Complainant

Respondent

Parties

Eamonn  Young

G4s Secure Systems Ireland

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

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-00051386-001

27/06/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent gave evidence under affirmation.  Both parties were offered the opportunity to cross examine witnesses.

The complainant submitted that the respondent breached the Payment of Wages Act when it did not pay him wages properly due to him.  He noted that there seemed to be a culture of non-compliance within the company in terms of benefit-in-kind (BIK).

He noted that at the end of December 2020 he received a letter indicating that the respondent was reviewing its arrangements regarding benefit of in kind. He stated that the respondent calculated the legacy payment due.

The complainant handed in his notice at the end of the year and submitted that he is not disputing that the BIK payment was old, however he was disputing the manner in which it was taken from him without his agreement.

The complainant noted that the entire amount should be written off and suggested that the manner in which the overpayment was recouped put unnecessary stress on his family. He suggested that as the respondent created the problem the respondent should resolve it and that it was not his responsibility. He noted that he never received an apology for the treatment.

The respondent submitted that it became aware that is had a liability regarding benefit in kind regarding company vehicles. A number of employees had not been paying benefit in kind and it sought to recoup this amount following consultations with staff.

At the end of 2020, it wrote to all staff noting that it was seeking to recoup benefit in kind from June 2020 onwards.  The company sought to engage with individuals regarding the repayment amounts and suggested providing loans to staff to repay the BIK over 60 months.

In December 2020 the complainant handed in one month's notice. He was still liable to pay the BIK. The respondent considered the money overpayment and provided options to the complainant to repay the BIK. The respondent offered to write off 20% of the payment if there was an agreement however the complainant considered that the entire debt should be written off.

The respondent submitted that under Section 5(5) of the Payment of Wages Act, it was entitled to recoup an overpayment paid to the complainant.

Section 5(10 of the Act states as follows:

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.

On their website, the Revenue Commissioners note that Benefit-in-Kind (BIK) must be treated as taxable income.  Tax is required to be deducted under statute/instrument of statute.  Therefore 5(1)(a) above applies to the retention of BIK.

The respondent submitted that the non-retention of BIK from the complainant amounts to an overpayment of wages and that the recoupment of BIK from the complainant amounts to a reimbursement to the employer of an overpayment of wages.  It submitted that this situation is covered in Section 5(5) of the Act.

Section 5(5) of the Act states that:

(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,

In his evidence the complainant outlined that he was aware of the operation of the BIK system form his previous employment and that he considered the respondent had a culture of non-compliance with the BIK regime.  Having regard to the deduction made by the respondent from the complainant’s final pay amount, I find that although the timing of the recoup of benefit in kind, when taken in tandem with the complainant changing employment, was unfortunate, it was not unlawful and complies with the provisions of the Payment of Wages Act.  Accordingly, I find that the deduction from the complainant’s wages was lawful and the Payment of Wages Act was not breached by the respondent.

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the Payment of Wages Act, 1991 was not breached.

Payment of Wages – lawful deduction