Complainant

Respondent

Parties

Patrick  Cosgrave

Commercial Engineering Solutions Ltd. C.E.S.

Representatives

  In person

Mr Billy Wall, Peninsula

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-00053254-001

12/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053254-002

12/10/2022

The Complainant was employed by the Respondent as a Maintenance Technician. Employment commenced on 16th August 2011 and ended on 30th June 2022.

This complaint was received by the Workplace Relations Commission on 12th October 2022.

The hearing of the complaint took place on Friday 19th May 2023 in Lansdowne House.

The Complainant was employed by the Respondent from August 2011 until June 2022 when as a result of the Respondent losing a substantial contract he was made redundant.

All employees utilised in this significant contract were called to a meeting on 27th April 2022 and informed that the Respondent’s contract with a major fuel retailer would not be renewed and this meant that all employees working on this contract were issued with protective notice.

On 25th May 2022 the Complainant attended (via Zoom) a meeting with the Managing Director and Company Secretary. At this meeting the Complainant was informed that his position would be made redundant on 30th June 2022, and he would receive a redundancy payment of €15,000.

On 15th June 2022, at the request of the company the Complainant agreed to switch his company van from a 2021 registered van with a static boom attached to an older van that was being used for a spare. The Complainant contends that when he handed back the newer van it was in immaculate condition. The purpose of the switch was that the newer van was being put up for sale by the Respondent. The Complainant stated that after driving company vans for 10 years he had never damaged any company vehicle.

On 17th June 2022 after doing a reactive call out for the Respondent the Complainant, driving his company van, accidentally struck a gatepost while reversing the van in a yard rented by the Respondent. The Complainant reported the incident to both the Company Secretary and Managing Director on Monday 20th June 2022.

On his final day with the Respondent company the Complainant returned the van to the office and removed his tools from the van and returned them to the office stores. The Managing Director was present and made no comment in relation to the damage to the van.

The Complainant received a reference and a copy of a redundancy calculation from the Company Secretary on 29th June 2022. The Complainant asked the Company Secretary how he would receive his final payments i.e., pay, expenses, overnight allowance and redundancy. In the presence of the Office Manager, he was informed by the Company Secretary that he would receive two separate payments the following Friday, 8th July 2022. The first payment would consist of his pay, holiday entitlement plus any expenses owed to him. The second payment being made on 8th July 2022 would be his redundancy lump sum of €15,000.

At no stage was there a mention of any damage done to his work van on 17th June 2022.

On 30th June the Complainant attended an interview with the company who won the contract previously held by the Respondent. The Complainant accepted a job offer from this company and signed a contract that he would work on the newly acquired contract (previously held by the Respondent).

On 4th July 2022, whilst working for his new employer, the Complainant gave a telephone number to his new employer for a roofing contractor who had recently carried out roofing repairs at one of the retail outlets. This roofing contractor had previously carried out repairs for the Complainant’s former employer and was not aware that the Complainant had changed employments and telephoned the former employer (the Respondent) for clarification of some facts in relation to the work to be carried out.

The Complainant contends that he was reliably informed that his former Managing Director became very angry and telephoned some of the sub-contractors and warned them not to do any work for the Complainant’s new employer.

The Complainant, at this time, states that his former employer made two attempts to contact him on the telephone however the Complainant did not answer the telephone.

On Thursday 7th July 2022 the Complainant received an email form the Respondent informing him that he (the Respondent) was billing the Complainant for damages to the van.

On Friday 8th July 2022 the Complainant received an email for the Respondent Company Secretary informing him that he would have to contact the Managing Director to “release his money”. The Complainant adds that he received no wage slip, no wages or his redundancy payment.

On 12th July the Complainant received an email from the Respondent Managing Director with a repair quotation attached.

The Complainant did not reply to any of these emails as he was no longer an employee of the Respondent and viewed these events as penalisation for him joining a competitor company.

The Complainant then contacted his solicitor who sent a letter to the Respondent on 14th July 2022. The Complainant then, on 20th July 2022, received a payment of €13,644 from the Respondent.

On 28th July 2022 the Respondent sent a letter to the Complainant’s solicitor outlining their position.

On 29th July 2022 the Complainant sent an email to the Respondent Company Secretary to query why he had not received his overnight expenses. In reply, on 4th August 2022 the Complainant received an email from the Respondent Company Secretary informing him that they had found his expense claim and that these expenses would be paid to him.

On 5th August 2022 the Complainant requested the Respondent to send him his final pay slip. The Complainant received this payslip on 12th August 2022, a deduction of €430.67 had been made. The Complainant states this was an unlawful deduction.

The Complainant also feels that he is owed €1356 – he had been informed that he would receive a redundancy cheque for €15000.

The Complainant states that he had worked for the Respondent for over 10 years and had worked to the best of his ability. He honoured all agreements made with the Respondent and all he is seeking is the sum that was agreed.

The Complainant also states that he was never privy to any commercially sensitive information and all he done was recommend a roofing contractor to his new employer.

He now seeks justice.

The complainant was employed as general operative from the commencement of his employment. He carried out maintenance duties around Circle K properties.  The employment was generally uneventful.

Payment of Wages Act 1991 CA- 00053254 – 001.

 The complainant refers that the respondent made an alleged unlawful deduction from the complainants pay, in the amount of €430.67 8.

The complainant was provided with a “deduction from pay agreement” on the 23rd of August 2018 and duly signed same.

As seen within the agreement, the complainant is liable for any damage caused whilst the vehicle was in his possession. We refer to clause 8 of the agreement; “Any damage to vehicles, stock or property (including non-statutory safety equipment) that is the result of your carelessness, negligence or deliberate vandalism will render you liable to pay the full or part of the cost of repair or replacement. Any loss to us that is the result of your failure to observe rules, procedures or instruction, or is as a result of your negligent behaviour or your unsatisfactory standards of work will render you liable to reimburse to us the full or part of the cost of the loss. In the event of an at fault accident whilst driving one of our vehicles you may be required to pay the cost of the insurance excess. In the event of failure to pay, such costs will be deducted from your pay.

The complainant refers in his claim papers that;

“on the 17th of June after doing a reactive call out for C.E.S, I accidently struck a gatepost while reversing in a yard that C.E.S has rented. I reported this damage to Jennifer Morahan and Peter Lawlor on Monday 20th June.”

The complainant has confirmed that it was him who caused the damage to the respondent’s vehicle. As a result of the complainant’s negligence, the respondent decided to deduct an amount of money from the complainants’ wages to cover the costs relating to the damage.

 The respondent is entitled to deduct from the complainant’s pay in the event of damage to the respondent’s property.

Payment of Wages Act 1991 CA- 00053254 – 002 – Redundancy

The complainant refers that the respondent failed to discharge the full amount of redundancy as required under the Redundancy Payments Act 1967 as amended, (the Act of 1967)

 The respondent has discharged the statutory payment as provided for under the Act of 1967.

 The RP50 showing the amount of redundancy relating to the employment. 16. The complainant again refers that the amount referred to, was an ex-gratia payment being offered by the respondent. In the event that the complainant refused to engage with the respondent in relation to the damaged caused by the complainant, the ex-gratia portion was allocated to the repair of the respondent’s property.

The respondent refers to s.5 of the Payment of Wages Act 1991 as amended. The section confirms that the respondent is entitled to deduct from the complainant pay as set out below.

(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—

(a)  in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(b)  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.

(3)  (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4)  A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(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, or

(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, or

(b)  a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c)  a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the F11[Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d)  a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i)  which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii)  to which the employee has otherwise given his prior consent in writing, and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e)  a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee’s having taken part in that strike or other industrial action, or

(f)   a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g)  a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(6)  Where—

(a)  the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b)  none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The respondent contends that they are entitled to deduct from the pay of the claimant of which they did. The did not deduct from the claimant pay as would leave the claimant in receipt of pay below the national minimum wage.

Conclusion

1.      The respondent denies the claims put forward to the Commission.

2.     The respondent engaged proactively with the complainant in an effort to resolve matters as can be seen from the various correspondence presented at the hearing.

The Payment of Wages Act 1991 (as amended) defines “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including –

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referrable to his employment, whether payable under his contract of employment or otherwise, and

(b)any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate required notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purpose of this definition:

       I.          Any payment in respect of expenses incurred by the employee in carrying out his employment,

      II.          Any payment by way of a pension, allowance or gratuity in connection with the death, or retirement or resignation from his employment, of the employee or as compensation for loss of office,

    III.          Any payment referable to the employee’s redundancy,

    IV.          Any payment to the employee otherwise that in his capacity as an employee,

     V.          Any payment in kind or benefit in kind.

CA- 00053254 – 002.

In the instant case any monies in relation to redundancy cannot be considered to be wages. I note that the Complainant has stated that his redundancy figure was €1,356 less than agreed. Under the Payment of Wages Act, 1991 I do not have jurisdiction to consider this aspect of the complaint.

CA- 00053254 – 001.

In relation to the final pay for the Complainant, this should have been paid on 8th July 2022 as per information from the Respondent Company Secretary and in line with the Complainant’s contractual entitlements. The Complainant received his final pay slip on 12th August 2022.

The Respondent has included section 5 of the Payment of Wages Act, 1991. Section 5 of this enactment relates to deductions from wages. In the instant case the Complainant’s final wages were properly payable on 8th July 2022.

Section 5. (2) (iv) of the Act reads as follows:

(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 …….

The final wages were not paid on the due date and the Complainant had no received notice from the Respondent at least one week before that date.

In coming to a decision, I find that the complaint as presented under the Payment of Wages Act.1991 is well found and I now order the Respondent to pay the gross sum of €430.67 to the Complainant.

Such payment should be made within 42 days from the date of this decision.

CA- 00053254 – 001.

In coming to a decision I find that the complaint as presented under the Payment of Wages Act.1991 is well found and I now order the Respondent to pay the gross sum of €430.67 to the Complainant.

Such payment should be made within 42 days from the date of this decision.

CA- 00053254 – 002.

Under the Payment of Wages Act, 1991 I do not have jurisdiction to consider this aspect of the complaint.

Payment of Wages Act, 1991; deductions from wages.