The Gazette 1993

MARCH 1993

GAZETTE

if for some reason Mr Shalvey were to absent himself from his employment - I exclude from consideration justifiable absences caused by sickness etc - that BTE would not be required to pay him.

court or tribunal or a third party out of the wages of the employee."

Monies owed by an Employee to his Employer: Remedies of Employer The issue of the remedies of an employer, where money is owed by an employee to such an employer, arose in the case of Shalvey -v- Telecom Eireann (High Court, unreported, Keane J. July 28, 1992). The background to the case may be stated. The High Court, Lardner J, (unreported judgment July 3, 1989), had refused Mr Shalvey's application for judicial review and awarded costs to the respondent, Telecom Eireann. The issue then arose as to how, apart from the Enforcement of Court Orders Acts, an employer could obtain such costs from an employee. Section 5 of the Payment of Wages Act, 1991 contains a general prohibition restraining unauthorised deductions from an employee's wages. The prohibition is not to apply, inter alia, in the following circumstances set out in section 5(5) (0 and 5(5) (g) of the 1991 Act: "(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by an employee to an employer, or employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the (g) a deduction made by an

Although it might appear that section 5(5) (f) of the 1991 Act covers the matter at issue, on closer examination the sub-section only applies where the employee has given his prior consent in writing. Section 5(5) (g) only caters for payments to third parties pursuant to a court order. Telecom Eireann sought to attach the relevant sum owing from the annual earnings of the employee. The High Court, Lavin J, granted a conditional order of garnishee and the matter became before Keane J, of the High Court for an absolute order. Mr Gerard Hogan, BL, instructed by the Solicitor, Telecom Eireann, appeared for the Company. Ms Caroline Costello, BL, instructed by M.A. Regan McEntee & Co. solicitors, (Trim), appeared for Mr Shalvey. Mr Gerard Hogan, BL, prepared a note of the ex tempore judgment delivered by Keane J, on July 28, 1992 and for the record, the full judgment is set out herein. "The only reason for reserving judgment in this case would be in deference to the excellent and well- researched legal argument presented by Mr Hogan and Ms Costello on behalf of their respective clients, but since the matter appears to me to be quite clear, I feel that I can deliver judgment immediately. "The applicant is an employee of Bord Telecom Eireann and he owes them the sum of just over £4,000 in Judgment of Keane J

The Hon. Mr Justice Ronan Keane "This seems to me to be the nub of the issue. There is clear authority for the proposition that future earnings cannot be attached. This appears from a consideration of counsel's argument in Hall -v- Pritchett (1878-8) 3 QBD where this argument was accepted by a strong Divisional Court (Lord Cockburn CJ and Mellor J). This is what BTE are attempting to do here. But attachment whether by way of garnishee proceedings or receiver by way of equitable execution - can only apply to present debts due to a judgment debtor and cannot apply to future earnings. This proposition seems to me to arise by implication from the decision of the old Irish Court of Appeal in Picton -v- Cullen [1900] 2 IR 615, where the appointment of a receiver in respect of the debt of a schoolmaster was upheld. There the salary had already become due and Holmes LJ was careful to distinguish between that situation and the situation in the

respect of the costs of an unsuccessful judicial review

application. He is paid in arrears on a weekly basis. Now it is clear that

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