PWD2617

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00056344 (CA-00067858-001)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015. 

The following is the Court's Decision.

DECISION:

Background

This is an appeal by SCS Haulage Dublin Ltdof a Decision of an Adjudication Officer made under the Payment of Wages Act 1991 (“the Act”) in relation to a complaint made by a former employee, Derek Clarke.

The Adjudication Officer found that the complaint was well founded and ordered SCS Haulage Dublin Ltd to pay the sum of €305.00 as compensation.

This case is linked to another complaint PWD2618, which was heard by the Court on the same day. At the hearing, the Court heard submissions from both parties. The Court heard sworn witness testimony from Derek Clarke and from Terry Holmes on behalf of the company.

In this Decision the parties are referred to as they were at first instance. Hence, Derek Clarke is referred to as “the Complainant” and SCS Haulage Dublin Ltdas “the Respondent”.  

Summary of the Complainant’s position

The Complainant worked as a delivery driver with the company. He resigned his position on Wednesday 12 June 2024. On the day he resigned, the Complainant was making deliveries to public houses in Waterford. He had ten deliveries to make in ten hours, and it was not always possible to contact the publicans in advance of his arrival. When he arrived at one premises, the pub was closed. He left the kegs over the gate of the pub. The Respondent deducted €65.00 for the cost of a damaged keg and €220.00 for the cost of the repeat delivery to the pub from his final wages. 

The Complainant accepts that he signed a Deduction from Pay Agreement which allows the employer make deductions from his wages for damage to stock and failure to observe rules. The Respondent never informed the Complainant about the damages.  The Respondent did not notify the Complainant in writing one week advance about the deduction, as required.

Summary of the Respondent’s position

The Complainant did not follow instructions by contacting a publican in advance of delivering an order of kegs to a pub in Waterford.  The pub was closed when the Complainant arrived.  He left the kegs over the gate of the pub and one keg was damaged. The publican was very irate that he was not contacted in advance of the delivery so that he could be at the premises. The Respondent had to send down a replacement keg with another driver that day.  The cost of the replacement keg was €65.00.  The cost of fuel and wages for a replacement driver was €220.

The Complainant agreed to and signed a Deductions from Pay Agreement on commencing employment.  The cost of the keg and replacement delivery were deducted from the Complainants final wages, in line with the terms of that agreement.

The Applicable Law

Section 5 of the Payment of Wages Act 1991 provides as follows:

Regulation of certain deductions made and payments received by employers.

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.

(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.

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(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.”

Deliberations

It is accepted that the Complainant’s gross pay was €1,214 per fortnight, which was the amount that was properly payable to him in the relevant period.

It is accepted that the company deducted €285 from the Complainant’s final wages in June 2024. Accordingly, the Complainant was subject to shortfall in his wages of €285.00 for that pay period.

The Respondent relies on a Deductions from Pay Agreement which was signed by the Complainant when he commenced employment.  Clause 8 provides as follows:

“Any damage to vehicles, stock or property (including non-statutory safety equipment) that is the result of your carelessness, negligence or deliberate vandalism will render you liable to pay the full or part of the cost of repair or replacement. 

Any loss to us that is the result of your failure to observe rules, procedures, or instruction, or is as a result of your negligent behaviour or your unsatisfactory standards of work will render you liable to reimburse to us the full or part of the cost of the loss.

In the event of an at fault accident whilst driving one of our vehicles, you may be required to pay the cost of the insurance excess.

In the event of a failure to pay, such cost will be deducted from your pay.” 

Mr Holmes contends that the company is entitled to recoup the losses incurred because of the Complainant’s failure to follow instructions and contact the publican in advance of the delivery of kegs to the pub premises. His evidence was that the cost of a replacement keg was €65.00 and the cost of sending a replacement delivery to the customer amounted to €200.00 or €220.00 in wages and fuel costs.

Section 5(1) of the Act prohibits an employer from making deductions to an employee’s wages except in accordance with the provisions of that section. Section 5(1)(b) allows for a deduction to be made where “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”. In this case, both parties accept that the Complainant signed and agreed to the terms set out in the Deductions from Pay Agreement.

Section 5(2) of the Act prohibits an employer from making deductions to an employee’s wages except in accordance with the provisions of that section. Section 5(2)(b)(iv) allows for a deduction to be made where 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.

In reply to questions from the Court, Mr Holmes accepted that the company did not provide the Complainant with any particulars about the deductions to his wages in advance of making those deductions, as required at section 5(2)(b)(iv).

 In the circumstances outlined to the Court the Respondent cannot rely on Section 5 of the Act to say that the deductions made from the Complainant’s salary were lawful.  Accordingly, the Court finds that an unlawful deduction from the Complainant’s wages occurred during the relevant period and so finds the complaint is well founded.

The Court is satisfied there was an unlawful deduction of the Complainant’s wages that resulted in a shortfall in pay of €285.00.

Decision

The Court finds that the complaint is well founded. The Court finds that the Complainant suffered a deduction from his wages during the cognisable period for the within complaint of €285.00 and that this deduction was unlawful.

The Court directs the Respondent to pay the Complainant the sum of €285.00 by way of compensation. The decision of the Adjudication Officer is varied accordingly. The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AM	______________________
06/07/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Áine Maunsell, Court Secretary.