Complainant

Respondent

Parties

George  Boyden

Brampton Care Home

Representatives

Nicola Burke HR Duo

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-00059063-001

27/09/2023

The complainant submits that there was an unlawful deduction made from his wages.  The respondent submits that the deductions were legal deductions as the complainant owed money for rent. 

The complainant submits that he commenced employment as a Team Leader on 24/10/2022 and his employment ended on 05/09/2023.  During his employment he rented property for 7 weeks from around 04/05/2023 until 23/06/2023 and that there were many things wrong with the property.  He submitted he stayed there for 7 weeks and then left the property and received emails that he needed to make repayment of €75 weekly and he said he did not give consent to this and that in his final pay they took most of his wages and left him with approximately €7.

The complainant gave evidence that he had secured the position with the respondent and was travelling from Roscommon to Galway for work and asked the respondent if there was any accommodation and moved into the respondent’s accommodation in May 2023.  He said that he found that the quality of the bed strings were poor, the rooms were only half painted, the bathroom was awful, there was a leak in the kitchen, no heating and no bins.  Every time he asked for the house to be improved he was told that somebody would come and sort it out and as he could not stay there any longer and he moved back home. 

The complainant said that he was asked to find paint and then was told it was too expensive and got bored of waiting for something to be done with the accommodation and he left on 23/06/2023 and was not told in advance that money would be deducted.  He said there was no notification of the deduction and no notification that he would just get €7 in his pay after 2 weeks work.  Communication was done mostly through Mr Fahy and the complainant did not get to see the house in advance and did not get to see pictures of the house in advance and moved in on a Monday with two other people.

The complainant said that he received a lease agreement for the renting of the house for double ensuite which was not the room the complainant had and then got another lease agreement for the room that he had in the house but did not sign them.  There were many rules attached to the house including that they were only allowed 2 people at a time visiting.

The first lease agreement was received around 4th or 5/05/2023 and the complainant was happy to move in. They complainant knew the rent was €125 per week with everything included in that.  The complainant went to Mr Fahy once a week about the problems with the house and every time was told someone would come and sort out the house and he was told that paint is expensive which the complainant agreed.  The complainant said he never paid any rent and did not sign a contract.  Around early June or middle June 2023 the complainant said he advised the respondent that the repairs had not happened and that he had to keep repeating the same thing about the problems with the house.  The complainant said he gave a weeks’ notice that he was moving out and then he received a message about the rent and the complainant said he would be willing to pay €70 in total to cover all matters. He confirmed that he did not pay any rent for the duration of his stay.  The complainant said he was never advised that there would be a deduction and that the respondent wanted to deduct it but the complainant would not give permissions.  He gave one weeks’ notice that he was moving out and remained working.

Under cross examination the complainant confirmed that he had been told the house was not 100% finished before he moved in and moved in anyway.  He confirmed he was told he could not use a frisbee in the house.  In response to how would the rent be paid if he was not going to pay it, he said he did not know.  He said he was sleeping on the base of a bed and gave a list of things to Mr Fahy that needed to be sorted with the house.  He said when he asked about visitors nobody told him he could only have limited visitors because of health and safety.  He said there was an exchange of emails between him and the respondent after the deductions and he did not meet with the respondent as he was too angry because they had deducted his money without notice and without his permission and left him with €7.

It is the company's position that they are entitled, owing to the employee’s agreement in the employee’s signed contract of employment to deduct monies owed. The complainant was forwarded the license agreement in relation to his accommodation on a number of occasions to sign and return but he failed to do so. The company responded immediately to his queries in relation to issues he raised about his accommodation. Mr Boyden was later given a 30% reduction in rent due to the issues he raised about minor repair works required. In August 2023, some weeks after he had moved out of the property, Mr Boyden was asked to engage in a €75 a week deduction from his salary to pay his rent; he refused this. The email to the complainant dated 18/08/2023 stated “It has been proposed that in order to sort this, a repayment of €75 a week will be made from payroll”.  The company believes it acted reasonably in its dealings with Mr. Boyden, where deducting the owed monies from his final salary was regrettable and a last-resort measure and Mr Boyden would not engage with them.   It was also submitted that the respondent made over payments with regard to sick pay during the complainant’s employment.

Mr Boyden was employed by the respondent and his rental agreement was issued by the respondent, therefore, the monies were owed to the company when he resigned from his role.  The respondent tried to engage with the complainant after he left but he refused to meet with them.

The evidence of Mr Fahy was that the complainant had a lease and the structure of the accommodation was fine and the complainant was given the keys and no deposit taken.  The complainant raised issues about the house and the respondent looked at the pictures he showed them and it was mostly cosmetic issues.  Mr Fay said that the offer from the complainant of €70 in total to cover the rent did not cover the cost of utilities and that when they went to get a plumber the complainant said there was no issue and said that he was never made aware that there was an issue with the mattress.  He said that the owners did not want too many people in the house and therefore limited the number of visitors allowed and did not want people in the house to have parties.

Under cross examination Mr Fahy said he advised the complainant on 29/08/2023 that he might be taking money from the complainant and then there was a delay as the complainant resigned and Mr Fahy was waiting for the owners to decide how they wished to proceed.

The complainant submits that the respondent made an unlawful deduction of €637.50 and the respondent submits that a deduction was made as the complainant owed the respondent this money for his rent.

It was not in dispute that the complainant commenced employment on 24/10/22, that his employment ended on 05/09/2023, that he received and signed his contract of employment dated 22/11/2022.  It was also undisputed that a lease agreement for the accommodation was given to the complainant but was not returned or signed and that the respondent advised the complainant on the 07/09/2023 that a deduction from his wages of €637.50 had been made on 07/09/2023 and that this included a 30% discount.  It was not in dispute that the complainant received nett pay of €8.77 as a result of this deduction.

I note the complainant’s evidence that he stayed in a house owned by the respondent from 05/05/2023 till 23/06/2023 and that he left the accommodation owing to the quality of the accommodation which he raised on numerous occasions.  Mr Fahy gave evidence that there were difficulties raised by the complainant about the accommodation but these were mostly cosmetic and the complainant was aware of these before he rented the house. 

I note that the complainant received an email on 18/08/2023 from the respondent proposing he repay €75 per week but the complainant refused this proposal and suggested a deduction of €10 which was rejected by the respondent. 

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.

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

The complainant’s contract of employment provides that

“The company shall be entitled to deduct from your salary or others payments due to you any money which you may owe to the company at the time”.

While I note that the respondent informed the complainant of their proposal of a €75 per week deduction the complainant did not agree to this.  Furthermore, when the complainant resigned his position, the respondent proceeded to make a deduction of €637.50 without informing the complainant at least one week before the making of the deduction.  The respondentalso failed to ensure fair and reasonable deductions having regard to all the circumstances (including the amount of the wages of the employee) and the respondent left the complainant with wages of only €8.77 without any prior notification or consideration. 

As the Labour Court found in PWD222 Homebond Technical Services Limited v Mr David Faulkner

“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”.

While it might be expected that the complainant could not expect to live rent free in the accommodation, and the complainant failed to engage in any discussions with the respondent, I note also that the complainant did make a proposal to pay the respondent €70 euro.

Taking into consideration all the submissions, evidence and circumstances of the complaint, I find therefore, that during the cognisable period an unlawful deduction was made and that the monies properly payable to the complainant, taking into consideration the complainant’s proposal of €70 owing to the respondent; is €567.50.  I find that the complaint is well founded and I order the respondent to pay the complainant €567.50 gross.

I find that the complaint is well founded and I order the respondent to pay the complainant €567.50 gross.

Payment of wages, unlawful deduction