ADJ-00032071

Complainant

Respondent

Parties

Edel  Higgins

Department of Education

Representatives

  Forsa Trade Union

Cathy Smith SC Instructed by  Chief State Solicitor's Office

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-00042591-001

18/02/2021

The Complainant is seeking to be retained on her Increment which the Respondent alleges was an error and the Complainant is seeking repayment or stoppage of any overpaid pay that has/will be deducted by the Respondent.

The Complainant is employed as Educational Psychologist’s in the NEPS  (National Education - Psychological Service)  in the Department of Education. The Complainant commenced employment as an Educational Psychologist with the Department of Education on the 20th of November, 2017. 

In early October 2020, the Complainant read an e-mail from the National Shared Services Office dated the 19th of August advising ”Following a recent review by the National Shared Services Office (NSSO) Increments & Schemes Team of increments awarded under Circular 07/2019 (Application of additional increments awarded in relation to New Entrants under the Public Services Stability Agreement 2018-2020).

I regret to inform you that we have established that you were awarded additional increment(s) under Circular 07/2019 in error.

On commencement in your new position your starting salary was matched and you are not considered a “New Entrant” under the terms of the circular.   You are therefore not eligible to benefit from the additional increments provided for in Circular 07/2019.  As a result of this error, you have been overpaid since moving to Step 6 on 20/11/2019 “

The Complainant happened to be on maternity leave around the same time and became aware of the e-mail in August (trawling through e-mails) after she received correspondence dated the 13th of October that was sent to her home address.The correspondence of the 13th October is an Overpayment Notification Letter from Peoplepoint, National Shared Services Office and sets out the value of the overpayment and how Peoplepoint intend to recoup the monies.

Following this correspondence: the Complainant received further correspondence on the 31st of October and final correspondence on the 23rd of February setting out that she accrued an overpayment of €1,643.39 (gross amount) and deductions of €203.55 per fortnight commenced on the 25th of March 2021.It is worth noting that having applied Circular 07/2019 to the Complainants salary, they then reverted the Complainant  on the pay scale effective from August, 2020

The Complainant contends that she is entitled to have the terms of Circular 07/2019(as referenced in the correspondence from the NSSO) applied to her case and failure to apply the terms of the circular to them has resulted in the non-payment of wages properly payable to the Complainant and as such is an unlawful deduction from wage.  This deduction is on-going

In December 2010 a circular issued from the Department of Public Expenditure and Reform reducing pay for all direct entry recruits with effect from the 1st of January 2011. Section 4 of the Circular sets out how the 10% reduction in salary should be applied

Under the Public Service Stability Agreement 2018 -2020 agreement was reached to give effect to the measure of intervention to salary scales of civil servants grades recruited since 2011 on the 1st of March 2019 - Circular 07/2019 .

The Circular provides the terms that should apply to certain direct entry grades to the Civil Service recruited since 2011 that were subject to reduction under Circular 18/2010 as subsequently amended by Circular 02/2014.

It also provides for the implementation of Clause 2.31 of the Haddington Road Agreement – revised pay scales and allowances for persons recruited to certain direct entry grades.

It sets out the revised pay rates that apply to civil service direct entry grades which were previously adjusted under Circular 18/2010 and also sets out how the terms should be applied to the Civil Service and to Public Service Bodies.

As set out in the introduction some time before August 2020 the terms of the relevant Circulars were applied to the Complainant and following review the Complainant was found not to have met the terms of the relevant Circulars and in the words of the NSSO they were deemed not to have been considered a ‘new entrant’ under the terms of the Circular.

The Complainant commenced employment with the Department of Education on the 20th of November, 2017 having previously been employed by Enable Ireland with effect from 17th of November, 2014 until she took up her post with the DoE.

On recruitment to NEPS, the Complainant was asked to furnish HR with a letter from her previous employment confirming service and relevant salary point in order to have it recognised for starting pay in the Civil Service i.e. incremental credit.

The Department of Education and the Department of Public Expenditure and Reform have effectively advised the Complainant and the union that for the purposes of applying the terms of Circular 07/2019 as ‘Enable Ireland’ is a Section 39 grant funded agency it does not qualify as eligible public service history under the terms of the Circular.

However, there is nothing under the terms of the Circular that would disqualify Edel’s previous service as she had the terms of the HRA agreement applied to her pay in her previous service. The circular provides that it applies to ‘certain direct entry grades to the Civil Service recruited since 2011 that were subject to reduction under Circular 18/2010 as subsequently amended by Circular 2/2014’

The issue of whether an Educational Psychologist is one of the specific direct entry grades affected is not in question and is agreed between the parties as some of the grade have had the terms of the Circular applied to them.

In regard to whether the Complainnat was subject to reduction under Circular 18/2010 as subsequently amended by Circular 2/2014., please see copy contract from Edel’s previous employment.  Under the heading ‘Remuneration’ the Complainants contract advises that her salary is aligned to the Department of Health and Children consolidated pay scale and therefore her salary may increase or decrease in line with the scale and under the heading ‘ Increment’ the Complainants contract sets out that the provisions of the Haddington Road Agreement will apply.

In other relevant correspondence dated the 18th of December 2020  from the Department of Public Expenditure and Reform to the Department of Education, the e-mail states:

 “Essentially where people joined the public service on point 3 or above, on a salary rather than incremental credit basis, the issue rests on whether there is public service history on points 1 or 2.  Following internal legal advice – agency and Section 39 experience, although paid on similar pay scales, does not qualify as eligible public service history under the terms of the Circulars. Regarding cases A, F and G I have now set out the position below, based on the information received and on the assumption that the individuals were not awarded incremental credit when joining the Department of Education and Skills. Standalone query from DES – Educational Psychologist with prior service in Enable Ireland The individual is not eligible as the individual’s service at point 1 or 2 of the payscale is not reckonable as a Public Servant (i.e. the individual worked for a Section 39 grant funded agency)

It is noteworthy that in the correspondence to the WRC dated the 26th of April, 2021 the employer advises that they took into account the Complainants existing salary while employed at Enable Ireland and offered a starting salary in the DoE above that by nearly €4,000.00 but they did not award incremental credit.

With respect to the above, we would suggest that if it was the case that they were not awarding incremental credit why request service history, why would it be relevant?  Why not just request the value of a salary.

With reference to all of the above, we contend that there is in effect no differentiation that can be made between incremental credit and ‘salary matching’.  There was no formal agreement for ‘incremental credit’ for professional and technical grades in the Civil Service as ‘salary matching’ was incremental credit by any other name and every department in the Civil Service that had direct entry professional or technical grades took account of both service and existing salary at the time of recruitment.

If the only existing argument for the non payment of proper wages is based on the assumption that these Civil Servants were not awarded incremental credit when they joined the DoE then Forsa contend that there is no basis in fact for this assumption.

Forsa acknowledges that Section 39 agencies are agencies under Section 39 of the Health Act 2004 where the HSE provides a grant to allow the agency to provide services similar or ancillary to the HSE.

It is widely accepted that the terms of the Haddington Road Agreement were implemented in various Section 39 organisations at the direction of the government at the time and the HSE despite the fact that they were not party to the Public Service Agreements. Both contracts submitted are evidence of this fact.

In October 2018, an agreement was reached by the parties at the Workplace Relations Commission in relation to a process of pay restoration for staff employed in some Section 39 organisations who are funded by way of a Service Level Agreement (SLA). The agreement reached at the WRC noted that some of the organisations (approximately 250) which did not form part of the pilot phase of 50 organisation, were also likely to have pay restoration issues. A further WRC engagement followed in December 2020 in relation to a final phase of 250 SLA funded organisations who were identified as part of the earlier agreement. A payment arrangement for pay restoration was agreed.

If the government acknowledges that employees of up to 300 Section 39 organisations are entitled to pay restoration in line with Section 38 organisations for example, then it would appear that the same should apply to direct recruits into the Civil Service from those Section 39 organisations.

It is also noteworthy that the Department of Public Expenditure and Reform recognise that the current Incremental Credit agreement is not fit for purpose and so the parties are currently engaged in a process to amend same to take account of the different arrangements that apply in the Health and Education Sectors.

They have acknowledged the issues raised by Forsa particularly in relation to appointees to NEPS and have confirmed that it is proposed that the review will address the application and suitability of the current arrangements, section 39 organisation and related circumstances, developments in EU law; and the impact of Brexit.

Having said this the current position taken by the Department of Education and the Department of Public Expenditure and Reform is that referenced above.

The Payment of Wages Act 1991 provides for the regulation of certain deductions made and payments received by employers and we contend that the employer has deducted properly payable wages to the Complainant by deducting the value of the restoration of pay from the Complainant and others as provided for in Circular 07/2019.

We contend that these circulars should apply to this case as the terms of the Haddington Road Agreement which gives rise to these circulars applied to this case as evidenced in action and in previous contracts.

The Complainant is a new entrants into the Civil Service and they meet all the criteria as set out in the Circulars.

The Respondent responds to the Complainant’s complaint and the submission made on her behalf  as follows:- 

The HR Unit Department of Education (as stated on the Complaint form) is not the Complainants employer.  The Minister for Education is the correct Respondent. 

By complaint form received by the WRC on 18 February 2021, the Complainant complains that deductions were made from her salary contrary to the terms of the Payment of Wages Acts (“PWA”). 

The Respondent denies that it has acted in breach of the PWA.  

The Respondent denies that it has made an unlawful deduction from the Complainant’s Wages.  

The Respondent disputes that the Complainant has an entitlement to additional increments arising under Circular 07/2019. With the exception of an overpayment of wages paid to the Complainant in error, the Complainant has at all times received the wages which are properly payable to the Complainant. 

The issue for determination is what was properly payable to the Complainant as wages at the relevant time.  

This requires consideration and interpretation of the following, which are attached at Appendix A (i) – (iv): 

Circular 07/2018

Circular 07/2019

Circular 04/2020

Public Services Stability Agreement 

It is the Respondent’s position that Circular 07/2019 has never applied to the Complainant. Its terms were at one point applied to her in error which resulted in an overpayment of wages which is required to be reimbursed to the exchequer.  

The Complainant  was appointed as an Educational Psychologist at the National Educational Psychological Service (NEPS) which is a section of the Department of Education with effect from the 20 November 2017.  

On 28 September 2017, the Department made her a salary offer of €57,789. In making this offer to the Complainant the Department took account of her existing salary pertaining to her role in Enable Ireland, which was due to increase in March 2018 to €56,324.  The salary offered represented an increase in salary from that in her prior employment. This was offered for the purpose of attracting the Complainant to the position.   

The Complainant  accepted the salary offer which was at Level 3 of the Pay Scale. She was not subjected to serving time on inferior Haddington Road pay points while a civil servant.

She was not awarded incremental credit as contended by her in her complaint form.  

The Complainant  signed her employment contract accepting its terms including the salary of €57,789. She returned her contract of employment to the Department with a letter in which she advised that she was accepting the salary on the basis that in the event that Enable Ireland increased her salary to €57,324 that the Department had agreed to reconsider the rate of pay. There was no further contact with the Respondent on foot of this letter.  

In 2011, prior to the Complainants appointment, the Government introduced new pay scales under the Haddington Road agreement. 

In relation to educational psychologists a revised 13-point scale was introduced which contained 2 inferior starting points to the scale, which had not been in place previously. This meant that in practice a new recruit had to spend an additional 2 years' service to reach the maximum of the scale and they were 2 points lower than their counterparts who had been engaged before 2011. 

The Complainant  was not recruited at the starting point of the scale and in fact commenced her employment at Point 3 of the scale.  

The Public Service Stability Pay Agreement 2018 to 2020, ('the Agreement") which was reached in June 2017 sought to address the salary scales for new recruits at entry grades which had been introduced in the Haddington Road agreement.  

Section 4 of the Agreement makes specific reference to the arrangements for “those public servants recruited at entry grades since 1 January 2011”.  The agreement provides for a commitment to examining the pay scales “in respect of post January 2011 recruits at entry grades” within twelve months of the commencement of the Agreement. 

The Complainant  was not recruited at an entry grade post January 2011. She was recruited at point 3 on the scale. She has subsequently been awarded further increments on 1 February 2020 and 1 February 2021. 

In  2019, in accordance with the Agreement, the Department of Public Expenditure & Reform introduced Circular 07/2019. This provides for skip increments for new entrants who were subjected to inferior lower pay scale points (1st and 2nd points) introduced by the Haddington Road Agreement. In order to qualify for the award of the additional skip increments an employee must be: 

A new entrant.

A civil or public servant.

Have been subjected to serving time on the inferior pay points one and two of the pay scale as introduced in the Haddington Road agreement. 

The Complainant  was a new entrant, and a civil servant but she had not been subjected to serving time on the inferior pay points 1 and 2 as she was recruited at point 3 of the scale.

Accordingly the terms of Circular 07/2019 do not apply to her.  

The National Shared Services Office (NSSO) were requested to implement the Circular for the Civil Service. In relation to The Complainant  it awarded her skip increments in error. This resulted in a salary overpayment and the NSSO notified the Complainant  of the position in accordance with the terms of Circular 07/2018. 

The Complainant ’s union contended that the Complainant  and others may be in a position to show that they had been subjected to serving time on the two inferior Haddington Road pay scale points in the event that they had prior employment at the Health Service Executive. Further to this contention the Respondent engaged with the Department of Public Expenditure and Reform and it was confirmed that in the event that an employee was formerly employed as a public servant at the HSE after 2011, was a new entrant and served time on the inferior pay points that they may qualify under Circular 07/2019. 

The Respondent sought information from the Complainant on her former employment in order to ascertain whether she satisfied the aforementioned criteria. The complainant duly provided a copy of her contract of employment with Enable Ireland. Enable Ireland is a limited company registered with the Company Registration Office under company registration number 13909. It is also a registered charity.  

The Respondent included the Complainant ’s position as part of a submission to DPER for consideration of the issue. DPER responded confirming that as the Complainant ’s former employment did not equate to public service employment. DPER further stated that as Enable Ireland is a section 39 body under the terms of the Health Act, 2004 she did not satisfy the condition of being a public servant.  

In contrast to Section 38 bodies under the 2004 Act, persons employed in Section 39 bodies are not public servants.  

Section 39 of the Health Act 2004, provides that the HSE may give assistance to any person or body that provides or proposes to provide a service similar or ancillary to a service that the HSE may provide. The HSE provides a grant to a range of private sector service providers under section 39. The HSE puts in place is service level agreement that sets out the level of a service to be provided for the grant. The employees of section 39 organisations are not HSE employees, they are not public servants and they are not encompassed by public service pay agreements. They were not subject to the FEMPI legislation. They are not members of public sector pension schemes; and unlike their section 38 counterparts, they are not directly bound by the Department of Health consolidated pay scales. 

In these circumstances the Respondent cannot award the Complainant additional increments arising from her private sector employment.  

It is further clear that in her terms of employment at the Department she has not been subjected to serving time on the inferior pay points.  

Her employment at Enable Ireland was private sector employment in a private company and does not equate to public sector employment. 

The Complainant’s contractual relationship with the Respondent commenced with effect from 20 November 2017. Accordingly it is not sustainable to claim as the Complainant has done that she has entitlements prior to this date which she claims the Respondent is obliged to discharge.   

The Complainant in her WRC complaint form bases her claim on her service at Enable Ireland to include an agreement facilitated and concluded by the WRC to which the Respondent is not a party. This is unsustainable.  

The NSSO issued additional skip increments to The Complainant  in error. It is incumbent on the NSSO to recover and on the Complainant  to pay, the overpaid sum in accordance with Circular 07/2018. This is further a term of the Complainant ’s contract of employment wherein she has agreed that:- “… any overpayment of salary or travel and subsistence may be deducted from future salary payments due to you in accordance with the Payment of Wages Act, 1991. In the event of such an occurrence, the Department will advise you in writing of the amount and the details of any such overpayment and give you at least one week’s notice of the deduction to take place and will deduct the overpayment at an amount that is fair and reasonable having regard to all the circumstances.” 

The Respondent relies on Section 4(5) of the PWA in support of its position that the provisions of Section 4 do not otherwise apply to this situation where the deduction was made in respect of an overpayment of wages and it does not exceed the amount of the overpayment. 

6.2. Section 4(5):- 

(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–

any overpayment of wages, or

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, 

6.3. In order to determine whether there was an overpayment of wages, the Adjudication Officer is required to consider what wages were payable to the Complainant and, in particular what wages were properly payable to her at the time.  

6.4. While “wages” is defined in Section 1 of the PWA, in Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217), the Employment Appeals Tribunal took the word “payable” to mean “properly payable”. 

6.5. The importance of establishing what remuneration was “properly payable” was also emphasised by Finnegan P. in Dunnes Stores (Cornelscourt) Ltd v Lacey [2007] 1 I.R. 478 and in MacGrath J. in Balans v Tesco Ireland Ltd [2020] E.L.R 125. 

6.6. It is also important to consider Section 4(6) of the PWA. In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217) the Employment Appeals Tribunal held that, if employees do not receive from the outset what is “properly payable” to them, then this could amount to a deduction within the meaning of the Act. 

These authorities are contained at Appendix F (i), (ii) and (iii). 

6.7. The Complainant relies on the terms of Section 4(6):- 

(6) Where—

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

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 Complainant was paid the wages that were properly payable to her, until an error was made by the NSSO in awarding “skip increments” to her under Circular 07/2019. There is no entitlement on the part of The Complainant  to such skip increments in circumstances where she was not a new recruit who had been required to commence at the inferior points 1 and 2 of the salary scale. Circular 07/2019 was specifically to address the situation of those persons and does not apply to The Complainant ’s circumstances where she was recruited at Point 3.  

The skip increments that were awarded to her were not properly payable and accordingly she received an overpayment of wages. 

In accordance with Section 4(5) of the PWA the recoupment of the overpayment of wages in the manner agreed between the parties in the contract of employment, and in accordance with Circular 07/2018 complies fully with the terms of the PWA.  

There is no unlawful deduction from the Complainant’s wages on the part of the Respondent and there is no breach of the PWA.  

 In addition to the submissions made above the Respondent responds to the following specific points raised by the Complainant in her submission, as follows: 

The Complainant was not employed by the Respondent until 20 November 2017. In circumstances where she did not have service prior to this date as a public servant, the terms of Circular 18/2010 did not apply to her.  

On her appointment to her role with the Respondent, the Complainant’s previous salary in Enable Ireland was matched and in fact increased. Accordingly she was not subjected to a salary decrease in her employment with the Respondent.  

Section 4.1.3 of the Public Service Agreement (2018 to 2020) provides that the government agreed to examine the issue of the increased length of salary scale in certain instances. This resulted in Circular 07/2019 which provides for two skip increments in order to enable employees who were subjected to having to serve on points 1 and 2 to attain parity with their peer workers going forward. The Complainant  was appointed at point 3 of the scale and this circular did not apply to her. 

While Enable Ireland may have followed circulars on pay, they were not obliged to do so and this is not a relevant factor in the employment relationship between the parties to this complaint. 

Circular 07/2019 applies to civil servants only. This is clearly stated at paragraph 1.1 of the Circular. DPER Circulars addressed to Government Departments do not apply to the private sector.  While it is correct that the circular was applied to some Educational Psychologists, this was only where those persons were civil servants who had been placed on the first or second point of the scale, either in their employment with the Department or with a previous public sector employer. 

The Respondent took all efforts to properly consider the Complainant’s position. The HR Unit ensured that the recovery of overpayments was suspended while it sought previous employment information in support of the Complainant’s position. The HR Unit subsequently made a submission to DPER in respect of The Complainant ’s position. DPER confirmed that the service at Enable Ireland was not public sector service. On this basis the overpayment fell to be recovered.  

The factual assertions relevant to prior employment with a private employer do not support the claim that is made in this case.  

The condition pertaining to maternity leave in her employment with Enable Ireland is not a feature of public sector employment and further highlights the reality of the Complainant ’s prior employment with a private employer.  

The Respondent repeats its position that it did not award incremental credit to the Complainant . It is incorrect to equate the salary offer to the award of incremental credit, of which there is no documentary evidence to support such a contention.  

It is further the case that service in Enable Ireland is not reckonable as pensionable service in respect of the Complainant ’s civil service pension. This further demonstrates the differences in the periods of employment with a private sector employer and the Department.  

The points made in the Complainant ’s submission pertaining to the 2020 agreement is of no relevance to the Respondent or the Minister who was not a party to that agreement. This agreement however further demonstrates the different treatment between section 38 and section 39 bodies under the Health Act, 2004 and supports the Respondent’s position rather than that adopted on behalf of the Complainant.  

The Respondent further relies on email communications received from both the Department of Health and Enable Ireland to support the point that Section 39 are private organisations and further that Enable Ireland no longer align salaries with HSE pay scales. Insofar as they may have been aligned in the past, this was entirely a matter for Enable Ireland and was not pursuant to any obligation to do so.  

The Complainant has made a statement attributable to the Department of Public Expenditure and Reform and the Respondent requests that the Complainant prove the said statement.  This relates to a contention that  “the Department of Public Expenditure and Reform recognized that the current Incremental Credit agreement is not fit for purpose and so the parties are currently engaged in a process to amend same to take account of the different arrangements that apply in the health and education sectors.” 

No documentary evidence has been provided in support of this statement. Further the Department has not been involved in any meetings or discussions with DPER in relation to incremental credits, on the basis contended for on behalf of the complainant. Further, this contention on the part of the complainant is in direct conflict with the email issued by DPER to the Department in which it is stated that service at Enable Ireland does not qualify under Circular 07/2019. 

The Respondent submits that its version of events which is supported by documentary evidence is to be preferred over that advanced on behalf of the Complainant on this issue. 

In any event, this point on the part of the Complainant does not advance matters in respect of the case that has been made on her part. 

The Complaint incorrectly refers to the Respondent as the HR Unit of the Department of Education. This is not her employer and her complaint is unsustainable against this respondent.  

The Complainant has no entitlement to be paid skip increments under the terms of Circular 07/2019. 

The Complainant cannot satisfy the requirements in Circular 07/2019 in circumstances where prior to her appointment with the Department, she was not in public or civil service employment. 

The Respondent engaged with DPER in relation to the Complainant’s position proactively and positively and at all times has treated the Complainant fairly and reasonably.  

Once it was established by DPER that the Complainant’s prior service, was not civil or public service, the Complainant had accordingly been overpaid in error. The overpayment constitutes an overpayment of wages within the meaning of the Payment of Wages Act, 1991. The recovery of overpayments is a condition of the Complainant’s contract of employment and satisfies the terms of Section 5.5(a) i.1 of the Payment of Wages Act, 1991 and Circular 07/2018.  

Recoupment of the overpayment has properly and lawfully occurred in accordance with the contract of employment, Circular 07/2018 and the Act. 

There is no unlawful deduction on the part of the Respondent. 

The complaint is not well founded.  

The Law. Section 5 of the Payment of Wages Act 1991 states the following:

“ 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 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.” 

Legitimate deductions from wages of employees are defined in Section 5 of the Payment of Wages Act 1991 above.  The Complainant was employed on a one year probationary contract of employment signed by her on February 10th 2017. No further contract was provided in evidence and this contract appears to form the basis for the Complainants permanent contract. The contract states her “rate of pay may be adjusted from time to time in line with Government Pay Policy and “you will agree that any overpayment of salary may be deducted from future payments due to you”.  The Department of Public Expenditure and Reform Guidelines form part of Government Pay Policy  Therefore, these guidelines are an implied term of the Complainants employment. In order for the Complainant to prove that she should be retained on the original salary level she must have been a new entrant, a civil or public servant and been subjected to serving time on the inferior pay points one and two of the pay scale as introduced in the Haddington Road agreement. The Complainant was a new entrant and a public servant and was not placed on the first two points of the scale. The Complainants case that her prior service with Enable Ireland should qualify her for service increments on the scale is ill founded. Her employment with Enable Ireland was with a private company and while Enable Ireland may well have been following public service pay scales (matching as contended by the Complainant) that does not equate to time as a public servant. The issue of whether the current situation is fit for purpose, which appears to be under review, is not relevant to this Decision as the Adjudicator has to deal with the situation as he finds it and not what might be in the future. 

The Respondent incorrectly applied the Public Service Guidelines and applied a higher point on the scale to the Complainant based on an error of assessment of her circumstances. Therefore, under the Contract of Employment and Section 5 of the Payment of Wages Act 1991 the Respondent was entitled to correct this error and adjust the Complainants salary accordingly as the salary paid was not “properly payable”.  As a result, any overpayments that were then recovered (or about to be recovered) by the Respondent and taken from the Complainants wages were taken properly within the law. 

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint / dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. I Decide that the Complainant is not well founded.

Deduction of Wages