Complainant

Respondent

Anonymised Parties

Customer Support Specialist

Customer Contact Centre Provider

Representatives

Scott Jevons Ibec

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-00033557-001

09/01/2020

The Complainant is employed at a Customer Contact Centre for a gross weekly salary of €390.00; net €350, which is paid fortnightly. She works forty hours per week. She commenced employment on the 15th April 2019. Her complaint is that she was promised a €500 bonus when she successfully completed her 6-month probation period, but this has not been paid. The Respondent’s position is that it never made this offer because the bonus incentive had ceased before the Complainant commenced employment and therefore she was not contractually entitled to such a payment.

The Complainant submits that she was advised at interview of a €500 bonus upon completion of a successful probationary period, and when being hired for her current role. She contends that she was advised of this bonus on multiple occasions, both in person and over the phone, prior to her signing her contract of employment in April 2019. She submits that Mr H, from the Respondent, also told a group recruitment/interview session of such a bonus, which had been witnessed by other colleagues.

The Complainant asserts that when she brought the matter of non-payment up with the Respondent, she was told that she was never informed by the Respondent of such an incentive and that she was then told subsequently that it was discontinued on the 1st January 2019, only to be told later that it was discontinued from 6th February 2019. The Complainant submits that she was told about the payment of the bonus as late as mid-April 2019.

The Complainant states that other employees who started with her were similarly denied the bonus and that it had been a payment that incentivised herself and her colleagues to apply for the positions in the first place.

The Respondent disputes the complaint in its entirety. The Respondent submits that it introduced a retention bonus whereby the employees received a €500 gross payment for reaching six months service. On the 6th February 2019 the retention bonus was ceased. This was confirmed to all the talent acquisition (recruitment) team in an email therefore the Respondent submits that no person starting from this date received the bonus payment.

The Respondent states that the Complainant’s grievance was investigated and that she was subsequently told that she was not entitled to the bonus. The Respondent also asserts that the Complainant did not utilise the internal grievance procedure fully.

The Respondent states that the burden of proof rests with the Complainant, in this case, and that the Complainant’s case is based purely on her assertion that she was informed verbally by a member of the recruitment team, which is denied by the colleague in question. The Respondent further submits that there is no detail or note in any of the records from the Complainant’s recruitment process that can substantiate her claim.

The Respondent argues that ultimately there is no contractual entitlement or otherwise of the disputed bonus.  

Section 1 of the Payment of Wages Act, 1991 (The Act) provides a definition of wages as follows:

“wages”, in relation to an employee, means 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, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.

Section 5(1) of the Act sets out the prohibitions on the employer when making a deduction from wages

5.— (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) of the Payment of Wage Act 1991 states;

·         “Where—

o    (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”.

Section 6 provides as follows:

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

·         6. (1) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that —

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

·         (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

(2) (a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.

(b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment.

The first issue for me to decide is whether the bonus was “properly payable” to the Complainant. To assist me with this issue I firstly must determine if the Complainant had a contractual entitlement to the bonus. The Respondent exhibited the Complainant’s written contract of employment and argues that there is no explicit reference to a bonus of any sort, which is correct. However, the Respondent also exhibits an internal email from the head of the Recruitment Dept. to other members of the team on the 6th of February 2019, to show that there was a retention bonus in operation previously, but this scheme had now ceased. The email to other members of the team reads as follows: Hi all, please see below – the retention uplift (bonus) is now after 12 months rather than 6, so when screening please advise accordingly…”.

It is clear in law that terms can be implied into a contract in a variety of ways such as, by custom and practice and by the conduct of the parties and has the same effect as if it was written down and expressed by the parties. I am satisfied that the wording of the email of the 6th February 2019 does not suggest a cessation of the bonus, but an alteration. It is clear from the email that prospective staff would be advised by the recruitment team of this bonus in it’s altered form.

The Complainant stated that she was told at interview and further at a group meeting with a Mr A that she would receive the €500 bonus upon completion of her six-month probationary period. Mr A denied in evidence that he made such a statement to the Complainant or made any reference to such a bonus. The person who interviewed the Complainant was not available to give evidence on behalf of the Respondent. The email of 6th February 2019 from Mr B, the leader of the team, states “…so when screening please advise accordingly…”. This suggests that there was a clear requirement for members of the recruitment team, either at interview or at another screening stage, to advise prospective candidates of a retention bonus. This instruction contradicts the position of the Respondent that there was no entitlement to a retention bonus and that no such bonus was made known to the tranche of candidates that included the Complainant. Furthermore, the Respondent argues that the existence of the bonus arises solely from the assertion of the Complainant that she was informed by a member of the recruitment team and that this was clearly denied by the member in question. However, it is not just the Complainant who asserts that a retention uplift (bonus) exists. Any reasonable reading of the email of the 6th of February 2019 confirms the existence of such a payment, albeit in altered form.    

I found the Complainant to be honest and frank and I cannot see how she could have plucked a retention bonus out of the air and submitted a claim for €500. The Respondent submits that more senior work colleagues who received such a bonus, could have told her of such an entitlement. I find such an argument to be weak. I conclude, on the balance of probabilities, that there was and is a retention bonus in operation.

I note also that there was an internal investigation of the Complainant’s grievance where the Respondent said in an email that there was no record of the Complainant having been advised of this. The email to the Complainant further stated that no bonus amount was outlined in the contract of employment. It is clear in law that while written terms of a contract of employment are presumed to reflect the intention of the parties this presumption can be rebutted on other evidence. I conclude on the evidence presented to me that a major factor in the Complainant signing the contract was the offer of a retention bonus of €500 bonus upon completing a six-month probationary period. Therefore, I am satisfied that the bonus was a sum which was properly payable to the Complainant under the Act.

I find that the complaint is well founded, and I award the Complainant the sum of €500   

CA-00033557-001: I find that the complaint under section 6 of the Payment of Wages Act 1991 is well founded and I award the Complainant €500.

Payment of Wages, Bonus.