Complainant

Respondent

Parties

Darren Doyle

Ecovolt Limited

Representatives

Self-represented

Niall Gaffney BL

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-00050529-001

09/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00050529-002

09/05/2022

The respondent employs 17 people and is engaged in the installation of photovoltaics (PV) solar panels.  On June 8th 2021, the complainant commenced employment with the company as a systems technician.  In October that year, the company paid for him to attend a technical course on PV panels.  The course took place over eight days in November and December 2021 and the cost was €1,393.  The complainant agreed to refund the cost of the training if he left the company within two years.  He handed in his notice on March 14th 2022, and said that his last day would be April 8th.  In his letter of resignation, he said that he would reimburse the company for the cost of the PV training course “as verbally agreed and stand by my word.”  On March 29th, the managing director wrote to the complainant and said that the financial controller would send him a breakdown of the costs and the amount to be reimbursed to the company.   

On April 7th 2022, the financial controller wrote to the complainant and told him that his final two weeks’ wages and his holiday pay would be paid on Thursday, April 14th.  In her email, she asked the complainant how he would like to pay back the cost of the training.  She provided him with copies of the invoices for the PV training and she gave him three options regarding repayment; to transfer the money to the company’s bank account, to pay by debit card or to have the amount deducted from his wages.  The complainant did not reply.  He didn’t reply to a second email on April 12th and he did not answer a phone call from the financial controller on April 13th.  She sent a third email that day, outlining again the cost of the training and attaching a copy of the complainant’s resignation letter in which he stated that he would reimburse the company.  On April 19th, the complainant wrote to the financial controller and stated:

“Dear Michele

As you have now withheld my final payment in an attempt to extort money from me you are now in breach of the payment of wages act (sic) and have made an unlawful deduction. 

I have taken the matter to the WRC to deal with. 

Can you please provide me with a copy of the signed contracted agreement which sets out I must refund the cost of training?

Darren.”

The next day, April 20th 2022, the financial controller wrote to the complainant and reminded him that he had told her in October 2021 that he would reimburse the company for the cost of the training if he decided to leave and that this was agreed with the managing director.  She referred to the complainant’s letter of resignation in which he confirmed that he would stand by his word and pay back the cost of the training.  She said that this “leads the company to believe that you are refunding the money back as agreed.”  She said that she had sent two emails asking him how he would like to refund the money and, that, on April 13th, which was the day that wages were being prepared, she phoned him and sent an email asking him how he would like to proceed.  She asked the complainant to “please email me back with your answer it would be very much appreciated.”

The complainant replied as follows:

“Hi Michele

Under no circumstances do you have my permission to deduct any money from my wages or holiday payment.

As I stated in my last email provide me with a copy of the legally binding contract which I signed in my full name and signature and dated to say I agree to pay back the training costs should I leave within a period.

I have requested the workplace relations commission (sic) to inspect and audit this case and I will be seeking full compensation now as you are still withholding money.

Furthermore, I will be passing the case to my solicitor Dr. Gerald Keane of Keane’s solicitors to deal with on my behalf.

Kind regards

Darren.”

On April 28th, the complainant received his wages for the last two weeks of his employment, with a sum of €696.50 deducted from his pay for both weeks.  In breach of section 5 of the Payment of Wages Act 1991, he claims that this was an illegal deduction.

Under the heading of the Terms of Employment (Information) Act 1994, the complainant claims that, in breach of section 3(1A) of that Act, he was not provided with a statement of his core terms and conditions of employment within five days of his start date.

In his evidence at the hearing, the complainant said that he doesn’t dispute the fact that, in October 2021 he agreed that he would pay back the cost of the training course that he wanted to attend.  He accepts that he wrote in his resignation letter that he would refund the money to the company.  He said that he was due to finish up on Friday, April 8th and, on Wednesday, April 6th, he had an argument with the managing director and he was unceremoniously told to leave that day.  While he intended to pay the money back, he said that he did not sign an agreement that he would pay it back and he argues that the deduction of €1,393 from his final wages was an illegal deduction. 

In cross-examining by Mr Gaffney, the complainant said that, apart from the PV solar panel course he did in October 2021, he also did courses in ventilation, heat pumps and Nearly Zero Energy Building.  He agreed that he got qualifications when he worked with the company and he said that he now works in a company installing solar panels.  He said that all the courses were suggested by him and that, apart from the PV course, they were free to the company.  He said that the PV course was of benefit to him and the company.

The evidence of the managing director is consistent with the complainant’s evidence and there is little dispute about the facts surrounding the deduction of €1,393 from the complainant’s wages.  The managing director said that when the complainant first asked him if he could do the training course, he refused.  He said that he had previously sent two others on the same course and they had left the company.  He said that the course was of no benefit to the company because he contracts out the signing off of each installation at a cost of €75 per job.  In October 2021, the managing director said that the complainant told him that he wanted to stay with the company for the long haul and he agreed that the company would pay for the course.  He referred to a WhatsApp message in which the complainant asked him about the course and told him that the cost was €1,396 and said, “I’ll sign agreement to pay it back etc no bother.”  The managing director replied, “book it in.”  

When I asked him if, in October 2021, someone forgot to draft up an agreement between the company and the complainant regarding the reimbursement of the cost of the training, the managing director agreed that this is what happened.  He said that he thought an agreement had been signed.

Deductions from Wages

The preamble to the Payment of Wages Act 1991 (“the POW Act”) states that one of its objectives is “to provide further protection for employees in relation to the payment of wages.”  One of these protections relates to the limited circumstances in which an employer may make a deduction from an employee’s wages.  Section 5(2) sets out these circumstances and the conditions that apply:

(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.

The issue I must consider is the complainant’s argument that, although he intended to pay back the cost of the training that he attended in November and December 2021, an illegal deduction occurred when the cost was deducted from his final wages.

Findings

The evidence of both parties, and the written evidence in the form of the WhatsApp message from the complainant to the managing director on October 27th 2021, is that the complainant asked to be sent on the PV training course.  In the message, he told his employer that the cost for the eight-day programme was €1,396 and that he would sign an agreement to pay it back.  I am satisfied that the PV training was a service provided to the complainant by his employer within the meaning of section 5(2)(b) above, although it is apparent from the evidence of the managing director, that the training was not absolutely necessary for the company.

In his evidence, the managing director agreed with me that, inadvertently an agreement was not drawn up for the complainant to sign before he went on the training course in November and December 2021.  As a result, the respondent is in breach of section 5(2)(II) above, because the complainant was not provided with notice in writing of the existence of the agreement before he went on the course. 

The complainant’s evidence is that he intended to pay back the cost of the training if he left, and two weeks before he finished up, he confirmed this in writing in his letter of resignation, saying that he would stand by his word.   

Three days before he resigned, it seems that relations went sour between the complainant and the managing director, and he changed his mind about refunding the cost of the course.  Although the financial controller attempted to reach an agreement with him, and gave him options for repayment, he would not say how he wanted to pay back the money.  On April 20th, he wrote to the financial controller and told her that she did not have his permission to deduct the money from his wages.

Based on this evidence, as the complainant clearly stated in writing that he did not agree to the cost of the training being deducted from his wages, I must find that the deduction was illegal. 

Conclusion

It is apparent that, due to inadvertence on the part of the respondent, a written agreement to pay back the cost of training was not provided to the complainant.  The decision of the respondent to operate as if an agreement was in place has caused a breach of section 5(2) of the POW Act.

In considering the amount to be awarded in compensation, section 6 requires me to direct the employer to pay the employee an amount that I consider to be reasonable.  I am mindful that, in a company with just 17 employees, it is not always possible to maintain compliance with all the requirements of HR and people-management.  I am mindful also that, twice in writing, the complainant confirmed that he would refund the cost of his training.  I also note the complainant’s evidence that he has been able to benefit from the training he attended.  The overriding fact however, is that on April 20th 2022, the complainant wrote to the financial controller telling her that she did not have his permission to deduct the cost of the training from his final wages.  I find therefore, that the cost of the training should not have been deducted and that compensation must reflect this. 

The complainant said that he didn’t get a statement of his terms and conditions of employment when he joined the company in June 2021.  He said that he was issued with a contract setting out his terms and conditions for the first time in January 2022.

The managing director said that when he recruits new employees, he uses a template contract that was developed for the company around 2017, and that he inputs the details for each new employee.  He said that he then gives the contract to the finance team so that they know that a new person is joining and so that the new employee can be set up on their systems.  The managing director said that he could not confirm with absolute certainty that the complainant was issued with the contract he drafted.  He said that, at the end of 2021, he felt that he needed help with human resources matters and he joined Peninsula.  New contracts were drawn up in January 2022, and the complainant was issued with a new contract at that stage. 

On behalf of the respondent, Mr Gaffney said that there was no disadvantage to the complainant if he was not issued with a statement of his terms and conditions of employment when he started in the company.  He suggested that the New Employee Form which he filled in on June 8th 2021 contains much of the details required by section 3(1A) of the Terms of Employment (Information) Act, in that it contains the name of the employer and the employee and the hourly rate of pay.  However, the complainant pointed out that the rate of pay was entered by someone else, after he returned the form.

I note the evidence of the managing director that he drafted a contract of employment for the complainant before he commenced work on June 8th 2021, but that he could not say with certainty that this was given to the complainant.  I note also that a New Employee Form was completed by the complainant and that the rate of pay was inserted by another person, possibly the financial controller.  I note also that a contract was issued to the complainant by the operations analyst, Ms Perla Correia, on January 6th 2022, because the complainant wrote to the managing director on January 11th with a number of queries about that contract.  Based on the fact that this detailed email regarding the contract of January 6th 2022 makes no reference to a previous contract, I must assume that an earlier contract was not issued and I accept the evidence of the complainant in this regard.

I am not satisfied that the New Employee Form is adequately in compliance with the requirement at section 3(1A) of the Terms of Employment (Information) Act 1994 for an employee to be given a written statement of their core terms and conditions of employment within five days of commencement in a new job.

I am satisfied that the fact that he did not receive a statement of his core terms and conditions of employment was never a concern for the complainant while he was employed by the respondent.  I agree with Mr Gaffney, for the respondent, that no detriment arose for the complainant regarding the failure to issue him with such a statement. 

In accordance with section 7(2)(d) of the Terms of Employment (Information) Act, I am required to order the employer to pay compensation of “such an amount (if any) as is just and equitable, having regard to all the circumstances, but not exceeding 4 weeks’ remuneration…”  It is my view that, taking account of circumstances of both sides in relation to this matter, compensation equivalent to one week’s net pay is just and equitable,

CA-00050529-001:  Complaint under the Payment of Wages Act 1991

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €1,393.

CA-00050529-002:  Complaint under the Terms of Employment (Information) Act 1004

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €550.00.

Deduction from wages for training, Statement of terms and conditions of employment