Complainant

Respondent

Parties

Alonso  Serrano Laborda

Castle Vets

Representatives

  Self

 No attendance

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-00048506-001

07/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048506-002

07/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048506-003

07/02/2022

The Complainant was employed by the Respondent as a veterinary surgeon commencing on 18 October 2021. The date of termination was in February 2022 with related non payments or deductions forming part of the complaint together with underpayments of the contractually agreed wages where the agreed rate of pay changed over the course of the employment as detailed below. The complaints are concerned with deductions from wages which the Complainant claims as unlawful and not authorized by any contract terms agreed between the parties, verbally or in writing. The Complainant also says that he was dismissed before he could work out his agreed notice period.

The Complainant travelled from Spain to take up a position with the Respondent in October 2021. As he was required to attend a course on TB testing which was essential before he and another colleague could commence the testing, his flight had to be changed at an additional cost. The change in the flights was requested by the Respondent which is confirmed in emails. In an email dated 8 October the Complainant was informed that the Respondent was willing to pay ‘to change your flight’. In response to the written statement of the Respondent, he said there was no mention of a loan for the flight change and no agreement that the Complainant would pay the amount. The deduction was not authorised by the written contract.

Over the first months of the employment -the agreed rate of pay was €1000 for October increasing to €2000 in November and €2500 from December.

The underpayments or deductions as submitted by the Complainant were as follows:

€500 gross for December and January

In addition, in the payment for January based on the incorrect gross salary of €2000, the Complainant received only €533 nett-an additional shortfall of €1467 gross.

On January 14th the Complainant gave notice of leaving the employment. His employment was to end on 14th February but as he had holidays due, he was to finish working on the February 10th.

The Complainant sent messages to the Respondent about not getting his full pay. Two days later, on 2nd February he told the Respondent he had no money in his account and could not put diesel in the van to do a call which was an hour away. Normally Diesel was covered by the Respondent. In response as the Respondent told him to leave the keys of the van into the office and he was no longer insured on the van-his employment was terminated. He received none of the shortfall in pay an no pay in lieu of notice although he was employed by the Respondent for more than thirteen weeks.

In his statement, the Respondent stated that in addition to the deduction of €250 for the change in the flight from Spain, he had also deducted €1000 in lieu of compensation because of a mistake made in the practice by the Complainant. The Complainant responded by saying that he saw no evidence of any payment to a client in respect of any mistake made by him, he disputed the potential cost to the client in question and in any event, his written terms of employment did not allow for such a deduction from his wages, nor was it agreed with him.

Regarding the pay in lieu of notice, he was dismissed-when he was removed from the Company insurance, he could no longer travel to work at clients’ premises.

No evidence was presented by the Respondent. His written statement submitted to the WRC was discussed with the Complainant who replied in his evidence as set out above.

The Payment of Wages Act 1991 as amended, is very clear on the payments which can be withheld or deducted from the wages of an employee. These are generally standard statutory deductions and those which are based on agreed terms of employment or other agreement between the employer and the employee and or the application of the relevant notice of deductions.

For the benefit of the Respondent in particular, the relevant section of the Payment of Wages Act is replicated here in full.

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).

(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 2001 (as amended by the Local Government Reform Act 2014), 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.

Based on the terms of the 1991 Act at section 5, payments withheld from the Complainant in this case were neither statutory deductions or authorised by agreement and /or notified to the Complainant in advance-whether in his agreed terms of employment or otherwise. Each of the deductions or underpayments of wages taken from the Complainant in December and January were unlawful by application of the forgoing terms of the Payment of Wages Act 1991. This amounts to €500 gross wages for December and January and a further €1250 nett for January. In addition, the Complainant was available to work between February 2nd and 10th and it was the Respondent who prevented him from doing so by failing to provide him with his wages, or the money for diesel and withdrawing the insurance on the Company van. The period to February 14th also included two days holiday pay due to the Complainant and this was withheld from him when he was not paid for the period of two weeks to February 14th, 2022. It is noted that the Complainant was obliged by the terms of his contract to give one months’ notice of termination-and he had done so.

A payment of two weeks pay incorporating the terms of the written contract and the holiday pay due is also owed to the Complainant based on an unauthorised withholding of pay for the two week period in February - an amount of €1250 gross.

The Decision below is a nett figure as required by Section 6 of the Payment of Wages Act 1991, calculated on an estimated deduction of 10% from the gross figures and leaving the nett figure admitted by the Respondent in place.

€500 + €500+€1250 gross = €2025 nett in underpayments/wages withheld

And

€1250 nett deducted in January

Total unlawful deduction €3275

CA-00048506-001/002/003 The complaints brought by the Complainant Alonso Serrano Laborda against the Respondent Castle Vets under the Payment of Wages Act 1991 are well founded. The Respondent is to pay the Complainant a total of €3275 nett in compensation in respect of the unlawful deductions.

Underpayment of Wages/unauthorised deductions from wages.