Complainant

Respondent

Anonymised Parties

Service Delivery Manager

Technologies Company

Representatives

Melanie Crowley Mason Hayes & Curran Solicitors

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-00032660-001

03/12/2019

The Complainant is employed as a Service Delivery Manager with the Respondent, his employment having transferred to the Respondent on the 1st of June 2019 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003.  The Complainant brought a complaint under the Payment of Wages Act, 1991, indicating that the Respondent had not paid him in lieu of notice of termination of employment.  In the specific details of the complaint the Complainant had elaborated that the Respondent had advised that staff during the consultation period pre the transfer that they would be paid a retention bonus after 6 months but that they withdrew that arrangement and that he did not receive appropriate retention bonus payment although other colleagues in the same position did receive theirs.

The Respondent is an international technologies company who took over an Irish based business in 2019 and therefore became the employer of the Complainant with effect from 1st June 2019.  The Respondent denied the complaint on the basis that the complainant was still in employment and therefore the issue of payment in lieu does not arise.  In these circumstances the Respondent contended that the case should be struck out.

The Respondent contended that, furthermore there was no connection between the information provided in relation to the non-payment of a retention bonus and the complaint submitted regarding the non-payment of pay in lieu of notice.  In these circumstances the Respondent objected to any amendment to the claim by the Complainant.  In the alternative, the Respondent denied that the Respondent was ever advised that he would be paid a retention bonus.

The Complainant submitted that he was employed by an Irish based technologies company and that from 1st June 2019 this business, and with it his employment was transferred to the Respondent under TUPE regulations.  He submitted that during the consultation process prior to the transfer he and his colleagues were given to understand that there would be some changes necessary as a result of the transfer and these were confirmed as reporting relationships and a transition bonus/retention bonus.  He indicated that the staff were given new contracts to sign by the Respondent and that, at that time, they asked about the retention payment.  He advised that they were told that the matter wasn’t yet finalised but that it could be discussed further with their line managers and the Transferor.

He advised that he was contacted by his line manager on 20th June 2019 who confirmed that he was to receive the retention bonus, that it would be paid in 2 instalments (half in June 2019 and half in December 2019), and that he would receive written confirmation of the details of the bonus.  He also advised that he need to sign acceptance of the terms attaching to that bonus and return the signed document to receive payment.  He submitted that the line manager had indicated that the entire service delivery team in the UK and Ireland had been approved for the bonus payment and had told him that the letter was already prepared.

In his submission and at the hearing the Complainant submitted that when no letter was presented to him, he queried the matter and was assured that there was no issue, that the letter was already prepared.  However, the Complainant submitted that the letter was never sent.  At the hearing he advised that circa July/August 2019 the UK team received letters confirming their bonus but that none of the Irish team received correspondence and that by December 2019 other members in Dublin had received their letters.  However, he and his colleagues on the service delivery team did not receive their letters/bonus payments.  He stated that the staff contacted their line manager when nothing further was forthcoming, and they asked him to clarify matters with HR.  He advised that HR responded through the line manager to say that the Irish team would not be receiving the payment and that this was circa November 2019.  The Complainant stated that the line manager could not shed any light on why the Irish team had not received the bonus and that the non-payment had a serious impact on morale in the team. The Complainant submitted that despite several requests for clarity and understanding, he and his colleagues were told in December 2019 that the “books were closed” and that they would not be receiving payment.

In summary the Complainant contended that the bonus payment was the subject of discussion prior to the transfer, that his line manager had confirmed that he would receive the payment and in circumstances where the bonus had not been paid, he believed this to be a breach of the Payment of Wages Act, 1991.

The Respondent submitted that the complaint submitted by the Complainant specifically related to a complaint that he had not been paid in lieu of notice.  The Respondent pointed out that the Complainant had neither resigned his position, nor had he been given notice of termination of employment.  In circumstances where the Complainant remained in employment, the Respondent contended, the issue of pay in lieu of notice did not arise. Based on the foregoing, the Respondent submitted that the case should be struck out.

In the alternative, the Respondent submitted that the Complainant’s employment transferred to the Respondent under the TUPE Regulations on 1st June 2019 and that it has ensured that the Complainant’s terms and conditions transferred from his previous employer to the Respondent.  The Respondent submitted that it engaged in a very thorough information process prior to the transfer during which any issues in relation to the transfer of terms and conditions of employment were raised and resolved. The Respondent provided a copy of a Master sheet of all Q & A’s received, together with responses given under the consultation process as of 9th May 2019. 

The Respondent submitted that it wrote to the Complainant on 23rd May 2019 confirming the transfer and the fact that all terms and conditions of employment would remain the same.  In that letter the Respondent advised the Complainant that it was taking the opportunity to confirm the Complainant’s general terms and condition and appended those to the letter.  The Respondent asked for any questions relating to those terms and conditions to be advised in writing within 7 days of the date of its’ letter.  The Respondent submitted that the Complainant did not raise any issues of concern at the time or since, that it has maintained all the Claimant’s previous terms and conditions of employment, that a retention bonus was never part of the Complainant’s terms with the previous employer.

In addition, the Respondent submitted that while there had been discussion during the consultation phase of the transfer in relation to a retention bonus, final decisions regarding that bonus were not made until late in 2019, at which time correspondence issued to staff who were to receive the retention bonus.  The Complainant was not one of those.  In all of those circumstances the Respondent contended, the Complainant had never been notified or advised that he would receive a retention bonus and so, the Respondent contended the complaint should be struck out. 

I considered carefully the oral and written submissions from both parties and all supporting documentation provided by the parties. 

It is clear that the complaint received by the Workplace Relations Commission was for non-payment of pay in lieu of notice.  It is common case that the Complainant remains in the employ of the Respondent and in those circumstances the issue of pay in lieu of notice of termination is not applicable or relevant.  Based on the foregoing I find that this complaint is not well founded.

It is my decision that this complaint is not well founded.

Payment of wages