Complainant

Respondent

Parties

Arkadiusz  Marcinczyk

Two Men And Truck

Representatives

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-00045389-001

28/07/2021

The complainant was employed as a Driver/Mover by the respondent from the 15th January 2021 until he resigned his employment on 20th April 2021.  The Complainant submitted a complaint under the Payment of Wages Act,1991 claiming that the respondent had made unlawful deductions from his wages.

The respondent confirmed that deductions had been made but advised that these were for damages done to a customer’s property being transported by the Complainant.  The respondent advised that there was provision in the employment contract for such deductions and that any deduction made was in accordance with contract and therefore lawful.

In his complaint form, the complainant stated that he had commenced working with the respondent on 15th January 2021, that he had resigned his position on 20th April, 2021 but that he was at the manager’s disposal until 24th April 2021.  He stated that he settled with the respondent for the tools entrusted to him, as well as work clothes, office keys and refuelling cards in accordance with company procedures.

He stated that on 28th April 2021, he received an email from the respondent stating that during a move on 30th March 2021 he had damaged a very expensive TV belonging to a customer.  He stated that he was charged with the costs of the alleged repairs, in the amount of €627.90 and that this amount was deducted from his last payslip.  In his complaint form he stated that he immediately called his former manager and requested clarification of the deduction.  He stated that the manager informed him that he had photographs and other evidence that would prove the damage to the TV on the day in question.  He stated that he asked the manager to provide him with the evidence by email and he stated that at the date of submission of his complaint he had not received those details.

He stated that he felt “robbed” by his former employer, that an investigation had been carried out and that he was not given evidence of the damage done or the type of TV that was alleged to have been damaged. He further stated that he was not given any documentation to prove that repairs were carried out to the tv, nor any documentation to prove that he caused any damage. He stated that the amount deducted was never justified or discussed with him. 

In his complaint form he stated that the damage was alleged to have occurred one month prior to his resignation but that he was not made aware of it until he handed in his notice on 20th April. He further stated that he again made contact with the respondent on 30th April 2021 asking for the photographs and any other evidence they had of his wrongdoing. He stated that he was advised by the manager that as yet they did not have receipts for the repairs and so were not in a position to send him anything at that time.   He stated that on that same date he sent a further email, again seeking the photos and any other relevant documentation/evidence.  He stated that, by the date of submission of his complaint he had still not received anything.

In his complaint form he confirmed that he had never agreed to the deduction and that he felt he was treated unfairly, in the context that no procedure had been followed, that he had been found to have damaged the client’s property and had the amount of €627.90 deducted from his wages.  In addition, he stated that he had worked the full 37.5 hours required of him in his final week but that he was only paid for 32.5 hours.

The complainant’s submission was a direct copy of the information contained in his complaint form.

Evidence given by the Complainant at hearing

The complainant stated that €627.90 was taken from his final wages with the respondent based on an allegation that he had damaged a tv belonging to a client.  He stated that he did not remember that happening.

He stated that on 30th March he moved furniture for a client and that it was alleged that he had damaged a tv in the process.  He stated that he had no recollection of the incident.  He stated that the client had complained by email to the respondent that the tv had not been packed properly. He stated that he submitted his resignation on 20th April and that he found it strange that the client didn’t complaint at the time of the issue in March but only on the day before the wages were due to be paid in April. He stated that he received an email from the respondent 1 day before the wages were due to be paid and that he immediately replied that he did not accept the allegation.

He stated that he had sought information from the respondent in relation to the alleged damage, that he had sent 2 emails but that no information was ever forthcoming. He stated that he had been in the workplace on the last Friday to leave in the keys etc. and that nothing had been mentioned to him at that time.

The adjudication officer asked the complainant to clarify the issues contained in the complainant form regarding underpayment of hours in the final payment i.e.; 32.5 hours vs 37.5 hours.  The complainant stated that he had signed a contract for 30 hours per week.  He stated that he was only paid for 32.5 hours for the last two weeks, he stated that he understood he had signed the contract but that there had been a guarantee of 30 hours per week.

The adjudication officer again asked him to clarify his complaint form which described a shortfall of 5 hours and he confirmed that it was 5 hours per week, that he had only been paid for 32.5 hours for the two-week period and that he should have been paid for 60 hours for the two weeks.

The respondent did not provide a written submission but did outline it’s position at hearing.

The respondent stated that the customer belongings had been moved from the house into storage/garage units on 30th March 2020 and that while the goods were in storage nobody had visibility of them.  The respondent confirmed that the complainant emailed his intention to resign on 20th April 2020 and his last day of work was identified as 29th April 2020.  The respondent outlined that on 27th April 2020 the customer’s belongings were moved out of storage.  He stated that the TV was moved, along with other items on that day.

The respondent stated that on 28th April the customer emailed the respondent to raise concerns regarding damage to the tv, which he stated had been scratched.  The respondent acknowledged that he had met with the complainant when he returned keys etc but that he hadn’t raiseed any issue because he was not aware of the issue at that time.  He stated that once he received the email from the customer, he had only one day to figure out what was to be done.  He stated that the second mover had already left the respondent company and had been paid in full, as there was no awareness of any issue at that time.

The respondent advised that the customer had indicated that the cost of repair of the tv would be €1,349.  He stated that half the cost was paid by the respondent and that the respondent had checked with their advisers who had stated that they could not deduct below the minimum wage.  He stated that the cost had been reduced by 50% to account for the minimum wage. 

He confirmed that after further discussion the customer sought a quotation to fix the tv and came back with a quotation of €1100 for the repair.  He confirmed that the customer had advised that they did not wish to get the repairs done at that time, that they had been without the tv for 3 weeks and that they would be satisfied with a refund of the costs.  The respondent confirmed that the customer had advised in his email that the tv had been left screen down, that it was meant to be wrapped in bubble wrap, then cardboard wrap, followed by export wrap.  However, the tv had  been wrapped in export wrap only and the responsibility for wrapping items lay with the team who moved the items. 

The respondent stated that there was provision in the employee contract to make deductions from pay where damage occurred.  He stated that if the items were properly wrapped, then the respondent would cover the cost and he stated that this had happened on a previous occasion.  The complainant accepted that the respondent had covered the costs related to a previous incident.

In relation to the complaint regarding underpayment of hours in the final two weeks the respondent stated that the contract provided for a minimum rolling average of 30hours per month and he confirmed that the complainant got well in excess of that.  He stated that it had been explained to the complainant when he took up the position that the hours would be irregular as moves don’t always happen when planned.  He stated that the respondent company wanted to be fair to their employees and that was why they had a guaranteed minimum number of hours per month.

He stated that the complainant position of a guaranteed 30 hours per week could never have been given as they were entirely dependent on house sales.

Cross examination of the respondent

The complainant put it to the respondent that his colleague on that job was more senior to him and was on higher wages.  He put it to the respondent that the colleague had 8 years experience while he had only 3 months experience and that in that context, he had followed the lead of the most senior person.

The respondent replied that there were always two people on a job to ensure safe manual handling of heavy items while transporting goods and that there was no supervisory role involved.  He stated that the cost of the damage was split evenly between the two individuals.

The complainant stated that he considered it to be highly suspicious that he never received any information about any damage but that the minute he submitted his notice of termination he got an email about the alleged damage to the tv.  The respondent pointed out that while the tv had originally been moved into storage on 30th March it was only when the goods were again moved out of storage on 27th April that the damage was noticed.  He confirmed that the customer had emailed on 28th April, soon after he noticed the damage.

The complainant put it to the respondent that he had no opportunity to clarify his position or to respond to any allegation.  He stated that no information was given to him and that the money was simply deducted from his wages.  The respondent replied that he had signed his agreement to deductions being made where damage occurred. 

The complainant accepted that he was aware of the policy regarding deductions for damage but that, in circumstances where he never saw any photographs of any damage, nor any other evidence it was not reasonable to proceed with the deduction.

The respondent confirmed that he could send him on the evidence, together with the emails from the customer to which the complainant replied that it didn’t make any sense to provided the information at this stage, that it would not serve any purpose any longer.

The respondent advised that he did not receive the quotation for repairs from the customer until 19th May.  He stated that the matter had been discussed under another process but that process is not relevant to these proceedings and so I have not taken it into account.

In response to questions from the adjudication officer in relation to the failure of the respondent to fully investigate the matter, the respondent stated that normally he would have investigated but that the employee had already left. 

The complainant put it to the respondent that on the day he received the email he sought a meeting with the manager but that he was refused such a meeting.  The respondent indicated that the last email correspondence he had from the complainant was dated 30th April , that he had a lot of other emails but that they mainly related to revenue not this issue.

The complainant stated that he had an email of 30th April relating to this matter and while he had been informed of the deduction, he never agreed this deduction.

I considered carefully the oral submissions made by both parties at the hearing.  I noted that there was no dispute between the parties in relation to the duration of employment, in relation to the fact that the deduction from wages was made nor in relation to the amount of that deduction in relation to the deduction regarding damage to customer goods.  I noted that the parties were not in agreement in relation to wages due for the last two weeks of employment. 

I noted the complainant position that the deduction relating to the damage to the customer tv was an unlawful deduction from his wages, that he did not agree the deduction and that it was made on foot of an allegation of damage to goods for which he was held responsible.  I noted his position that he was never given any evidence in relation to that allegation, that he was not given an opportunity to fully respond to the issue and that he was not given any documentary evidence of the customer complaint or the costs which were ultimately deducted from his final salary payment.

I noted the respondent position that the complainant had damaged a tv belonging to a client by failing to properly wrap the item and by placing it face downwards.  I noted that the respondent alleged that the client had emailed the complaint on the day immediately preceding the last day of work of the complainant and that while he would normally have investigated the matter, he had not done so on this occasion because of the time constraints.  I noted further the respondent evidence that the client only provided a quotation for the repairs on 17th May and that the client chose not to have the repairs carried out but accepted the monies as compensation for the damage.

I noted the respondent position that he was entitled to deduct the amount from the complainants’ wages as the complainant had signed documentation to the effect that deductions could be made for damages caused to goods and I noted that the complainant confirmed this position at hearing.

Section 5 of the Payment of Wages act, 1991 sets out the instances wherein deductions can and cannot be made.

Section 5(1) states that an employer shall not make a deduction unless:

The deductions is required by statute or instrument; or

The deduction is required by the Contract of employment; or

The employee has given his prior consent in writing;

Section 5(2) does allow for some limited instances for deduction in respect of an act or omission or for the provision of something to the employee.  This might be where the deduction is specifically provided for in the contract of employment (and so the employee is on notice), the deduction is considered to be fair and reasonable in all the circumstances and the employee is on notice of the existence and effect of the said terms which the employer claims allows for the deduction.

I further noted that Section 4 of the Act provides that an employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.

By way of preliminary observation, and based on the facts presented by the parties I am satisfied that a contract of employment existed between the parties and that such contract made explicit provision for the employer to make a deduction for an act or omission of the employee, specifically as it related to damage to customer goods.  In this context, the employer did have the right to make a deduction for damage caused by the employee to customer goods.

 However, in order to trigger that clause in the contract it seems to me that the respondent had an obligation to fully investigate the matter before making a determination on the customer complaint.  The respondent acknowledged that two employees were responsible for moving the goods in question and that the other employee had resigned prior to the matter coming to attention.  Without a thorough investigation it cannot be determined that the complainant was the person who caused the damage or what contribution he may have made to the damage.  No information was provided to the complainant by the respondent to demonstrate the amount sought by the customer and no opportunity was given for the complainant to respond fully to the allegations against him.  Indeed, the respondent presented no supporting evidence to the hearing to verify the amount sought by the customer nor to confirm the customer complaint.

In all of these circumstances I consider that the deduction of this amount was unlawful.

In relation to the issue of the underpayment of hours in the last pay check the complainants position simply does not add up.  He stated in his complaint form that he was left short payment for 5 hours in the last week but when asked to clarify the position at hearing he advised that he had a contract for a guaranteed 30 hours per week but had only been paid for 32.5 hrs.  Further scrutiny of this position resulted in an explanation that the issue was that he should have been paid for 60 hours for the last two weeks work, but that in fact, he was only paid for 32.5 hours.

I understand this to mean that he is seeking payment of 27 hours pay relating to his last two weeks of employment rather than 5 hours payment as set out in his complaint form.

I noted the respondent position that the complainant was not guaranteed 30 hours per week and that this had been explained by the respondent to the complainant at the commencement of employment.  I noted the provision set out in the complainant contract as follows: “The company reasonably expects to provide you with 5 hours per day, 6 hours per week, Monday to Saturday.  However, these days, start and finish times may vary in accordance with the weekly roster.”

Based on the above contract provision I find that the complaint did not have a guarantee of 30 hours per week.  In these circumstances I find that there was no unlawful deduction by the respondent in relation to the hours worked in the final week by the complainant.

I have found that the deduction of €627.90 from the complainant’s final salary was unlawful and therefore it is my decision that this complaint was well founded.  It is also my decision that the amount of €627.90 should now be paid to the complainant within 42 days of the date of this decision.

Payment of wages, unlawful deduction