Complainant

Respondent

Parties

Anita Ryan

Killaloe Car Care Products Ltd Bond Auto

Complainant

Respondent

Anonymised Parties

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Representatives

James Mcevoy Work Matters Ireland

William Cahir Cahir & Co

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-00062116-001

10/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00062116-002

10/03/2024

The complainant submitted that the respondent made unlawful deductions and failed to pay her the minimum wage.

The complainant declined to give evidence and no cross examination took place.

The complainant submitted through her representative that she commenced employment on 03/02/2020 and her employment ended on 12/09/2023.  It was submitted that the complainant’s employer gave her a loan of money in cash sometime prior to the termination of her employment and that the complainant made repayments in cash. The complainant submitted that repayments had been made prior to the sudden termination of her employment. It was also submitted that in her final payslip her employer deducted €500, with no notice and without any consent and this caused significant financial hardship.

It was submitted the deduction by the respondent of €500 was an unlawful deduction.  The complainant was out sick from May until August 2023 and took annual leave from 02/09/2023 until 11/09/2023.  The pay slip she received refers to a deduction of €500 and this was an unlawful deduction. 

The respondent did not attend and the representative for the respondent submitted that there was no objection to the hearing proceeding and submitted that the complainant asked Ms A, Director of the company, who handled payroll, to pay an advance of €1,000 of her wages as she was going on holidays and this would represent 10 days pay.  The respondent was unable to do this and agreed to pay the complainant €500 personally and €500 from the company as an advance of wages by cheque.

It was outlined to the complainant that the €500 was a loan and paid in cash and the loan was repaid within a week.  However, the €500 cheque which was an advance of wages was not deducted as the complainant was out sick followed by annual leave and as she never worked up the hours the respondent then deducted it from her final payment when her position was made redundant.  No hardship was caused as the complainant received redundancy of €2,487.29. and holidays of €187.62.  On 12/09/2023 the complainant was advised that €687.62 was owed to her owing to the deduction regarding a cheque

“…dated23/02/2023 of €500 which was advanced to you after your request when going on holiday.”

A previous WRC hearing took place regarding related matters. 

The complainant submits an unlawful deduction was made and caused hardship to the complainant.  The respondent submits that the complainant owed €500 to the respondent for an advance of wages and it was deducted from a redundancy payment and no hardship was caused.

It is noted that the complainant attended but did not give evidence and the respondent did not attend, did not object to the hearing proceeding and sent their representative to make a submission on their behalf.

The applicable law sets out under

Section 5 Regulation of certain deductions made and payments received by employers.

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.

 It is clear from the Act that deductions from wages are not permitted except in very particular circumstances.

It would appear that it was not in dispute that money was given to the complainant and it was also not in dispute that nothing was put in writing regarding the payment or repayment of any such monies to the complainant.  It appears to be unclear whether monies outstanding were monies owed personally to the director Ms A or whether the monies outstanding were with regards to an advancement of wages from the respondent or if indeed there were any monies owed.  It was not disputed that the respondent made a deduction of €500 from the complainant without any prior notice on 12/09/2023 and the complainant submits that this caused hardship which the respondent disputes.

The complainant’s position was terminated and while I note that the complainant was paid a redundancy payment the respondent made a deduction of €500 without informing the complainant at least one week before the making of the deduction.  The respondent also failed to ensure fair and reasonable deductions having regard to all the circumstances including what monies was paid to the complainant on termination of her employment.  

In PWD222 Homebond Technical Services Limited v Mr David Faulkner the Labour Court found:

“the Complainant never agreed to the deductions concerned, had no way of knowing that the deductions would be made…Ultimately, the Complainant is entitled to the protections of the Act because the Respondent failed to attain the authority necessary under the Act to make the deductions concerned”.

Taking into consideration all the submissions and circumstances of the complaint, I find therefore, that an unlawful deduction was made during the cognisable period and that the monies properly payable to the complainant, from the respondent; is €500.  I find that the complaint is well founded and I order the respondent to pay the complainant €500 gross.

The complainant declined to give evidence and no cross examination took place.

The complainant submitted through her representative that she commenced employment on 03/02/2020 and her employment ended on 12/09/2023.  It was submitted that the complainant’s employer gave her a loan of money in cash sometime prior to the termination of her employment and that the complainant made repayments in cash. The complainant submitted that repayments had been made prior to the sudden termination of her employment. It was also submitted that in her final payslip her employer deducted €500, with no notice and without any consent and this caused significant financial hardship.  It was submitted the deduction by the respondent of €500 resulted in the complainant receiving less than the national minimum wage as she received an hourly rate of €6.00.  It was confirmed that the complainant had not contacted the respondent regarding the alleged failure to pay her the national minimum wage.

The respondent did not attend and the representative for the respondent submitted that there was no objection to the hearing proceeding and submitted that the complainant asked Ms A, Director of the company, who handled payroll, to pay an advance of €1,000 of her wages as she was going on holidays and this would represent 10 days pay.  The respondent was unable to do this and agreed to pay the complainant €500 personally and €500 from the company as an advance of wages by cheque.

It was outlined to the complainant that the €500 was a loan and paid in cash and the loan was repaid within a week.  However, the €500 cheque which was an advance of wages was not deducted as the complainant was out sick followed by annual leave and as she never worked up the hours the respondent then deducted it from her final payment when her position was made redundant.  No hardship was caused as the complainant received redundancy of €2,487.29. and net pay of €187.62.  On 12/09/2023 the complainant was advised that €687.62 was owed to her owing to the deduction regarding a cheque

“…dated23/02/2023 of €500 which was advanced to you after your request when going on holiday.”

The representative submitted that the complainant was paid €302.59 and worked 19.5 hours and therefore, the wages were above the national minimum wage as she was paid €15.51 per hour.

The complainant submitted that as a result of deductions made she did not receive the national minimum wage as provided for under the Act.  The respondent refutes this complaint. 

It is noted that the complainant attended but did not give evidence and the respondent did not attend, did not object to the hearing proceeding and sent their representative to make a submission on their behalf.  No cross examination therefore took place.

I note that it was submitted that the complainant did not request a statement from the employer as provided for in Section 23 of the Act wherein Section 23 states as follows:

23.—(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12 month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee’s request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of F26[Schedule 1],

(b) the working hours of the employee calculated in accordance with section 8

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given to the employee.

(6) An employer who, without reasonable excuse, fails to comply with this section or a request under this section, or who provides false or misleading information to an employee in a statement under subsection (4) knowing it to be false or misleading, shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,500.

The Labour Court outlined in Mansion House Limited Trading As Fado Restaurant v Izquierdo MWD043 that:

“For the sake of completeness, the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section….”.

I find that the complainant failed to request a statement and I find therefore, I do not have jurisdiction to hear this complaint.

CA-00062116-001

I find that the complaint is well founded and I order the respondent to pay the complainant €500 gross.

CA-00062116-002

I find that the complainant failed to request a statement and I find therefore, I do not have jurisdiction to hear this complaint.

Payment of wages, deduction, national minimum wage