Company wants to charge money if employee leaves

Diabhalta

Hi everyone,

my friend (yes, a friend... I am not a nurse and don't do the job she does 3 counties away) is in a bad situation where she wants to leave her job but the employer added (hand wrote) something in the contract on the day she signed it.

She works in a nursing home and this is the text in the contract:

Contract is for 2 years.

Should you resign within 2 years xxxx xxxx Ltd. will deduct the cost of your recruitment fee on a pro rata basis - That is:

Recruitment fee: 4000e (24mts - 166e/month for each month not covered)-
We will also deduct the cost of any non-statutory training.

---

She wants to go somewhere else and according her research among other employees there were many people leaving before. Question is what she can do and is this legal? She will also need references if she wants to go to work somewhere else. What is the best thing she can do in this situation? It seems like the company wants to make sure people will stay there.

uberwolf

was the recruitment fee paid to your friend (signing on bonus) or paid to a third party?

I've seen more legitimate efforts to extract training costs frustrated by seeking evidence of the net cost to the firm of the training, and not simply the clean gross cost. They can't turn a profit on it.

Moreover, I would have thought that handwritten adjustments to the contract would need to be at a minimum initialed by both parties to have any traction - was this done?

4ensic15

Legal advice is not allowed on this forum. Try NERA (National Employment Rights Authority), now part of the WRC (Workplace relations Commission).

Senna

What country is she in?

Diabhalta

uberwolf wrote: »

was the recruitment fee paid to your friend (signing on bonus) or paid to a third party?

I've seen more legitimate efforts to extract training costs frustrated by seeking evidence of the net cost to the firm of the training, and not simply the clean gross cost. They can't turn a profit on it.

Moreover, I would have thought that handwritten adjustments to the contract would need to be at a minimum initialed by both parties to have any traction - was this done?

she got there through agency. She didn't get anything so I presume agency got paid?

that adjustment has been added just before she signed the contract and she signed it.

Senna wrote: »

What country is she in?

Republic of Ireland

Pro Hoc Vice

Diabhalta wrote: »

she got there through agency. She didn't get anything so I presume agency got paid?

that adjustment has been added just before she signed the contract and she signed it.

Was the amendment brought to her attention before she signed?

Diabhalta

yes

Pawwed Rig

Sounds reasonable to me. Common enough clause although many companies don't enforce it.

Senna

This should be in the agency's contract, not the employees, the agency got the money they are now trying to recoup from the employee.

crotalus667

A lot of the fee would of been costs of getting them here and legally able to work , 2 years is pretty standard 4000 on the other hand is pretty high my old place was about 2 iirc

Arcade_Tryer

Pawwed Rig wrote: »

Sounds reasonable to me. Common enough clause although many companies don't enforce it.

Really?

I mean, really?

Sounds totally sinister to me. And I do not believe it is legal in the RoI.

bonyn

It's not legal.

notharrypotter

bonyn wrote: »

It's not legal.

Source?

StupidLikeAFox

How would they deduct the money? Maybe with old a paycheck but that's unlikely to amount t to 4k surely?

bonyn

notharrypotter wrote: »

Source?

It's illegal for an agency to charge an employee a placement fee. Stands to reason it would be illegal for an employer to pass on such a fee, or charge the employee such a fee as a condition of their contract.

I'd be pretty sure it's not specified in legislation because the thought of it is so bizarre.. but if it went to employment rights courts I'd be fairly confident it's not legally binding and therefore any deduction from salary would be illegal.

As for training, I reckon theres a chance it could be deducted if provided by a 3rd party.

notharrypotter

Curious.

It's illegal for an agency to charge an employee a placement fee.

Source?

As for training, I reckon theres a chance it could be deducted if provided by a 3rd party

Source?

Slightly off topic if someone attends further education paid for by the employer and they leave.
Could an employer pursue them?

bonyn

notharrypotter wrote: »

Slightly off topic if someone attends further education paid for by the employer and they leave.
Could an employer pursue them?

Of course they can.

Are you familiar with the concept of "contract law"?

As for why the employment contracts with unfair clauses might be binned by labour courts or recommendations by nera, it's due to inequality of bargaining power... courts can disregard unreasonable or unfair conditions of a contract

Not sure what source you're expecting.

notharrypotter

bonyn wrote: »

Of course they can.

Are you familiar with the concept of "contract law"?

As for why the employment contracts with unfair clauses might be binned by labour courts or recommendations by nera, it's due to inequality of bargaining power... courts can disregard unreasonable or unfair conditions of a contract

Not sure what source you're expecting.

A specific act or SI.

I understand the workings of the labour court but was curious around where an employer or agency had gone to expense to recruit an individual would they have grounds for recovering that expense?

_Brian

I think the best we could say is she would have a reasonable chance of fighting any deduction at this stage.

As a previous poster said she should ask for proof that the actual cost was €4K, it may well be exagerated to make a point.

She did agree to and sign the clause which will go against her fight. It's fact that a contract can't be used to circumvent any existing employment law bulgur I'm not aware of any so that covers the recovery of agreed costs from the employee by the employer and indeed recovery of education and training costs is standard practice.

So her best points to make are 1, the cost has been exagerated and hope that the company have done this, 2. I've seen companies where the employee is leaving and near all the time has passed they Wright off the remaining amount.

Glenbhoy

Where is the employee from, where is the agency based and does (s)he require a work permit?

Sue Pa Key Pa

I don't know if this is relevant, but my young lad works for a multi-national company. They are offering to fund him for a masters, which he will will partly be done during his normal working hours. His contact will be amended to say that he must refund the cost of the funding if he leaves them within 3 years after he completes the masters.

Sounds similar and reasonable to me

bonyn

notharrypotter wrote: »

A specific act or SI.

I understand the workings of the labour court but was curious around where an employer or agency had gone to expense to recruit an individual would they have grounds for recovering that expense?

Oh yes, the Claw back of training fees amended act 2002 (as if)

.... I explained my reasoning. Contract law. A watertight contract goes a long way. E.g a training contract that specifies exam fees must be refunded.

But recruitment fees are an employer expense. No court is going to allow a huge exit fee to leave an employment Regardless of how an employer reasons. I stand to be corrected, as I'm not aware of any such cases... So I'll put it to you, are you aware of a time the courts ruled exit fees to quit a job are permissible?

notharrypotter

So I'll put it to you, are you aware of a time the courts ruled exit fees to quit a job are permissible?

No idea, curious so I asked the questions.

brightspark

You need to get proper legal advice but this section might be relevant?

http://www.irishstatutebook.ie/eli/1991/act/25/section/5/enacted/en/html

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

I'm guessing though that if you won the legal argument the references won't be any good.

Sligo1

I might be able to give some insight here. And it's all based on assumption due to some of the information provided by OP.

By the sounds of it, this is an Overseas Registered Nurse. For non-EU registered nurses who wish to attain Irish nursing registration they need to complete a 6 week Adaptation Programme provided by an Irish Hospital. If this person went through an agency her flights would have been paid for, accommodation for 8 weeks would have been paid for, she would have been provided the 6 week training programme during which she would have been paid a salary even tho she was not working within the full competency of a Registered Nurse (I.e. She would have been working under strict supervision and not able to complete nursing tasks u supervised). Once she passes this programme her Irish Registration would also have been paid for her.

This can cost the hospital thousands per each individual nurse who they recruit. I have seen where nurses leave the organisation as soon as they attain their registration and go and work elsewhere. This leaves the hospital at a monetary Ioss and also short staffed after spending time and money on the recruit. I realty am not surprised to see this stipulation put in an employment contract.

Similar would occur if I was to undertake career progression at a university which my hospital funded. I would be asked to sign a contract agreeing to stay in the organisation for at least 2 years otherwise would agree to pay back the money they initially funded.

Now, whether this handwritten attachment is legal or not is another discussion. If it was handwritten and not signed and dated it could be argued
Whether this was added after the nurse signed? But I would assume this is straight forward contract law? And if the hospital put in all the funds I mention above... Well i would think the employee would need to pay this back as they received a whole heap of benefit from it.

Marcusm

Diabhalta wrote: »

Hi everyone,

my friend (yes, a friend... I am not a nurse and don't do the job she does 3 counties away) is in a bad situation where she wants to leave her job but the employer added (hand wrote) something in the contract on the day she signed it.

She works in a nursing home and this is the text in the contract:

Contract is for 2 years.

Should you resign within 2 years xxxx xxxx Ltd. will deduct the cost of your recruitment fee on a pro rata basis - That is:

Recruitment fee: 4000e (24mts - 166e/month for each month not covered)-
We will also deduct the cost of any non-statutory training.

---

She wants to go somewhere else and according her research among other employees there were many people leaving before. Question is what she can do and is this legal? She will also need references if she wants to go to work somewhere else. What is the best thing she can do in this situation? It seems like the company wants to make sure people will stay there.

I would think that it is unusual for recovery of a recruitment fee to be sought from a departing employee mostly because in my experience, most significant recruitment fees are recoverable from the agency if the employee does not stay for a minimum period; admittedly, I saw recruitment fees of 20-25% of remuneration.

The fact that it was handwritten on the contract displays a significant absence of forethought on the part of the employer - the inability of the potential employee to give serious consideration to the class might influence a tribunal of competent jurisdiction to set the clause aside on the basis that there was no parity of arms.

Irrespective, I find it hard to see how the employer would proceed to recover in any event, the legal costs would be significant when compared with the quantum to be recovered. Is this not effectively a frightener rather than a general operating clause.

Mr. Incognito

This is not legal advice but id argue

1. No privity of contract between employee and employer paying third party. Its not a term of the contract.

2. Its a penalty clause which is unenforceable. Theres plenty of law on penalty clauses. For example

http://www.algoodbody.com/insightspublications/a_reminder_of_the_rule_against_penalty_clauses

3. Contra preferentem may apply.

4. All the above would be defences after she had walked. These sort of clauses are simply scaremongering. They are generally unenforceable in practical terms.

IRAC War

Not legal advice, just practical advice from some years in the workforce. Many employment contract terms could be politely termed 'aspirational' and more bluntly, and less elegantly, as 'someone in the HR department chancing their arm'.