Complainant

Respondent

Parties

Nicholas Glynn

Health Service Executive

Representatives

In person

 Byrne Wallace Solicitors

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-00056472-001

04/05/2023

The complaint relates to an alleged breach of the Payment of Wages Act, 1991. The issue concerns the manner in which the respondent identified and commenced deductions from the complainant in respect of an overpayment. The alleged overpayment occurs as a result of overtime payments made in error. The overpayment is disputed by the complainant who stated that the deductions made on 12th April 2023 were illegal and were in breach of the Payment of Wages Act, 1991.

The complainant stated that on 12th April 2023, the respondent made a deduction from his salary without consulting with him or informing him of the reasons for the deduction. The complainant stated that he was only informed of the deduction after he raised a query on the matter. While the complainant accepts his role is aligned to Grade VIII for pay purposes and that overtime does not usually apply to that grade, he had been paid overtime previously and had an expectation that the overtime in question would have been paid on this occasion also. The complainant argued that by deducting the payment on 12th April 2023 and repaying it to him albeit to return the overpayment to its original amount, shows that an illegal deduction was made. The complainant is seeking compensation in relation to his complaint.

The respondent’s position is that the overtime payments were not properly payable to the complainant as a Grade VIII, and he was aware that this was the case. The overpayment that was identified as a result of payments made in error, are outside the scope of Section 5(1) of the Payment of Wages Act, 1991 as they relate to the reimbursement of an overpayment of wages as provided for in Section 5(5) of the Act.

I have given careful consideration to the submissions of both parties to this complaint.

The complainant’s role is that of “Tactical Manager, Senior” which is aligned to Grade VIII. It is also the case that overtime payments do not apply to staff who are in roles above Grade VII. The complainant accepted that overtime payments do not apply to Grade VIII employees.

The overpayment in question was for €1026.72. Of this amount €322.99 was deducted on 12th April 2023 leaving an overpayment balance of €703.73. When the complainant raised a query, on the overpayment the amount of €322.99 was repaid on 27th April 2023 and the full overpayment was to be recouped at a later date.

In considering the within complaint, I note the confusion that arose in respect of how the overpayment in question was identified and administered through the payroll with deductions and subsequent repayments adding confusion to the situation. I also note the frustration of the complainant in getting clarity on the matter. However, I must decide if the respondent made an illegal deduction from the complainant in respect of not paying wages that were properly payable to him in contravention of the legislation and whether the deduction in respect of the reimbursement of an overpayment of wages was outside the scope of the legislation.

The Applicable Law

Section 5(1) of the Payment of Wages Act, 1991 provides as follows:

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.

Section 5(5) of the Payment of Wages Act, 1991 provides as follows:

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,

Section 5(6) of the Payment of Wages Act, 1991 at relevant part states as follows:

(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.

Conclusions

In all of the circumstances of this complaint, I find that, firstly, the payment of the overtime in question was not properly payable to the complainant. Secondly, as the deduction in question related to the reimbursement of an overpayment, it is outside of the scope of Section 5(1) of the Act. Accordingly, I find that no breach of the legislation has occurred, and the complaint fails.

For the reasons stated above, I find that the complaint is not well founded.

Overpayment of wages