Complainant

Respondent

Anonymised Parties

{An Industrial Cleaner }

{A Cleaning Companyt}

Representatives

Hugh Hegarty Management Support Services (Ireland) Ltd

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-00026262-001

13/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00026262-002

13/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00026262-003

13/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00026262-004

13/02/2019

The Complainant worked as an industrial cleaner from 1st September 2012, he left on 2nd January 2019.

CA-00026262-001  

The Complainant was paid a Christmas bonus every year of 500 euro. He handed in his notice on 5th December 2018 and was not paid his Christmas bonus. The Respondent held off paying staff Christmas bonuses until after the Complainant left, then everyone was paid.

The Complainant seeks payment of 500 euro bonus (gross) pursuant to S6 of the Payment of Wages Act 1991

CA-00026262-002

The Worker has lodged a dispute regarding non-payment of his Christmas bonus pursuant to S13 of the Industrial Relations Act 1969.

CA-00026262-003 and CA-00026262-004

The Complainant claims that the Respondent has not complied with Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131 of 2003) and has not ensured that his terms and conditions of employment transferred from his previous employer and did not observe the terms and conditions of his employment.

CA-00026262-001  

The Respondent’s position is that the bonus was not due to the Claimant as he terminated his employment prior to the maturation of the bonus scheme and was ineligible for the bonus as he did not meet the criteria.

The Complainant’s employment transferred pursuant to the EC (Protection of Employees on Transfer of Undertakings Regulations) 2003 (SI 131 of 2003) on 8th October 2018.

The Complainant tendered his notice on 5th December 2018 with this last date of employment being 2nd January 2019. As part of the employee due diligence the Respondent was aware that a 500 euro bonus was paid to staff but no documentation was given in relation to this. The company were never notified that this bonus was overdue.

The Respondent argues that the Complainant must elect between the 3 acts as the complaint is the same and he cannot proceed in relation to all 3 claims.

The Respondent says the bonus was not wages properly payable as it was not due at the time the claimant resigned. The Respondent had no information as to how the scheme applied as the previous contractor is no longer a trading entity. The Respondent applied their own practice for non-performance related bonus which excludes employees who have given notice at the point of maturation.

CA-00026262-002

The Respondent says the Worker did not engage with the Respondent in relation to the complaint and did not exhaust the internal procedures. He did not produce any evidence as to how the scheme operated, which was requested. The Respondent has acted reasonably.

CA-00026262-003 and CA-00026262-004

The Complainant claims that the Respondent has not complied with Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131 of 2003) and has not ensured that his terms and conditions of employment transferred from his previous employer and did not observe the terms and conditions of his employment.

CA-00026262-001  

The Claimant produced evidence of payment of 500 euro Christmas bonus paid to him in December for the last number of years. The Claimant was employed with another company from 2012. He transferred to the Respondent on 8th October 2018 pursuant to the EC (Protection of Employees on Transfer of Undertakings Regulations) 2003. He has produced evidence of due diligence furnished to the Respondent that the 500 euro bonus was payable and there were no criteria for payment of the bonus.

Some 2 months later the Complainant handed in his notice. The Respondent would not pay his bonus as he handed in his notice. This caused hardship for his family.

Pursuant to S 4 (1) of the EC (Protection of Employees on Transfer of Undertakings Regulations) 2003, the transferors rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

The High Court in Clarke v Nomura [2000] ELR 766 found an employer is not entitled to take into account the need to retain and motivate employees and refuse to pay a bonus on the basis that an employee is leaving. In Finnegan v J & E Davy [2007]18 ELR 234 the High Court found the employer’s unilateral change to an employee’s bonus terms to extend payment over a number of years was unlawful and a restraint of trade.

The Respondent says as it was unaware of the terms of the bonus so it imposed its own terms relating to payment. I am satisfied that the Complainant was due 500 euro bonus in December 2018. The Respondent has attempted to unilaterally change the Complainant’s terms and conditions, which the Complainant rejects. This is an unlawful deduction and breach of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003.

I find the Complainant’s claim is well founded and direct payment of 500 euro gross together with 494.77 euro net compensation for the breach.

CA-00026262-002

The Respondent says the Worker has made the same complaint under 3 different Acts. The Worker did not engage with the Respondent in relation to the complaint and did not exhaust the internal procedures. The Worker did not produce any evidence as to how the scheme operated, which was requested. The Respondent has acted reasonably.

The Complainant has not exhausted the internal procedures and consequently I do not have jurisdiction to make a recommendation in relation to the complaint.

CA-00026262-003 and CA-00026262-004

I have already found in CA-00026262-001 that there is a breach of S4 of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003. I find the complaints are well founded and award an additional 2 weeks wages of 1,170 euro gross.

CA-00026262-001

I find the Complainant’s claim is well founded and direct payment of 500 euro gross together with 494.77 euro net compensation for the breach.

CA-00026262-002

The Complainant has not exhausted the internal procedures and consequently I do not have jurisdiction to make a recommendation in relation to the complaint.

CA-00026262-003 and CA-00026262-004

I have already found in CA-00026262-001 that there is a breach of S4 of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003. I find the complaints are well founded and award an additional 2 weeks wages of 1,170 euro gross compensation.

Non payment of bonus, unlawful deduction, unilateral change by employer, application of TUPE to terms and conditions