ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Senior Salesperson | An Energy Company Limited |
Representatives |
|
Complaints:
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 – 2015, Section 79 of the Employment Equality Acts, 1998 - 2015,and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.
Background:
The complainant has submitted a number of claims on the 1st of May 2019 the first under the following pieces of legislation Regulation 6 of the European Communities (Protection of Employment) Regulations 2000, u Section 8 of the Unfair Dismissals Act, 1977, section 6 of the Payment of Wages Act, 1991 section 77 of the Employment Equality Act, 1998 and a claim under section 13 of the Industrial Relations Act, 1969. These claims which added the word “Limited” in respect of the respondent’s name to claims previously submitted under Adj-00019137 were heard on the 30th of May 2019. Final information in respect of these matters was received on the 4th of July 2019. |
CA-00028151-001 |
Summary of Complainant’s Case:
The complainant submitted a claim in respect of a redundancy situation |
Summary of Respondent’s Case:
The respondent submits that this claim is taken under the wrong legislation as it does not pertain to a collective redundancy situation. |
Findings and Conclusions:
The complainant advised the hearing that he was withdrawing the claim in respect of redundancy. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complainant withdrew this claim at hearing. |
CA-00028151-002 |
Background:
The complainant submitted a claim under Section 8 of the Unfair Dismissals Act, 1977 on the 1st of May 2019 stating that he was dismissed on the 17th of December 2018 with an effective date of 17th of January 2019. The cognisable period for this complaint dates from the 2nd of November 2018 to 1st of May 2019 2019. These claims which added the word “Limited” in respect of the respondent’s name to claims previously submitted under Adj-00019137 were heard on the 30th of May 2019. Final information in respect of these matters was received on the 4th of July 2019. |
Summary of Complainant’s Case:
The complainant submits that He was unfairly dismissed by the respondent on the 17th of December 2018 with an effective date of 17th of January 2019. . |
Summary of Respondent’s Case:
The respondent submits that The complainant was dismissed by reason of redundancy when the respondent made a decision to close the “all other customers” part of the business in which the complainant was employed and to focus on its main customer, customers related to its main customer, and a new client in the USA. |
Findings and Conclusions:
The complainant has submitted that he was unfairly dismissed by the respondent on the 17th of December 2018 with an effective date of 17th of January 2019. The respondent agrees that the complainant was dismissed on this date but submits that the complainant was dismissed by reason of redundancy. The complainant disputes that there was a redundancy situation and submits that his position was not redundant. The Unfair Dismissal Act, 1977 stipulates that: Section 6(1)” Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows: (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. In addition, Section 6 (7) of the Act states: “Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so – (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal….” For a dismissal to attract the protection of section 6(4)(c) of the 1977 Act, Section 7(2) of the Redundancy Payments Act 1967, as amended, must apply. It states Redundancy for the purposes of the 1977 Act is defined with reference to section 7 of the Redundancy Payments Act, 1967; “7(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to - (a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or (e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained” In the case of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated; “In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as section 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned”. Redundancy, cannot, therefore be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.” On the basis of the legal position as set out above, the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy. The respondent in the present case has submitted that the complainant was dismissed by reason of redundancy. Section 7(2) of the Redundancy Payments Act 1967, as amended by Section 4 of the 1971 Act, and by the Redundancy Payments Act 2003, wherein Section 5 (2) 1 requires that “(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly … “to the five listed grounds. Thus, it is clear that in the present case ‘Redundancy’ must be the main reason for the dismissal. The respondent also submits that the dismissal of the complainant falls with the band of reasonable responses test. The application of the “band of reasonable responses” authorities in the context of unfair dismissals was confirmed by the decision of Noonan J in the High Court case of The Governor and Company of the Bank of Ireland versus Reilly [2015]26 ELR 229 “it is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in section 6(4) which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employers conduct in relation to the dismissal. That is however not to say that the court or the relevant body may substitute its own judgement as to whether the dismissal was reasonable for that of the employer”. The respondent advised the hearing that the complainant was employed as a senior salesperson whose function was to develop new business outside of the respondent’s main customer on whom the respondent was and is very heavily dependent. The complainant commenced employment with the respondent on 23 November 2015. It submitted by the respondent that the complainant was the sole person in sales not reliant on the respondent’s main customer. The respondent stated that in late 2018 following an analysis of turnover and profit generated over the course of the entire period of the complainants employment the respondent regrettably made a decision to close the “all other customers” part of the business in which the complainant was employed and to focus on its main customer, customers related to its main customer, and a new client in the USA. The respondent went on to state that while it had been hoped that the respondent would have succeeded in acquiring substantial new business and thus turnover and profit, outside of its main customer, that regrettably proved impossible despite the complainant ‘s sustained best efforts. The respondent therefore made a decision to move closer to its main client and to move further away from “all other customers” area in which the complainant was employed. In December 2018 the respondent reluctantly formed the view that it had no option but to consider placing the complainant ‘s role at risk of redundancy given its decision to move away from the area of business in which the complainant had been employed to work. The respondent convened a meeting with the complainant on 10 December 2018 that meeting was attended by Mr N, Ms. M and the complainant. Mr N at the meeting shared with the complainant the sales analysis breakdown for each of the respondent’s business areas namely its main customer, customer is linked to its main customer, and all other customers. The respondent advised the hearing that the complainant was exclusively employed in this third area (the notes of that meeting prepared by Ms. M were submitted in evidence and a summary of the sales analysis breakdown presented by Mr N at this meeting was also submitted). The letter from Mr M to the complainant confirming that he had been pleased at risk of dismissal on the grounds of redundancy is also submitted. It was agreed that the conclusion of the meeting of 10 December 2018 that a further consultation meeting would take place the next day on 11 December 2018, the complainant was invited to consider matters and come to the next meeting with any proposals he had. At the meeting on 11 December 2018 the complainant presented a spreadsheet detailing his achievements and efforts since the commencement of his employment. The complainant made a number of suggestions of that meeting. At the conclusion of that meeting it was agreed that a further meeting would take place on 17 December 2018. The respondent advised the hearing that the meeting on 17 December 2018 was attended by Mr N, Ms. D and the complainant. At that meeting Mr. N advised the complainant that after reviewing the sales analysis presented to him and taking into consideration the cost of sales and overheads and the various suggestions made by the complainant, all of which involved further investment diversification by the respondent, the part of the business in which the complainant was employed and made a cumulative loss of over €500,000 since the commencement of his employment. The respondent advised the hearing that the complainant in his role was responsible for the majority of all sales to “all other customers”, with a minor amount contributed by other employees who were employed primarily in other areas of the business. The respondent added that many of the other employees to who the complainant referred and with whom he believes he should have been compared work in other areas of the business and are not legitimate comparators. The respondent advised the hearing that Mr N at this meeting confirmed the respondent’s decision to close the “all other customers” function in which the complainant was employed and to focus on growth of the company’s main customer and new US customer. Mr N advised the complainant that the respondent had considered redeploying him but that there were no suitable vacancies and the consequence of that decision was the redundancy of complaint. The respondent stated that the complainant refused to accept this decision and placed a lot of store in potential clients including in particular one prospective client by the name of PD. This the complainant submitted was a potentially sizeable opportunity for the respondent, but the respondent advised that this opportunity had not come to fruition. The complainant in his complaint form refers to a number of clients and potential clients however the respondent told the hearing that the respondent has ceased operating in the “all other customers” business in which it employed the complainant was employed and that it has no intention of actively pursuing this area of the business and that any residual work in the area is to be dealt with Mr N as part of his overall responsibilities. The complainant disputes the respondent assertion that it is no longer pursuing the “all other customers” area of the business and asserts that contacts and connections built by him continue to be used by the respondent. The respondent advised the hearing that at the meeting on 17 December 2018 the complaint disputed the legitimacy of the decision to make his position redundant, he also made reference to the fact that the respondent had hired other employees during the course of 2018. The respondent stated that this was factually correct but that these hires occurred in the areas of the business unrelated to the complainant’s area of expertise. Mr N wrote to the complainant confirming the decision to terminate his employment by reason of redundancy by letter dated 18 December 2018. Mr. N complimented the complainant on his enthusiasm and his ideas but pointed out that the company have limited resources and could not diversify widely and had to focus closely on its core strategy. Mr N confirmed that the company had considered redeployment of the complainant but there were no other vacancies which would suit his skills and abilities. Mr. N made it clear that the decision to terminate the complainant’s employment was not a reflection on his capabilities or performance it was simply a decision based upon continued loss-making status of the “all other customers” part of the business. The respondent advised that a further meeting was arranged with the complaint for 19 December 2018 and at that meeting the complainant sought to negotiate the terms of termination of his employment. There subsequently ensued an exchange of emails from the complainant to the respondent over the course of the Christmas period. In an email of 20 December 2018 Ms. M offered the complaint an enhanced redundancy package. In those exchanges the complainant continued to seek to negotiate the terms of his departure then sought to criticise the notes of the meetings produced by the respondent and further sought to invoke the respondent’s grievance procedure ignoring the fact that his employment already terminated on 17 December 2018. It appears the complainant continues to refuse to accept the reality of the decision made by the respondent to terminate his employment and continues to act as if he remained employed notwithstanding the very clear terms of the response letter of 18 December 2018. Ultimately Ms. M wrote to the complainant by letter of 4th of January 2019 in which she addresses some of the issues raised in the complainant’s multitude of emails over the Christmas period. The respondent submits that the complainant is to be commended for his enthusiasm drive and continued desire to make proposals regarding how his employment might be preserved the reality is that none of those proposals are feasible and all of them involve further investment by the respondent in new areas of business or involve continued investment into the area of business the respondent had decided to close due to the fact that it was operating at a loss and it could no longer afford to fund that area of business and decided to close that area. The respondent advised the hearing that it consulted with the complainant by meeting him on four occasions in December 2019 the respondent states that they listened to and considered the complainant ‘s feedback and proposals. The respondent also submits that it considered alternatives to redundancy but could come up with none. In addition, none of the numerous suggestions made by the complainant was viable as far as the respondent was concerned. The Respondent states that it has closed that part of the business in which the complainant was employed, and it has no plans to revisit that decision. The respondent submits dismissal of the complainant was fair in all the circumstances and certainly falls within “the band of reasonable responses”. The evidence at the hearing indicated that there was some discussion between the parties in respect of an exit package for the complainant during which the respondent offered the complainant an enhanced redundancy package. It also appears from the exchanges that the complainant was permitted to retain the company car for a period after his employment terminated as well as the company laptop and fuel card. The respondent in offering the complainant a package had offered him a month’s salary in lieu of notice as well as his statutory redundancy and an additional three weeks and had and at one point offered him an additional two months’ salary as well as retention of the company car and fuel card for an additional two months. The complainant at the hearing gave lengthy and detailed submissions on the work he had carried out while employed by the respondent and referred to contacts and relationships developed by him. The complainant outlined in detail investment opportunities and potential customers with whom he had developed links with a view to generating investment in the respondent organisation. The complainant disputed that the area in which he was employed was ‘loss making’ having regard to profit generated and considering his salary but the respondent pointed out that the complainants figures did not take account of overheads and stated that once overheads were considered in the generating of this turnover it was clear that this area of the business was operating at a loss. The complainant submits that the respondent arguments in support of the complainant’s redundancy i.e. that it is no longer pursuing business in the “all other customers “category conflicts with the respondents agreed strategy submitted to Enterprise Ireland in May 2018. Th e complainant states that this suggests that the respondent is deceiving Enterprise Ireland by saying on one hand that the business will grow new business in each region where they have presence and on the other hand the respondent is now stating that they are focusing all resources into their new hyperscale and largest client. The complainant also went on to state that another employee Mr. D who joined the business as VP Consulting in January 2018, delivered zero revenue by end of 2018, and zero new revenue by end of May 2019 and was promoted to Head of Global Sales. The complainant states that this suggests that the respondent needs failure in sales performance for employees to achieve promotion. The complainant at the hearing did not dispute the respondent’s evidence in respect of the meetings and consultations having taken place in December 2018 but he did dispute the contents of the notes of these meetings. The complainant disputes that his position was redundant and stated that, in spite of everything the Respondent has said to the contrary, it is still actively involved in pursuing business in the area for which he had responsibility. The respondent states that the Complainant’s assertions in this regard are misconceived and incorrect. The complainant in making this assertion referred to the fact that the respondent was present at recent Trade shows. The respondent does not deny this and states that the fact of the company having a presence at Trade shows is nothing more than evidence of the company’s general promotional activities. The complainant in arguing that his was not a genuine redundancy situation has submitted that the likely underlying reason for the respondent’s Senior Management strategic actions which he submits started with an unwarranted attack in a meeting of April 2018 and which resulted in an apology letter in May 2018. This refers to negative comments made to the complainant by his then manager Mr. B regarding the complainant’s skills and ability. The complainant also referred to a comment made by Mr. N at a regular sales meeting on 26th of November 2018 where the complainant alleges, he was singled out for criticism by Mr. N in respect of a client account, the payment of which remained outstanding. The respondent submits that this matter was mentioned at the sales meeting as recovery of the debt had been discussed by senior management earlier that week. The respondent submits that it was pure coincidence that the client discussed at the meeting happened to be a client of the Complainant. This matter is the subject of a separate IR complaint. The complainant submits that the reason behind this incident which was then followed by a nonlegitimate redundancy / unfair dismissal in December 2018, and this all taking place within a very short period of time was that Senior Management were attempting to strategically orchestrate the removal of Senior Sales Person from the company with him being far too successful in delivery of sales growth year on year and showing signs of delivery of very sizeable hyperscale deals such as "PD" that would deliver sizeable "Bonus" payments. The complainant estimates that this deal with PD when it came to fruition would have been worth €48million and would deliver in excess of €1million bonus payment to the complainant as Senior Sales Person having strong bonus structure within his employment contract, the calculation and payment of bonuses is also the subject of a separate claim under the Payment of Wages Act. The complainant submits that the Senior Management team were not willing to pay Senior Sales Person (the complainant) his Bonus entitlement and that this was the motive for Senior Sales Person current unemployment status. The respondent at the hearing disputed the complainant’s bonus calculations as completely unrealistic and submits that on a salary of €90,000 it is completely unrealistic that the complainants bonus entitlement would be anywhere near the figures he has calculated. The respondent has also disputed the complainant’s methodology for calculating his bonus entitlement and this is again dealt with in the payment of wages claim. In examining the arguments made by the complainant regarding his submission that there was no redundancy situation I refer to ‘Redmond on Dismissal Law’ third edition by Desmond Ryan which states “It is the reason which in fact operated on the employers mind which is important. The workplace relations commission may not pick out and substitute a reason for dismissal which was neither given nor entertained by the employer at the time, merely because it thinks it is a better reason. However, if the facts supported by adequate evidence disclose a reason for dismissal not selected by the employer, the workplace relations commission may properly find that this was the real reason for dismissal rather than the one proffered by the employer”. In the present case the complainant submits that the reason for his dismissal was due to the fact that he would be entitled to a bonus in excess of €1 million if/when his delivery of a deal with a customer ‘PD’ came to fruition. The respondent at the hearing stated that this deal still had not come to fruition and to date had shown no financial return. The respondent also disputed the size and the method of calculation of this bonus entitlement stating that the complainant’s salary was €90,000 per annum and that the calculation of a bonus entitlement amounting to €1 million was completely unrealistic. The respondent added that the complainant was paid bonuses of c €2,700 in 2017 and c €3,700 in 2018. In considering the totality of the evidence adduced here and the many lengthy written submissions made by the complainant, I am satisfied that the Respondent in this case was entitled to make the decision to stop developing the “all other customers” area of its business. I am also satisfied that the Complainant was employed in this area of the business and consequently that the purpose for which the Complainant was employed had ceased or diminished. I am also satisfied that the selection of the Complainant for redundancy arose because the role that he held was no longer required. I am satisfied there was no alternative role available for the Respondent to offer to the Complainant. In addition, I am satisfied from the evidence adduced that the respondent consulted with the complainant and considered suggestions made by him during the process. Having considered all of the submissions and evidence adduced in relation to this matter I find on the balance of probabilities that complainant was dismissed by reason of redundancy and that a redundancy situation existed in relation to the area of the business in which he was employed. For the above reasons I find that this complaint is not well founded. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that this complaint is not well founded. |
CA-00028151-003 |
Background:
The complainant has submitted a claim under section 6 of the Payment of Wages Act, 1991 on the 1st of May 2019. The cognisable period for this complaint dates from the 2nd of November 2018 to 1st of May 2019. These claims which added the word “Limited” in respect of the respondent’s name to claims previously submitted under Adj-00019137 were heard on the 30th of May 2019. Final information in respect of these matters was received on the 4th of July 2019. |
Summary of Complainant’s Case:
The complainant submits that He did not receive his bonus entitlement as per his employment agreement over the years of 2016, 2017, 2018 and to date. He is entitled to a bonus, payable annually, of 10% of profit earned from sales invoiced in the period. the likely underlying reason for the respondents Senior Management strategic actions (i.e. unwarranted attack in April 2018 resulting in apology letter in May 2018,then followed by nonlegitimate redundancy / unfair dismissal in December 2018, and this all taking place within a very short period of time was Senior Management strategically orchestrating the removal of Senior Sales Person from the company with him being far too successful in delivery of sales growth year on year and showing signs of delivery of very sizeable hyperscale deals such as "PDs" that would deliver sizeable "Bonus" payments. (i.e. €48 million PD deal would deliver excess €1million bonus payment with Senior Sales Person having strong bonus structure within his employment contract.). The Senior Management team were not willing / nor wanting to pay Senior Sales Person his Bonus entitlement. This being the motive for Senior Sales Person current unemployment status. |
Summary of Respondent’s Case:
The respondent submits that The complainant was paid his bonus annually as per his contract entitlements, His claim in respect of bonus entitlement due in 2016 and 2017 are out of time, The complainant received his bonus entitlements for all of the years 2016, 2017 and 2018. |
Findings and Conclusions:
Preliminary Issue of time limits The Respondent submits that the complainant did receive all of his bonus entitlement’s it further submits that the Complainant, in his complaint form, is seeking redress for matters which are outside the six-month time period for a claim. Section 41 (6) of the 2015 Act states as follows: 41 (6) “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. 41 (8) “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. The respondent advised the hearing that the complainant was employed as a senior salesperson whose function was to develop new business outside of the respondent’s main customer on whom the respondent was and is very heavily dependent. Clause 6 of the complainant ‘s employment agreement dated 23 November 2015 states as follows Bonus “employee is entitled to a bonus payable annually of 10% of profit and from sales invoiced in the period. Bonus payment will be made in the next salary payment at the end of the month immediately following the annual period”. The respondent advised the hearing that it is quite clear from the wording of the relevant part of the complainant’s employment agreement that bonuses were to be paid in the month following the end of the relevant financial period. The respondent’s financial year is it calendar year. The respondent submitted that the complaints in respect of the alleged non-payment of bonus for 2016 and 2017 cannot be entertained in circumstances where the complainant failed to present his complaint to the WRC prior to the expiry of six months beginning on the date of the alleged contravention about which he complains. The respondent stated that the bonus for 2016 falls to be paid in January 2017 and the bonus for 2017 falls to be paid in January 2018. Thus, the relevant periods even taking the end of January as the bonus due date in respect of the bonus for 2016 would date from end January 2017 to end July 2017 and for the 2017 bonus would date from end January 2018 to end July 2018. In addition, it is further submitted that even if “reasonable cause” existed which it submits does not exist, even if an extension to 12 months were granted it would bring the cognisable period for 2016 and 2017 bonuses to end of January 2018 and January 2019 respectively. In this case the claims relating to alleged unpaid bonuses in 2016 and 2017 were submitted on 1st of May 2019 outside of the extended time period for submission of such complaints even if such an extension were granted. The complainant at the hearing argued that the bonuses were cumulative and stated that he expected that they would be paid at some stage even if not paid by the end of January the year following that in which the bonus was earned. The Complainant is claiming that he is not in receipt of ‘Bonus’ payments with there being now a bank of his ‘Bonus’ money entitlement that is always current (rolling forward bonus value going from 2016 to 2017, to 2018 and always current – see PAY Argument section ‘C’) set aside by the respondent ready to be transferred to Senior Sales Person bank account for years 2018, 2017, 2016. This Bonus value should have been paid to Senior Sales Person after him being dismissed by non-legitimate redundancy means. Thus, the complainant submits that it was only when he was dismissed that he realised the outstanding bonus amounts were not going to be paid. Accordingly, he submits that his claim is in time as the payment of these bonuses were still outstanding at the time of his dismissal on the time of his dismissal on 17th of December 2018 with an effective date of 17th of January 2019 and so he submitted a claim in this regard on 1st of May 2019. The complainant has alleged that he has not been paid his full bonus entitlements he claims that he was entitled to the following annual bonuses 20 16–€344,620 2017–€622,044 The respondent advised the hearing that the complainant was paid an agreed bonus of €2,754.72 for the period up to end 2017 in December 2017 as the complainant had requested that it be paid in December rather than the following January. The respondent stated that the complainant was paid an agreed bonus of €3,744.18 in December 2018, again it was paid in December at the complainant’s request. The respondent advised the hearing that the complainant ‘s annual salary at the time of the termination of his employment was €90,000. The amounts the complainant now claims he was entitled to in bonuses are more than 100 times the amount he was actually paid in bonuses. The respondent submits that despite this enormous apparent disparity in bonuses paid versus bonuses allegedly due to the complainant the complainant raised no issue about bonus payments made to him during the course of his employment. The complainant at the hearing disputed this and stated that he had raised the issue of his bonus structure with his manager Mr. B during 2018. The respondent stated that discussions had taken place between the complainant and Mr. B regarding the restructuring of his bonus scheme but that no agreement had been reached on this matter and it had not concluded. In considering whether or not these claims are within time I note that the complainant did receive bonus payments at end of year 2017 and 2018 for 2017 and 2018. The complainant is now asking me to accept that he had the expectation of receiving outstanding bonus amounts for 2016 and 2017 of more than 100 times the bonuses he had received and that these were due to him at the time of termination of his employment on 17th of January 2019. Having considered these arguments I conclude that the claims in respect of 2016 and 2017 bonus payments are out of time and that I do not have jurisdiction to investigate these claims. The complainant has also submitted a claim in respect of an allegation of non-payment of his bonus for the year ended 31st of December 2018. This claim was also submitted on 1st of May 2019 and thus is within time. Section 5(6) of the Payment of Wages Act, 1991 – 2015 provides as follows – “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 the Act), or (b) none of the wages that are properly payable to the 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”. In a High Court case Dunnes Stores (Cornelscourt) v Lacey & O’Brien (2005) Finnegan P. stated that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant. The complainant has alleged that he has not been paid his full bonus entitlement he claims that he was entitled to an annual bonus of €742,500 for the year ended 31st of December 2018. The respondent stated that the complainant was paid an agreed bonus of €3,744.18 in December 2018, and that it was paid in December at the complainant’s request. The respondent advised the hearing that the complainant‘s annual salary at the time of the termination of his employment was €90,000. The amount the complainant now claims he was entitled to in bonuses is more than 200 times the amount he was actually paid in bonus for the period. The respondent submits that despite this enormous apparent disparity in bonuses paid versus bonuses allegedly due to the complainant the complainant raised no issue about the amount of bonus payments made to him during the course of his employment. The respondent advised the hearing that the complainant was employed as a senior salesperson whose function was to develop new business outside of the respondent’s main customer on whom the respondent was and is very heavily dependent. The respondent advised the hearing that the complainants bonus entitlement is set out in Clause 6 of the complainant ‘s employment agreement dated 23 November 2015 states as follows “employee is entitled to a bonus payable annually of 10% of profit and from sales invoiced in the period. Bonus payment will be made in the next salary payment at the end of the month immediately following the annual period”. The respondent advised the hearing that it is clear from the wording of the relevant part of the complainant employment agreement that the bonus is dependant of 10% of profit from sales invoiced in the period for which the complainant was responsible and which he has earned. The complainant is however claiming an entitlement to 10% of profit earned from all sales invoiced during the period whether or not he had anything to do with those sales which is how he appears to have arrived at a figure 200 times greater than the bonus he was paid. The respondent told the hearing that the complainant had engaged in discussions with his manager Mr. B in 2018 regarding the potential amendment of the structure of his bonus entitlement but that no agreement had been reached on this. The respondent advised the hearing that the complainant received a bonus in December 2017 and December 2018 based on 10% of the profit earned form his sales. The respondent stated that he complainant never raised an issue in respect of the amount of his bonus but is now claiming an entitlement to 200 times the amount of the bonus paid to him. The complainant is also now calculating the bonus entitlement based on 10 % of profit from all sales not just sales attributed to him. The respondent advised the e hearing that the complainant was at all time aware that it is only his personal contribution to sales which is relevant to the calculation of his bonus. The respondent submits that the complainant outlined his understanding of this in an email dated 5 July 2018 where he stated” So if I achieve €1 million in new business sales D will calculate revenue/margin achieved as has occurred to date aligned to my employment contract and make payments accordingly”. The respondent also advised the hearing that it had decided to pay the complainant a bonus notwithstanding the fact that in each year of his employment there was no net profit margin realised form the part of the business in which he was employed. The respondent nonetheless paid him a bonus based on gross profit margin. The respondent advised the hearing that each year Mr. M sat down with the complainant on a one to one basis to go through the calculation of his bonus prior to payment. The respondent submitted a spreadsheet shared with the complainant for each of the years 2016,2017 and 2018 and which clearly sets out the calculation of the complainant bonus. The respondent submits that the complainant at no point stated that he disagreed with the calculation of this bonus. The claimant is now claiming a multiple of at least 100 times the bonus paid to him which represent 25% of the respondent’s entire annual net profit. The respondent advised the hearing that over the entire period of the complainant ‘s employment this area of the business was loss making. In late 2018 following an analysis of turnover and profit generated over the course of the entire period of the complainant’s employment the respondent regrettably made a decision to close the part of the business in which the complainant was employed and to focus on its main customer, customers related to its main customer, and a new client in the USA. The complainant submits that Senior Management were attempting to strategically orchestrate the removal of Senior Sales Person from the company with him being far too successful in delivery of sales growth year on year and showing signs of delivery of very sizeable hyperscale deals such as "PD" that would deliver sizeable "Bonus" payments. The complainant estimates that this deal with PD when it came to fruition would have been worth €48million and would deliver in excess of €1million bonus payment to the complainant as Senior Sales Person having strong bonus structure within his employment contract, the calculation and payment of bonuses is also the subject of a separate claim under the Payment of Wages Act. The complainant submits that the Senior Management team were not willing to pay Senior Sales Person (the complainant) his Bonus entitlement and that this was the motive for Senior Sales Person current unemployment status. The respondent at the hearing disputed the complainant’s bonus calculations as completely unrealistic and submits that on a salary of €90,000 it is completely unrealistic that the complainants bonus entitlement would be anywhere near the figures he has calculated. The question for me in respect of this claim is whether the sums claimed were “properly payable” to the complainant so that the non-payment of this amount constituted a deduction within the ambit of section 5. Having considered the totality of the evidence adduced here I am satisfied on the balance of probabilities that the sum claimed was not “properly payable” to the complainant and accordingly does not amount to an unlawful deduction within the ambit of section 5 of the Payment of Wages Act and that this claim must fail. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I am satisfied that this does not amount to an unlawful deduction within the ambit of section 5 of the Payment of Wages Act and that this claim must fail. |
CA-00028151-004 |
Findings and Conclusions:
This claim was withdrawn by the complainant. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
This claim was withdrawn by the complainant. |
CA-00028151-005 |
Background:
The complainant has submitted a claim under section 13 of the Industrial Relations Act, 1969 on the 1st of May 2019. These claims which added the word “Limited” in respect of the respondent’s name to claims previously submitted under Adj-00019137 were heard on the 30th of May 2019. Final information in respect of these matters was received on the 4th of July 2019. |
Summary of Complainant’s Case:
The complainant submits that He was subjected to Bullying and Harrassment’ behaviour during a meeting on 26th November 2018 where Mr. B had singled him out in front of colleagues in relation to a large outstanding debt in respect of a customer of the complainant Mr. B had previously made negative comments regarding the complainant’s skills and ability. Mr. B also tried to offer the complainant an exit package in April 2018 in an attempt to get rid of him The complainant initially engaged with Mr. B in agreeing an exit package but later indicated that he wished to remain in the respondent’s employment. |
Summary of Respondent’s Case:
The respondent submits that Issue were raised by the complainant in respect of comments made by his manager Mr. B in April 2018 A grievance meeting took place and written apology was issued to the complainant. It was agreed that the parties would put the matter behind them and move on. |
Findings and Conclusions:
The complainant advised the hearing that he was subjected to repetitive ‘Bullying and Harrassment’ by the respondent. He stated that this dated back to April 2018 when his then manager Mr. B made negative comments regarding the complainant’s skills and ability. The complainant advised the hearing that Mr. B had stated that the complainant’s communications both written and oral were long winded and convoluted. Mr. B also stated that he did not believe that the complainant had the technical know-how when communicating with customers and was not technically knowledgeable enough. The complainant stated that Mr. B had also asked the complainant if he was in the right business and whether his skills would be better placed in another organisation. It is submitted that Mr. B proceeded to offer the complainant an exit package in April 2018 in an attempt to get rid of him. The complainant advised the hearing that he had initially engaged with Mr. B in agreeing an exit package but later after a period of absence following his fathers passing away the complainant indicated that he had changed his mind and wished to remain in the respondent’s employment. The complainant returned to work on 30th of April 2018. The complainant advised the hearing that due to stress levels and family issues and following advice received he had decided to remain in the respondent’s employment. The complainant submits that the behaviour of Mr. B amounts to bullying and harassment and that it was an attempt to intimidate the complainant. The complainant agreed that he had received an apology from the respondent in May 2018 respect of Mr. B’s actions. The respondent advised the hearing that Mr. B was no longer with the company and that Mr. N had asked him to resign. The respondent advised the hearing that it had acknowledged that Mr. B had made the negative comments to the complainant and that the complainant had raised a grievance in this regard. The respondent stated that a meeting was convened to discuss the matter and the outcome was that the complainant was issued with a written apology for the comments made by Mr. B. The respondent stated that the parties agreed to put the matter behind them and to move on for the good of the company. As regards the proposed exit package offered by Mr. B the respondent Mr. N advised the hearing that this had been a ‘solo-run’ by Mr. B and that the respondent itself had not at the time engaged in or approved any negotiations in respect of an exit package for the complainant. Mr. N stated that he had following this asked Mr. B to resign from the company. The complainant submits that he was subjected to ongoing intimidation bullying and harassment and in support of this claim he also refers to comments made by Mr. N at a regular sales meeting on 26th of November 2018 where the complainant alleges, he was singled out for criticism by Mr. N in respect of a client account, the payment of which remained outstanding. The respondent Mr. N submits that this matter was only mentioned at the sales meeting as recovery of the debt had been discussed by senior management earlier that week. The respondent submits that it was pure coincidence that the client discussed at the meeting happened to be a client of the Complainant. The complainant submits that Mr. N in this meeting was clearly seeking to undermine his achievement in securing a major project by suggesting that the project was allegedly loss making, not worth doing and holding senior sales person responsible for issues alleged which had nothing to do with Senior Sales Person. The complainant stated that the project was no longer his responsibility as it had been handed over to project teams to manage delivery and installation. The complainant stated that Mr. N went on to suggest in an undermining manner that the best Senior Sales Person delivered was the 'PD' prospect, not recognising a host of other achievements by the complainant. The complainant subsequently raised the matter with Ms. M who met with the complainant on 29 November 2018. The respondent submits that this meeting addressed any concerns the complainant had and that he took no further action regarding the matter. The complainant advised the hearing in respect of the April May incidents that he had agreed with the respondent to ‘draw a line in the sand’ back in May 2018 and that he is sticking with this decision, but is leaving it completely open to the Adjudicator to assess the situation and come to a conclusion on this incident and supporting merged behavioural evidence from April / May of 2018. The complainant submits that the reason behind this incident which was then followed by a nonlegitimate redundancy / unfair dismissal in December 2018, and this all taking place within a very short period of time was that Senior Management were attempting to strategically orchestrate the removal of Senior Sales Person from the company with him being far too successful in delivery of sales growth year on year and showing signs of delivery of very sizeable hyperscale deals such as "PD" that would deliver sizeable "Bonus" payments. The complainant estimates that this deal with PD when it came to fruition would have been worth €48million and would deliver in excess of €1million bonus payment to the complainant as Senior Sales Person having strong bonus structure within his employment contract, the calculation and payment of bonuses is also the subject of a separate claim under the Payment of Wages Act. The complainant submits that the Senior Management team were not willing to pay Senior Sales Person (the complainant) his Bonus entitlement and that this was the motive for Senior Sales Person current unemployment status. The respondent at the hearing disputed the complainant’s bonus calculations as completely unrealistic and also submits that on a salary of €90,000 it is completely unrealistic that the complainants bonus entitlement would be anywhere near the figures he has calculated. The respondent has also disputed the complainant’s methodology for calculating his bonus entitlement and this is again dealt with in the payment of wages claim. Having considered the totality of the evidence adduced in relation to this matter I conclude that the issue of April May 2018 was concluded between the parties in May 2018 when an apology was issued and an agreement between the parties to move on for the good of the company. As regards the allegations in respect of November 2018 it appears the complainant raised these matters with Ms. M who met with the complainant on 29 November 2018. The respondent submits that this meeting addressed any concerns the complainant had and that he took no further action regarding the matter. Having considered the submissions of both parties and having regard to the totality of the evidence adduced and the circumstances of this dispute I do not recommend in favour of the complainant regarding these matters. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having considered the submissions of both parties and having regard to the totality of the evidence adduced and the circumstances of this dispute I do not recommend in favour of the complainant regarding these matters. |
Workplace Relations Commission Adjudication Officer: Orla Jones
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