Irish Rail has been ordered to repay €4,900 it deducted from the wages of an inspector who owed the company almost €84,000 in costs following a failed legal case arising out of the conduct of a disciplinary hearing.
Barry McKelvey was previously awarded €500 in compensation at the Workplace Relations Commission, but appealed the decision to the Labour Court, where he sought the repayment of €8,200 which had been deducted from his wages by the company in an attempt to recover the debt.
In a judgment published on Friday, the court said that because of the date on which Mr McKelvey’s complaint was lodged, it could only deal with portions of the time during which Irish Rail had made weekly deductions of €200 from his wages, amounting to 24 and a half weeks.
It found those deductions to be unlawful, however, and ordered that the money involved be repaid.
RM Block
Mr McKelvey’s debt to his employer arises from a court case he took challenging its refusal to allow him legal representation during a disciplinary case after he was accused in 2017 of misusing a company fuel card.
Citing the seriousness of the allegations, he sought to be represented by a solicitor or barrister during the resulting disciplinary process. The company refused and he withdrew from the process.
The High Court found that he should be entitled to legal representation, but that decision was overturned by the Court of Appeal before the Supreme Court issued a decision on the case in November 2019.
It said Mr McKelvey had failed to establish the sort of exceptional circumstances that would merit legal representation and had withdrawn from the disciplinary process before there had been any suggestion the procedures might be unfair.
It said it could see nothing in the anticipated process that an experienced trade union official could not be expected to deal with competently.
The court subsequently made an order for costs against Mr McKelvey, and after an adjudication process, it was confirmed that he was required to pay €83,174.62 to his employer as a result of the failed action.
Subsequent to the Supreme Court decision, the disciplinary process against Mr McKelvey resumed and, following its conclusion, he returned to work in February 2021.
The company said Mr McKelvey had not “engaged meaningfully” in relation to the debt, and so it “made a reasonable decision to commence recouping the money through a payroll deduction”.
It had proposed recouping the money over a 10-year period, while Mr McKelvey had suggested a period twice that long.
Ultimately, it began to make deductions of €200 per week, writing to him on August 25th, 2022, to say it would commence the process at the start of September. Mr McKelvey wrote back to say he did not consent to the deductions.
The weekly deductions were first made in September 2022 and continued through most of the following year during which Mr McKelvey was earning €1,200 per week. They were stopped upon legal advice when he became involved in a formal insolvency process.
Mr McKelvey took a case against the company at the WRC, where Irish Rail said the case was “unusual and unique” and that it had acted reasonably in the circumstances. The adjudication officer, however, said that while there was “no question” the company was entitled to the money it was owed, it was not entitled to recoup it in the way it had sought.
Similarly, the Labour Court has said the company could not point to any term in a written contract of employment or collective agreement which permitted it to take the unilateral action involved.
