay of €23.00 per hour.

In response to the Respondent’s submission, the Complainant submitted that the deduction was not permitted within the terms of the Payment of Wages Act. In particular, he submitted that he did not sign an agreement in advance of the training regarding the deduction, he did not receive notification of the deduction and that deduction his entire wages cannot be said to be reasonable in the circumstances.

By response, the Respondent agreed with much of the factual matrix presented by the Complainant. Notwithstanding the same, they submitted that the deduction was not illegal for the purposes of the Payment of Wages Act.

They submitted that at the outset of the Complainant’s employment he was presented with, and signed, a contract of employment. Clause 8 of this contract sets out that the Complainant would receive training to the value of €3,600. This clause goes on to state that if the Complainant leaves the employment of the Respondent during the training period he would be responsible for 50% of the cost of the training, or €1,800.

As the Complainant’s employment was terminated during the training period, the Respondent recovered the sum of €1,794.00 from the Complainant’s wages.

The Respondent submitted that this deduction was permitted by Section 5 of the Payment of Wages Act. They submitted that the Complainant had given their prior consent in writing to the deduction, and they were aware at all time of the amount of the deduction.   

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…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”.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which if there is a deficiency in respect of those such payments”.

I note that no dispute exists regarding the material facts of this case. It is accepted by the Respondent that the Complainant accrued the sum of €1,794.00 in “wages” that are “properly payable” under the terms of the Act. The defence advanced by the Respondent is that such deduction is permissible by virtue of Section 5 of the Act.

In particular, Section 5(2) of the Act allows for deductions from wages in 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”. Such deductions are only permitted when the same “is required or authorised to be made by virtue of a term…of the contract of employment” and “is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee)”.

Regarding the first point, I note the relevant clause of the contract of employment states that if “you (the employee) leave our employment” the Respondent will seek to deduct the cost of the training.The plain reading of this term is that the deduction clause may be engaged when the employee elects to leave the employment. While it is possible to interpret this term in a passive sense i.e. when the employee leaves for any reason, this is not clear from the wording of the section. In such circumstances such ambiguity should be resolved against the party that drafted the term. Having regard to the same, I find that the contract of employment only permits a deduction for training in circumstances whereby the Complainant resigns his employment. In the present case, the Complainant did not leave his employment, but was dismissed. In such circumstances, I find that the deduction was not authorised by a term of the contact of employment and consequently is not a legal deduction for the purposes of the Act.

Notwithstanding the same, I further find that the deduction of the entirety of the Complainant’s wages earned during his employment cannot be said to be “fair” or “reasonable” in the circumstances.  

CA-00042239-001

I find that the complaint is well founded and consequently I find in favour of the Complainant.

In relation to redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed.

In light of the foregoing, I order the Respondent to pay the Complainant the sum of €1,794.00, the amount of the deduction from his wages. This payment should be subject to all normal deductions as income.

Deduction, contractual term