Complainant

Respondent

Parties

Daire  O'Flaherty

Inchicore Community Drug Team Clg Frontline Make A Change

Complainant

Respondent

Parties

Daire O’Flaherty

Inchicore Community Drug Team

Representatives

John Connellan carley & connellan llp

Nicola Burke HR Duo

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-00053925-001

29/11/2022

The Complainant alleges that €1000 was withheld by his employer that should have been paid to him on or about the 29th of July 2022. The Complaint believed that this payment to be time-based increment and was a contractual term without condition.

The Employer stated that it was not a condition or contract term; however, the General Manager did say that he would do his best to increase the Complainant’s salary subject to Board approval.

The Complainant stated that he was promised that his salary would increase to €45k.

The Respondent Manager stated that he would do his best to increase his salary to €45k at mid-year; however, based on a mid-year review. The Complainant worked as Bicycle technician and store manager.

I am satisfied based on sworn evidence and on the email from the General Manager dated 16th December 2021 that a promise was made as follows:

We will also do a mid-year review in June and if things are progressing as they have this year we hope to increase your salary further to 45K

I determine that this is not an amendment of the employment contract and is not a term of the contract. It is a promise to complete a review and if satisfactory it would lead to an increase. However, the  financial performance of the store did not meet its target and what had been projected for the first half of 2022 and for that reason his salary was not increased.

The key issue before me is whether the amount being claimed was due.

Section 5 of the Act states:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

On the facts no deduction has taken place. The employee was promised a mid-term review; there was no representation made to him that his salary would increase at a point unconditionally to €45k. He was promised a review and if satisfactory that would give rise to an increase; however, the financial performance of the unit did not allow for such an increase.

Section 5 (6) states:

(6) 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.

The dispute concerns a payment that maybe paid; not one that is properly payable as per the Act.

The complainant appeals to fairness to support his claim. However, the redress sought under the Payment of Wages Act does not provide the adjudicator with such discretion. The Respondent relies on the email of the 16th of December 2021 which is not a binding contractual term set between the parties.

In Devlin v Electricity Supply Board PW 550/2011 the tribunal noted that:

However a discretion, although it may seem absolute, is not unfettered and must be exercised reasonably and in good faith Horkaluk v Cantor Fitzgerald [2004] 1 ICR 697 and Lichters & Hass v Depfa [2012] IEHC 10.

Hedigan J in Lichters affirmed that a discretion is not unfettered:

In Clarke v Nomura International [2000] IRLR 766 the Court of Appeal for England and Wales considering this type of situation observed: -

"An employer exercising a discretion which on the face of the contract of employment is unfettered or absolute, will be in breach of contract if no reasonable employer would have exercised the discretion in that way."

He went on say that

10 6.9 Whether in the context of a contract in restraint of trade if that is the case, or to determine the proper exercise by the defendant of its discretion as an employer, the question for the court is as to whether it can be considered that in the circumstances of this case no reasonable employer would have acted as the defendant company did

The facts of this do not establish a threshold where it could be argued that the Employer was being unreasonable.

Based on the facts no payment properly payable to the complainant has been unlawfully deducted from his wages.

The Complaint is not well founded. Based on the facts no payment properly payable to the complainant has been unlawfully deducted from his wages and I dismiss the complaint.

Promise