PWD177

The complaint was filed with the Workplace Relations Commission on the 17 May 2015 which he framed in the following terms

• “This complaint is about an alleged breach of contract and non-payment of wages. Contractual bonuses that were due to me in 2009, 2010, 2011 and 2012 continue to be withheld and unpaid. My contractual bonuses for 2013, 2014 and 2015 have been significantly underpaid. The non-payment and underpayment total is €31,538 but with compound interest this could be up to €35,000. I have spoken verbally and I have sent emails over the years but management just made what seemed like reasonable arguments about finances and wage constraints each time. However, it has only very recently come to my attention that the company has been building up huge amounts of cash and is currently very well off. I lodged a formal complaint with the new HR Director but she refused to pay me my bonuses. In an effort to avoid WRC I met with the new Director General and made my case. I made it crystal clear that I was happy to negotiate and I offered two other major concessions. She didn’t even call another meeting. Thus she left me no option but to lodge a complaint to the WRC.”

• I have considered the submissions of both parties. Prior to 2015 other arrangements were entered into with the agreement of the staff. The Claimant’s contract provides of a bonus payment of up to 5%. Any payment between 0 – 5% therefore implements the terms of his contract. He received a payment of 2% for 2015.

  I do not find the claim well founded and it fails.

The Complainant appealed against that decision to this Court. The case came on for hearing before the Court on the 17^thFebruary 2017.

Preliminary issue

The Respondent submits that the Complaint is statute barred. It submits that section 41(g) of the Workplace Relations Act replaced section 6(4) of the Payment of Wages Act. It submits that the Complainant submitted his complaint outside the statutory six month time limit.

It relies on the decision of Hogan J inHealth Service Executive v McDermott [2014] IEHC 331in support of its position. It submits that properly applied the judgement requires that the Court examine the complaint as framed by the Complainant. It submits that having done so the Court must find that the Complainant framed the complaint as referring to a contravention of the Act that commenced in 2009 and ended in 2015. It submits that the extent of the underpayment claimed by the Complainant is consistent with the proposition that the complaint is so framed. It further submits that as framed the Court must find that the alleged contravention of the Act did not occur within the six months statutory time limit and is accordingly statute barred.

The Respondent made no submissions to the Court on this point. Instead he submitted that the alleged non-payments or underpayments at issue began in 2009 but that the complaint before the Court relates to 2015 and comes within the statutory time limits under the Act.

The Law

The Payment of Wages Act states

• Section 5 of the 1991 Act provides:

  “5.—(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.”

  Section 5(6) goes on to state that:–

  “(6) Where—

  (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

  (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

  then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

• “6.—(1) An employee may present a complaint to a rights commissioner that his employer has contravened section 5 in relation to him and, if he does so, the commissioner shall give the parties an opportunity to be heard by him and to present to him any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

• “A Rights Commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the Rights Commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the Rights Commissioner considers reasonable.”

• “12. It is at this point that we can return to the construction of the relevant language of s. 6(4), namely, “within the period of 6 months beginning on the date of the contravention to which the complaint relates”. The first thing to note is that no special meaning has been ascribed to the word “contravention” by the 1991 Act, so that it must be given its ordinary, natural meaning.

  13. We may next observe that the actual language of the sub-section is clear, because it is the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period.

  14. Yet the relevant statutory language takes us somewhat further, because the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

  15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

  16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.

  17. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way.

  18. In these circumstances the Supreme Court has indicated that it is not necessary or even appropriate for a court to go further on questions of statutory interpretation. As Denham J. said in Board of St. Mal�ga National School v. Minister for Education [2010] IESC 57, [2011] 1 I.R. 363

  “As the words of s.29 [of the Education Act 1998] are clear, with a plain meaning, they should be so construed. The literal meaning is clear, unambiguous and not absurd. There is no necessity, indeed it would be wrong, to use other canons of construction to interpret sections of a statute which are clear. The Oireachtas has legislated in a clear fashion and that is the statutory law.”

This point was clearly explained by Keane J. in the following terms:

• 
  “I do not believe that it is necessary or appropriate for the Court to address, much less resolve, the issue of statutory construction presented by the appellant in order to dispose of this appeal. The uncontroverted evidence presented to the rights commissioner, the Tribunal and to the Court establishes that the appellant did not, as a matter of fact, present a complaint to the rights commissioner relating to a contravention of the 1991 Act alleged to have occurred on any specific date or dates within 6 months of the 17th May 2010. The appellant himself identified the contravention to which his complaint relates as an "application ... for payment of a 5% wage increase awarded by Government to [HSNs] in the [HSE] with effect from 14 September 2007."

  The issue of how this Court should construe the provisions of section 6(4) of the 1991 Act for the purpose of applying it to a complaint that there has been an impermissible deduction from the wages of the appellant in each of the 6 months immediately prior to the presentation by him of that complaint (specifically, a deduction in the form of a refusal to include in that payment an increase to which the complainant claims to have become entitled some years previously) is a hypothetical issue as far as the complaint actually presented by the appellant in this case is concerned.

  As Carroll J. confirmed in the case of Mhic Mhathuna v. Ireland [1989]1 I.R. 504 (at 510), the Court cannot take into account arguments based on assumptions or hypotheses outside the facts and circumstances of the action or, in this instance, the appeal - before the Court.

  If the appellant is correct in his contention concerning the proper construction of section 6(4) of the 1991 Act, then it is open to him to present a complaint to a rights commissioner relating to any alleged deduction in the wages paid to him on any specified date (or dates) within the period of 6 months beginning on the date of the first such payment. If he is incorrect in that contention, any such complaint will fail. But it would be wrong for the Court to seek to anticipate the outcome of such a complaint before the rights commissioner or the Tribunal for the purpose of the present appeal, just as it would be wrong for this Court to conduct this appeal as though the applicant had actually presented such a complaint to the rights commissioner or to the Tribunal in this case.”

  
  26. It is accordingly clear that, just as in the present case, the decision in Moran turned entirely on the manner in which the complaint had been formulated in that case. The claim was accordingly held to be time-barred precisely because the complaint “related” to a time period well beyond the six months statutory period. Indeed, in that final paragraph which I have just quoted, Keane J. clearly hinted that he would have arrived at a different conclusion had the complaint been formulated differently, so that it “related” to a different time period which was not statute-barred.

The Complainant submits that under the terms of his contract of employment he has an entitlement to be paid an annual bonus equivalent to 5% of his annual salary. The relevant term on the contract of employment states: -

An annual performance bonus of up to 5% will be payable at the end of each year’s employment with the Institution based on achievement of defined performance goals.

The Complainant takes the view that the Respondent withheld payment of the bonus in its entirety between 2009 and 2012 and in part between 2013 and 2015. He submits that as these sums were properly payable to him by the Respondent, by withholding them in whole or in part, amounts to an unlawful deduction within the meaning of section 5 and accordingly an infringement of the Act. On that basis he commenced the instant proceedings now on appeal to the Court.

The Respondent submits that the Complaint is both statute barred and unfounded.

The Court therefore first considered whether the Complaint is statute barred as claimed by the Respondent.

In doing so the court must have regard to the decision of Hogan J inHealth Service Executive v McDermott [2014] IEHC 331as set out above in some detail.

Applying the law as set out by Hogan J to the facts of this case the Court is required to consider the instant complaint as it is framed by the Complainant in his original complaint to the Workplace Relations Commission. Everything turns on the configuration of the complaint as set out therein.

On examination of the relevant papers the Court finds that the Complainant framed his complaint in relevant part in the following terms

• “This complaint is about an alleged breach of contract and non-payment of wages. Contractual bonuses that were due to me in 2009, 2010, 2011 and 2012 continue to be withheld and unpaid. My contractual bonuses for 2013, 2014 and 2015 have been significantly underpaid. The non-payment and underpayment total is €31,538 but with compound interest this could be up to €35,000.”

Accordingly the Court must find that complaint is statute barred and that it has no jurisdiction to hear the instant appeal.

Determination on Preliminary Issue

The Complaint as framed was submitted outside the statutory time limit for bringing complaints under the Act and accordingly the Court does not have statutory authority to hear the appeal.

Substantive Matter

If the Court is wrong in this interpretation the Court finds that the terms of the Contract of Employment upon which the Complainant relies states

• An annual performance bonus of up to 5% will be payable at the end of each year’s employment with the Institution based on achievement of defined performance goals.

The Court finds that there was no objective scheme, on which the Complainant could rely, in place for the measurement of that performance or for the correlating levels of performance with bonus payments. These were at the discretion of management. In deciding not to pay any bonus or bonuses of a particular level management was exercising its discretion under the terms of the contract of employment. Any difference between the Complainant’s expectation and the amount, if any, paid by the Respondent was not lawfully payable within the meaning of the Act and cannot amount to an infringement of section 5 as claimed in this case.

Accordingly the Court finds that the Complaint is not well founded and rejects the appeal.

Determination on Substantive Matter

The Court determines that the complaint is statute barred.

In the event that it is in error on that point the Court, for the reasons outlined above, finds that the Complaint is not well founded and rejects the appeal.

The decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
24th March 2017______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.