Complainant

Respondent

Parties

Laura Fennell

Fresh Opportunities Stepaside Limited

Representatives

The Complainant attended in person and was not represented

Ms. Anna Rosa Raso from ESA Consultants

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040023-001

23/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00040023-002

23/09/2020

The Complainant claims that she is entitled to be paid a bonus similar to that paid to a number of named male comparators who are also employed by the Respondent in the grade of General Manager in accordance with section 19(1) of the Employment Equality Acts, 1998 to 2015. The Complainant claims that she has been subjected to discrimination on the grounds of gender in relation to her remuneration in relation to this matter.

The Respondent accepts that the Complainant performs “like work” within the meaning of section 7 of the Employment Equality Acts with the six named comparators but submits that there are grounds unconnected with the grounds of gender which render the rates of remuneration (including the bonus entitlements) paid to the Complainant and all of the named comparators lawful in terms of section 19(5) of the Acts.

The Complainant claims that the Respondent made unlawful deductions from her wages in relation to the payment of a bonus payment contrary to Section 5 of the Payment of Wages Act 1991. The Respondent disputes the claim and submits that the Complainant did not have any contractual entitlement to a bonus payment as parts of her remuneration.

CA-00040023-002 - Complaint under the Employment Equality Acts

The Complainant claims that she was subjected to discrimination by the Respondent on the grounds of gender in relation to her remuneration on the basis that she was not paid a bonus as part of her salary.

The Complainant submits that she was promoted to the position of General Manager with the Respondent in September, 2017 and that she was the only female General Manager within the company up until July, 2020. The Complainant contends that all of the other General Managers employed by the Respondent, who were male, were paid a bonus as part of their respective remuneration packages. The Complainant named a total of six other male General Managers as comparators and contends that she performed “like work” within the meaning of section 7 of the Employment Equality Acts with the named comparators.

The Complainant contends that she was informed by the founder of the Respondent (Mr. A) on her appointment to the position of General Manager that she would be put on a bonus structure after she had completed her initial six-month probationary period in the role. The Complainant submits that she received a small increase in her hourly rate of pay in January, 2019 but this increase coincided with the increase in the statutory national minimum wage at that particular juncture. The Complainant disputes the Respondent’s contention that the payment of bonuses to General Managers was determined on the basis of a number of objective factors such as the performance of the individual in question in the position and the achievement of sales and profitability targets for the store under his/her responsibility.

The Complainant submits that she held one of the most challenging of the General Manager roles within the Respondent company given that the store she managed was located in a suburban area and she was required to introduce innovative initiatives to increase the customer base which did not apply to the stores located in urban areas. The Complainant contends that she put a huge effort into building a positive profile for the store and building a good rapport with customers and local entities, schools etc. which was recognised by some of the senior management and sales representatives from other companies.

The Complainant claims that she raised the issue in relation to the payment of a bonus with senior management and the founder of the Respondent (Mr. A) on a number of occasions following the successful completion of her probationary period but to no avail. The Complainant contends that other members of senior management expressed surprise that she was not being paid a bonus and that she ultimately sent an e-mail to Mr. A in August, 2019 to articulate her concerns in writing in relation to the matter.

The Complainant submits that she was summoned to attend a meeting at Head Office two days later with the HR Manager and Mr. A but rather than addressing the issue concerning her bonus the Respondent proceeded to berate her for sending the e-mail and questioned whether she was suitable for the role of General Manager. The Complainant submits that she felt intimidated and upset by Mr. A’s attitude and conduct towards her at this meeting and that she subsequently went absent on sick leave as a result of the stress arising from this incident and the Respondent’s failure to satisfactorily address her concerns in relation to the bonus.

The Complainant rejects the Respondent’s contention that the reason she was not put on a bonus structure was attributable to issues relating to the underperformance of the store that she was managing and her inability to perform the role of General Manager. The Complainant submitted that the only plausible explanation for the differential treatment between her and the named male comparators was wholly attributable to the fact of her gender.

Evidence of the Complainant

The Complainant stated that she was appointed to the position of General Manager in Store A with the Respondent in September, 2017 after having previously worked as Assistant Manager in this store since 2013. The Complainant stated that she was informed by Mr. A (Company Founder) upon her appointment to the position of General Manager that she would receive a salary and be put on a bonus structure following the completion of a six-month probationary period. The Complainant stated that she was also informed by Mr. A that the industry was very male dominated and a tough profession.

The Complainant stated that she was the only female General Manager employed by the Respondent at the time of her appointment to the position and she was aware that all of her male counterparts were being paid a bonus as part of their remuneration packages. The Complainant stated that she was informed by the previous General Manager in Store A that he was in receipt of a bonus and that she also spoke to two other General Managers who confirmed that they also received a bonus payment and they advised her to talk to Mr. A (Company Founder) about this matter.

The Complainant stated that she raised the issue of a bonus with Mr. A (Company Founder) on numerous occasions after she had successfully completed her probationary period but to no avail. The Complainant stated that she felt as if she was being strung along by Mr. A in relation to her attempts to address the issue concerning a bonus, and therefore, she sent him an e-mail on 28 July, 2020 to express her concerns in relation to this matter.

The Complainant stated that she was requested to attend a meeting with Mr. A and the HR Manager (Ms. B) on 31 July, 2020 at the Respondent’s Head Office. The Complainant stated that Mr. A informed her at this meeting that he was very annoyed in relation to the manner in which she had raised the issue of a bonus and that the issue surrounding the payment of bonuses to other General Managers was not any concern of hers. The Complainant stated that she felt intimidated and bullied by Mr. A at this meeting and that Mr. A indicated that if she felt undervalued and unhappy that she should consider if she was suited to the role of General Manager.

The Complainant stated that Mr. A raised a number of criticisms in relation to her performance and management of Store A at this meeting but she wasn’t afforded the opportunity to respond or to put forward her position relation to the claims. The Complainant stated that Mr. A failed to address the issues that she had raised in her e-mail about the bonus payment at this meeting but instead focussed on the criticisms in relation to her performance.

The Complainant stated that she rejects the claims and criticisms that the Respondent has made in relation to her performance or her ability to carry out the role of General Manager. The Complainant stated that she worked extremely hard and performed well in the role of General Manager and that she had improved the overall profile of the store and its customer base by introducing a number of innovative initiatives during her period in the position.

In cross-examination, the Complainant stated that she did not get a new contract of employment when she was promoted to the role of General Manager but rather was provided with a letter by the Respondent to confirm her appointment. The Complainant accepts that this letter confirmed that the majority of her existing contractual terms and conditions of employment would remain the same following her promotion and that her salary would be increased upon her appointment. The Complainant accepts that the terms of her contract of employment did not make any provision for the payment of a bonus and that she did not request a new contract to include provision for such an entitlement following her promotion to the position of General Manager.

CA-00040023-001 – Complaint under the Payment of Wages Act 1991

The Complainant claims that she was entitled to receive payment of a bonus as part of her remuneration following her appointment to the role of General Manager. The Complainant claims that all of the other General Managers that were employed by the Respondent were paid a bonus as part of their remuneration packages. The Complainant claims that she performed very well in the position of General Manager and raised the issue regarding the payment of a bonus with the founder of the company (Mr. A) on several occasion with the Respondent but to no avail.

The Complainant claims that a member of the Respondent’s senior management informed her that she should have been paid a bonus of €1,000 per month after her promotion to the position of General Manager. The Complainant stated that she had an entitlement to €39,000 in unpaid bonus entitlements during the period from September, 2017 to December, 2020 which amounts to an unlawful deduction from her wages contrary to section 5 of the Payment of Wages Act, 1991.

CA-00040023-002 - Complaint under the Employment Equality Acts

The Respondent was established in 2006 and operates a number of retail stores which employ approx. 200 employees. The Respondent submits that the Complainant was appointed to the position of Supervisor on 2 November, 2003 and that there was no provision in her contract of employment in relation to the payment of a bonus. The Complainant was promoted to Assistant Manager in Store A and promoted again in September, 2017 to the position of General Manager in the same Store.

The Respondent states that a bonus structure is implemented for General Managers following the successful completion of a trial period and review of the store’s overall performance. The Complainant and all other General Managers are required to perform the following duties and responsibilities, namely: managing store employees, budgeting, scheduling employee rosters, organise and plan store layout and displays, enforcing safety policies, ordering products and analysing sales performance. The Respondent submits that all General Managers have different rates of pay which is based on their length of services, skill sets and experience in the field and the bonus structure is treated on an individual basis, the store’s performance and the General Manager achieving the key objectives. The Respondent submits that the Complainant was not the only General Manager who did not receive a bonus and that two other male General Managers did not receive a bonus in 2020 or 2021.

The Respondent submits that Store A was underperforming at the time the Complainant was promoted to General Manager and she was provided with all relevant training associated to the role. The Respondent submits that the performance levels of Store A did not improve following the Complainant’s appointment to the role of General Manager and that she was not achieving the performance standards required of the position. The Respondent submits that the Complainant was never informed or promised that she would receive a bonus as part of her remuneration in the position of General Manager.

The Respondent submits that the Complainant approached the founder of the company (Mr. A) on the shopfloor in July, 2020 and requested a salary increase to which Mr. A replied that it was not the appropriate time and place for such a discussion. Shortly thereafter, on 28 July, 2020, the Complainant wrote to the Respondent by e-mail in which she stated that she did not feel appreciated within the business and that she was seeking a pay increase on the basis that she had been a General Manager for 3 years and had never received a bonus like all of the other General Managers.

The Respondent submits that it replied to the Complainant on 31 July, 2020 and highlighted many issues in relation to the underperformance of the Store and the fact that she had been spoken to on a number of previous occasions in relation to this matter and the difficulties with the standard of her personal performance. These performance related issues related to difficulties with over-budgeting on rosters, productivity was too low and badly managed, her team skills were deficient and her relationship with the Assistant Manager was not positive. The Respondent submits that there were certain areas of her performances which were identified for improvement, and it was indicated that there would be a meeting arranged upon her return from annual leave to set out performance related objectives and review her salary.

The Respondent submits that the Complainant went on annual leave from 6 August, 2020 to 24 August, 2020 but did not subsequently return to work and remains absent on long term sick leave. The Respondent submits that it has made several attempts to engage with the Complainant in order to have her medically assessed and has arranged two meetings to discuss issues she had regrading her terms and conditions of employment, but she has refused to engage with her employer. The Respondent submits that the Complainant did not invoke the internal grievance procedures in relation to her pay or other terms and conditions of employment prior to commencing her sick absence.

The Respondent denies that the payment of a bonus to the Complainant was in any way connected to the fact of her gender and submits that it was entirely attributable to her inability to meet certain performance related criteria in order to qualify for such a payment. The Respondent submits that the manner and criteria in which bonus payments are applied to the General Managers is totally unconnected with the grounds of gender which render the rates of remuneration (including the bonus entitlements) paid to the Complainant and all of the named comparators lawful in terms of section 19(5) of the Employment Equality Acts.

Evidence of Mr. A (Company Founder)

Mr. A is the founder and owner of the Respondent company which came into existence in 2006. Mr. A stated that the Respondent purchased Store A in 2016 and that the Complainant had been employed by the previous operator and she transferred to its employment upon the purchase of the store. Mr. A stated that the Respondent has a general policy of internal promotion and that he ratified the Complainant’s appointment to the position of General Manager notwithstanding his reservations in relation to her lack of experience for the position as she had performed well in her previous role. Mr. A stated that the Complainant’s salary was benchmarked against other colleagues on the basis of factors such as her previous experience and the size of the stores in question. He stated that the Complainant was informed that her salary would be reviewed following the expiry of a trial period.

Mr. A stated that the payment of bonuses to General Managers are discretionary and the decision to pay a bonus is based on a number of factors such as the achievement of sales and profitability targets for the store, the overall performance and standards achieved by the store and the individual performance of the General Manager in the position. Mr. A stated that the payment of a bonus does not generally become operative until the General Manager has completed 10 months in the role to the required standard. Mr. A stated that the level of bonus paid to General Managers varies from individual to individual depending on their performance and that of the store in question.  

Mr. A stated that he met with the Complainant at regular intervals following her appointment to the position of General Manager and that he informed her after a period of 9 months that he did not consider it appropriate to put her on a bonus structure at that juncture given that he had concerns in relation to the overall performance of the stores and her ability to perform the role of General Manager. Mr. A stated that he decided to give the Complainant a pay increase instead of a bonus at that juncture and informed her that the issue of the bonus would be revisited after they had an opportunity to address the issues that had arisen in relation to the manner in which the Complainant was managing Store A.

Mr. A stated that the difficulties which arose in relation to the Complainant’s management of the store included issues in relation to staff management and her interaction with the Assistant Manager, staff payroll was consistently over-budget, poor stock rotation and general merchandising on shop floor was unsatisfactory. Mr. A stated that he received an e-mail from the Complainant on 28 July, 2020 at approx. 11 pm in which she raised the issue of a bonus and referred to pay rises which had been granted to other employees.

Mr. A stated that he did not consider it appropriate for the Complainant to raise the issue in such a manner especially in light of the fact that he had previously discussed this issue with her and given her a pay rise. Mr. A stated that he arranged a meeting with the Complainant on 31 July, 2020 to discuss the contents of her e-mail. Mr. A stated that he again raised the performance related issues with the Complainant at this meeting and outlined the areas that would require improvement following her return from annual leave. Mr. A stated that he also informed the Complainant that the issue of a bonus would be considered at a further juncture after she had addressed these performance related issues. Mr. A stated that the Complainant did not return to work following her annual leave and has been absent on extended sick leave thereafter.

Mr. A stated that the issue concerning the payment of a bonus to the Complainant was not in any way related to the fact of her gender and he emphatically denies that she was subjected to discriminatory treatment in relation to this matter.

Evidence of Ms. B (HR Manager)

Ms. B held the position of HR Manager with the Respondent at the time when the Complainant was appointed to the position of General Manager. Ms. B stated that she sent the letter of appointment to the Complainant after she was promoted to the position of General Manager in September, 2017. Ms. B stated that the terms of appointment relating to the Complainant’s promotion to this position did not include any provision in relation to the payment of a bonus and that the Complainant did not subsequently query this matter with her or request that her contract of employment be amended to include provision in respect of a bonus payment. Ms. B stated that the Complainant was provided with all relevant training after her appointment to the position of General Manager.

Ms. B stated that she attended a meeting between Mr. A (Company Founder) and the Complainant immediately prior to the date when she went on annual leave in August, 2020. Ms. B stated that this meeting was convened by Mr. A with the purpose of discussing the Complainant’s request for a pay increase and the performance related issues that were ongoing in Store A. Ms. B stated that Mr. A informed the Complainant that he had a difficulty in relation to the manner in which she had approached the request for a pay increase and a bonus and that it wasn’t appropriate for her to send an e-mail late at night to raise this issue or to discuss the bonus payment of other General Managers.

Ms. B stated that Mr. A addressed the relevant issues concerning the Complainant’s performance at this meeting including the difficulties in her working relationship with the Assistant Manager. Ms. B stated that the Complainant was upset after this meeting, but she was of the view that Mr. A had adopted a conciliatory approach in terms of trying to address the performance related issues with the Complainant.

Evidence of Mr. C (Area Manager)

Mr. C stated that he has held the position of Area Manager with the Respondent since February, 2020 and prior to that he was employed as a General Manager for a period of approx. 9 years. Mr. C stated that he received a bonus after having completed three years of service as a General Manager with the Respondent and that the payment of this bonus was based on the achievement of performance related targets. Mr. C emphatically denied the Complainant’s contention that he had engaged in a discussion with her about the payment of bonuses or that he had informed her that she had an entitlement to an annual bonus in the amount of €1,500. Mr. C stated that he didn’t have any authority to discuss the payment of a bonus with the Complainant as such matters generally fell within the remit of Mr. A (Company Founder).

Mr. C stated that he had raised concerns on several occasions with the Complainant in his role as Area Manager about the overall management and standards of performance in relation to Store A. Mr. C stated that there was a lot of issues in relation to the manner in which the Complainant was managing Store A and expressed the opinion that she didn’t have the requisite level of experience to manage the store.

Evidence of Mr. D (Senior Manager)

Mr. D is a Senior Manager and has been employed by the Respondent since 2006. Mr. D stated that he was a member of the interview panel which selected the Complainant for the position of General Manager. He stated that there were six candidates for this position including the Complainant and five other male candidates. Mr. D stated that the Complainant had great experience with the Respondent, but he felt that she lacked experience for the role of General Manager at that particular juncture as she had only acquired limited experience as an Assistant Manager.

Mr. D stated that he had concerns over the appointment of the Complainant to the position of General Manager in the same store that she had already served as an Assistant Manager and that it was company policy to transfer staff to another store following a promotion. Mr. D stated that the Complainant was provided with comprehensive training and support in relation to the position of General Manager. Mr. D stated that there were difficulties with the Complainant’s performance in the role of General Manager and particularly in the area of delegation and working with the Assistant Manager.

Mr. D stated that bonus payments are made to General Managers based on their personal performance and the overall performance of the store in question. He stated that General Managers do not automatically qualify for bonus payments and that there are a number of General Managers, including male counterparts of the Complainant, that do not receive a bonus.

CA-00040023-001 – Complaint under the Payment of Wages Act 1991

The Respondent disputes the Complainant’s claim that it has made unlawful deductions from the Complainant’s wages in relation to unpaid bonus entitlements contrary to section 5 of the payment of Wages Act 1991. The Respondent states that the Complainant did not have any contractual entitlement to a bonus payment either prior to, of after, she was promoted to the position of General Manager in September, 2017.

The Respondent stated that bonus payments to General Managers are discretionary and the payment of same is based on a number of objective factors such as the achievement of sales and profitability targets for the store, the overall performance and standards achieved by the store and the individual performance of the General Manager in the position. The Respondent stated that there was no agreement in place with the Complainant, contractual or otherwise, in relation to the payment of a bonus and that she was at all times paid the remuneration which was offered to her at the time of her promotion to the position of General Manager.

CA-00040023-002 – Complaint under the Employment Equality Act, 1998

The Complainant has claimed that she was subjected to discrimination on the grounds of gender in relation to her remuneration in accordance with section 19(1) of the Employment Equality Acts on the basis that she was not paid a bonus entitlement which was paid to her male comparators in the role of General Manager. The Complainant has named six male comparators, who are also employed by the Respondent in the role of General Manager, and she contends that she performs “like work” with each of the named comparators for the purpose of section 7(1) of the Acts. The Respondent accepts that these comparators performed “like work” with the Complainant within the meaning of section 7(1) of the Acts, however, it claims that there are grounds unconnected with the ground of gender which renders the rates of remuneration (including the payment of bonus entitlements) paid to the Complainant and these comparators lawful in terms of section 19(5) of the Acts. 

Therefore, the issue for consideration by me is whether there were grounds other than gender for the difference in the rates of remuneration between the Complainant and the six named comparators within the meaning of section 19(5) of the Acts. In making the decision in this claim, I have taken into account all of the submissions, both written and oral, made to me by the parties.

Section 19(5) of the Acts provides that “..…nothing in this Part shall prevent an employer from paying, on grounds other than gender, different rates of remuneration to different employees.”.  As this provides an absolute defence to the Respondent, it is a matter for the Respondent to satisfy me that the difference in the rates of remuneration paid to the Complainant and the comparators is genuinely attributable to grounds other than gender.  In examining this matter, I note the comments of Keane J. in the case of The Minister for Transport, Energy and Communications –v- Campbell & Others [1996] ELR 106 where he stated that “the Labour Court is entitled and indeed bound to approach such an issue on the basis that the employer must prove that the differentiation is genuinely attributable to grounds other than sex.  In other words, the subsection cannot be used to uphold a practice which seeks to conceal discrimination on sexual grounds” .  Whilst Keane J. was dealing with matters connected with a claim for equal pay on grounds of gender under the Anti- Discrimination (Pay) Act, 1974, the principle enunciated clearly applies to the instant case. 

The Labour Court has held on a number of occasions that since the facts that are necessary to prove an explanation that a process was free from discrimination can only be in the possession of the respondent, that the Court (and by extension an Adjudication Officer of the WRC) should expect cogent evidence to discharge the burden of proof placed on an employer (as per Barton –v- Investec Henderson Crosthwaite Securities [2003] IRLR and A Government Department –v- An Employee EDA062).

In considering this issue, I note that the Respondent adduced extensive evidence (both oral and documentary) in relation to manner in which its bonus structure is applied to the position of General Manager within the company. In this regard, I note that the Respondent’s evidence that all General Managers have different rates of pay and that the payment of bonuses is discretionary. The Respondent adduced evidence that the decision to pay a bonus is based on a number of objective factors such as the achievement of sales and profitability targets for the store, the overall performance and standards achieved by the store and the individual performance of the General Manager in the position. I have found the Respondent's evidence in relation to this issue to be very credible and compelling, and therefore, I find that the manner in which the bonus structure was applied to the position of General Manager was determined in accordance with the aformentioned objective factors.

I am also satisfied that the Respondent adduced compelling evidence that the reason why the Complainant was not put on a bonus structure was wholly attributable to issues which had occurred concerning both the performance of the particular store under her responsibility and her own personal performance in the role of General Manager. Furthermore, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that the Complainant's gender was a factor which was taken into consideration by the Respondent in determining her entitlement to a bonus as part of her remuneration her rate of remuneration.

Having regard to the foregoing, I am satisfied that the manner in which the Respondent applied its bonus structure to the Complainant and the named comparators was grounded on considerations which were wholly unconnected to gender. Accordingly, I find that the Respondent is entitled to rely on the defence under section 19(5) of the Act in relation to this claim.

CA-00040023-001 – Complaint under the Payment of Wages Act 1991

The Law

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

              “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.”

Section 5(1) of the Act provides:

“(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 Act provides: —

(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.

The Complainant referred this complaint to the Workplace Relations Commission on 23 September, 2020. By application of the time limits provided for in Section 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was referred to the WRC i.e. from 24 March, 2020 to 23 September, 2020. Therefore, I am satisfied that I only have jurisdiction to inquire into the alleged unlawful deductions in respect of unpaid bonus entitlements which the Complainant claims were made from her wages that fall within the cognisable period covered by the claim.

The issue for decision in relation to the Complainant’s complaint is whether or not the Respondent made unlawful deductions from her wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to unpaid bonus payments which she claims were due to her during the cognisable period. In considering this issue, I must first decide whether the claimed unlawful deduction was in fact “properly payable” to the Complainant within the meaning of Section 5(6) of the Act.

The Complainant claims that she had an entitlement to a bonus payment as part of her remuneration following her promotion to the position of General Manager in September, 2017. The Complainant contends that all of the other General Managers employed by the Respondent were paid a bonus. The Complainant contends that she raised this matter with the Respondent on numerous occasions, but the Respondent refused to make the relevant bonus payments to her. The Respondent denies that the Complainant had any entitlement to a bonus, either contractually or otherwise, and that the payment of bonuses to General Managers was discretionary and performance related.

In considering this matter, I have taken into consideration the oral and documentary evidence adduced from both parties in relation the contractual arrangements that existed following the Complainant’s appointment to the position of General Manager. I am satisfied that the Complainant’s contract of employment did not make any provision for the payment of a bonus as part of her remuneration. I have found the Respondent’s evidence to be very compelling in relation to the manner in which its bonus structure was applied to the grade of General Manager within the company and I am satisfied that it was operated on the basis of a number of objective factors which were associated to the performance of the individual General Manager.

Having regard to the foregoing, I find that the Complainant has failed to adduce any cogent evidence to support her claim that she was entitled to the amounts claimed in respect of unpaid bonus entitlements arising from her employment in the role of General Manager.

In the circumstances, I find that the bonus entitlements claimed by the Complainant were not properly payable to her within the meaning of section 5(6) of the Act. Accordingly, I find that the Complainant’s claim under the Payment of Wages Act 1991 is not well founded and must fail.  

CA-00040023-001 – Complaint under the Payment of Wages Act 1991

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 find that the Respondent did not make unlawful deductions from the Complainant’s wages contrary to section 5 of the Payment of Wages Act 1991. Accordingly, I find that the Complainant’s claim is not well founded and must fail.

CA-00040023-002 – Complaint under the Employment Equality Act, 1998

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.

I find that there are grounds other than gender which render the rates of remuneration (including the bonus entitlements) paid to the Complainant and all of the named comparators lawful in terms of section 19(5) of the Acts. Accordingly, I find that the Respondent did not discriminate against the Complainant on the grounds of gender contrary to section 19(1) of the Acts in relation to her pay.

Employment Equality Acts – Section 7 – Like Work – Section 19 – Equal Pay – Gender – Bonus Payments – Payment of Wages Act 1991 – Section 5 – Unlawful Deductions