ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028979

Parties:

	Complainant	Respondent
Anonymised Parties	OD Manager	Airline

Representatives

none

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-00038098-001	19/06/2020

Date of Adjudication Hearing: 22/03/2021 Remote Hearing

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

The Complainant was employed as an Organisational Development Manager from 12th November 2018 to 17th July 2020. She was paid €5,695.00 gross and €3,308.00 net per month. She has claimed that she is owed a performance bonus. The Respondent has rejected this claim.

Summary of Complainant’s Case:

The Complainant was hired through a recruitment consultancy. The consultancy advised her that she was the preferred candidate and the remuneration mentioned a management bonus scheme worth an additional 15 % of gross salary, 10 % based on her own objectives and 5 % company performance. The bonus was not included in the contract of employment. On 7th May 2019 she had a 6-month probationary meeting with her line manager, the HR Director and it was confirmed that she was ‘bonus eligible’ for 2019. She understood that she had achieved her objectives. She was never told that she had not achieved them. In December 2019 she had a meeting her HR Director when he advised her that the bonus issue was to be kept confidential, there was no money to pay the bonus and to submit a proposal with alternative suggestions for compensation. She followed up on this discussion and set out in an email on 17th December 2019 that she had taken this position on certain assumptions including the payment of a bonus. The alternative compensation she offered was time in lieu of bonus amounting to 23 days holidays. The HR Director confirmed verbally that he was not adverse to the 23 days holidays. She again set out her position in an email dated 12th June 2020 to the HR Director and copied the HR Business Partner. She referred a claim to the WRC under the Payment of Wages Act. Her position was made redundant on 17th July 2020. She did not raise the bonus with her employer as she had a claim in the WRC. She stated that she received this message from her HR Director who has left the employment. Its stated, “Finally, while I appreciate and understand you may have a poor view of both the company and myself and, that you may feel that you did not have a pleasant experience overall. I do want to sincerely thank you both personally and professionally for your valuable contribution during your time with us and wish you every success for the future”.She believes that that message speaks volumes and confirms her contribution. The HR Director declined to attend this hearing.

She is claiming €6,834.00.

Summary of Respondent’s Case:

The Respondent stated that there was no agreement between the Complainant and the company to pay a bonus. The contract of employment is silent on a bonus. It is inconsistent with company policy to agree a bonus verbally. The policy is that once a bonus is agreed the details are passed to the HR Business Partner who sets out in writing the bonus details and objectives/KPIs to be achieved. It is then passed to payroll for implementation once approved. There is no written confirmation of a bonus in existence. No objectives /KPIs listed. The first reference to a bonus was in the email 12th June 2020. The HR Business Partner stated that she spoke to the HR Director who responded that he would deal with it. During the redundancy consultation the Complainant did not raise the bonus. At the time that her position was made redundant and final consultations she did not raise it despite having been asked twice if there was anything further to discuss. They pointed out that in the initial email “Pre-conditions of accepting this invitation it stated

1. Salary range max that will be on offer is €67,000

2. Attached is a draft of our standard contract, terms and conditions.

Please note that in addition to the above the following may apply;

1. Currently in discussions with our Staff Representative Group to increase the number of days holidays per annum. We expect a conclusion before year end and I expect the number of days to increase after one years’ service.

2. We currently have a ‘management bonus scheme’ in place worth an additional 15% of gross salary (10% for own objectives & 5% company performance). This scheme is reviewed by the Executive Team each year end. I expect that we will approve this for continuation in 2019 and I will include this position in that scheme.

They stated that the wording is may apply, not would, will or shall, so no guarantees was made.

The company has never operated on verbal offerings of bonus arrangements.

This claim is rejected.

Findings and Conclusions:

I find that the Complainant received an e-mail from the Recruitment Company prior to the job offer which stated: “Attached is a draft of our standard contract, terms and conditions.

Please note that in addition to the above the following may apply;

We currently have a ‘management bonus scheme’ in place worth an additional 15% of gross salary (10% for own objectives & 5% company performance). This scheme is reviewed by the Executive Team each year end. I expect that we will approve this for continuation in 2019 and I will include this position in that scheme.

I find that this document refers to “in addition to the above the following may apply;

I find that it states “may” not will or shall.

I find that the contract of employment was silent on the bonus issue.

I find that the Complainant did not raise any query regarding the contract being silent on the bonus.

I find that the Complainant is a well-educated person and held a senior management position.

I note that the Complainant stated that on 7th May 2019 she had a 6-month probationary meeting with her line manager, the HR Director and it was confirmed that she was ‘bonus eligible’ for 2019.

I note that there was not a formal review of targets / criteria but the Complainant assumed that she had achieved them as she knew she had and the Company did not say otherwise.

I find that the statement “bonus eligible” does not convey confirmation of actual bonus entitlement.

I find that yet again there was no written confirmation of this arrangement.

I note the company policy is that such a bonus arrangement is confirmed in writing and passed to payroll, no such arrangement was put in place.

I note that the Complainant sent an email to the HR Director setting out an alternative to the bonus following an alleged conversation with him.

I note that the contents of this email were not challenged by the HR Director.

I note that the HR Business Partner gave evidence that she discussed this email with the HR Director who responded that he would deal with it.

I note that the HR Business Partner did not advise the HR Director that she was unaware of such a bonus arrangement as it was her responsibility to set up and implement the bonus arrangements in the company.

What is being put forward by the Complainant was that the HR Director, no longer in employment with the Respondent Company and who declined to take part in this hearing, who wrote to the Complainant upon her termination with the Company stating : “while I appreciate and understand you may have a poor view of both the Company and myself and, that you may feel that you did not have a pleasant experience overall. I do want to sincerely thank you both personally and professionally for your valuable contribution during your time with us and wish you every success for the future”. Am I to deduce that he misled the Complainant into believing that she had an entitlement to a bonus, didn’t put it through the Company system, then advised her that there was no money to pay a bonus and to look at alternatives to making a payment? That is possible and is this what he means when he says, “you may have a poor view of myself”.

I find that the Complainant submitted this claim to the WRC on 19th June 2020. Her employment was terminated by reason of redundancy on 17th July 2020.

I note that the Complainant did not raise the issue of the bonus when she was placed at risk of redundancy and entered into a consultation process.

I note that the Company did not address the claim before the WRC with her either.

I note that the Complainant explained that she had already placed the bonus issue into a different forum. I find this unusual that neither party discussed the claim before the WRC.

I find that in order to succeed with a claim under the Payment of Wages Act the complainant has to establish a contractual entitlement to the monies claimed.

In this case, despite my reservations concerning the alleged discussions between the HR Director and the Complainant, I did not find any contractual basis for this complaint.

Accordingly, I must find that this complaint is not well founded.

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.

For the above stated reasons, I have decided that this complaint is not well founded, so it fails.

Dated: 23rd April 2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Bonus alleged entitlement, not paid