ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052195
Parties:
| Complainant | Respondent |
Parties | José Julián Perea Cartagena | Clinton Retail Ltd t/a Butlers Homeware Ltd |
Representatives | Self-represented | Clinton Neil, Director |
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-00064031-001 | 11/06/2024 |
Date of Adjudication Hearing: 18/11/2024
Workplace Relations Commission Adjudication Officer: Marie Flynn
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the body of the decision.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.
The WRC provided an interpreter to assist with the running of the hearing. The interpreter took the interpreter’s affirmation.
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.
Background:
The Complainant worked as a retail assistant with the Respondent from 1 November 2023 until 11 December 2023. The Complainant asserts that the Respondent made an unauthorised deduction from his final salary of €399. The Respondent contends that the salary deduction was made to cover cash shortages for which the Complainant was responsible. |
Summary of Complainant’s Case:
The Complainant submits that he notified the Respondent of his resignation on 27 November 2023. He was asked to work two weeks’ notice in line with his contract. The Complainant asserts that he was not paid for his notice period from 27 November to 11 December 2023. He is seeking payment of €399. |
Summary of Respondent’s Case:
The Respondent submits that he identified six cash shortages which occurred when the Complainant was working in the Respondent’s retail premises which amounted to €600. The Respondent deducted payment from the Complainant’s salary payment in December 2023 to cover the cash shortages. At the hearing, the Respondent accepted that he did not inform the Complainant that he would be deducting money from his final payment prior to making the deduction. At the hearing, the Respondent accepted that the deductions from the Complainant’s salary amounted to€399. Following the hearing, the Respondent made an unsolicited submission stating that on 21 December 2023, one week before the deduction was made from the Complainant’s salary, he emailed him as follows: “Your cashups are currently being audited and I have come across a number of cash shortages. I will send you a full report. Regards,” |
Findings and Conclusions:
Section 5(2) of the Payment of Wages Act 1991 (the “Act”) sets out the conditions an employer must fulfil before making a deduction from an employee’s wages to cover any act or omission of the employee as follows: (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, … In summary, before making a deduction from an employee’s wages, an employer must first satisfy the requirements of each of the following sections of the Act as set out above: section 5(2)(b)(i); section 5(2)(b)(ii); section 5(2)(b)(iii); and section 5(2)(b)(iv). There was no evidence put before me at the hearing to show that the deduction was provided for in the Complainant’s contract as is required under section 5(2)(b)(i) of the Act. There was no evidence put before me at the hearing to show that the deduction was fair and reasonable as is required under section 5(2)(b)(ii) of the Act. There was no evidence put before me at the hearing to show that the Respondent had complied with the provisions of section 5(2)(b)(iii) of the Act. At the hearing, I brought section 5(2)(b)(iv) of the Act to the Respondent’s attention. I explained that, prior to making a deduction from an employee’s wages to cover an act or omission of the employee, the employer is required, at least one week prior to making the deduction, to provide written notice to the employee of the act or omission which has given rise to the deduction and the amount of that deduction. The Respondent was unable to provide evidence that written notice in compliance with section 5(2)(b)(iv) of the Act was provided to the Complainant. As the Respondent was unable to show that he had satisfied the requirements of section 5(2)(b)(i); section 5(2)(b)(ii); section 5(2)(b)(iii); and section 5(2)(b)(iv) of the Act, I find that this complaint is well founded. |
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.
I declare that this complaint is well founded, and I direct the Respondent to pay the Complainant the sum of €399 |
Dated: 18th of December 2024
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Deduction in respect of an act or omission not notified to employee in accordance with section 5(2) of the Payment of Wages Act 1991 |