ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013151
Complaint:
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-00017338-001 | 08/02/2018 |
Date of Adjudication Hearing: 06/09/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 6 of the Payment of Wages Act 1991, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant seeks payment of a bonus for call outs which was paid to his colleagues but was withheld from him |
Summary of Complainant’s Case:
The Complainant is employed by the Respondent as an Inspector. The issue in dispute is the payment of a bonus of 2.5% for call outs which was paid to Inspectors who had in excess of 18 call outs on an annual basis. Traditionally this payment was paid to qualifying Inspectors in January for the preceding twelve month period. In January 2017, the Respondent failed to pay the bonus to those who qualified, having in excess of 18 call outs in 2016. Following a dispute about the call outs, a conciliation and then a Labour Court hearing took place on 24th November 2017. Following this, the Respondent paid the Complainant’s colleagues but failed to make the payment in respect of 2016 to him on the basis that in March 2017 he was suspended pending an investigation. It is argued that the Complainant is due the outstanding payment for 2016 as per the agreement and as upheld by the Labour Court and that the payment was wages properly due to him. |
Summary of Respondent’s Case:
As part of their terms and conditions Inspectors are entitled to a 10% On-Call allowance. This payment is to cover normal on-call arrangements, e.g. taking phone calls outside working hours to provide support and guidance to supervisors and front line staff. The Inspectors are also entitled to a 2.5% Call-out allowance when they have been called out for an accident or other consultation when not on duty on more than 18 occasions in any calendar year. In 2017 the 2.5% call-out allowance was the subject of a disagreement between the Company and the Trade Unions. This was referred to the Labour Court and the Court issued its findings. The Company does not dispute the fact that the Complainant is entitled to a 2.5% call-out allowance for the year in question. However, he is currently suspended from work and is subject to the Company’s disciplinary procedures. These procedures are currently on hold pending the outcome of a legal engagement between the Complainant and the Company. The Company’s Grievance and Disciplinary Procedures provide: “Staff summarily suspended from duty will be paid basic rate of pay pending application of the formal disciplinary machinery”. The issue of payment of basic pay was addressed by the Labour Court in LCR19086 where they found that the issue of payment of basic pay during the period of suspension was in accordance with the Grievance, Disciplinary Policies and Procedures. |
Decision:
I note that the Complainant is not claiming that he should be paid the 10% on call allowance, and the Respondent’s case in respect of the payment of basic pay stands correctly in respect of this. However, I find that the 2.5% payment was effectively earned by the Complainant by having in excess of 18 call outs in 2016 and this payment was due to be paid to him in January 2017. I find that the Complainant earned the 2.5% bonus payment which amounts to €1,250 gross during 2016. His colleagues were paid the relevant amount in November 2017 following the Labour Court decision LCR 19086. I find that the 2.5% was a discrete payment, earned by the Complainant and had it been paid when due in January 2017, the matter would not have been referred to adjudication. I find that in accordance with Section 5 (6) of the Act, the sum of €1,250 was wages ‘properly payable’. I find the Complainant’s claim well founded and I require the Respondent to pay to the Complainant the sum of €1,250 gross.
Dated: 02/10/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham