Complainant

Respondent

Anonymised Parties

A customer Service Representative

A legal and business services company.

Representatives

Self.

Orla O’Leary, Mason Hayes & Curran, 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-00024123-001

13/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00024123-002

13/12/2018

The Complainant commenced employment with a company on 04/01/2016. On 01/11/207 the Complainant transferred to the Respondent under the European Communities (Protection of Employees on the Transfer of Undertakings Regulations) 2003.

On commencement of employment with the Respondent, the Complainant’s basic salary was €27,270 gross. In addition, the Complainant was entitled to participate in a performance related bonus scheme. The Complainant’s contract of employment provides:

“you will be eligible to participate in a Performance Related Bonus Scheme. Based on your current role you will be eligible to receive a bonus of 0-9 % of basic salary dependent on the achievement of agreed objectives. Your bonus criteria will be agreed with your manager in the first month of your employment. The Company reserves the right to amend or change the bonus scheme rules at any time”.

The bonus entitlement, which was paid on a quarterly basis, allowed the Complainant to earn an additional €2,454.30 gross per annum if she met the bonus criteria. Therefore, the Complainant’s total gross potential earnings in 2017 was €29,724.30.

In November 2018 the Respondent decided to replace the bonus scheme with the Respondent’s own bonus scheme. The reason given was to ensure uniformity across all Respondent employees. This amendment resulted in an increase in the Complainant’s basic salary and could yield total gross potential earnings of € 30,008.16 per annum going forward.

The Complainant was initially employed by another company and then transferred under TUPE regulations to the Respondent company on 1st November 2017.

In November 2018 the Respondent decided to change the terms and conditions of her contract by offering less money than she had been making in a year. Specifically, her salary was €27,270 per annum plus 9% bonus that was paid quarterly, this would result in annual earnings of €29,600 approximately. This year (2018) company offered the Complainant €28,854 per year and when she queried this with her team leader she was informed that this was all she was getting.

In relation to the Terms of Employment (Information) Act, 1994 the Complainant feels that she was not provided with anything in writing regarding any changes to her terms and conditions of employment.

On 01/11/2018 the Respondent notified all employees who had transferred into the Respondent company that the former quarterly bonus scheme was being retired and would be replaced by the Respondent’s Standard Individual Bonus (IPB) plan. The purpose of this change was to ensure that all employees within the Respondent company were treated equally. As part of the transition process the Respondent met with the Complainant (November 2018) and explained the new IPB Plan, the reasons for the change and that as well as a salary increase, her total potential remuneration would increase also.

Under the IPB Plan employees have the opportunity to earn 4% of basic salary. The Respondent acknowledged that this was less than the potential bonus payment employees could possibly earn their respective contracts of employment and in those cases the Respondent provided employees with a salary increase to make up the difference. As such, the Complainant was awarded an increase in her remuneration of 5%.

In addition, the Respondent undertook salary reviews and awarded the Complainant a salary increase of 1%. This increase is in line with the level of increases awarded across the Respondent’s workforce.

The IPB bonus runs from 1st September to 31st August each year and any entitlement ids paid in the following December. For employees who transferred into the Respondent their participation runs from 1st December to 31st August and any bonus payable will be paid in December. As such the Complainant’s entitlement to a bonus in 2019 is currently running and any bonus payable will be paid in December 2019.

The Respondent denies that the Complainant has been paid less that the amount due to her, the Complainant’s remuneration package has increased and the amount she was paid in 2018 was more than she was paid in 2017.

Where a contract of employment provides for a discretionary element, such a s a bonus scheme, an employee has no contractual right to this benefit but only an expectation that the discretion might be exercised in their favour.

Under the Complainant’s contract of employment, the Respondent has the discretion to amend or change the rules of the bonus scheme from time to time. The Respondent has exercised this discretion and the Respondent did so in a fair and reasonable manner.

Terms of Employment (Information) Act,1994.

The Complainant was issued with with a detailed contract of employment on her commencement date.

The Complainant alleges that her earnings in 2018 would equate to €28,854, her payslip for 31/12/2018 shows that she earned €30,144.95 year to date, this was the final payslip for 2018.

Under the old system the Complainant had an annual basic salary of €27,270 plus a bonus potential of 9% of basic pay. Assuming that she made her 9% bonus her potential annual earnings were €29,724.30.

Under the new system the Complainant’s basic salary increased to €28,854 plus potential bonus earnings of 4% bringing the total to €30,008.16

The payments proposed to the Complainant were different to what she had experienced in the past however the totals had been increased.

I find that no breach of the Payment of Wages Act,1991 has been committed by the Respondent and also that the Terms of Employment (Information) Act 1994 has been fully complied with.

The Respondent may consider meeting with the Complainant to ensure that she fully understands the calculations provided at the hearing of this complaint.

It is on foot of these findings that I declare that the complaints are not well founded and therefore fail.

Outlined above.