A company has the right to seek costs it was awarded but not to unilaterally dock pay, the Workplace Relations Commission has found. An 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. The Supreme Court 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Mr McKelvey had failed to establish the sort of exceptional circumstances that would merit legal representation and had withdrawn from the disciplinary process before there had been any suggestion the procedures might be unfair.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