Complainant

Respondent

Anonymised Parties

A Former Chef

A Catering Business

Representatives

Noel Murphy,    IWU

Lisa Conroy, Peninsula

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-00036239-001

19/05/2020

On 19 May 2020, the Union on behalf of the Complainant raised a complaint under the Payment of Wages Act, 1991. The Union submitted that the sum of €6,000 awarded to the Complainant via an Industrial Relations Act, 1969 in March 2020 had neither been appealed or discharged by the Respondent in this case.

The case warrants a clear transcription of the submitted complaint:

“I had a Dispute with my Employer which I referred to WRC. My complaint was held on 5 December,2019. The Adjudicator, Ms Patsy Doyle awarded me €6,000 in her decision which was dated 23 March 2020. Neither I or my Employer appealed the award. Through my Trade Union I asked my Employer to pay this money. I have received no response and I now believe that I am lawfully owed this emolument. I am referring the issue for a decision under the Payment of Wages Act”

The Respondent in the case operates a Catering Company and has strongly contested the claim and has submitted that they do not hold liability for an Industrial Relations Act Recommendation and are not bound by it.

Both parties made written and oral submissions and both parties raised very compelling arguments for their member/client.

The Union outlined that the Complainant in this case worked as a Chef at the respondent business from 18 August 2018 until his dismissal on 10 July 2019. He worked full time and was in receipt of €380.00 gross per week.

The Complainant had previously lodged a Dispute surrounding his dismissal with the Workplace Relations Commission during 2019. The dispute was heard on 5 December 2019 under the Industrial Relations Act, 1969 and resulted in a recommendation dated 23 March 2020 that €6,000 be awarded in compensation to the complainant.

A concurrent claim for wages and notices under Payment of Wages Act, 1991 was withdrawn on the day. The Respondent had not refused to attend the hearing under the Industrial Relations Act, 1969.

The Recommendation read:

“I have found merit in the Dispute.

Considering the clear absence of fair procedures, in addition to the assurances given that the claimants job was safe, when it is clearly was not, I have identified that Mr A, as Manager was present at fact finding stage, investigation and Disciplinary processes. This was unfair, unreasonable and contrary to fair procedures.

I am satisfied that the claimant suffered extreme disappointment and detriment in the aftermath of his dismissal, which was precipitous. I have found the outcome to have been largely predetermined.

The employment is now over and not redeemable. The claimant has found new work. I believe that compensation is the most suitable remedy in this case and I award the claimant €6,000 compensation for the breach in fair procedures and breakdown in trust between him and his former employer.

I recommend that the Employer in this case implement a guidance document for handling complaints concerning employees placed on a client base, which should be shared by both the client base and the host employer within 4 weeks of this decision “ADJ 23653

 On 5 May 2020, in the absence of an appeal by the Employer, the Union sought implementation of the award without response. The matter was subsequently referred for decision to the WRC.

The Union argued that the award of €6,000 amounted to an emolument, which fell for payment once the time allowed for appeal of the March Recommendation had elapsed. It amounted to unpaid wages referable to the complainant’s employment.

The Union clarified that they accepted that there was no means at the Unions disposal to seek enforcement of the award at District Court level and had not attempted to do so. The Union was aware of the limitations of the Industrial Relations Act, 1969.

The Union referred to an earlier ADJ 14451 from January 2019, where the Adjudication Officer in that case had accepted that a €1,000 award, previously made to a driver of a Courier Company, under IR Acts, without appeal, was found to amount to an emolument. This fact that this award went unpaid, was recognised as a contravention of the Payment of Wages Act, 1991.

The Union submitted that the Complainant had presented a Trade Dispute to the WRC as he was ineligible to pursue a claim for Unfair Dismissal under that Act, due to insufficient tenure.

It was open to the Respondent to object to a hearing under the Industrial Relations Act, 1969, but no objection followed. However, the Respondent had absented themselves from the IR Hearing in December 2019.

The Union contended that the €6,000 recommended in the March 2020 decision should be recognised as an emolument owed to the complainant and sought a decision in support of the contention.

The Union was asked to clarify the earlier claim that led to the Recommendation ADJ 23653. The Union confirmed that it was a Trade Dispute and not a claim for Unfair Dismissal. The Complainant had sought to “clear his name “

The Respondent operates as a Catering company servicing external company canteens and employed the complainant as a Chef de Partie from 16 August 2018 to 10 July 2019. The Company employs 70 employees across a number of counties.

The Respondent had received a copy of ADJ 23653 but were not bound to implement the award or action mentioned. There was no resulting appeal.

The Respondent outlined that the complainant had previously withdrawn a claim under Payment of Wages Act, 1991 at the December 2019 hearing.

 The Respondent contended that sums awarded under an Industrial Relations Act Recommendation cannot now be elevated to “wages properly payable” under the Payment of Wages Act, 1991.  The award of €6,000 cannot    constitute wages. The Complainant had long left employment with the respondent by the time the Recommendation issued in March 2020.

 The Recommendation was not implemented and there was no obligation to implement this award which resulted from a Voluntary Industrial Relations process to which the Respondent chose not to attend. The Respondent had made a written response to the claim.

The Respondent respectfully submitted that the District Court served as the correct entity of Enforcement   in terms of decisions issued by an Adjudication Officer under Section 41 of the Workplace Relations Commission Act, 2015. In seeking to distinguish a “Recommendation “from a Decision, she contended that a Recommendation under Section 13 of the Industrial Relations Act, 1969 is not therefore enforceable at District Court level.

The Respondent referred to a Court of Appeal finding in Mullaly v The Labour Court [2016] IECA 291, in relation to the treatment of a Section 20(1) referral

“The critical point, however, from a consideration of the legislation as a whole is that what issues from the Court is not, in fact, a binding determination, but is simply a recommendation which, by definition, cannot have the legally enforceable characteristics of a binding decision, the ostensible language of S. 20(1) regarding prior undertakings by the trade union and employees notwithstanding

And concluded

“… I entirely agree with the conclusions of Noonan J that the recommendation of the Labour Court pursuant to S. 20(1) of the 1969 Act “has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates”

The Respondent contended that this deliberation applied to a Section 13 Referral also.

The Respondent representative went on to engage with the provisions of the definition of wages under the Act. She   argued that compensation for loss of office was expressly excluded from recognition as wages. The Adjudication made an award for loss of office and this was not” wages in the properly payable” sense. The word “compensation “was cited twice in ADJ 23653

The Respondent Representative was unclear on any provision for collective bargaining in the company? and remained unclear on identifying any mechanism relied on to implement findings from third parties.  The Respondent understood ADJ 23653 was the first such recommendation handled by the company.

The Respondent clarified that the Recommendation on Operational Policy revision set out in the Recommendation had not been implemented.

The Respondent concluded in re=affirming that the Respondent had no residual liability for the €6,000 mentioned in the March 2020 Recommendation.

The Respondent referred to point 19 onwards on their written submission. I shared with the parties that my submission had stopped at point 18 and invited a remedial copy of same. I followed this up immediately post hearing and invited the respondent to submit the whole submission, to which she had referred. I did not receive a supplementary submission.

I have been asked to decide whether a deduction in wages followed the non-payment of a €6,000 award made via ADJ 23653 dated March 23, 2020.?

In reaching my decision, I have considered all written and oral submissions.  I have not received a copy of the contract of employment governing the period August 2018 to July 2019. Neither have I received any of the supplementary submission from the Respondent. Therefore, I make this decision from the complaint form, both written submissions received prior to hearing and the oral presentations made at hearing.

Preliminary Issue:

I am the Adjudicator who hosted the Adjudication hearing which culminated in ADJ 23653. In my preparation for the hearing, I was aware of my previous involvement in the case which followed the Complainants period of employment in December 2019. As an Adjudicator, I am Independent in my function.

I outlined to the parties at hearing that I had held this role. Both Parties were aware of this fact and no objection followed in my proceeding with the claim under Payment of Wages Act, 1991. I assured the parties, that I would be assessing the facts of the instant case impartially and as a new venture.

I had reason to seek a reading of the text which had informed the earlier claim under Industrial Relations. The Respondent obliged with that sole extract. 

Substantive Case:

 The Complainant in the case has sought payment of €6,000 which comprised an aspect of a Recommendation made under section 13 of the Industrial Relations Act, 1969 dated March 23, 2020, which currently stands in the limbo of not having been appealed by either party and not having been implemented.

All parties accepted that there is no statutory mechanism available to enforce implementation of this Recommendation. The referable employment period comprised 18 August 2018 to 10 July 2019.

The Union sought implementation of the award once the window permitted for appeal had passed. No response issued. This was clarified by the Respondent as the employer believed that they were not obliged to engage in the claim at any of the junctures and, therefore, they could not carry a liability for what emerged from the hearing.

The Union on behalf of the Complainant has now presented a new argument, that this award, which emerged from a Trade Dispute, takes on the title of” an emolument “under Section 1 of the Act and the non-payment should be recognised as a “deduction in wages “in accordance with S. 5(6) of the Act.

This was vigorously contested by the Respondent. In addition to the stated contention of having no compulsion to participate in a Voluntary Hearing or no liability to address any award emerging from that forum, the Respondent submitted that the award made could not now be regarded as wages and was excluded by reference to “compensation for loss of office “under Section 1(b)(ii) of the Act

Provided however that the following payments shall not be regarded as wages for the purposes of this definition

…..

(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

I have reflected on both parties’ positions as outlined.

As a primary remark, I think it important to state that the Respondent had an early opportunity to formally absent from the Industrial Relations claim by registering an objection. I probed this with the Respondent and learned that the respondent observed a certain comfort in the anonymity of “first instance” but was apprehensive about being named if the case then travelled to the Labour Court. The Respondent confirmed that their attendance at the earlier case was to address the Payment of Wages claim, which was withdrawn. They did not attend the Industrial Relations hearing.

From my point of view, I found this to be a missed opportunity as the purpose of an Adjudication hearing under the Industrial Relations Act, 1969 is to investigate a Trade Dispute and if merit emerges, a Recommendation follows, without prohibitive cost or inordinate delay, for the attention of both parties.

The process presumes that the parties have been unable to resolve their differences through local procedures.

I have incorporated the text of the earlier Recommendation in the Summary of the Complainants case as the Union appended the Decision to their submission to Hearing.

I have found it regrettable that the Union request for payment in May 2020 was not met with a response of any kind. Employment carries with it an implied obligation of good faith and an Employer frequently carries a lingering responsibility for a past employee either through pension, provision of reference or indeed overpayments. Frances Meenan has referred to this as “an assumption of responsibility “

In her Frances, Employment Law, 1st Edition, Frances Meenan devotes a chapter to a background to Industrial Relations and emphasises a definition on what is a Trade Dispute?

Section 3 of the Industrial Relations Act, 1946 amended by section 40 of the Industrial Relations Act, 2015:

Any dispute or difference between Employers and Workers or between workers and workers connected with employment or non-employment, or the terms of employment or with conditions of employment of any person

The Industrial Relations Acts carry with them “various immunities in respect of actions in contemplation or furtherance of a Trade Dispute” They serve as a control mechanism for Industrial Peace.

The chronological facts of this case are agreed by the parties, “Dismissal “was an undisputed eventuality. The key words at the end of the Recommendation stated:

“Fair Procedures in an employment under 12 months duration “

The parties differ on what should happen post this dismissal. The Union argues that there is an outstanding debt, and this is refuted by the respondent.

I am satisfied that the claim involved a Trade Dispute.

At this juncture, I believe it is timely to confront the Respondent reliance on Mullaly.

This case involved a bid for union recognition for a grouping of retained firefighters in Co Waterford. The Union had sought a Recommendation on recognition from the Labour Court under S. 20(1), where outcome is binding on the Union.

 The Labour Court rejected the claim and the Union sought a judicial review through the Higher Courts, which was denied. the Industrial Relations Recommendation under S 20(1) was deemed “not amenable to judicial review”

The case is distinguished from the present case, which has at its core an Individual Claimant and a Commercial Organisation. It is not a David and Goliath scenario. I can accept that the Respondent is emphasising the statutory limitations to a Recommendation made under Industrial Relations. However, I cannot accept that the case legitimises the decision by the respondent not to engage as it is clear from my reading of the case that both parties participated in the earlier hearing, albeit not on a joint basis.

I accept the Union argument at hearing that the complainant did not have the requisite service, or specific grounds to lodge a claim for unfair dismissal.

Having accepted that the earlier Recommendation emerged from a Trade Dispute, I must now confront the central aspect of this case.

Can the award which emerged from a Recommendation under S. 13 of the Industrial Relations Act, 1969 amount to a deduction of wages in accordance with the Payment of Wages Act, 1991?

 Is the award an emolument? If I find it is an emolument. I must then address the substantial argument made by the Respondent, that this is an award of compensation arising from loss of office and thus exempted from the definition of wages under the Act. If I find that the amount is not an emolument, the claim cannot succeed.

Analysis of the Law:

Both employer and employee are defined in Section 1 of the Payment of Wages Act, 1991 as:

employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purpose of this definition, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or the Government, as the case may be, and an officer or servant of a local authority for the purposes of the  Local Government Act 2001(as amended by the Local Government Reform Act 2014) , a harbour authority, a health board or  a member of staff of an education and training board  shall be deemed to be an employee employed by the authority  or board  as the case may be;

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

I noted that no strict temporal limitation is attached to the span of time where the employee can be cast as a former employee. I probed the parties on this as I was unsure of the complainant’s locus standus as a former employee and whether he could be fairly considered as an employee “at law “?

The Union outlined that the reported contravention of the Act occurred following the failure of the Respondent to implement the Recommendation i.e. May 2020. Employment had ceased in July 2019.

The Respondent agreed with the cessation date and expressed some concern at the tardiness of the claim and its remoteness from time of employment but did not argue a jurisdictional point on the “employee status “under the Act.

As an Adjudicator, I must inquire into this case in accordance with my jurisdiction under Section 41(6) of the Workplace Relations Act, 2015

Section 3 of the Workplace Relations Act provides that I can incorporate the meaning given to both employer and employee as that given in the Payment of Wages Act, 1991.

Construction of references to employer and employee

3. (1) For the purpose of the operation of this Act, and to the extent only that this Act applies, in relation to a relevant enactment or provision thereof—

(a) references in this Act to employer shall be construed as references to employer within the meaning of the relevant enactment or provision concerned, and

(b) references in this Act to employee shall be construed as references to employee within such meaning.

Section 41(6) provides that:

(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.

The date of contravention submitted by the Union is 5 May 2020. the claim was lodged before WRC on 19 May 2020. The Respondent pointed to the cessation of employment some months earlier in July 2019 and argued they did not hold a liability to pay the award.

From my reading of the Payment of Wages Act at Section 1, I can recognise the complainant as an employee for the purposes of the Act as someone “who worked under a contract of employment “for the respondent. However, having not seen the contract in the context of this case, I must conclude that an oral contract was in being.

In seeking to balance the justice in this case and consider the case from a Constitutional viewpoint in accordance with Art 40.3.1  , my attention was drawn to the Supreme Court case of Glover v BLN[1973]IR 388 , where the claimant in the case was  dismissed by a Board of Directors and the circumstances of the case were found non complaint with the rules of natural justice “ Audi alteram partem” in his expansive judgement, Walsh J stated that :

This procedure was a breach of the implied term of the contract that the procedure should be fair, as it cannot be disputed, in the light of so much authority on the point, that failure to allow a person to meet the charges against him and afford him an adequate opportunity of answering them is a violation of an obligation to proceed fairly

This finding is in contrast with the confirmation of fair procedures in Dooley v Great Southern Hotel ltd [2001] IEHC 115 where the complainant was provided with a meeting with his Legal Advisor.

For me, I find that the justice of the case determines that   I should recognise the complainant as a former employee for the purposes of section 1 of the Payment of Wages Act, 1991. While I held some doubts on the impact of cessation of service on my jurisdiction under Section 41(6) of the Workplace Relations Act, 2015, I accept that the complainant lodged a complaint surrounding the procedural framework relied on by the Respondent in the closing stages of his direct employment. I note that it was the Union who attributed “loss “to the complainant in the first instance.

 I saw some retrospective  authority  here in how the Higher courts have addressed refusal to pay an aspect of bonus / restraint in trade  in Finnegan V J and E Davy [2007] IEHC 18, where the Complainant , an Accountant left employment in 2000 and sought payment of a referable  stratified bonus system , the Respondent had sought to rely on the argument that payment of bonus was linked to incentivisation and loyalty and was thus discretionary . In finding for the complainant, Justice Smyth made a stark final commentary on his views of the deficit’s employment setting.

To enforce a condition , it must be fairly and reasonably brought to the other party’s attention .this is especially so when in a contract the condition was particularly onerous or unusual ( as I find as a fact the deferral and retention of appreciable percentages of bonuses were ) and was not known at all to the Plaintiff until 1997 and the real and full impact only known to him or impacting on him until 1998 .

In my judgement, the deferral or retention clause operated as a form of forfeit ………

An Emolument:

Section 1 of the Payment of Wages Act, 1991 defines wages as:

Any sum payable to the employee by the employer in connection with his employment, including

(a)    A 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

(b)    ….

Provided however that the following payments shall not be regarded as wages for the purposes of this definition

(i)….

(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

The Respondent expressed a note of respect in terms to the Unions reliance on their work on a previous Adjudicators finding in relation to a €1,000 award at hearing being accepted as an emolument. However, they then distinguished the instant case as preventing this action due to the exclusion clause at S.1(b)(ii). They submitted that the Adjudicator had referenced the word compensation twice in the Recommendation and attributed it to “compensation for loss of office”.

I have given these view points a lot of thought. First, I had to secure a definition of what exactly is an emolument in employment law. The Act does not provide this.

 Frances Meenan refers to it as being “total earnings” inclusive of allowances, overtime and any like payment.” I read of an extensive reference to emoluments as an accompanying aspect to salary in the quest for Interlocutory Injunctions in Jean Phillippe Grenet and Electronic Arts Ireland ltd [2019]30 ELR136

The Collins Dictionary calls it “a fee or wages from employment”

The Financial Emergency Measures in the Public Interest Act 2009 relied on the definition of “remuneration” in the Taxes Consolidation Act 1997 and it is defined4 as:

Emoluments to which chapter 4 of part 42 of the Taxes Consolidation Act 1997 applies or is applied and payable by or on behalf of a public service body to a public servant for his or her services as a public servant.

For me it reads like an umbrella term for payment arising from employment.

I noted that a failure to align Trade Union subscription to the Union in the case of Insolvency was found to constitute arrears of weekly remuneration in Re Solus Teoranta, Minister for Labour v Mary O Toole, prior to the enactment of the current Legislation, [1990] ELR 64

I have had regard for an EAT Determination in a claim for non-payment of termination bonus in Potterton V Roger [2009] ELR 337. The Tribunal found that the Bonus was not a gratuity and was found   to constitute wages.

Section 5(1) of the Payment of Wages Act, 1991 prohibits deduction in payment of wages save through statute, contract or via consent.

Section 5(6) provides for

 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 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.

In St Patricks Mental Health Services and Asma Ayyaz, PWD 1713, the Labour Court found that a claim for a portion of Maternity Leave did not constitute a contravention of Section 5 of the Act as “there was no statutory obligation on St. Patricks to take on a liability to pay wages it has no contractual or statutory obligation to pay “

In Bord Gais Energy ltd and Niall Thomas PWD 1729, the Labour Court found that a bonus claimed by the complainant was not “properly payable “.

The Union has submitted that the complainant is entitled to receive the award of €6,000 as an emolument, which is properly payable under the Payment of Wages Act, 1991. The Respondent has disputed this and submits that the claim is prevented from succeeding as the compensation awarded arose as “compensation for loss of office “which is not classed as wages under the Act.

I have read and considered   the High Court case of Dunnes Stores (Cornelscourt) ltd (T/A Dunnes Stores and Lacey and O’Brien [2005] IEHC 417. This case addressed a non-binding Recommendation of the Labour Court on Service pay/ long service increment and found that by subsequently departing from the Recommendation and enhancing pay for a cohort “their remuneration had been unilaterally increased by the Appellant making a payment which recognises their long service in excess of that which was payable prior to 18 September 2002”

 Of interest in this case was the exercise of discretion adopted by the Respondent in the case and how Finnegan J found that the circumstances did not fit the test in section 5(6) of the Act.

I can accept that an award made at an Adjudication Hearing may well satisfy the term of emolument for the purposes of the Act. It is a sum of money referring to an employment.

The cardinal question now is whether the emolument is properly payable in this case and whether this case is distinguishable from Dunnes Stores?

For me, the answer to this lies in the seminal EAT case on “properly payable “wages in Sullivan V Dept of Education [1998]9 ELR 217.

The complainant in this case, as a Teacher was paid at the “lower level equivalent to the pass qualification allowance “She claimed her degree was equivalent to an honours degree and she ought to pay at that rate. Her representative argued that denial to pay constituted an unlawful deduction under the Act.

The EAT deliberated on what was “properly payable “in the case and considered “all sums to which an employee is properly entitled” In finding in favour of the complainant, the complainant was deemed eligible for the Primary Degree Allowance.

In the instant case, the award which emerged from the Industrial Relations case address was accompanied by a stated reasoning.

“The employment is now over and not redeemable. the Claimant has found new work, I believe that compensation is the most suitable remedy in the case and I award the claimant €6,000 compensation for the breach of fair procedures and breakdown in trust …… “

An adjunct recommendation on provision of a guidance document for employees placed on a client site followed.

 When the Recommendation was not appealed by the Respondent and remained unimplemented, it has remained frozen in time. Unlike Dunnes Stores, there was no variant in the application of the award. Rather, it has stood unaltered, apart from a request for implementation in May 2020, since the date of issue of 23 March 2020.

I appreciate that the Respondent understands that they hold a discretion on whether to implement this aspect of emolument or not. However, this discretion must be regarded as subject to an implied term of contract and must be exercised genuinely and rationally. I have found no evidence of the exercise of that discretion.   Devlin v ESB at EAT.

I have established that the complainant formed a legitimate expectation that he would either face an appeal or implementation of the award of €6,000 following receipt of the Recommendation in March 2020. I appreciate that the time line corresponded with the emergence of the national pandemic. However, the respondent has not submitted trading difficulties as a reason not to act here.

I have already accepted that the sum of €6,000 amounts to an emolument in accordance with Section 1 of the Act. I must now explore whether the award was made as compensation for “loss of office “and thus not reckonable as wages.

The wording in the Recommendation mentions compensation for breach in fair procedures and a breakdown in trust between him and his former employer.

I note that the Union had sought compensation for the stated monetary loss experienced by the claimant before he found new work in October 2019. However, I did not accede to the Union request. I addressed the case through the procedural deficits found during my investigation and framed by Recommendation accordingly. This was not, in my opinion compensation for loss of office. It was compensation for the stated deficits in the employment procedural framework and relationship which culminated in the eventuality of dismissal. I can also see that I attributed some fault on the complainant in the case.

However, is the complainant now properly entitled to receive this award as an emolument? I believe the answer to this question is yes.

His Trade Dispute resulted in a positive Recommendation which went unchallenged by the Respondent.  I find it difficult to absorb the reasoning advanced to support this action. The Labour Court is the highest Employment Law Court in the country.

The legitimate expectation which followed for the complainant was that he expected to secure payment of the award through the implied duty of trust and confidence which by right should underpin the employment relationship.

Bonus Points: Employers discretion in the determination of bonus payments Ray Ryan and Des Ryan, Commercial Law Practitioner 2007, 14(8) 166-171, outlines how an array of Higher Courts in Ireland and UK have considered the Employers discretion in determination of bonus. I was unable to secure a corresponding document on the treatment of emoluments. However, I have followed Mc Dermott J in Cleary et al V B and Q Ireland [2016] IEHC 119, where he held that the complainant had formed a legitimate expectation around a bonus already earned.

In the instant case, the complainant had exhausted the Statutory Disputes Resolution mechanisms and held an expectation that an award made by a Specialist Tribunal, which stood unappealed was within his grasp. I find that he was properly entitled to the €6,000 as an emolument properly payable in accordance with Section 5(6) of the Act. The sum is a remnant of concluded employment. The justice of the case suggests that he is properly entitled to this sum, less statutory deductions. Sullivan applied.

I find the claim to be well founded.

I wish to record my gratitude to both parties in this case for engaging fully in what was a challenging inquiry.

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.

Section 6 of the Payment of Wages Act, 1991 requires that I decide in relation to the complaint in accordance with the Section 5 of that Act.

I have found the claim to be well founded. I direct the Respondent to pay to the Complainant compensation of €6,000, less statutory deductions, in respect of the deduction of wages (emolument) as a contravention of Section 5 of the Act.

Interpretation of Emolument and Properly Payable in Payment of Wages.