Complainant

Respondent

Anonymised Parties

A Sales and Events Executive

A Hotel

Representatives

Leahy & Partners Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016900-001

17/01/2018

The complainant details that she was due a bonus payment of €2,000 that has not been paid.

The complainant commenced employment on 16th September 2017 on a salary of €30,000 and she highlighted that there was an agreement, as per the email from her manager Mr A that, “a bonus scheme of €2k will also be put in place, the detail of which will be agreed within 1 month of you (sic) commencement”.

She outlined that before she commenced employment the respondent raised concerns because she had started her own business in event management which the hotel believed was in conflict with her role at the hotel. She reached agreement with the respondent that she would cease this business.

During her time with the respondent there were many changes in personnel which included Mr A leaving. Despite numerous requests and many changes in managers and owners of the respondent, this bonus was never paid.

When she went on maternity leave she again requested that the bonus be paid and the then owner Ms B suggested in an email that her performance did not meet the standards required and she would be “happy to discuss on your return from maternity leave”. The complainant resigned her position before returning from her maternity leave.

The complainant applied for a position that was advertised as a Sales Executive and was called for interview.

Following her interview, the complainant asked to be considered for a role of Meeting and Events Manager instead of the position advertised. She was clearly advised that the role was that of Sales Executive and offered a position with a salary of €30k and a bonus of €2k subject to her performance.

On the 6th September 2016 the respondent became aware that the complainant had set up an Events company and as this was in conflict with her role with the respondent they advised her that they would have to retract her job offer owing to breach of trust. The complainant followed up this meeting by writing to the respondent apologising and asking to be given a trial period to prove herself. The apology was accepted and the complainant was offered the role of Sales and Events Executive and commenced employment on 17th September.

A few weeks later the complainant was spoken to as she was using the title of Events Manager in emails and not “Executive” as per her contract.

In January 2017 the respondent spoke to the complainant about her absenteeism levels and issues regarding taking holidays. There were also numerous conversations with the complainant regarding her failure to meet targets set regarding having off site meetings.

It was also advised that in January 2017 the respondent decided to terminate the contract of the complainant, and on that same day, another employee came to the respondent and advised that the complainant was pregnant and that the real reason the complainant became pregnant was to get maternity leave from the respondent.

On 21st January 2017 the complainant returned her signed contract of employment and advised them the next day that she was pregnant, all of which the respondent believed was premeditated.

The respondent disputed that the bonus was to be paid on her 12-month anniversary and that it was not a guaranteed bonus.

On 10th April 2018 the complainant resigned her position and the respondent felt that the complainant had not been upfront and honest and that no wages were due as a bonus is not wages under the legislation.

Section 1(1) of the Act defines wages as meaning “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,

Section 5(1) of the Act provides:

“(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) details

( 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.

It was accepted by both parties that a bonus scheme was in place but it was disputed how this was to be paid, when it was to be paid and what would determine if it was to be paid.

The issue for decision is whether the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to the withholding of the bonus payment.

While the intention of the bonus scheme appears to have been a motivator for achieving targets, there was a conflict of evidence regarding whether there were any set targets against which the complainant would be measured. I note that while there were some diary notes from the respondent about conversations, nothing was put in writing and given to the complainant. In the absence of any clear targets set down for the complainant against which to measure her, it is reasonable for the complainant to assume that she had met the requirements to achieve the bonus.  

Albeit the respondent details that they made the decision to terminate the complainant’s contract of employment due to her poor performance, and on that same day found out the “real” reason she had become pregnant was to get maternity leave, this extraordinary allegation was never put to the complainant during her employment.

In Sullivan v Department of Education [1998] 9 ELR 217, it was determined that “if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”.

In the circumstances, I find that withholding payment of this bonus amounted to a deduction from the Complainant’s pay that was not authorised and accordingly, the bonus payment of €2,000 is properly due and I hereby direct that the respondent pay to the complainant the sum of €2,000 gross.

I find that the claim succeeds and I order the respondent to pay to the complainant €2,000 gross.

Pay, bonus