ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001496
Complaint(s)/Dispute(s) for Resolution:
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-00001879-001 |
12/01/2016 |
Date of Adjudication Hearing: 29/04/2016
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The Complainant’s case related to a deduction of wages.
- The Complainant commenced work on the 9th of February 2005 as a customer advisor.
- At the time of the complaint her rate of pay was €12.71 per hour.
- Her contract of employment stated her hours were 28 hours per week.
- The store roster was prepared by the store manager.
- In April 2015 the store manager called the complainant to a meeting and informed her that she had been overpaid by the company and that the company was seeking the amount of the overpayment to be returned. The overpayment was described in terms of hours only and was described as an overpayment of 364 hours over the period February 2014 to January 2015. The overpayment arose because of the two shift two week rota the claimant was working. She worked 21 hours per week not the 28 hours as per her contract. Payroll processed her wages on a 28 hour working week.
- Agreement was made with the Respondent that the Complainant would work an extra day per week to pay down this overpayment.
- The Complainant signed an agreement in this regard without advices from her union.
- This working arrangement took place from April 2015 until September 2015.
- In September 2015, the Complainant gave a month’s written notice to the store manager informing him that she was leaving due to a career change. At that stage there were 117 hours outstanding which was calculated as €2,249.67.
- The Respondent deducted all wages from the Complainant’s salary from her last pay to part pay the balance overpayment.
- It was accepted by the Complainant that there was an overpayment. However the non-payment of wages for the last fortnight that she worked was in breach of the contract of employment with the Respondent which stated
“the company has the right to deduct overpayments giving you four weeks notice and being fair and reasonable, having regard to all of the circumstances, including the amount of wages of the employee. (emphasis added)
Respondent’s Submission and Presentation:
- The Respondent’s case was in agreement with the Complainant for most of the facts.
- The Respondent’s case is that they deducted “some” of the outstanding overpayment from the Complainant’s final pay on the 28th of September 2015. There was a balance of 199 hours left outstanding.
- The Complainant accrued 22 hours of lieu time which when taking off the balance left a further 177 hours outstanding. Subtracting annual leave from this left a total of 175.5 hours. This equated to €2,233.00 in total namely 175.5 x €12.71 due to the company. Having deducted €1,562.95 from the final pay there was a balance still outstanding of €670.05 which the company was not going to pursue.
- The Respondent’s case is that the deductions were made in line with the Payment of Wages Act. The Act allows for deductions authorised by a term of the contract. The deduction for overpayment of wages was not unlawful under the Payment of Wages Act 1991. The Respondent had come to a reasonable arrangement with the Complainant regarding the reimbursement of overpaid wages.
- The fact that the Complainant had left the employment of the Respondent in September 2015 without having reimbursed the Respondent in full for the overpayment left the company with no other option but to recoup the wages from her final payslip
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Decision:
- I have taken into account the wording of Section 5 of the Payment of Wages Act 1991 which was restated in the Complainant’s contract of employment signed by her on the 19th of April 2013.
- The ability of the Respondent to deduct overpayment of wages is qualified in a number of ways, namely:
- By giving four weeks’ notice,
- And being fair and reasonable having regard to all of the circumstances including the amount of wages of the employee.
- I find that the four weeks notice was given to the Complainant however I find that the deduction of the final pay of the Complainant leaving her with a nil wage for fortnightly period was not fair and reasonable.
- I accept that the Complainant was not aware of the overpayment and if she was, she would have brought it to the attention of management. She gave evidence that she was overpaid at one stage in the past and she immediately repaid that overpayment.
- I recommend that the payroll package be examined to see if the number of hours worked could be reflected in the payslip.
- I award the Complainant the sum of €1,560.00 being wages unlawfully deducted.
Dated: 14th July 2016