Complainant

Respondent

Parties

Gearóid  Wrafter

Greenhill Fruit Farm Ltd. Greenhill Fruit Farm Ltd.

Representatives

  Self-Represented

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-00058218-005

10/08/2023

The Complaint Form was received by the Workplace Relations Commission on 10 August 2023.

Submissions were received from the parties and exchanged both prior to and at the hearing. Time was given to parties to review the submissions at the hearing.

The Complainant swore an Affirmation at the hearing.

Ms. Michelle Doyle, HR Generalist gave evidence on behalf of the Respondent on Affirmation.

The Complainant stated that he began working on May 16, 2023, and was terminated on July 23, 2023. He reported that €574.21 was deducted from his final payslip dated July 31, 2023. He asserted that Ms. Doyle dismissed him via phone call on July 23, 2023, and later on July 28, 2023, she called again to discuss a deduction for vehicle damage, which he claims was confined to the van's grill, though no specific amount was agreed upon. He disputed being responsible for the claimed €899 in damages.

Furthermore, the Complainant pointed out the existence of prior damage to the van, as evidenced by regular vehicle check sheets, and highlighted discrepancies in the fruit waste reports, noting an unaccounted €101. He mentioned that no receipts or invoices were provided by the Respondent as promised.

When questioned by the Respondent’s representative about the damages, the Complainant acknowledged causing damage to the van's grill, valued at €157, but denied any other damage to the vehicle and fruit.

Ms Doyle confirmed that the Complainant had a contract of employment and handbook. The sum of €574.21 was deducted from the Complainant’s final payslip for damage to the company van and fruit the van which totalled €899 plus VAT. They sought to recover €899. Ms. Doyle was asked to open the relevant policies and she referred to two policies:-

D) RETURN OF OUR VEHICLES

On termination of your employment you must return your Company vehicle/any Company vehicle in your possession to our premises. Failure to return the vehicle will result in the cost of its recovery being deducted from any monies outstanding to you. This is an express written term of your contract of employment.

O) COMPANY TOOLS

The Company provides you with tools necessary to carry out your duties. You should keep these in good repair and secure at all times. You must report any lost or mislaid tools to Farm Manager. You must return Company tools upon termination of employment by either party. Failure to do so will result in a deduction to cover the cost of tools being made from monies due to you. This is an express written term of your contract of employment.

Ms Doyle gave evidence that she became aware that the Complainant was not at work on 23 July 2023 from the vehicle tracker, she phoned the Complainant and told him to pull over as she believed he was speeding and dismissed him for gross misconduct on the phone call. Upon inquiry she stated there was no investigation and after speaking with the manager she advised the Complainant he was dismissed. She confirmed that a member of staff went to collect the van and no cost was incurred.

It was her evidence she recorded the Complainant consenting to the deduction of the damage and apologising for the damage.

Ms Doyle was asked if she submitted invoices to the Complainant and she confirmed she did not, but they were available.

Ms Doyle was cross examined by the Complainant who asked her about the vehicle check sheets to which she stated there was a hairline crack on the windscreen prior to 23 July 2023 and footprints on the screen after the vehicle was returned. There was damage to the fruit which was recorded on the internal system.  

It was put forward on behalf of the Respondent, that the policy covering Company Tools extended to the company vehicle.

Section 5 of the Payment of Wages Act 1991 provides for deduction from the wages of an employee:-

“5.—(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 clearly outlines the conditions the Respondent must meet to deduct wages resulting from an allegation of an act of an employee. Specifically, Section 5 (2) (a) requires a contractual clause, which was questioned due to an unsigned contract and undated handbook presented. Ms. Doyle failed to produce the Pay Agreement referenced in the contract. The handbook clauses were scrutinised, particularly the "Return of Company Vehicles" clause, which was inapplicable since the Respondent instructed the Complainant to abandon the vehicle roadside, incurring no cost. Thus, no deduction is warranted for this clause. Even if the "Company Tools" clause encompasses the vehicle, the criteria of Section 5 (2) (a) must still be satisfied for a lawful deduction.

Section 5 (2) (a) (ii) stipulates that deductions must be fair and reasonable, considering the employee's wages to avoid leaving the employee without any pay. It is noted the entire sum of €574.12 was deducted. Section 5 (2) (a) (iii) mandates that the policy regarding such deductions be provided in writing beforehand, which the Complainant did not deny receiving. However, Section 5 (2) (a) (iv) necessitates a week's notice in writing of the details of the act and amount to be deducted, which was not evidenced here. Ms. Doyle's phoned the Complainant on 28 July 2023 and the subsequent deduction on 31 July 2023 did not satisfy the one-week notice in writing requirement. In a highly unusual and somewhat questionable method of documenting a conversation between an employee and an employer, it was the Respondent’s evidence that she recorded the conversation with the Complainant. However, it was not presented at the hearing. It was the Complainant’s evidence that he only damaged the grill and therefore his understanding that any deduction would be limited to payment for grill damage. There was no evidence of a specific amount being discussed, and more importantly no written cost breakdown was provided in writing and in advance of the deduction. The termination letter dated 23 July 2023, mentioned forthcoming details of costs yet this information was not furnished.

Section 5 (2) (a) (v) dictates that the deduction cannot exceed the damage cost, and there was no evidence of cost breakdown provided before the deduction. Section 5 (2) (a) (vii) concerning the timing of deductions is not relevant here as the deduction occurred within 6 months of the alleged act.

Section 5 (3) states that an employer cannot accept payment for such matters unless it would comply with subsection (2), and must provide a receipt, which did not occur. Thus, the deduction of €574.21 on July 31, 2023, was found to be unjustified, as Section 5 (2) requirements were not met by the Respondent, and no receipt was issued.

This is a classic case of an employer failing to consider its legal obligations and revisit its own policies and procedures and instead acted in haste.

In the circumstances where the deduction of 31 July 2023 has been found to be unlawful, I am awarding the Complainant the net sum of €665.11 being the amount he ought to have received on 31 July 2023 from the Respondent.

Payment of Wages- Deduction – Wages