ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036458
Parties:
| Complainant | Respondent |
Parties | Tahir Shafiq | HSE |
Representatives | Irish Medical Organisation | HSE |
Complaint(s):
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-00047678-001 | 15/12/2021 |
Date of Adjudication Hearing: 18/10/2022
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This complaint was heard in person. The parties gave evidence on oath /affirmation. Cross examination was allowed. The parties were all courteous to me and the hearing process.
Background:
The Complainant is a Registrar in Emergency Medicine in a Regional hospital. The complaint related to the unlawful deduction of wages. |
Summary of Complainant’s Case:
The Complainant's case was that he travelled to Pakistan for a holiday on the 9 March 2020. He was unable to return to Ireland as scheduled due to lockdown in Pakistan in response to the Covid 19 pandemic. He had three flights cancelled between 8 April 2020 and 18 May 2020. He returned to Ireland on 13 June 2020. He was then informed that he was a close contact and required to isolate between 14 June 2020 and 28 June 2020. He was informed by the Respondent on 12 October 2020 that he had received a salary overpayment. He queried this calculation with his union. Without a resolution the Respondent began deducting monthly payments commencing on 15 October 2020 from his salary without his consent or consultation. The Respondent deducted a total of €2,425.16. |
Summary of Respondent’s Case:
The dates of the Complainant's absence from the workplace were not in dispute. The Complainant continue to receive his full basic pay the duration of his absence. However, he had exhausted his annual leave entitlement on 31 March 2020 for the period of his contract up to the 12 July 2020. He also took further annual leave between the 27 July 2020 and the 16 August 2020. The Respondent agreed that when the deduction commenced, it was not in line with internal financial regulations in this regard and the deductions were paused pending the conclusion of the WRC referral. |
Findings and Conclusions:
Section 5 of the Payment of Wages Act 1991 refers to the regulation of certain deductions made and payments received by employers (Emphasis added). It sets out (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. Section 5(5) sets out 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 (Emphasis added) (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. (Emphasis added). There is no dispute between the parties that has been an overpayment of wages paid to the Complainant. What is in dispute between the parties is the amount of the overpayment. The Respondent initially calculated the overpayment at €14,648.82 as of 12 October 2020. This was reduced to €13,844.31 as of 30 October 2020. At the hearing the Respondent agreed to allow the Complainant his pay for two additional weeks self-isolating. This would result in a reduction again of the overpayment calculated above. The Complainant has calculated the overpayment at €8,694. As can be noted from the headings of Section 5, my role under the Payment of Wages Act 1991 is in relation to the regulation of the deduction and not in relation to the calculation of the overpayment. My role is to determine if the deduction of €2,425.16 was lawful or not. As the deduction of €2,425.16 did not exceed the Complainant’s own calculation of the overpayment of the overpayment of his wages, Section 5 (5) (a) (i) (I) applies. I have no jurisdiction. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
This complaint is not well founded. |
Dated: 13/01/2023
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Section 5 (5) (a) (i) (I) Payment of Wages Act 1991. Deduction of overpayment of wages |