Complainant

Respondent

Parties

Conor Murphy

Iarnrod Eireann

Representatives

Paul Rowsome National Bus & Rail Union

In-house representative

Act

Complaint Reference No.

Date of Receipt

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

CA-00041851-001

08/01/2021

The complaint relates to a deduction of €231 made on 14th August 2020. The complainant asserts that this was an unlawful deduction, and the respondent does not accept this.

The complainant outlined that during the pandemic, members of staff would undertake stand-by duties at home and not in the station. He outlined that his phone had become disabled on the 11th August 2020, so he was not able to answer a call. A deduction was made to his next pay, and he only became aware of this by checking his bank records some weeks later. The complainant accepted that in the past, calls had been placed with his sibling in order to contact him. The amount deducted was €230.60 and the complainant also sought compensation.

In reply to the respondent, the complainant outlined that he should have been made aware in advance of the deduction. The complainant was not aware of what happened to other drivers. He outlined that the depot controller should have contacted the complainant before making the deduction. The respondent had 24 hours to contact the driver and should have made a greater effort to contact him. He had been happy to attend work on the standby day.

The union representative said that there had been no agreement for the pandemic. They had not asked to go on standby and there were the same numbers as before. It had always been practice that a driver would be told there and then if pay was to be withdrawn but this did not happen.

The respondent outlined that this issue arose when services were operating at 50%. At this time, the time sheet was filled in by the depot controller and not by the employee themselves. The complainant was contacted for a job on the 12th August but was not contactable until the 14th August. Other drivers had covered the work.

The respondent stated that the complainant was treated the same as two other staff members. It only had one agreed means of contacting the complainant. This was not an unlawful deduction as the time sheet correctly recorded that no work was done on the 12th August 2020. The respondent had to avail of overtime to cover the work.

The respondent outlined that this was not an unlawful deduction as the complainant was not available to work. The agreement was that the drivers would be based at home but would be available to work. It submitted that there was no deduction as the complainant had not worked. While the respondent could have contacted the complainant’s sibling, they had asked that this practice desist. The respondent was relying on section 5(1)(b) of the Act, i.e. a deduction permitted by a contractual term. There had been a collective agreement relating to the pandemic and standby drivers. It was normal practice for a person who was not available not to be paid. The respondent applied a fair process, and this had been addressed through the grievance procedure.

In further reply to the complainant, the respondent stated that there was no unlawful deduction as the complainant had to be available to work. It was not disputed that he was not available. The agreement was a local one. It outlined that the onus was on the complainant as he had broken his phone. The complainant was on an annual leave day and then a rest day, so returned the following Tuesday. He could have contacted the station to say that his phone was out of action. The respondent stated that they did not have mobile units to call to people and that it would be an invasion of privacy to do so. The other two standbys had attended work on the 12th August.

This case arose in the context of the Covid-19 pandemic. The respondent was offering reduced rail services because of the pandemic. Stand-by was done by drivers at home and not at the station. Time sheets were filled in by the station manager and not by the employee themselves. These were all practical steps to address the consequences of the pandemic.

The complainant was on stand-by for the week of the 11th August 2020 and the respondent sought to contact him to work on the 12th August 2020. He did not answer the call as his phone was out of action. The respondent arranged for someone else to cover the 12th August 2020. It deducted one day’s pay from the complainant as he did not answer the phone call and it incurred costs in arranging for another driver to work.

It is not disputed that the respondent omitted informing the complainant of the deduction prior to making the deduction.

I appreciate why the respondent did not pay the complainant this day’s pay. If the complainant’s phone was out of action, he should have informed the respondent of this and suggested an alternative means of contact, for example his brother.

Section 5 of the Payment of Wages Act is clear of the steps an employer should take prior to making a lawful deduction. Where it is for any ‘act or omission’, the employer is required to complete four steps, including ‘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.’ In Sonoma Valley Ltd v Stipic PWD 195, the Labour Court confirmed that this was a mandatory requirement prior to the making of a deduction.

It follows that the deduction and non-payment of €230.60 was unlawful as the complainant was not furnished with particulars in writing of the deduction at least one week before the deduction was made. The complainant only discovered afterwards that a deduction was made to his wages.

I, therefore, find that the complaint is well-founded. I award compensation of €230.60. I do not award compensation above the value of the deduction as the complainant should have informed the respondent of the difficulties with his phone. I appreciate that this was all against the backdrop of dealing with the pandemic.

CA-00041851-001

I decide that the complaint pursuant to the Payment of Wages Act is well-founded and the respondent shall pay compensation to the complainant of €230.60.

Payment of Wages Act / notification of deduction