Complainant

Respondent

Parties

Francis  Corrigan

One51 Es Plastics Ltd Protech

Representatives

Liam Browne Brooks and Company Solicitors

Jennifer Cashman Ronan Daly Jermyn Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00040878-001

09/11/2020

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

CA-00040878-002

09/11/2020

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

CA-00040878-003

09/11/2020

The Complainant was employed by One51 ES Plastics Limited/the Respondent which is an Irish registered company based in Cork and is a wholly owned subsidiary of IPL Plastics registered in Quebec, Canada. The complaints relate to alleged unfair dismissal/redundancy and alleged unpaid wages in the nature of bonus payments.

In the course of the adjudication hearing, the Complainant withdrew CA-00040878-003

CA-00040878-002

The Respondent stated that the Complainant’s complaint in respect of unpaid bonus payments in 2019 and 2020 was out of time as the complaint was not received by the WRC until 9 November 2020 and that no justifiable excuse had been proffered by the Complainant for submitting the complaint outside the six months time limit.

I advised the parties that I would hear the complaint in full and reserve my decision.

CA-00040878-001

The Complainant stated he had a Bachelor of Science in Quality Management and had a wide variety of skills including in quality and production management. He commenced employment with the Respondent in October 2003 in the position of Quality Manager. The Complainant stated that over the course of his career with the Respondent he “wore a number of hats” and that he was given additional responsibilities including for engineering activities and health and safety. From November 2018 he was Product Development Engineer. He stated that he became very familiar with all areas of the business and that he developed an extensive knowledge of the technical and commercial operations of the company. The Complainant stated that he was a dedicated, versatile and adaptable employee who often worked more than his contracted 39 hours/week and that he was part of the senior management team.

The Complainant outlined that in 2019 the Respondent parent group launched a programme of restructuring and redundancies and that at the time redundancy packages ranged from between 3-4 weeks pay/year of service. In that regard, the Complainant stated that he was not present for the Respondent’s presentation to employees in 2019 as he was away at another business meeting and that he only received copy of this presentation with the WRC documentation. The Complainant stated that a new General Manager (GM) took over in November 2019 (referred to in this decision as the former GM) and that from the outset, he displayed a negative attitude towards the Complainant. The Complainant further stated that he always regarded himself as part of senior management consistent with the reporting arrangements at the time but that a new senior management team was created at the end of 2019 from which he was excluded.

The Complainant outlined a number of issues occurring in 2020 including failure to respond to his request for a review meeting in relation to his duties and performance, a new contract of employment in March 2020 which he refused to sign and a change in his reporting arrangements which he regarded as a “demotion”. The Complainant stated that he found himself “increasingly isolated”. In particular, the Complainant outlined an exchange with the former GM in relation to a tooling project/product, in the course of which he considered that he was “attacked” for what he said, accused of putting the company “at serious risk” and told that the former GM was going to have serious problems with him if any issues arose. According to the Complainant, the former GM repeatedly asked “did [he] want to continue working here” to which the Complainant repeatedly responded “are you trying to get rid of me”. In relation to the project/product, the Complainant stated that after multiple tests no defects were found, that the Respondent continues to use the material but that he was very disappointed to be accused of putting the company at risk after his years of faithful service.

In 2020 a new Operations Manager was appointed which the Complainant stated left the role of Quality Manager vacant. The Complainant submitted that he would have been a suitable appointee to either of these positions.

The Complainant stated that the first mention of his own redundancy was on 25 May 2020. He stated that on 25 May 2020, he was called to an unscheduled meeting about which he had no prior knowledge. Present at the meeting was the former GM and the HR Manager. The Complainant stated that he was given a letter also dated 25 May 2020 in which it was confirmed that his role was considered redundant with effect from 29 May 2020 and that his duties were being transferred to Quebec. The Complainant stated that at the meeting he raised his objections, pleaded against the redundancy proposal on the basis of his length of service and attested ability to work and perform a range of roles/functions. The Complainant stated that he was told there were no alternative positions available, that there was no option to negotiate and that there was no appeals process. The Complainant stated that he was then escorted from the premises which led him to be “ashamed”, “embarrassed” and “disappointed” after his seventeen years of faithful service.

The Complainant outlined in his oral evidence that on the morning of 25 May 2020 he was in the canteen having tea when he was asked by the previous GM to “join him” for a discussion/meeting. He stated that he left his coffee and breakfast and walked down the hall where they met with the HR Manager. He stated that the former GM read him out a statement re restructuring of the Respondent company and that his work was being transferred to Quebec. He stated that the HR Manager read through the financial package on offer. In response he stated that he argued the point and referred to another role available ie that of Quality Manager. The Complainant stated that in response to his queries about the possibility of any further negotiations or appeal, that he was told no and that it was a case of “Take it or leave it”. The Complainant stated that after his 17 years of service wherein he had given the Respondent “blood, sweat and tears” he was shocked, that he went back to the canteen but was followed by the former GM and escorted off the premises. He stated that alternatives should have been explored and that he felt there was no comeback.

Subsequently, the Respondent sought the Complainant's acceptance of a final written Compromise Agreement which the Complainant refused to sign. As a consequence, he stated that he only received his statutory redundancy of one week’s pay/year of service which was far less than others had been given. He stated that his VHI membership and Life Insurance were terminated on 29 May 2020 as was his pension contributions.

The Complainant outlined his further contacts with the Respondent particularly in relation to the ex-gratia package on offer which he was not satisfied with. The Complainant also outlined his various conversations with the former GM in relation to his bonus payments.

The Complainant was cross examined on his various functions within the Respondent and under cross examination he accepted that the centre of excellence for product development was in Quebec. He accepted under cross examination that he knew that the Cork plant was experiencing financial/business difficulties. The Complainant also accepted that the position of Quality Manager had not been filled and he agreed that the Production Operator role would not have been suitable. In addition, it was put to the Complainant that production development was no longer carried out in Cork and that the role of Compliance Officer only arose in September 2020. Further, the Complainant agreed under cross examination that he had not brought his difficulties with the former GM to the attention of HR or the Respondent’s CEO. The Complainant also agreed that the terms of his ex-gratia payment were the same as that of other employees. It was also put to the Complainant that he had not mentioned the non-payment of the bonus payments prior to his complaint to the WRC and he clarified that he had received a one for all gift card of €500 in 2019.

The Complainant outlined his efforts at mitigation and in this regard, he stated it was a difficult time because of Covid-19 but that he got a job in November 2020 with two start up companies which together made a full time post.

It is the position of the Complainant that he was treated very badly which caused him upset and stress, that his was not a genuine redundancy and that the substantive elements of his job can only be done at the Cork plant where his functions and duties continue to be performed.  The Complainant maintained that the meeting of 25 May 2020 was a fait accompli, that he was not afforded the opportunity to explore alternative employment options, that no redundancy pool or criteria were identified and that he was not afforded representation nor the record of the meeting of 25 May nor a right of appeal.  The Complainant further stated that the Respondent used different titles to describe his role including Product Engineer, Product Development Engineer, Product Engineering Manager and Maintenance Manager.

CA-00040878-002

The Complainant stated that he was owed wages “expressed as a guaranteed annual bonus” of €5000 for the year 2019 and an estimated amount of €2083 for the period he worked up until 25 May 2020 - estimated total of €7083.00. In support of his position, the Complainant outlined his discussions with a previous GM concerning bonus payments and he furnished a salary certificate for Bank of Ireland Mortgages stamped by the Respondent. The Respondent had ticked the answer “Yes” on this certificate in response to a written question asking if the Complainant’s salary and bonus payment were guaranteed.

CA-00040878-003

Withdrawn.

CA-00040878-001

The Respondent stated that the Complainant’s position in the company was terminated by way of redundancy effective from 26 June 2020 as he continued to be paid up until that date/final payslip.  The Respondent stated that during his tenure with the Respondent, the Complainant “worked within a number of different positions”, that he was made redundant from the position of Product Engineer Manager which he had occupied since November 2018.

The Respondent outlined that it was a global manufacturing business specialising in the design and manufacture of plastic injection products. The Respondent stated that its Cork plant employed a total headcount of 124 in 2019. The Respondent stated that it suffered significant financial challenges due to a variety of factors including Covid-19 and Brexit and that it continues to encounter trading challenges – for example the rising cost of raw materials and transportation. In this regard, the Respondent outlined its financial losses which led to cash injections by the parent company and in turn the urgent need to engage in restructuring. The Respondent stated that there were 17 redundancies in Cork in 2020, a further 9 in December 2021 and that three others were made redundant at the same time as the Complainant.

The Respondent outlined its communications with the workforce regarding the business and financial challenges it faced, including a presentation in November 2019 and its letter to its Cork employees – including the Complainant – in December 2019. The Respondent stated that on 25 May 2020, the Complainant and three other employees were invited to a one-to-one meeting where the “dire financial circumstances” of the Respondent’s business were again set out. At that meeting the Complainant was advised that the Respondent “viewed his stand alone role as Product Development Engineer could transition to Levie in Quebec, where the Respondent’s Product Development Centre operates”. The Respondent stated that alternative positions in the company were also discussed at this meeting “but unfortunately there were no suitable alternatives available for the Complainant”. In that regard, the Respondent stated that the only available role at the time was that of Production Operator which was “wholly unsuitable” for the Complainant and that there was no vacancy for the position of Quality Manager.

At the meeting of 25 May 2020 the Respondent set out the financial settlement and support package it proposed to offer the Complainant consisting of statutory redundancy of €20,736.00 and an ex-gratia severance amount of €19,198 (the same as offered to others) together with access to a career transition service programme. The Respondent stated that the Complainant declined to accept the proposed financial settlement agreement. The Complainant was placed on garden leave from 25 May 2020. The Respondent outlined its several unsuccessful attempts to communicate with the Complainant between then and 17 July 2020 whilst he was on garden leave. The Respondent stated that it transferred the entirety of the functions and duties of the Complainant’s stand alone role of Product Engineer to Quebec and that his functions and duties are not being carried out at the Cork site.

The Respondent’s Vice-President of Operations and Business Development gave evidence in relation to the financial challenges the Respondent faced at the time, on making the Cork plant sustainable, regarding the Management structure which did not include the Complainant and the various redundancies made in order to “right size” the company. He stated that he did not see any alternatives regarding the product development engineering aspect of the business as this needed to be streamlined into a single venue in Quebec. In that regard the Vice-President stated that the Complainant was the only person engaged in product development in Cork and that it “didn’t make sense” to continue this function outside Quebec. Under cross examination it was put to the Vice-President that the Complainant’s job consisted of two components, namely product development and product engineering and that his role included interaction with customers which cannot be done from Quebec. It was also put to him that the Complainant saw himself as demoted as a result of the new management structure. The Vice-President did not agree with this and also disagreed that the Complainant was targeted because of his negative relationship with the former GM. The Vice-President was also questioned on the 2019 presentation to employees and he accepted that this was not a redundancy plan, he stated that it would have been premature at that stage/2019 to mention redundancies but he said it conveyed in a transparent manner the serious financial/business situation faced by the Respondent. He accepted that the first the Complainant would have known of his own redundancy was on 25/5/20.

The HR Manager gave evidence that she commenced with the Respondent in April 2020 initially on a consultancy basis. She stated that she was hired to advise on the re-organisation of the business. The HR Manager outlined various meetings with senior management, their focus on reducing costs and their examination of the functional areas at the Cork plant which didn’t impact on production. The HR Manager also outlined the meeting with the Complainant on 25 May 2020 and three other employees. She stated that the former GM advised the Complainant that it was “not good news” and that she advised the Complainant there were no other vacancies “suitable or comparable” to the role he was in. In her evidence she also stated that the Head of Operations role was neither new or vacant. The HR Manager stated that she understood it was a shock for the Complainant and that he was advised to take time out and revert re the financial package available. In this regard, she outlined her subsequent unsuccessful attempts to engage with the Complainant. In relation to the various titles attributed to the Complainant’s role the HR Manager stated that the title of “Maintenance Manager” was made in error and that other titles were interchangeable. The HR Manager stated that there were further redundancies later in 2020 and in 2021.

Under cross examination, the HR Manager reiterated that the issue of redundancy selection did not apply as the Complainant held a “stand alone position”. She also clarified that the Complainant’s 2005 contract of employment applied. In this regard, it was put to the HR Manager that the Respondent had made no attempt to follow the disciplinary procedures outlined in the Complainant’s 2005 contract. The HR Manager accepted that there was no prior notice of redundancy to the Complainant, that he was not afforded representation at the meeting of 25 May 2020 and that there was no record/minutes of that meeting available. The HR Manager agreed under cross examination that the Complainant was escorted off the premises on 25 May 2020 by the former GM. She also clarified that the decision to make the Complainant redundant was made on 25 May 2020 though his employment did not end until 26 June 2020/ie his final payslip. The HR Manager also stated that the Complainant had not raised any grievance in relation to his selection for redundancy.

It is the position of the Respondent that it is a fundamental aspect of its case, that the Complainant was the only Product Engineer at the Cork location, that his was the only such position to be made redundant and that accordingly, “the concept of fair selection for redundancy does not arise…”. The Respondent further stated that the Complainant failed to engage with the company whilst he was on garden leave and as a result of his failure to sign the financial settlement agreement, he only received the statutory redundancy amount of €20,736. The Respondent maintained that at all times it acted fairly, reasonably and in a transparent manner in seeking to conclude its employment relationship with the Complainant and that his redundancy does not constitute an unfair dismissal as the circumstances set out at section 7(2) of the Redundancy Payments Act [1967-2021] applied. The Respondent was also critical of the Complainant’s delay in mitigating his losses and securing new employment.

CA-00040878-002

The Respondent contested the Complainant’s claim in respect of unpaid bonus payments in 2019 and 2020 on the basis that it was out of time. In addition, in respect of the non-payment of a bonus to the Complainant in both 2019 and 2020, the Respondent cited the Complainant’s 2005 contract of employment which stated “A bonus may be paid at year-end at the discretion of the Company”. Accordingly, the Respondent maintained that the Complainant was wrong in labelling the bonus as guaranteed as it was undeniably discretionary in nature. The Respondent further stated that the payment of a bonus occurred on a limited few occasions during the Complainant’s tenure but ceased in 2018 due to the challenging financial circumstances faced by the Respondent. In that regard, the Respondent stated that it did not make any such bonus payments to any employee in respect of work carried out in 2019 and 2020 and accordingly, there was no unlawful deduction as no such payment existed during the time frame specified in the complaint. The Respondent also referred to its letter to all employees in December 2019 which dealt – inter alia – with “salary reviews and performance payments for 2019” and stated that “Decisions on merit increases and any performance related payments will be made in quarter one, when there is better clarity on the improved performance of the Cork site”.

CA-00040878-003

Withdrawn.

CA-00040878-001

The relevant legislative provisions in relation to unfair dismissal are set out in the Unfair Dismissals Act [1977-2017]. In that regard, Section 1 of the Act defines dismissal as follows:

“dismissal”, in relation to an employee, means—

a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee……”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” - ie there is a statutory presumption of unfairness unless the Respondent employer can show there were substantial grounds justifying the dismissal.

Section 6(4) of the Act lists the circumstances where a dismissal maybe justified and in this regard 6(4)(c) states:

6 (4) “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from ……

(c) the redundancy of the employee,….”

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6 (7) of the Act provides that in determining whether a dismissal is unfair, regard may be had:

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice…..”

Section 14 (1) of the Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Sections 7 (2) of the Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14….or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,….”

The combined effect of Sections 6(1), (6)(4) and 6(6) of the Unfair Dismissals Acts [1977-2017] is to place the burden of proof on the within Respondent to show that the redundancy of the Complainant was the operating cause of the dismissal and therefore that the dismissal was fair.

Section 7(2) of the Redundancy Payments Act [1967-2021] provides that an employee “shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to….”  the following:

“(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should hence-forward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

The matter of selection of persons for redundancy has come under repeated legal scrutiny – as a result of which there is an onus on an employer to act reasonably, fairly and in a transparent manner in deciding which employee is selected for redundancy. As set out in the case of St Ledger v Frontline Distributors Ireland Limited, (1995) ELR 160, “impersonality runs through the five definitions [of redundancy] in the Acts.  Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job.” Similarly, in JVC Europe Ltd v. Panisi [2011 IEHC 279] Charleton J. identified the difference between the impersonality of a redundancy as opposed to an unfair dismissal:

“A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual.”

The establishment of a fair, transparent and objective selection process for redundancy can assist an employer in discharging this burden. In the case of Cronin v RPS Group, (UD2348 / 2009 the Employment Appeals Tribunal accepted that a genuine redundancy situation existed but nonetheless  found that the employer had failed to  advise the Claimant of the redundancy criteria, had not afforded the employee an opportunity to make representations on her own behalf and had not provided for an appeal or considered the Claimant’s service record or explored redeployment as an alternative to redundancy. In relation to the transparency and fairness of the redundancy selection process, the EAT stated the following in Boucher and Ors V Irish Productivity Centre [UD 882,969,970 & 1005/1992]:

“It is not sufficient to establish an overall umbrella context such as ‘redundancy’, within which the decision was made. It is necessary…to establish that [the Respondent] acted fairly in the selection of each individual employee for redundancy…..that reasonable criteria are applied to all the individuals concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made. This legislation establishes the right of each individual employee to be fairly-treated and particularly so on matters greatly affecting his welfare such as the loss of his employment.”

In Castolin Eutectic Ireland Ltd V Bogdan Vasarheli [Determination No. UDD 2313], the Labour Court again emphasised the requirement for fair procedures, prior consultation and opportunities to suggest and consider alternatives.

Having considered the evidence in relation to the state of the business against the backdrop of Section 7(2) of the Redundancy Payments Act [1967-2021], I am satisfied that the Respondent has demonstrated that it was genuinely engaged in cost cutting and staff reduction measures in response to the financial/business situation in which it found itself in 2020. In that regard I am persuaded by the evidence of the Vice President of Operations and Business Development that the Respondent faced significant financial challenges at the time and was embarking on a process to “right size” the company. Notwithstanding that the Complainant was not present for the Respondent’s presentation to employees in 2019 I am satisfied from the evidence that he was aware of the financial difficulties faced by the Respondent at the time.

Following on from that, however, I must consider whether it was fair that the Complainant was selected for redundancy. In this regard I have carefully considered all the evidence, submissions and documentation – arising from which I have concluded that:

·        The Complainant was given no prior notice of the meeting of 25 May 2020 and there was no prior discussion with the Complainant in relation to the prospect of his dismissal/redundancy;

·        The Complainant was not afforded representation at the meeting of 25 May 2020;

·        The letter furnished to the Complainant on 25 May 2020 - in the absence of any record of that meeting – together with the precipitous manner in which he was escorted off the Respondent’s premises, in my view confirms that the decision to make the Complainant redundant was a fait accompli. The 25 May letter stated – inter alia – “We now wish to confirm having advised you that your role…..is now considered to be redundant…”. I am satisfied that the decision to make the Complainant redundant was decided upon and conveyed to him at that meeting of 25 May 2020 irrespective of any objections or representations the Complainant would have made on his own behalf;

·        There was no discussion in relation to alternative positions which may be available in the Respondent or alternatives to redundancy – such as reduced hours or a different work pattern. In this regard, the Respondent argued that the matter of selection did not arise as the Complainant’s role was stand alone. As against that the Complainant stated that he undertook a variety of roles during his tenure with the Respondent. The Respondent stated similarly that the Complainant had “worked within a number of different positions”  and that he was made redundant from the position of Product Engineer Manager which he had occupied since November 2018. In the course of the adjudication hearing there was discussion in relation to various roles involving product development/engineering, quality management or Operations Manager. The import of the discussion ranged from there being no alternatives considered to any potential alternatives not being suitable.

I am satisfied that the position in relation to alternatives was clearly set out in the Respondent’s letter to the Complainant of the 30th June 2020 which in my view confirms that alternatives were not considered. That letter included the following: “It was also a matter of regret to us that we were not in a position to enter into discussions with you about alternative positions that might beavailable….but unfortunately for the reasons outlined for the redundancy itself, there are no suitable alternative positions available”. In my opinion the Respondent’s justification for not considering alternatives – ie that the Complainant had a stand alone role and that it/the Respondent had determined there were no suitable alternatives available – without any consultation with the Complainant - is not satisfactory. Having regard to the Complainant’s experience and length of service, I consider the Respondent – as a matter of procedural fairness - should have engaged in a process of exploring and considering alternatives to redundancy – which may or may not have resulted in suitable alternatives emerging. The absence of consideration of alternative cost saving measures was considered in Sheehan and O’Brien v. Vintners Association of Ireland Ltd [2009 20 ELR 155] and the employees were found to have been unfairly dismissed in circumstances where they had put forward proposals as to how their jobs might be saved but these were not examined properly by the employer.

·        The Complainant was not afforded any right of appeal of the redundancy decision.

I make no finding in relation to the complaint that the Complainant was targeted for redundancy arising out of the former GM’s alleged negative relationship with him. In this regard I note that the former GM was not a witness and that the Complainant did not initiate any internal complaint or Grievance Procedure against the former GM.

I have also considered the general principles of fair procedures which apply in dismissal situations as outlined in Statutory Instrument No 146/2000 together with the Respondent’s Disciplinary Procedure as set out in the Complainant’s contract of employment signed in February/March 2005. The contract states that “All dismissals will be carried out in accordance with the provisions of….this contract” which provide for representation and an appeal – neither of which were afforded to the Complainant.

In light of the foregoing, I am satisfied that the Complainant was unfairly dismissed on the basis that the Respondent has not discharged the burden of proving that he was fairly selected for redundancy. I am also satisfied that the Complainant was not afforded fair procedures or the procedures specified in his 2005 contract of employment.

CA-00040878-002

Sections 41(6) and (8) of the Workplace Relations Act [2015 - 2021] provide 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”

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

Section 1 of the Payment of Wages Act [1991-2017] sets out the definition of wages as

(a) “any fee, bonus or commission, or any holiday, sick and maternity pay, or any other emolument, referable to [the employee’s] employment, whether payable under [the] contract of employment or otherwise, and

(b) any sum payable to the employee upon….termination….;

Section 5(1) of the Payment of Wages Act [1991-2017] sets out the parameters according to which deductions may be made from an employee’s wages.

Section 5(6) addresses the circumstances in which wages which are properly payable are not paid:

             “5(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 complaint refers to the bonus payment being a “guaranteed annual bonus”. However, the Complainant’s 2005/ie his operative contract of employment stated that it “may be paid at year-end at the discretion of the Company”. Accordingly, I accept the position of the Respondent that the bonus payment was discretionary in nature. Further, I consider that the discretionary nature of the bonus payment is supported by the Respondent’s letter to employees of December 2019 which predicates the payment of merit increases or performance related payments on the performance of the Cork plant. In relation to the salary certificate furnished to the Bank of Ireland by the Respondent, on behalf of the Complainant, this was dated 11/7/2017 – ie prior to the cessation of the bonus payment. In light of the foregoing,  I do not consider the bonus payment to be wages which were properly payable to the Complainant within the meaning of Section 5(6) of the Payment of Wages Act [1991-2017].

From the evidence I note there is no dispute that no bonus was paid in 2019 and that the last bonus payment received by the Complainant was in 2018. Whilst the Complainant outlined the various times he raised the bonus payment with the Respondent – particularly in 2020, his complaint to the WRC was not made until 9 November 2020 which is outside the six months time limit for bringing a complaint in relation to the 2019 bonus. In this regard, I do not consider that the Complainant’s attempts to raise the matter of the bonus payment in 2020 are sufficient to warrant a decision by me to extend the time limit by a further six months for reasonable cause. In relation to the complaint concerning 2020, no evidence was adduced before me that there was a history of or provision for partial bonus payments.

In Health Service Executive V John McDermott [2014] IEHC 331 the High Court held - for the purposes of the Payment of Wages Act [1991-2017] - that each and every breach is considered a contravention provided such contravention occurred within the six months prior to the WRC complaint.

CA-00040878-003

Withdrawn.

CA-00040878-001

Section 8 of the Unfair Dismissals Acts[1977 – 2017] requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. For the reasons outlined this complaint is well founded. I decide that compensation is the appropriate remedy and I note the Complainant also selected this remedy.

Section 7 of the Unfair Dismissals Acts[1977 – 2017] provides for payment “of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration ……) as is just and equitable having regard to all the circumstances” and it defines financial loss  “….as including any actual loss and any estimated prospective loss of income attributable to the dismissal ….”. In addition, I am entitled to have regard to any such measures as were adopted by the Complainant to mitigate his losses and to the extent of compliance/failure to comply, on the part of the Respondent, with any dismissal procedure or code of practice.

I have taken careful note of the post hearing submissions submitted by both parties – particularly in relation to the matter of the statutory redundancy payment paid to the Complainant. The Complainant has calculated his salary prior to dismissal on the basis of €60,000 together with “fringe benefits”, pension, PRSI contributions and the bonus payment totalling €71,500. He outlined his attempts to secure alternative employment which eventually he did some four months later on 11 November 2020. Initially his new salary was €52K/annum but has risen to €62K since January 2022.  

Having regard to the foregoing, and excluding the bonus payment and the statutory redundancy payment which I have also decided to disregard, I award the Complainant €45,000 compensation arising from the unfair dismissal which I consider just and equitable in all the circumstances. This is subject to such statutory deductions as may apply.

CA-00040878-002

Section 41 of the Workplace Relations Act [2015 – 2021] 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 reasons outlined this complaint is not well founded.

CA-00040878-003

Withdrawn.

Redundancy; Unfair selection, Unfair Dismissal; Non-payment of wages/bonus