ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044437
Parties:
| Complainant | Respondent |
Parties | Piotr Kritschgau | Derry Court Cleaning Specialists |
Representatives | Self-represented | Management Support Services |
Complaint:
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-00054961-001 | 09/02/2023 |
Date of Adjudication Hearing: 14/07/2023
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015, this complaint was assigned to me by the Director General. I conducted a hearing on July 14th 2023 and gave the parties an opportunity to be heard and to present evidence relevant to the complaint. The complainant, Mr Piotr Kritchgau, represented himself and he was assisted by a Polish interpreter, Mr Adam Brodzynski. Derrycourt Cleaning Specialists were represented by Mr Hugh Hegarty of Management Support Services. He was accompanied by the Healthcare Area Manager, Ms Magdalena Taras and the Regional Healthcare Manager, Mr Stephen Conway.
While the parties are named in this Decision, from here on, I will refer to Mr Kritchgau as “the complainant” and to Derrycourt Cleaning Services as “the respondent.”
Background:
The complainant is a cleaning operative and he worked as a cleaner at the Central Mental Hospital in Dundrum until November 2022 when the hospital transferred to Portrane. The transfer of the hospital coincided with the transfer of the cleaning contract to the respondent. On November 14th 2022, the complainant’s employment transferred from Emerald Contract Cleaning to the respondent under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. In January 2023, the respondent discovered an error in the complainant’s hourly rate of pay from the date of the transfer on November 14th 2022. The error affected the five employees who had transferred. Instead of being paid €11.55 per hour, they were paid the overtime rate of €17.33. In the complainant’s case, the total amount overpaid between November 2022 and January 2023 was €1,982.69. At a meeting on February 7th 2023, the complainant was advised of the error and informed that it was the respondent’s intention to deduct €38.12 per week from his wages over a period of 12 months. He did not agree to the deduction; however, the respondent commenced deducting €38.12 per week from February 17th 2023. |
Summary of Complainant’s Case:
At the hearing, the complainant said that he resigned on March 28th 2023. He was due to leave at the end of April and, following a meeting with Ms Taras and Mr Conway, he was informed that the outstanding over-payment would be deducted from his wages over the final three fortnights up to Friday, May 12th. The outstanding amount was deducted in three instalments, but the complainant then changed his mind about leaving and he continues to work for the respondent. The complainant said that he is earning less money working for the respondent, because he doesn’t work as much overtime compared to when he was on the Dundrum site. He thinks his hourly rate should be higher to compensate for this. |
Summary of Respondent’s Case:
On behalf of the respondent, Mr Hegarty referred to section 5 of the Payment of Wages Act 1991 which provides that a deduction in respect of an overpayment of wages is not an illegal deduction. He said that, aside from the error in the hourly rate between November 2022 and January 2023, the complainant’s wages with his previous employer were enhanced due to the amount of overtime that he worked. It is the respondent’s position that he is now paid the correct hourly rate set out in the Employment Regulation Order for the Contract Cleaning Industry, which, with effect from April 1st 2023, is €11.90 per hour. The respondent will not require the complainant to work the level of overtime that he worked with his previous employer. |
Findings and Conclusions:
I have considered this complaint and I have listened to the evidence given by both sides at the hearing. It is apparent that the complainant is committed to his job and that he is well-regarded by the staff and residents in the hospital. I have some sympathy for the situation in which he finds himself and I was struck by his decision to continue working for his new employer, and to undertake the journey every day from where he lives in Dundrum to the new hospital in Portrane. The respondent made an error in the hourly rate of pay from the date that the complainant and his colleagues transferred in November 2022. Section 5(2)(ii) of the Payment of Wages Act provides that it is legally permissible for an employer to deduct an overpayment of wages from an employee’s wages as long as the amount of the deduction is fair and reasonable. It is my view that, while it was upsetting and inconvenient for the complainant, the employer’s decision to deduct the overpaid amount in instalments of €38.12 per week over 12 months was not unreasonable. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons I have set out above, I decide that this complaint is not well founded. |
Dated: 25th July 2023
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Overpayment of wages, deduction from wages |