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GAZETTE
MARCH 1993
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
(g) a deduction made by an
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
court or tribunal or a third
party out of the wages of the
employee."
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.
Judgment of Keane J
"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
respect of the costs of an
unsuccessful judicial review
application. He is paid in arrears on
a weekly basis. Now it is clear that
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.
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
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