ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004332
Complaint for Resolution:
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 26/09/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 41(4) of the Workplace Relations Act, and Section 6 of the Payment of Wages At 1991, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Attendance at Hearing:
Complainant’s Submission and Presentation:
The complainant, a polish national had submitted a complaint to the WRC relating to a deduction in wages on 2 August 2016. The complaint was lodged on an Equal Status Act compliant form. The complainant did not attend the hearing and furnished a pay slip on 17 October, 2016 indicating a 2 hr deduction in pay on pay date 6 March, 2016.
Respondent’s Submission and Presentation:
The Company disputes the claim .In 2013; the respondent company was successful in securing a cleaning contract with a large store group. The store operates their own hand scanning time recording system and all of the respondent staff is required to record their entrance and exit to and from the site on hand scanners. This information is then forwarded to confirm what hours will be paid by the store to the respondent.
The respondent operates a fortnightly payroll based on budgeted/scheduled hours for each employee. There is a specific management system assigned to the actual payroll. One week one the scheduled hours are returned for employees and in week two, the respondent would receive the hand scanner report for that particular week/location.
The respondent submitted that this report will show the actual time an employee is on site and it can happen that this report will show that an employee may not have actually worked the scheduled hours in that particular period . In those circumstances, of time lag, the respondent submitted that they were compelled to make an adjustment to reflect the fact that a persons timesheets (scheduled hours) were overstated, placing the employee into an over payment scenario.
The respondent submitted that they had no control over this arrangement and the practice was a legacy from the previous contractor and thus well established .The store group will only act on the authentication of the hand scanner reports for payment purposes for the respondent staff.
The company disputed that an illegal deduction was made from the wages of the complainant, at the outset and contended that the respondent is entitled to act to recoup an over payment .They sought that the instant claim should fail.
Legislation involved and requirements of legislation:
Regulation of certain deductions made and payments received by employers.
Section 5 of the Payment of Wages Act, 1991.
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,
(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
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages Act, 1991 requires me to issue a decision in relation to the complaint.
The complainant did not attend the hearing . I was informed that the complainant was on holidays but he had not alerted the WRC to this fact , nor had he sought an adjournment/postponement . As I was not in a position to hear directly from the complainant, I must find that the complaint is not well founded and must fail .I find in favour of the respondent.
Patsy Doyle, Adjudicator.
Dated: 15th December 2016