This issue arose in the case of Galway Clinic Doughiska Limited and Ivanho PWD2215. This is a case where the Labour Court reviewed the Legislation relating to payments due. The Court referred to the case of Marek Balans -v- Tesco Ireland Limited 2020 IHC55 where Mr Justice McGrath considered Section 5 of the Act as follows:

“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 that occasion. Centre of the Courts analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of such payments, it arose as a result of an error of computation”.

In that case the Court also referred to the decision of Mr Justice Finnigan in Dunnes Stores (Cornelscourt) Limited -v- Lacey 2007 1I.R.478 where it was argued that the Employment Appeals Tribunal should address the question of renumeration properly payable to an employee before considering the question of deduction or whether a deduction was unlawful. In that case at page 482 Mr Justice Finnigan stated:

“I am satisfied upon careful perusal of the documents relied upon by the Respondent that the same cannot represent the agreement or an acknowledgment of the agreement contended for but rather it contains a clear denial of the existence of any such agreement. No such evidence of an agreement was provided. In these circumstances I am satisfied the Employment Appeals Tribunal erred in law in failing to address the question of the renumeration properly payable to the Respondents such a determination being essential to the making of a determination”.

The Courts set out that the decision makes clear that the Labour Court when considering a complaint under the Act must first determine the wages which were properly payable to the employee on the occasion. It is only when that is determined can the Court proceed to examine whether the amount differs from what was actually paid on the occasion of whether any difference amounted to a deduction within the meaning of the Act.

This is a very helpful overview of the Legislation on this issue.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

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