adj-00037266

Complainant

Respondent

Parties

Jonathan  Doyle

Droplink Limited

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-00048649-001

15/02/2022

This complaint relates to a weekly deduction of €25.75 from the Complainant's wages arising from a road traffic accident and damage caused to the front driver side of the Respondents vehicle.

The Complainant commenced working for the Respondent on 16 August 2021. The road traffic accident took place on 21 September 2021. The first deduction from the Complainant's wages took place on the 16 December 2021.

The Complainant left the employment on the 24 February 2022.

The Complainant explained that he was involved in an accident. He was driving the Respondent's van at the time. The accident took place on a back road in Co Laois and there was damage caused to the front and the driver's side of the van. The Complainant explained that the Gardai were not called to the scene. 

The other vehicle was a tractor and trailer. The road was tight and there was no room for both vehicles to pass each other without an impact. 

Unfortunately, the Complainant did not take the other drivers insurance details.

Following the accident, the Complainant rang the Managing Director to inform him of what had taken place. He sent a photograph of the damage to the van to him. He continued with the deliveries and went home. He was shaken following the impact. 

At a later stage the Respondent informed him that it was deducting €25.75 from his wages each week to cover the damage caused to the company vehicle. 

The Complainant submitted that €386.25 was deducted in total. He explained that he had no written contract and he had never given his consent to the deduction being taken from his wages.

The Respondents case was that he advised the Complainant to obtain the third parties’ details and to call the Gardai following the accident. 

The van was taken off the road for repair. 

The Complainant was given an accident report form to complete. The Complainant did not complete the form and did not provide any details of the third party despite repeated requests for same. 

The Respondent operates as safe driving from work policy. 

The Complainant's contract of employment sets out that the Complainant is liable for any damage/repairs. 

24. DEDUCTIONS The Company reserves the right at any time during, or in any event on termination, to deduct from salary any overpayment made and/or monies owed to the Company by you including but not limited to any excess holiday, outstanding loans in respect of training costs or otherwise, advances, relocation expenses, and cost of repaying any damage or loss to the Company's property caused by you. This will include termination for misconduct or pursuant to disciplinary proceedings. You will be excluded from repayment of training costs in the event of retirement due to ill health, death, or redundancy.

The cost of repairing the vehicle came to over €3,000 including VAT. The Respondent was not able to make a claim under its insurance as it never received it truthful account of how the accident occurred from the Complainant. 

The Respondent proposed deducting €25.75 per week for two years from the Complainant's salary to cover the costs incurred. They had several internal meetings to discuss what was to take place. They Complainant supervisor notified him of the decision and how it was based on what would be affordable for him. 

The Respondent was very annoyed with the Complainant's attitude to the accident and the damage caused. It would not have incurred a loss if the Complainant had filled out of the accident report form correctly. 

It admitted that the Complainant never signed his contract of employment/terms of employment.

Section 5 of the Payment of Wages Act 1991 sets out

5. Regulation of certain deductions made and payments received by employers

(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). 

I find that there was a dispute between the parties as to the existence of a written contract with the clause to be relied upon by the Respondent and as to whether the Complainant was given notice in writing of the proposed deduction.  

On the balance of probabilities, I find in favour of the Complainant. 

This complaint is well founded.  I award the Complainant the net amount of the wages €386.25 after making any lawful deductions therefrom.

Unlawful deduction.  Section 5 Payment of Wages Act 1991.