Complainant

Respondent

Parties

Cian  Holland

DC Coms

Representatives

  Self-represented.

Two directors of the respondent company.

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-00062731-001

11/04/2024

The complainant has submitted that respondent unlawfully deducted the sum of €183 on the 27/8/2021 and made further unlawful deductions thereafter.

The complainant was employed as an apprentice electrician with the respondent electrical and engineering contractor from 11/9/2018 – 22/12/23.

He worked 39 hours a week. His gross weekly salary was €646.

He submitted his complaint to the WRC on 11/4/2024.

The complainant served his apprenticeship with the respondent electrical and engineering contractor from 11/9/2018 – 22/12/23.

With the exception of his complaint form and salary slips, the complainant did not provide a written submission setting out the dates of the deduction and the accumulated deductions, but presented, instead, oral evidence on these matters.

His complaint is that the respondent made unlawful deductions from his salary from 10/9/21 up until 22/12/23.

Evidence of complainant given under affirmation

The complainant stated in evidence that he was paid the on the correct rate for apprentices in the electrical industry until 27/8/2021.  Being in his third year of apprenticeship, he was moved onto the correct rate for third year apprentices but was moved back on 10/9/2021 to the rate payable to a second-year apprentice.

He bases his deductions on the difference between the rates paid to him by the respondent and the Sectoral Employment Order (Electrical Contracting Sector), 2021, S.I. No. 703 of 2021 approved rates for apprentices, published on the Solas website, the body responsible for training apprentices.

I advised the complainant of the time limits set out in section 41 of the Workplace Relations Act, 2015 and he stated that his complaint should be seen as one of cumulative deductions.

The second element of his complaint was an unlawful deduction of two weeks’ paid  notice to the amount of  €1548 due to him on 22/12/2023.

The deductions applied by the respondent to his hourly rates based on the pay slips, and the oral evidence presented by the complainant are set out hereunder.

The complainant furnished two weeks’ notice to the respondent on date 12/12/2023.

The respondent failed to pay the complainant two weeks’ notice due to him.

The respondent company director gave evidence under affirmation.

 The respondent denies that he made an unlawful deduction.

The reason that he did not pay the SEO approved rates until February 2019 was because the complainant, though handed his registration papers, failed to return them and his Leaving Certificate until February 2019. These documents were a prerequisite to the commencement of an apprenticeship.

Covid -19 explains the delay in paying the complainant the second-year rate in 2020 as the three months lost due to Covid 19 are not reckonable for purposes of completing a year. The respondent consulted with Solas on this matter.

An apprentice cannot move to the third-year apprentice rate of pay unless he/she passes all theory and practical exams in second year.

Concerning the complainant’s non-progression to the rate applicable to fourth year apprentices, if you fail three exams you are no longer an apprentice. He did not progress to the fourth point of the apprentice rate as he had not secured the necessary theory and practical exams in 2023.

The respondent undertook to provide me with the complainant’s contract of employment.

The respondent agreed to pay him whatever outstanding amounts were found to be due to him in respect of holiday pay and notice.

I am required to establish if deductions occurring from September 2021 onwards contravene section 5(1) of the 1991 Act.

The alleged contraventions concern the failure to pay the complainant the SEO approved hourly rates for apprentices in the electrical industry and a further contravention of a failure to pay the complainant his statutory notice entitlements.

Cognisable period.

The complainant submitted his complaint to the WRC on 11/4/2024.

The complainant’s own evidence is that the beginning of the contravention to which the complaint relates occurred on the 10/9/2021 when the respondent failed to move him on to the rate payable to third year apprentices in the electrical industry, a rate which stood at  €15.27 and opted instead, to retain him on the hourly rate of €10.57 , the rate payable to second year apprentices. This amounted to a deduction of €4.70 x 39 hours = €183 for that week. The deductions continued up until his resignation on 12/2/23, and the complainant identified the cumulative deductions to have reached the sum of €15,000.

Relevant Law.

The cognisable period for the purposes of this complaint is 12/10 2023- 11/4/2024 as per section 41 (6) of the Workplace Relations Act, 2015. It provides as follows:

 “6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”

Section 41 (8) states:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The complainant’s complaint form refers to deductions in 2018, but his oral evidence was that he was paid the correct rate until 10/9/2021 when the contravention arose.

I advised the complainant of the above time limits and he stated that it was ongoing, deductions. The complainant asked me to the consider the deductions cumulatively.

The matter of when time runs and the meaning and significance of the phrase

“the date of the contravention to which the complaint relates “

was addressed in HSE v McDermott [2014] IEHC 331. Hogan J held that the essential question was the “date of the contravention to which the complaint relates” and therefore it is critical how the employee frames his complaint. Mr McDermott’s complaint of deductions occurring from January 2011 to June 2011 was submitted to the Rights Commissioner on 16th June 2011, and so was within the six months’ time limit in respect of his particular complaint.  He was not time- barred as submitted by the HSE. Hogan J expanded on his reasoning as follows:

“If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time “.

“if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4).”

Justice Hogan also noted that a rolling time limit was not unusual in the law.

He dismissed the HSE appeal and referred the case back the EAT for the substantive issue to be decided.

Applying this precedent to the instant case, the complainant did not identify the cause of action commencing on any date within the cognisable period 12/10 2023- 11/4/2024. Nor did he present a separate complaint for this specific period, which could, potentially, have saved it from being time barred. He framed the date of contravention on the complaint form to be in September 2018, but in evidence he identified the contravention to be the deductions on the 10/9/2021.

Based on statute and precedent, I must find this complaint, as initiated, to be time barred.

I do not have jurisdiction to hear this element of this complaint.

The second element of his complaint was an unlawful deduction of two weeks’ notice pay due to him on 22/12/2023.

The respondent did not contest this element of the complaint. He undertook to pay him all statutory entitlements, found to be due to the complainant, including holidays not identified by the complainant.

As per section 4 (1) (c) of the Minimum notice and Terms of Employment Act,1973, the complainant was entitled to four weeks’ notice. He submitted his notice on the 12/12/2023. He was paid up until the 22 December.

While he did not lodge a complaint under the Minimum Notice and Terms of Employment Act, 1973, the narrative in his complaint form clearly indicated a failure to pay him for his notice period and the respondent was fully aware of this complaint.

Section 5 (1) of the 1991 Act 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.’

unless—

(i)n/a  

(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).

Section 5 (6) of the Payment of Wages Act, 1991 identifies a deduction as follows:

“Where the total amount of 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.”

I find that the payment of two weeks salary in respect of his notice was properly payable. I find this element of the complainant’s complaint is well founded. The deduction cannot meet the “fair and reasonable test” nor can it be deemed to be authorised by any contractual term.  

I find that the deduction of €1548 was an unlawful deduction contrary to section 5(1) of the Act of 1991.

I require the respondent to pay the complainant two weeks’ salary to the amount of €1548 subject  to all lawful deductions.

I decide that the complaint is well founded. I require the respondent to pay the complaint the sum of €1,548 subject to all lawful deductions.

Unlawful deduction.