Complainant

Respondent

Parties

Maamar  Boudene

Express Safe Systems Limited t/a Express Security Systems

Representatives

  Self-Represented

 Mr Joe Leen, Managing Director.

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-00067424-001

15/11/2024

The Complainant was employed as an engineer with the Respondent company from 19 April 2024 until termination of the contract on 9 September 2024. The Respondent company installs and maintains security and fire systems. The Complainant submits he has not been paid specific contractual overtime, on-call allowance and, further, that his holiday pay was withheld.

The Respondent denies that there was outstanding overtime and on call payments. The Respondent accepts that holiday pay has been withheld but submits that the Complainant did not return items of company property. This allegation is denied by the Complainant who maintains the items were in the van at the time of termination of contract.

The Complainant, in sworn evidence, stated that he was owed overtime payment of €30 on 2 August 2024, 6 hours on 15 August 2024 and €240 for 7 hours and 50mins on Sunday 1 September 2024. He also stated that he was owed €80 for the last period of on-call allowance in September 2024.

The Complainant said he was owed €700 in holiday pay which was unjustifiably being withheld from him due to an allegation that he did not return his unform, test-monitor and labeller. He said that he had left the latter two items in the van when he returned it on the day he finished. He asserts the van was not checked, as it should have been by the Respondent, at the material time. He was willing to hand back two shirts he had in his possession.

Mr Joe Leen for the Respondent gave sworn evidence refuting the on-call and overtime claims. He said that when the Complainants time sheets were subsequently checked in line with the van tracking equipment, it transpired on numerous occasions that the Complainant was claiming for hours at a customer’s location when the record showed otherwise. Time sheets and van tracking records were exhibited.

The witness exhibited a payslip showing that €80 was paid for the month pay period prior to the Complainant’s departure adding that on-call was paid on a monthly basis. The witness accepted that the Respondent was withholding the €700 holiday pay pending return of the test-monitor and labeller, believing the Respondent had a contractual right to do so.

Section 5 of the Payment of Wages Act 1991 Act in its applicable parts provides:

(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,

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, 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.

(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 previously mentioned) are paid to the employee,

then, except as 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.

Overtime and On-Call:

There is a preliminary burden on complainants to show primary facts in support of their claims under the Act. The Complainant gave evidence of what he considered was the non-payment of overtime and on-call allowance. However, I preferred the evidence of the Respondent witness who showed, supported by documentary evidence, that the Complainant’s time sheets were not an accurate reflection of his work over a period of time when the actual van tracking records showed him to be in locations other than on company business. The Respondent also exhibited a payslip which showed payment of the relevant on-call allowance. Overall, I was not convinced the Complainant gave cogent evidence regarding the overtime and on-call payment therefore this part of his claim was not well founded.

Holiday Pay:

The Respondent accepted that it withheld €700, after alleging that the Complainant withheld a test monitor and labeller. Mr Leen believed that they had a contractual right to do so. The Complainant vehemently denied that he retained possession of the items, instead asserting that he had left them in the company van on his last day at work. It is not my role to determine the veracity of either side’s position on this but rather to examine whether the deduction of €700 was lawful under Section 5 of the Act. Section 5(2)(b) states:

(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,  

I examined the wording of the contract of employment and could find no express term, nor one that could reasonably be implied, to show that the Respondent was contractually enabled to withhold the €700 due in holiday pay. Therefore, the complaint was well founded on this specific issue, and I decide that €700 was unlawfully deducted under the Act.

CA-00067424-001: For the reasons outlined above, the overtime and on-call dimensions of the complaint were not well-founded. However, I find that the Respondent unlawfully deducted holiday pay under the Act and I direct the Respondent to pay the Complainant the net sum of €700.

Payment of Wages Act 1991, Holiday Pay, Unlawful Deduction.