Complainant

Respondent

Parties

Catarina  Cardoso

Ross Dominick Jenkins McDonagh

Representatives

  Self

Self

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00067245-001

08/11/2024

The Complainant began working for the Respondent on 16th July 2024 and ceased work on 23rd August 2024. Her salary was €12.85 per hour, and she worked approximately 35 hours per week. When she ceased her employment, she states that she was owed monies and so submitted this complaint.

Both the Complainant and Respondent gave evidence on their own behalf and were offered the opportunity to cross examine each other.

The Complainant says that she is aware that she did not complete her full notice period when she was leaving, but that she was unsure if this affected the pay that she was owed. She said that she received a payslip for the period 1st August 2024 to 31st August 2024 which showed that she was due net pay of €1,650.78 but that she never received this. She provided the payslip as part of her complaint under section 6 of the Payment of Wages Act, 1991. She said that she gave notice on the 19th August 2024 and left her employment on the 23rd August 2024.

The Respondent stated that the Complainant was a home carer for his relative, who had advanced dementia, and that she did not give notice but rather left in the middle of the night. When she left so late at night emergency assistance had to be sourced and there was obviously a cost associated with this which was above the normal rate of pay. The Respondent also had concerns about the level of care his relative received, in particular the administration of medication. The Respondent acknowledged that the Complainant said she was interested in leaving but a date had not been agreed when she just left and no communication could be made with her.

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

Section 5(6) of the Act states that:

(6) Where—

(a) the total amount of any 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.

Section 5(6) of the Act was considered in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the Payment of Wages Act, 1991 has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful. MacGrath J. stated at paragraphs 34 and 35 of the judgement:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where the total amount of any 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, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion.

Central to the court’s analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation.”

The question for me to determine in the first instance therefore is what wages are properly payable. Based on the payslip provided, I am satisfied that the amount of €1,650.78 is properly payable to the Complainant. There is no evidence that non-payment of this amount is attributable to an error of computation and it is therefore considered a deduction within the meaning of the Act. I must now consider whether that deduction is lawful.

Section 5(1) deals with deductions under the Act. It states that:

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.

No evidence was provided to show that the deduction was required or authorised by statute; that it was required or authorised by a term of the Complainant’s contract of employment or that the Complainant had given her prior consent in writing to it. Therefore, I am satisfied that none of the exemptions set out at section 5(1) apply.

The Respondent made the points that the Complainant had not adequately administered medication; did not stay for the agreed upon notice period; caused a lot of extra cost to the Respondent and significant risk to a vulnerable adult. This appears to me to be an argument that the properly payable wages were withheld on the basis of the acts of the Complainant.

Section 5(2) of the Act specifically prohibits deductions on the basis of an act or omission of an employee unless one of the following exceptions apply:

(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 […], 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.

As set out above, if a deduction is to be made then the term which authorises that deduction must be set out in writing. An employee must also be notified in writing, at least one week before the making of a deduction, of the particulars of the act or omission and the amount of the deduction. The amount must also not exceed the amount of loss suffered.

The Respondent did not offer any evidence of a term in the employment contract which would authorise such a deduction or that the Complainant was given notice in writing of the existence and effect of such a term. There was also no evidence that the Complainant was written to with particulars of the act or omission and notified of any specific loss suffered by the Respondent and/or the amount of that loss. I find therefore that the Respondent has not shown that any of the exceptions set out at section 5(2)(i) – (vii) apply. In those circumstances, I find that the deduction from the properly payable wages is unlawful, and the Complainant’s complaint is therefore well founded.

I find that there has been an unlawful deduction from the Complainant’s wages in contravention of section 5 of the Payment of Wages Act, 1991. I direct the Respondent to pay the net sum of €1,650.78 to the Complainant within 42 days of the date of this decision.

Payment of Wages – unlawful deduction – act or omission