An Irish Rail inspector who lost a Supreme Court action against his employer in 2019 has been awarded €500 in compensation after the company started to deduct more than €80,000 to cover legal costs from his wages without his consent.
Barry McKelvey had been accused in 2017 of misusing a company fuel card while employed as an inspector responsible for some 20 staff involved in the maintenance of the rail line between Dublin and Cork.
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.
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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Mr McKelvey had failed to establish the sort of exceptional circumstances that would merit legal representation and had withdrawn from the disciplinary process before there had been any suggestion the procedures might be unfair.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 competently with.
The decision received a good deal of attention in legal circles at the time, with Alicia Compton, a partner at William Fry, saying it had brought “welcome clarity to the issue of legal representation in disciplinary proceedings”.
“The timing of the request for legal representation and the commencement of legal proceedings are also important elements to consider,” she said. “An employee must be able to clearly establish that legal representation is necessary to ensure fair procedures at the time legal proceedings are initiated.”
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. More than €8,000 was subsequently taken from his wages.
He complained to the Workplace Relations Commission, where he was represented by Siptu, arguing the deductions were illegal, as making them without his agreement was not authorised under the Payment of Wages Act, 1997.
In his decision on the case, adjudication officer Conor Stokes said there was “no question” the company was entitled to its costs in relation to the legal action, but that did not mean it could take the unilateral decision to start recouping it through deductions from wages.
“The only matter that this complaint turns on [is] the lack of written consent to the deduction prior to the making of the deduction,” he said. “I note that the respondent had tried to engage with the complainant for two years before taking this step of making deductions without the written consent of the employee.
“However, the Act requires the written consent of the employee. In that regard the complaint is well founded and that the Act was contravened. Accordingly, I consider that compensation of €500 is reasonable in all the circumstances of this unique case.”
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