ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049201
Parties:
| Complainant | Respondent |
Parties | David Marsa | Physiolinked Ltd (Wellola) |
Representatives |
| Cian Moriarty, Philip Lee Solicitors |
Complaint(s):
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-00060448-001 | 09/12/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00060448-002 | 09/12/2023 |
Date of Adjudication Hearing: 26/03/2024
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant gave evidence in relation to his complaints. As his evidence was not disputed, the Respondent’s witness did not give evidence and relied on their written submission.
Background:
The Complainant was employed by the Respondent as Head of Software Engineering from 1 September 2021 until 24 November 2023. He stated that the Respondent deducted an amount of €2,500 in respect of two laptops that he did not return when his employment ended. He stated in the first instance that he did not return the laptops because of customs issues. He also highlighted that the amount of the deduction was far more than the value of the laptops. |
Summary of Complainant’s Case:
The Complainant did not dispute that he did not return any of the two laptops that he had promised to return to the Respondent when his employment ended. He stated however that the amount deducted by the Respondent in respect of their non-return, namely €2,500, was far more than the value of the laptops. He further stated that he was unable to return the laptops due to customs issues as he was living outside of the jurisdiction. |
Summary of Respondent’s Case:
By email dated 26 October 2023, the Complainant advised the CEO of his decision to resign and provided the Respondent with 2 months’ notice i.e. a termination date of late December 2023. By email dated 27 October 2023, the CEO formally accepted the Complainant’s notice. By email of 2 November 2023, the Respondent confirmed to the Complainant that they wished for the Complainant to continue working until 24 November 2023, with the Complainant to be paid in lieu of notice for the remainder of his notice period. This email of 2 November 2023 also drew the Complainant’s attention to clause 13 of his contract of employment which stated that the Complainant, “will be required to return all company property, including (but not limited to) software, computers and all other items belonging to or issued to you by or on behalf of, in good condition. If necessary, I can arrange a courier to collect all company property from your home address on or before 24th November, but we can discuss this closer to the time”. The parties agreed that the two laptops would be returned to the Respondent on 24 November 2023, being the Complainant’s final day working with the Respondent. The Complainant provided the Respondent with a mobile phone number and an address in Co. Longford, at which the Complainant indicated that the laptops could be collected. Couriers attended at the Longford address provided to collect the laptops on Friday 24 November 2023, as agreed between both parties. Upon arrival, the courier noted that the property was empty and neighbours, whom the courier spoke to, indicated that the Complainant had not lived there for five months. The Respondent rang both mobile phone numbers on record, emailed the Complainant and messaged on Google chat, to which they received no response. At approximately 6:30pm on 24 November 2023, the Respondent received a WhatsApp message from the Complainant indicating that he was taking a flight and that he would “get it sorted out asap”, referring to the laptops. By email of 30 November 2023, the Complainant wrote to the Respondent enquiring as to why, as of 30 November 2023, he had not been paid his full payment in lieu of notice or 5 days accrued but untaken annual leave and had not received his final payslips. By email of 1 December 2023, the Respondent responded to the Complainant confirming unequivocally that he was entitled to one full month’s notice in lieu but noting the events of Friday 24 November 2023 and the fact that the Respondent had not returned the two Company laptops as he had indicated he would. The Respondent reminded the Complainant of the relevant clause in his contract which provided for a deduction from payments due to him for outstanding company property and that €2,500 was considered a fair and reasonable deduction in respect of the two laptops the Complainant had unlawfully retained and which the Respondent was forced to replace. Even though the Respondent had already incurred the cost of replacing the laptops, the Respondent confirmed that it would pay the balance of the payment in lieu if the laptops were returned by close of business on 8 December. The laptops were not returned by 8 December 2023 and have still not been returned. Payment of the Complainant’s accrued but untaken annual leave and payment in lieu (including the deduction for the missing Company property) was confirmed to the Complainant as having been made by email of 13 December. |
Findings and Conclusions:
CA-00060448-001: Section 5 (1) of the Payment of Wages Act 1991 states: 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 (2) of the Act further states that: 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, Findings: It was not disputed that the Complainant’s contract of employment provided that he was “required to return all company property, including (but not limited to) software, computers and all other items belonging to or issued to you”. The contract also stated that the Respondent was “entitled to deduct from your remuneration any monies owed… including but not limited to … the cost of repairing or recovering any damage or loss of Company property” I further note that the Respondent wrote to the Complainant on 1 December 2023 and informed him that he would receive the final payment of €2,500 due to him if he returned the laptops by 8 December 2023. Given that the Complainant did not do so, and having reviewed the invoices provided by the Respondent to acquire laptops to replace those that the Complainant did not return, I am satisfied that” the deduction is of an amount not exceeding the cost to the employer of the goods” in line with section 5 (2) (v) above. I also do not consider it either acceptable or relevant that the Complainant’s reasons for the failure to return his laptop were to do with him being outside of the jurisdiction given that the Respondent had neither given him permission to work outside of Ireland nor were aware that he was doing so. Considering all of the foregoing points, I find that the complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00060448-001: I find that this complaint is not well founded for the reasons set out above. CA-00060448-002: As the Complainant did not dispute that he received his full outstanding holiday entitlements, I find that this complaint is not well founded. |
Dated: 02-05-2024
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
|