Complainant

Respondent

Parties

Jamie  Breen

McAllisters Garage Limited Joe Duffy Airside

Complainant

Respondent

Anonymised Parties

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Representatives

Domhnall Ó Scanaill Ó Scanaill & Co.

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-00068547-001

10/01/2025

The Complainant has been employed by the Respondent as a Senior Technician (Mechanic) with effect from 17 January 2022.  The Complainant contended that the Respondent made unlawful deductions from his wages.

The Respondent is a garage.  The Respondent denied the claim and contended that the complaint was time barred.  In the alternative and without prejudice to the foregoing the Respondent contended that the deductions related to damaged caused by the carelessness of the Complainant and that it was entitled to make deductions from salary based on the provisions of the employment contract and having followed an investigation and disciplinary procedure.

In his complaint form, the Complainant submitted that his employer deducted an un-vouched sum of money from his salary in December 2024.  He submitted that the Respondent alleged it suffered the equivalent loss when, entirely by accident the car he was working on tipped against a diagnostic apparatus. He submitted that the said apparatus was neither repaired nor replaced, and he was never furnished with any estimate or invoice in respect of its replacement or repair.

The complainant stated that he had repeatedly called on his employer to cease these unlawful deductions and to reinstate his full salary by refunding deductions already made.

Ms. Kelly provided the WRC with a copy of correspondence dated 26 November 2024 which she had issued to the Respondent, and which set out the Complainant position as follows:

·       That an incident took place on 27 September 2023, which resulted in an investigation process and an appeals process

·       That no inappropriate conduct whatever had been alleged against the Complainant regarding his activities on the day in question

·       That no documentation was put forward to support the assertion that a sum of €5K worth of damage was caused by the Complainant

·       That the calibration apparatus alleged to have been damaged had neither been repaired nor replaced in the intervening time period

Ms. Kelly confirmed the position that there was no basis in contract law, employment law or in the laws of negligence to entitle the Respondent to penalise the Complainant, in circumstances where the incident in question arose in the normal course of his work.

At hearing the Complainant gave evidence that he was a mechanic working with the Respondent since December 2021 and that he had a total of 9 years’ experience in the trade.  He confirmed that in relation to the incident of 27 September 2023 he had reversed into a calibration machine and knocked it over.  He stated that he reported it to the person in charge that day.  He gave evidence that there was an investigation, and that the outcome of the investigation was that he received a warning and was obliged to pay a 50% contribution towards the cost of the damage which equated to €2500.  He stated that he appealed that decision on 16 October 2023 but that he never received an outcome of that appeal.

The Complainant gave evidence that he was not sure if the investigation had reached a finding, that he was just made aware of the decision to issue him with a warning and he was told that he had to pay €2500 towards the damage.  He also gave evidence that his appeal related only to the damages and that he did not appeal the warning.  The Complainant stated that there had been other incidents where equipment was damaged but that colleagues had not been obliged to make payments and he stated that ordinarily if a car is damaged “it just gets fixed”.

The Complainant gave further evidence that he was advised that the cost of the machine that was damaged was circa €5K and that he would have to pay half that cost.  He confirmed that he was never provided with any estimate for the cost of repairing or replacing the calibration machine. He further confirmed that the deductions were being made each month at the rate of €104.16 per month but that the calibration machine had never been repaired or replaced. 

The Complainant’s evidence was that the deductions had been made each month for 18 months as at the date of hearing and that those deductions were scheduled to continue up to 24 months.  He confirmed that he had not given his prior consent to the deductions, that the amount being deducted was not fair and reasonable and that it was an arbitrary amount decided upon by the Respondent.  In all the circumstances he submitted that the deductions were unlawful and unauthorised.

The Complainant reaffirmed his evidence that he was never advised of any finding of negligence against him, and that the calibration machine was never replaced or repaired.  He noted that the letter arising from the disciplinary hearing had stated that he was “requested” to pay half the cost but that the deductions from his salary commenced without any further discussion or notice and that he never consented to the deduction.

Cross examination of the Complainant

Under cross examination the Complainant confirmed that he had contract of employment and that clause 5 of the contract confirmed the right of the company to make deductions from his salary to recover any losses due to negligence.  He also accepted that he had been involved in a previous incident in relation to an “act of negligence” when he threw tyres in the garage.

In relation to the calibration machine the Complainant acknowledged that it was a valuable piece of equipment and that it was crucial in testing the road worthiness of cars leaving the garage.  In this context he accepted that it needed to be treated with respect and care.

The Complainant confirmed that he had met with Mr. Kilduff and “Dermot” as part of the investigation and appeals processes and that he had received a letter of sanction.  He confirmed his view that he only appealed the sanction to impose the deductions on him, and he read his letter of appeal to the hearing to support that position.  He further confirmed that he never said that it wasn’t him who damaged the machine and that he had owned up to the incident from the outset.

Mr. Garry put it to the Complainant that the company thought he had appealed the warning, to which the Complainant responded that it was clear from his appeal letter that he was appealing the decision regarding the deductions.  He confirmed that the deductions commenced in October/November 2023, and he lodged his appeal in November 2023.

Mr. Garry put it to the Complainant that the company had extended the time period for the deductions to 24 months to make it more manageable, but the Complainant refuted that assertion, stating that the timeline was never extended.

Preliminary Issue – Time Limit

At hearing, in response to the Respondent position that the complaint was out of time, the Complainant stated that while the deductions had commenced in October 2023, he continued to have deductions made from his salary on a monthly basis and that this was enforced by the Respondent for a period of 24 months in total.  In the context that the deductions were still in force the Complainant submitted that his complaint was within time.

Preliminary Issue

The Respondent submitted that the complaint was out of time.  The Respondent outlined that the deductions commenced in October 2023, that the complaint was not submitted until 10 January 2025 and that in those circumstances the complaint was clearly well outside of the 6-month timeframe permitted under the Workplace Relations Act 2015.

The Substantive Issue

The Respondent did not provide a written submission in advance of the hearing but submitted a copy of what it described as page 1 of the Complainant’s “Employment Agreement”. 

At hearing it was the Respondent position that the Complainant had caused damage to a calibration machine by driving a car into the garage in a careless or negligent manner, crashing into the machine and thereby damaging the machine.  It was also the Respondent position that it had investigated the incident and brought the Complainant to a disciplinary hearing where a sanction of a written warning was imposed, and he was required to pay 50% of the cost of the damaged machine.  The Respondent outlined that the Complainant was given the right to appeal but that on the day of the appeal hearing he confirmed he was not appealing the written warning.

The Respondent drew attention to Section 5 of the Complainant’s “Employment Agreement” which stated that “The Company reserves the right to deduct from your pay such sums which you owe for reasons including but not limited to the following: an overpayment of salary, to recover the balance of any loan provided to you or to recover any losses due to your negligence or breach of employment rules as provided for in the Employee Handbook.”  On the basis of that provision the Respondent stated its position that it was entitled to make the deduction.

Witness evidence – Mr. Garry

Mr. Garry confirmed that deductions commenced from the Complainant’s salary on 23 November 2023.  He stated that it needed to be clarified that it wasn’t a question of whether or not the machine was replaced, this was about damage done through a careless approach. 

He confirmed that the Complainant was a valued member of staff who showed integrity and was professional in his dealings.  However, he stated that the Complainant had been involved in 2 incidents.  He stated that the first incident had resulted in damage to the Respondent property, that he had apologised, and the company had accepted the apology.

Mr. Garry stated that when the second incident occurred the Respondent asked that the Complainant bear half the cost of the damaged machine and he was issued with a written warning.  He gave evidence that the Complainant was offered an appeal and that the appeal took place on 27 October 2023.  He stated that he was appointed to hear the appeal and that Mr. R Egan was a notetaker.

Mr. Garry gave evidence that at that appeal hearing the Complainant advised him that he would “let the hare sit” and that he understood this to mean that the Complainant no longer intended to pursue an appeal of the written warning.  Mr. Garry stated that in that context he did not issue an outcome of the appeal and he stated that the Complainant made payments for a considerable period before pursuing his complaint.

Mr. Garry stated that it was an unfortunate situation but that accidents happen, and the company must follow its own procedure.  He stated that where there are incidents “people are penalised”.

Cross examination of Mr. Garry

Mr. Garry confirmed that after the machine was damaged calibration work was no longer done in Swords but in the Charlestown garage.

Ms. Kelly put it Mr. Garry that while the correspondence issued to the Complainant asked him for a 50% contribution to the damage done that in fact, he was instructed to make those payments.  Mr. Garry stated that whether he was asked or instructed was not relevant but that it was clear that “the company made the decision”.  Mr. Garry accepted that “ask” implied the option of a response and that the Complainant had never agreed the deduction but that it was clear he had accepted the deduction as he never objected in writing.

Ms. Kelly drew the attention of the hearing to the Complainant’s letter of appeal and asked Mr. Garry if that letter was not clearly raising concern about the deduction.  Mr. Garry responded that the Complainant did not formally appeal that decision.  When asked if the Complainant had ever agreed to the deduction in writing Mr. Garry stated that the Complainant had said he wasn’t agreeable.  When asked if the Complainant had ever authorised the deduction Mr. Garry replied “no”.

In response to questions in relation to the appeal hearing Mr. Garry stated that the appeal hearing was against the written warning, that there was no question of an appeal about the deduction.  He confirmed that he was only adjudicating upon the written warning.  He reaffirmed that there was no question of him hearing an appeal in relation to the issue of the deductions, that he wasn’t requested to do so.

Ms. Kelly put it to Mr. Garry that in those circumstances he had never heard the Complainant’s appeal.  Ms. Kelly again read from the Complainant’s letter of appeal and drew attention to the fact that it was entirely focused on the deductions.  Mr. Garry stated that the word appeal was never mentioned in relation to those deductions and that he was only requested to hear an appeal of the written warning.

Ms. Kally sought clarification on how the appeal came about and Mr. Garry confirmed that he was told that the Complainant was appealing, and he was asked to hear that appeal.  Ms. Kelly asked if it was possible that the appeal was not fully completed.  Mr. Garry stated that if somebody could show him evidence that the Complainant had appealed the deductions then he could accept that.

In response to questions from this Adjudication Officer Mr. Garry provided some clarification in relation to the investigation and disciplinary process but as he had not been directly involved, he agreed to forward the relevant documentation post hearing.

On 3 June 2025 the WRC received the following documents from the Respondent:

·       Email of 3 June confirming that the investigation had been conducted by Mr. C Kilduff and the decision on the disciplinary sanction had been made by Mr. N Coughlan.

·       Copy of email of 28 September 2023 from Ms. F Walsh to Ms. C. Keaveney regarding an incident involving the Complainant on 22 September 2023

·       Copies of 2 photographs of resulting damage

·       Copy of an Incident report form in relation to the above incident

·       Copy of letter of 13 October 2023 confirming a verbal warning in relation to the above incident

·       Copy of an email of 28 September 2023 from Ms. F Walsh to Ms. C. Keaveney regarding an incident involving the Complainant on 27 September 2023

·       Copy of photograph of the damaged calibration machine arising from the above incident

·       Copy of letter of 28 September 2023 to the Complainant inviting him to attend an investigation meeting on 2 October 2023 in relation to the incident of 27 September 2023

·       Copy of handwritten note of the investigation meeting of 2 October 2023

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties, as well as evidence and information provided at hearing by the parties and their representatives. 

Preliminary Issue – Time limit

Section 6 (4) of the Payment of Wages Act states “a rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable”.

In the instant case the Respondent put forward the position that the complaint was out of time as the initial deduction was made on 24 October 2023.  Alternatively, the Complainant submitted a complaint form that recorded the date of the deduction as 18 December 2024 and from my discussions at hearing I understand that to be the date of the latest deduction made prior to the submission of his complaint.  I noted the Complainant view that as the deductions were still on-going for up to 24 months his complaint was within time.

I note that in the case of Health Service Executive v McDermott [2014] IEHC 331 where the High Court was asked to consider the meaning of “within the period of 6 months beginning on the date of the contravention to which the complaint relates” .  Hogan J, having considered the wording of S.6(4) of the Act, held that “every distinct and separate breach of the Act amounts to a contravention.” He held that “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); if, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

Hogan J held that only complaints which relate to the last six months prior to the presentation of the complaint to the Rights Commissioner will not be time-barred.

In the instant case the complaint form submitted by the Complainant described the employer as making a deduction of €104.16 from his monthly salary, a complaint which related to a contravention of the Act on 18 December 2024 and which was presented to the WRC for adjudication on 10 January 2025.  Based on the established case law outlined above I find that this complaint is within time.  While it emerged in the course of the hearing that the deductions have been ongoing since October 2023, only deductions which relate to the last six months prior to submission of the complaints are within time limit; previous deductions are time-barred.

The Substantive Case

The case I must consider is a claim that the Respondent has been making and continues to make unlawful deductions in the amount of €104.16 per month from the Complainant’s wages for damage which he is alleged to have done to a piece of equipment at the Respondent’s premises. The Complainant contends that the matter was not adequately investigated, that proper procedures were not followed, that he was never given any evidence of the cost of the equipment and that it was in fact an arbitrary amount.  He also contends that he appealed the sanction in relation to the deductions but that he never received an outcome to that appeal.

The Respondent contends that the Complainant caused damage to a very expensive piece of equipment due to his negligence, that it had an agreement in place to provide for deductions of losses incurred in such circumstances and that having investigated the matter, in accordance with its’ procedures the Complainant had been issued with a written warning and that 50% of the cost of the damage was to be paid by the Complainant.  The Respondent contends that this was spread over 24 months in order to minimise the impact on the Complainant and that the sanction had been imposed in circumstances where the Complainant had previously caused damage due to careless or negligent behaviour.

Section 5 pf the Act 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 of 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”

It is clear that the deduction made is not a statutory deduction and the Complainant was adamant at hearing that he did not give his prior consent to the deduction.

It is therefore necessary to consider if the deductions made by the Respondent satisfy the requirements of Section 5(1)(b).

Having reviewed the document upon which the Respondent relied in making the deduction, I note that it is entitled “Employment Agreement” and that the Respondent submitted merely a  one page document.  It may be that there are further sections to the document in question but even when the document was submitted a second time by the Respondent the same single page only was provided.  The document submitted by the Respondent does not bear the signature of either party and is not dated.

 The purpose of Section 5(1) (b) of the Act is to provide for circumstances where there is a contractual agreement to deductions in prescribed circumstances and where those circumstances exist, it is then not necessary to have a separate agreement to each relevant deduction.  On that basis it is fundamental to accepting the “Employment Agreement” as meeting the standard set out in the act, for that agreement to be signed by the Complainant and the document provided was not.  It is also essential to compliance with the provision of the act for the document to pre-date the deduction made and the document provided is undated.

In those circumstances, the Respondent cannot rely on the provisions of Section 5(1)9b) to validate its actions.

In addition, and for the avoidance of doubt Section 5 of the “Employment Agreement” provides for a deduction in the following circumstances:

       i.          an overpayment of salary,

      ii.          to recover the balance of any loan provided

    iii.          to recover any losses due to negligence or breach of employment rules as provided for in the Employee Handbook.

It was the Respondent position that the reason for the deduction was the “negligence” of carelessness of the Complainant.

In considering this matter I note the following in relation to the Respondent investigation of the incident:

·       That while there was an “investigation” meeting held with the Complainant no other staff were interviewed in relation to the incident

·       That the Complainant, at that meeting, indicated that he was not responsible for leaving the calibration machine out on the floor

·       That he did acknowledge that the space was tight while moving the car but that he stayed reversing anyway

·       That he never received any outcome of that investigation meeting, and that no documentation was presented either at hearing or post hearing to demonstrate that the investigation reached any conclusion.

In the above circumstances, it is evident that no finding of negligence was ever made against the Complainant.

In considering the deductions made I note the following in relation to the disciplinary and appeals procedure:

·       That no disciplinary meeting was ever held

·       That notwithstanding the fact that no disciplinary meeting ever took place, Mr. Coughlan made a decision to issue a sanction of a written warning and a deduction of 50% of the cost of the calibration machine

·       That this was communicated thereafter in writing to the Complainant by HR staff

·       That no documentation was provided to the Complainant to verify the cost of the damaged equipment, nor was there any evidence provided that the equipment was beyond repair, thus requiring the cost of full replacement

·       That the Complainant appealed the sanction imposed and that his letter of appeal focused almost entirely on the financial impact of the deductions imposed

·       That HR passed the matter to Mr. Garry and asked him to conduct an appeal hearing into the sanction of the written warning

·       That at the appeal meeting the Complainant confirmed his position that he did not wish to appeal the written warning and so Mr. Garry closed the appeal meeting without hearing from the Complainant in relation to his concerns about the deductions.

·       That in the circumstances of that meeting no outcome was ever issued to the Complainant appeal.

It is abundantly clear that the procedures operated by the Respondent were fundamentally flawed, that no finding of negligence was ever made against the Complainant, that the sanctions imposed were described as disciplinary sanctions but were activated outside of any recognisable disciplinary procedure.

In light of the deficiencies in evidence in relation to compliance with Section 5(1)(b) and in light of the above procedural deficiencies I find the deductions from the Complainants salary to be unlawful.

Notwithstanding, the conclusions reached in this case, I accept that it is reasonable for an employer to address careless behaviour resulting in damage to equipment in the workplace.  It seems to me that every employer has the right to expect employees to treat the workplace and its contents/equipment with respect and the Complainant would be well advised to take greater care in the future.

Redress

As outlined under the heading “Preliminary Issue” above my jurisdiction in the instant case is confined to the cognisable period.  The cognisable period is based on a submission of claim date of 10 January 2025, therefore all deductions made between 10 July 2024 and 9 January 2025 should be refunded to the Complainant.  Deductions made prior to 10 July 2024 are time barred.

Deductions made after the date of submission of the claim are not comprehended by the complaint submitted, however, the Respondent should note that the deductions have been deemed to be unlawful.

I have found that the deductions made by the Respondent from the wages of the Complainant were unlawful and in those circumstances, it is my decision that this complaint is well founded.  I direct the Respondent to refund the Complainant all monies deducted from 10 July 2024 to 10 January 2025. I also direct the Respondent to cease any further deductions.

Unlawful deduction