Complainant

Respondent

Parties

Lina  Leliugiene

Derry Court Cleaning Specialist

Representatives

Hugh Hegarty Management Support Services (Ireland) Ltd

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-00054940-001

08/02/2023

The Complainant was employed as a Cleaner with the Respondent and was paid €633 net per fortnight.

Following a transfer of her employment under the TUPE Regulations, the Complainant received an increase in her pay. However, the Respondent claimed that this pay increase was made in error and subsequently deducted the amounts without the Complainant's consent. The Complainant argued that this deduction was unlawful.

The Complainant's employment was transferred to the Respondent under the TUPE Regulations on 14 November 2022. After the transfer, she started receiving a wage of €17.23 per hour, which represented a pay increase. However, the Respondent's existing employees, upon learning about the pay rates of the transferring employees, lodged a complaint. Consequently, the Complainant, along with other transferring employees, was informed that an error had been made, resulting in overpayment. To rectify the situation, the Respondent attempted to deduct these overpayments from their wages over a few weeks and requested the Complainant to sign a document authorising the deductions. However, she refused to sign the document. Despite her refusal, the overpayments were subsequently deducted from the Complainant's pay.

The Respondent's representative accepted that they had made deductions without the Complainant's consent but argued that they were entitled to do so under the Payment of Wages Act because the Complainant had been overpaid.

Section 5(1) and (2) of the Payment of Wages Act 1991 states:

(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.

(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.

Section 5(5) of the Payment of Wages Act 1991 further states as follows however:

(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,

Findings:

Given that the Complainant acknowledged during her evidence that she was overpaid following the transfer of her employment to the Respondent via a transfer of undertaking, I find that the Respondent was entitled to make the deductions they did in accordance with section 5(5) of the legislation mentioned above in order to recoup the overpayment. This entitlement exists regardless of the fact that the Complainant had not given her permission for the deduction to be made.

I find that this complaint is not well founded for the reasons set out above.