PWD1622

2. The Appellant operates a number of chemist shops across the country. The respondent is a registered pharmacist who worked for the respondent, initially as a pharmacist in Wicklow and subsequently in various management roles as his career progressed. After 19 years’ service he was made redundant by the Appellant.

3. The Complainant submits that in 2006 he entered into an agreement with the Appellant, through the then Managing Director, Mr Pat Durkin, for a new salary package that included an entitlement to a €30,000 bonus payable if he continued in employment for a further three years.

4. Over the following three years the Appellant company experienced trading and business difficulties. When his bonus became payable in 2009 the Appellant was not in a position to meet the payment. The Complainant agreed by letter dated 9 September 2009 to defer the payment date until any one of four events occurred. They were

• a. Expansion of the Company to 20 pharmacies

  b. Sale of the company by the current shareholders

  c. The disposal of substantial assets (50%) belonging to the company

  d. Redundancy

  e. Resignation as per proper notice period (not within the next six months)

6. When the Complainant was made redundant in 2014 he sought payment of the bonus.

7. The Appellant submits that the complaint is statute barred as the impugned payment was due to be paid when the company was in a position to make the payment. It submits that this event occurred in 2012 when the Company emerged from an Examinership process. It submits that the Complainant delayed in seeking payment and that this complaint is outside the statutory time limit of six months set out in the Act.

8. The Appellant further submits that it has no records of the letter of the 15 September 2009. It submits that the bonus payment to a person who was no longer employed as a pharmacist was irregular and against company policy. It submits that no provision was made in the accounts for payment of the impugned sums. Finally it submits that in all of the paperwork leading up to the Complainant’s redundancy he at no point raised the issue of the bonus payment. It submits that the monies are not properly due to the Complainant and that the complaint is statute barred.

• 
  The Law

  The Act defines Wages in the following terms

  • “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—
    (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
    (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
    (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
    (c) in the case of a deduction, the employee has given his prior consent in writing to it.

  Findings of the Court

10. The Court heard evidence from Mr Maguire the Company’s Financial Controller. He said that he was not aware of the letter of the 15^thSeptember 2009, that no provision for payment of the bonus was made in the accounts and that the Company could have paid the monies if they were claimed when it emerged from Examinership in 2012. However in cross examination it was put to him that he had stated in evidence before the Employment Appeals Tribunal that the company was experiencing cash flow difficulties in the immediate aftermath of the Examinership. He did not offer an explanation that would reconcile those two accounts. Accordingly the Court does not accept his evidence and does not rely on it.

11. Mr Geert Hof the current Managing Director of the Company gave evidence to the effect that the bonus provided for in the letter of 15 September 2009 was not a permitted payment and would have required Board approval which was neither sought nor given. He submitted that Mr Durkin,had entered in to an agreement with the Complainant, if that is what he did, which was beyond his authority.

12. The Court finds that the internal arrangements for the conduct of the Appellant’s business are not material to this case. Mr Durkin was the managing director at the time and had ostensible authority to enter into the agreement he said he did with the Complainant. Moreover it was accepted by Mr Hoff that three of the four elements of the pay agreement reached on 8 June 2006 between the Complainant and Mr Durkin had been implemented. Accordingly it is clear that the Appellant Company acted on the terms of that Agreement and thereby affirmed it. The Court finds therefore that the Complainant is entitled to rely on it also,

13. The Court finds that none of the triggering events envisaged in the letter of the 15^thSeptember came to pass before the Complainant was made redundant. Accordingly the Court finds that the redundancy itself triggered his entitlement to payment of the €30,000.

14. The Court finds therefore that the instant complaint is properly before the Court.

15. The Court finds that the bonus comes within the definition of wages set out in the Act and that it was properly due and owing to the Complainant as part of his pay when being made redundant.

16. Finally the Court finds that withholding payment of the bonus amounted to a deduction from the Complainant’s pay that was not authorised and accordingly the bonus payment is properly due to him.

Determination

17. The Court determines that the complaint is well founded. The decision of the Adjudication Officer/Rights Commissioner is affirmed. The appeal is rejected.

18. The Court so determines.