Complainant

Respondent

Parties

Daniel  Barrett

Kinsella Building & Civils Ltd.

Representatives

Self-represented

Luke Kinsella, Director

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-00061278-001

29/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061278-002

29/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061278-003

29/01/2024

The Complainant commenced his employment with the Respondent on 28 August 2023. He resigned from his employment on 12 January 2024.

On 29 January 2024, the Complainant referred three claims to the Director General of the WRC pursuant to the Payment of Wages Act, 1991 and the Terms of Employment (Information) Act, 1994.

The Respondent rejects the claims.

The Complainant alleges that the Respondent made an unlawful deduction from his wages on 19 January 2024 in the sum of €940.56.

The Complainant submits that he ceased his employment on 12 January 2024 and was due his wage to be paid the following week on 19 January 2024 as he had worked a week in hand. The Complainant submits that when the Respondent sent him his payslip on 19 January 2024, he noticed that €940.56 was deducted. When he asked the Respondent about the reason for the deduction, he was told that it was to cover the cost of courses the Respondent enrolled him in over the past few months. The Complainant submits that the courses were not discussed with him and it was not discussed with him that there would be a deduction from his wages. He said that the as courses were required for him to carry out his daily work.

The Complainant exhibited a copy of his payslip dated 19 January 2024 showing a deduction of €1,075 under the heading “training provided to employee within last six months”.

The Complainant spent considerable time at the adjudication hearing analysing the document exhibited by the Respondent entitled Re: Daniel Barrett Training Expenses. He repeatedly said that he could neither confirm nor deny that it was his signature.

Mr Kinsella, on behalf of the Respondent gave evidence that the Complainant commenced his employment with the Respondent on 28 August 2023.

Mr Kinsella listed a number of incidents that arose between 29 August 2023 and 10 January 2024.

Mr Kinsella said that on 29 August 2023, the Complainant broke a hydraulic ram guard in a mini digger he was operating by bashing a rock breaker off the guard. The broken guard scratched the ram requiring new seals (cost of €140).

On 30 August 2023, the Complainant broke a new water dust suppression bottle by breaking the valve off (€149.95).

On 10 October 2023, the Complainant broke a pipe which had already been exposed, he drove the digger bucket down through the pipe. The trench subsequently flooded and required repair (€350).

On 17 November 2023, the Complainant drove a mini digger into the back of a pickup truck breaking the rear light (€54.95).

On 23 November 2023, while pulling a new Nugent tipper trailer, the Complainant tore the side walls of the tyre which had to be replaced (€123).

On 11 December 2023, the Complainant broke a pipe cutter, he did not inform his manager. Crew was brought to a call out and had 3 hours down time to go and get a new pipe cutter during a water outage (€350).

On 18 December 2023, the Complainant tracked a mini digger into a trench causing significant damage and requiring a tractor and a 13-ton digger to be brought to the site to lift the machine out of the trench. The Complainant was using his mobile phone when he drove the mini digger into the trench (€3,066.65).

On 10 January 2024, the Complainant verbally abused a colleague on site.

Mr Kinsella said that it was agreed with the Complainant that he would receive a pay raise from €20 to €22 per hour, alongside being placed on three courses funded by the Respondent: CSCS Location of Underground Services, CSCS Signage, Lighting & Guarding and Confined Spaces. The Complainant was paid full wages for the five days whilst attending the courses. The Complainant opted not to attend the confined spaces training course on 8 December 2023.

Mr Kinsella said that the Complainant was paid fully in good faith by the Respondent through Christmas 2023 for two weeks holidays that he had not accumulated.  He took a total of 24 hours of leave in 2023 and 80 in 2024. The Complainant was overpaid by 45.27 hours which he had not accrued, leaving the Respondent with €1,105.49 overpayment inclusive of employer’s PRSI duties.

Mr Kinsella said that the Complainant left his employment on 12 January 2024 on his own accord without any notice period. The Complainant was aware that his role was vital for the public utilities contract at the time.

Mr Kinsella gave evidence that he had a telephone call conversation with the Complainant on Saturday 13 January 2024 asking him to return to work on Monday. However, the Complainant would not return as he stated that the job was “no longer suiting [him]”.

Mr Kinsella stated that the monies for training courses were deducted from the Complainant’s final pay. Since then, the Complainant rang Mr Kinsella on numerous occasions. Other people, on the Complainant’s behalf also made threatening calls to Mr Kinsella up to 17 times a day and late at night. Mr Kinsella exhibited a text message from the Complainant’s father stating that he would be at Mr Kinsella’s place on Saturday or Sunday to discuss the Complainant’s pay.

Mr Kinsella said that €1,075 was paid for the courses the Complainant attended. The courses were not compulsory but were part of the Complainant’s career progression. Mr Kinsella said that it is mandatory for one person on site to have completed the courses. At the time, the Respondent employed three employee and only one of them had to have the qualification. There was no requirement for the Complainant, in his role, to complete the courses. However, the Complainant wanted to move to a supervisory role, he wanted to do the courses.

Mr Kinsella said that he asked the Complainant to meet on Monday, 11 March 2024 to discuss the matter and try to resolve it. However, the Complainant was unwilling to meet him. The Complainant messaged Mr Kinsella on 13 March 2024 late at night to call him, however, Mr Kinsella got no answer when he called the Complainant.

Mr Kinsella exhibited a copy of a letter dated 15 December 2023 to the Complainant with his terms of employment attached. Mr Kinsella said that at the commencement of the Complainant’s employment, there was no contract in place. However, the Respondent engaged an external HR consultant who drafted contracts and an employee handbook. These were completed on 15 December 2023. Unfortunately, the contract was not signed by the Complainant at the time. There was a Christmas break from 22 December 2023 to 8 January 2024 and then the Complainant resigned his employment. The Respondent never got a chance to have the contract signed.

Mr Kinsella also exhibited a copy of an invoice from the training provider confirming a payment of €1,075 for two courses for the Complainant.

Mr Kinsella also exhibited a copy of a document entitled “Re: Daniel Barrett Training Expenses” and dated 2 November 2023. The document states as follows:

“Kinsella building and Civils Ltd, is providing training courses, (CSCS location of underground services & CSCS signage, lighting and guarding). I acknowledge that if I leave the company withing 6 months of completing the courses, I will have the cost of the training deducted from monies owed to me.”

Mr Kinsella said that the document was signed and dated by the Complainant on 3 November 2023. Mr Kinsella described in detail the meeting he had with the Complainant outside the People’s Park in Limerick when, he said, the Complainant signed the form. Mr Kinsella said that the course was discussed in advance as it had to be booked ahead and he had to get someone to cover for the Complainant while he was at the course.

Section 5 of the Payment of Wages Act provides as follows:-

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

(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.

In the present case, the Complainant alleges that the Respondent made an unlawful deduction in respect of the training course the Complainant undertook. There was no dispute that, as per the payslips dated 19 January 2024, the Respondent deducted €1,075 from the Complainant’s final pay.

In light of Mr Kinsella’s detailed recollection of the events of 3 November 2023 and the Complainant’s vagueness as to whether he signed the document in question, I accept, on the balance of probabilities, that the Complainant did sign the document entitled Re: Daniel Barrett Training Expenses. The Respondent asserted that it was entitled to deduct the monies that it had paid for the training course because the Complainant left the employment withing 6 months of completing the course.

I note that, in Ryanair Limited v Alan Downey  [2006] 17 E.L.R. 347 the Employment Appeals Tribunal held that ‘It is quite clear that s.11 of the Act not only entitles the Tribunal to consider if the employment contract complies with the Act but it places a strict obligation on it to do so.”

Section 11 of the Act reads:

“A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to preclude or limit the application of, or is inconsistent with, any provision of this Act.”

In plain English this can be taken to mean that the Payment of Wages Act requires that the provisions of the Act can be taken to overrule any sections of a contract of employment or an agreement that are in conflict with the Act.

The EAT held in Ryanair that the provision of training that enhanced qualifications and remuneration of an employee constituted a provision of service by the employer within the meaning of section 5(2)(b) the Act.

This is however qualified by subsection (2)(b)(ii) which requires that “the deduction is of an amount that is fair and reasonable having a regard of all the circumstances (including the amount of wages of the employee).”

Furthermore subsection (2)(iv) also requires the employer to give one week's notice before the making of a deduction from the employee's wages. It states that “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…“

Provisions regarding deductions for training course are not at variance with the Act in principle but the key issue was how any deductions or recovery could be handled.

The Respondent, in order to make a lawful deduction, must comply with the provisions of the Act.

However, the circumstances of the within case are quite different to the Ryanair case. Unlike in Ryanair where the employeehad given notice of his intention to leave the employment, in the within case, the Complainant resigned his position on Friday 12 January 2024, giving the Respondent no notice whatsoever and in full knowledge that he would need to repay the monies owed for the training course that he had completed just two months previously. The Complainant at no stage prior to 12 January 2024 indicated to the Respondent his intention to terminate his employment and left the Respondent in circumstances where it could not possibly comply with the provisions of the Act, giving the Complainant’s immediate departure.

I accept that in different circumstances seeking the full amount of €1,075 in one lump sum and offsetting all the employee’s wages could be considered not “fair and reasonable”. However, having regard to all of the circumstances of this case, I find that the Respondent was entitled to recover the sum of €1,075 from the Complainant’s outstanding wages due on the date of termination.

I declare this complaint to be not well founded.

The Complainant alleges that the Respondent has not provided training to him for free of cost in contravention of the Act. The Complainant confirmed that the training was counted as working time and he was paid for the time he spent at the training.

The Complainant submits that he ceased his employment on 12 January 2024 and was due his wage to be paid the following week on 19 January 2024 as he had worked a week in hand. The Complainant submits that when the Respondent sent him his payslip on 19 January 2024 the Complainant noted that €940.56 was deducted. When he asked the Respondent about the reason for the deduction, he was told that it was to cover the cost of courses the Respondent enrolled him in over the past few months. The Complainant submits that it was not discussed with him that there would be a deduction from his wages as these courses were required for him to carry out his daily work.

Mr Kinsella said that it was agreed with the Complainant that he would receive a pay raise from €20 to €22 per hour, alongside being placed on three courses funded by the Respondent: CSCS Location of Underground Services & CSCS Signage, Lighting & Guarding and Confined Spaces. The Complainant was paid full wages for the five days whilst attending the courses The Complainant opted not to attend the confined spaces training course on 8 December 2023.

Mr Kinsella said that €1,075 was paid for the courses the Complainant attended. The courses were not compulsory but were part of the Complainant’s career progression. Mr Kinsella said that it is mandatory for one person on site to have completed the courses. At the time, the Respondent employed three employees and only one of them had to have the qualification. In his role, the Complainant was not required to complete the training courses. The Complainant wanted to move to a supervisory role and as part of his career progression, he wanted to do the courses.

Section 6G. Mandatory training of the Terms of Employment (Information) Act, 1994 provides as follows.

‘Where an employer is required by law or by a collective agreement to provide training to an employee to carry out the work for which he or she is employed, such training shall—

(a) be provided to the employee free of cost,

(b) count as working time, and

(c) where possible, take place during working hours.’

There was no dispute that the Complainant in November 2023 the Complainant completed two training courses:

·         SOLAS CSCS Signing, Lighting & Guarding at Roadwork course

·         SOLAS CSCS Location of Underground Services course.

It was also not in dispute that the Complainant chose not to complete the confined space training.

The Complainant did not dispute that the courses took place during working hours and he was paid for the time. The Complainant asserted that it was mandatory for him to complete the courses and, therefore, they should be provided free of cost.

The Respondent rejected this assertion. Mr Kinsella, in his evidence, said that while there is a requirement that one crew member on site has the required training completed, there was no requirement for the Complainant in his role of groundworker to complete the courses. Mr Kinsella stated that the Complainant wished to progress to a supervisory role. He was enrolled and completed the training courses as part of his career progression and, at the same time his rate of pay was increased to €22 per hour. The Complainant chose not to attend the confined spaces course.

In the absence of any credible evidence to support the Complainant’s assertion that he was required by law or by a collective agreement to complete the courses, I accept the Respondent’s position that the Complainant decided to do so as part of his career progression and the training was not mandatory in his role. The Respondent’s position is supported by the fact that the Complainant was permitted to opt out of the confined space training without any repercussions.

I declare this complaint to be not well founded.

The Complainant alleges  that he did not receive a statement in writing of his terms of employment.

The Complainant submits that he started working for the Respondent on 28 August 2023. When he asked for his written contract, he was told that he would be given one but he never received one.

Mr Kinsella, on behalf of the Respondent gave evidence that at the commencement of the Complainant’s employment, there was no contract of employment in place. However, the Respondent engaged an external HR consultant who drafted contracts and an employee handbook. These were completed on 15 December 2023. Unfortunately, the contract was not signed by the Complainant at the time.

The Terms of Employment (Information) Act, 1994, as amended sets out the basic terms of employment which an employer must provide to an employee in written format.  Section 3 (1A) obligates an employer to provide an employee with certain essential information, or core terms, in writing within five days of commencing employment. 

Section 3 (1) provides that an employer must provide an employee with a written statement of terms of employment within one month of commencement of employment. 

The Respondent accepts there was no written terms of employment at the commencement of the Complainant’s employment. The Respondent submitted that a contract was drafted in December 2023. However, due to a Christmas break and the Complainant’s resignation, the Respondent had no opportunity to furnish the Complainant with his written terms of employment.   Accordingly, I find this complaint is well founded.   

There was a significant divergence between the parties regarding the Complainant’s weekly wage. The Complainant asserted that he worked up to 60 hours a week at the rate of €22 per hour. The Respondent, on the other hand, claimed that the Complainant worked a maximum of 50 hours at the agreed rate of €22 per hour. I note that the payslip presented by the Complainant shows that he worked 45 hours per week.  Neither party could provide any credible evidence in support of their assertion. In the absence of any supporting documentation and in light of the parties’ disagreement as to the weekly wage, the calculation of an average week can only be based on the limited available information.

I declare this complaint to be well founded. In the circumstances I decide it is just and equitable to require the Respondent to pay to the Complainant compensation of €1,000 for a breach of a statutory right, which is approximately one week’s pay.

This award is by way of compensation for a breach of the Complainant’s statutory right and is not in respect of remuneration including arrears of remuneration.

Terms of employment – training- deductions-