Complainant

Respondent

Parties

Eoin  Daly

Aughinish Alumina Limited

Representatives

Hamilton Turner Solicitors

Christina O'Byrne BL instructed by William Fry LLP

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-00068757-001

21/01/2025

The Complainant gave sworn evidence and relied upon documentation submitted in advance of the hearing. He was represented by his solicitor, Ronan Cunningham. It was his complaint that a deduction of €1,734.70 was made from his wages on 13 August 2024, which the Respondent claimed represented an overpayment of discretionary sick pay of which the sum of €1,156.47 remains in dispute. It was his evidence he earned a fortnightly net sum of €1859.23 working 39 hours per week.

Michael O'Toole, HR Manager, and Mark Beha, Supervisor gave sworn evidence on behalf of the Respondent. Legal submission and documentary evidence were relied upon by the Respondent with supplementary submissions received on 5 November 2025. The Respondent was represented by its solicitors Cliodhna Hand and Chris McMahon.

All witnesses gave evidence on Affirmation.

It was the Complainant’s evidence that he has been employed by the Respondent as a mechanical fitter since November 2013 and has maintained an unblemished disciplinary record throughout his service. It was his complaint that a deduction of €1,734.70 was made from his wages on 13 August 2024.

It was the Complainant’s evidence that he complied with all notification requirements for each of the sick‑leave dates concerned, 27 March 2024, 31 May 2024, and 8, 10, 11, and 12 July 2024, by informing his Facilitator, Mark Beha, by telephone on each occasion. He stated that the Respondent paid him discretionary sick pay for these dates and that several months later, without any prior warning or explanation, the Respondent unilaterally deducted 55% of his gross wages on the basis that these payments had been made in error. It was his evidence that he was never told that an overpayment had occurred, nor that any deduction would be made from his salary.

It was his evidence that this caused significant financial hardship, including missed loan repayments and disruption to pension contributions.

He further stated that he raised a formal grievance in response, after which the Respondent accepted at Stage 2 that two of the deducted days (27 March and 31 May 2024) had been wrongly withheld and reimbursed him. However, the Complainant’s evidence was that the Respondent refused to reimburse the remaining four dates, leaving him at a loss of €1,156.47.

It was the Complainant’s evidence that he was never informed of any administrative error, nor provided with a clear explanation of how the deduction was calculated. He acknowledged being notified of his removal from the discretionary sick pay scheme in February 2024 but stated that this notification did not explain that prior payments would be recovered or that future cover was suspended.

The Complainant was challenged on his awareness of the second appointment with Occupational Health with reference to an email from Mr O’Toole of 22 February 2024 in cross examination with the Complainant stating that he was never told of the date of the appointment.

The Complainant submits that Section 5(5) of the Payment of Wages Act 1991 does not apply because there was no overpayment of wages, as the Respondent had knowingly and deliberately applied its discretionary sick pay scheme to the relevant dates. The Respondent’s earlier notification of his removal from the scheme related only to a previous absence, and the continued payment of discretionary sick pay reasonably led the Complainant to believe he remained covered. On this basis, the Complainant contends that the Respondent acted unlawfully by deducting his wages without notice, and that the deduction was not permitted under the Act.

It was the Respondent’s evidence that no unlawful deduction had occurred because the Complainant had not attended work on 8, 10, 11, or 12 July 2024 and was not entitled to discretionary sick pay for those dates. The Respondent stated that the Complainant therefore had not received payment for days he did not work and was not eligible for sick pay under the scheme at that time. It was further given in evidence that between January 2023 and August 2024, the Complainant had been accommodated on 163 out of 376 working days and had received 92 days of paid sick leave.

The Respondent’s evidence was that the sick pay scheme was entirely discretionary and expressly allowed the company to withhold sick pay. The policy required employees to contact the Medical Centre on the first day of absence, attend medical assessments when requested, and warned that failure to do so would result in immediate removal from the scheme. The Respondent relied on these provisions to justify the Complainant’s removal.

It was also the Respondent’s evidence that the Complainant had significant patterns of absence, including a period of sick leave from 31 August 2023, childcare‑related requests for flexible work, and later certified medical absences. The Respondent maintained that its decision to remove the Complainant from the sick pay scheme was consistent with policy and that any payments initially issued for the disputed dates were made in error.

Accordingly, it was the Respondent’s position that the subsequent adjustment was proper and did not constitute an unlawful deduction.

The Respondent relied upon Martin O'Dowd v SK Biotek Ireland Limited ADJ-00031755, A Training Consultant v A Training Company (ADJ-00018655), Balans v Tesco Ireland Limited [2020] IEHC 55

Wages are defined by Section 1 of the Payment of Wages Act 1991 (“1991 Act”) as:

"wages", in relation to an employee, means 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, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”

Section 5 of the 1991 Act provides:

“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.”

There was particular emphasis by the Respondent on Section 5 (5) of the 1991 Act which provides:

“(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

Section 5 of the 1991 Act prohibits deductions unless they are authorised or fall within specific exemptions. Section 5(5) permits deductions only where they constitute reimbursement for an overpayment of wages. In this case, the Respondent did not demonstrate that the initial payments that the Complainant had been informed that the payments were erroneous at the time they were made, instead waiting months after to make the deduction without any notification.

It is acknowledged that the Complainant had an extraordinarily high absenteeism record with some days questionable as to whether they fell within the definition of sick leave such as caring for his children, for which there is separate statutory leave. It is also acknowledged that the Respondent was generous in its flexibility towards the Complainant’s working arrangements.

The evidence indicated that the Complainant had previously been removed from the discretionary scheme during an earlier period of absence, yet the Respondent continued to pay him discretionary sick pay for later absences without clarifying that such payments would subsequently be recovered.

The Respondent accepted that no specific notice was given to the Complainant of the amount to be deducted or the date on which the deduction would occur. There is no provision in the Complainant’s contract of employment or in the policy giving consent or authority to deduct payments.

I am satisfied, on the balance of probabilities, that the Complainant was not informed of any overpayment prior to the deduction and that the notification of his earlier removal from the scheme did not constitute notice of a future deductions due to the passage of time but primarily the fact he has been paid for sick leave days on 27 March 2024, 31 May 2024 (albeit ultimately addressed and repaid), and again 8, 10, 11, and 12 July 2024 with the deduction taking place on 13 August 2024.

In circumstances where the Respondent did not establish a valid overpayment within the meaning of Section 5(5), and where no contractual or statutory basis for the deduction was shown, the deduction constituted an unlawful deduction under Section 5(1) of the 1991 Act.

In accordance with Section 6 of the Payment of Wages Act 1991, the complaint is well‑founded

The complaint is well‑founded and therefore, Section 6 of the 1991 Act must be considered.

“6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

The Complainant earned a net weekly sum of €929.62 as per the Complaint Form, the sum in which the Complainant is entitled pursuant to Section 6 (1) (a) (i). However, in the circumstances where the deduction was greater than this amount, the Complainant is entitled to twice that amount which equates to the net some of €1,859.23 pursuant to Section 6 (1) (b).

Payment of Wages.