Complainant

Respondent

Parties

Ciaran  Fortune

Nandos

Representatives

Ciarán Lyng of  A&L Goodbody LLP

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-00051568-001

05/07/2022

This matter concerns the non-payment of a bonus to the Complainant. The Complainant had worked throughout the period linked to the bonus scheme but resigned just before the bonus was paid.

A hearing was held to consider the matter on 7th of March 2023.

The Complainant attended the hearing unrepresented and made oral and written submissions.

The Respondent was represented by Ciarán Lyng of A&L Goodbody who made written and oral submissions and presented two witnesses.

The Complainant gave evidence under affirmation.

He first began working for the Respondent in 2016. In January 2020 he was promoted to a manager position. However this promotion didn’t take effect because of the covid pandemic it was further delayed when he undertook a masters degree.

In the year March 2021 to Feb 2022, which is the relevant period for the bonus scheme, the Complainant worked as manager. At the time there were weekly discussions about generating sales in the aftermath of covid restrictions easing.  The bonus was associated with this effort. There were regular talks about sales numbers to keep managers motivated. It was a very challenging year. There were a lot of new staff to train up.

In March 2022 he was expecting to receive his bonus but he didn’t know when it was going to be paid out.

In response to the Respondent’s submissions about the details of the bonus scheme, he notes that though it is repeatedly suggested that he should know these terms they were never brought to his attention. He only had access to a single shared email account but this was used during his shifts for the purposes of monitoring orders. The details of the scheme could have been addressed at management meetings but were not. Had no idea that the bonus wouldn’t be paid if he left or was under notice.

Ultimately was successful in applying to the civil service and handed in his notice around April 2022. His last day was going to be the 14th of May which was fixed because of the strict civil service start dates.

He engaged with management about the bonus towards the last few weeks of his employment. This included a couple of discussions with Mr Sherry his line manager and then Ms Swift the regional manager.  They said that he would not be able to receive the bonus once he had left employment. He was never referred to specific bonus terms and conditions but rather was simply told this was company policy.

Throughout this period he had no idea when the bonus would be paid. The 3rd of June was his final payslip and it so happened his colleagues got the bonus then. He did not because he had left the company.

The Complainant provided a statement given by a colleague of his, Mr Moore, who was in a similar situation to him.

The Complainant was cross examined by Ciarán Lyng.  Under cross examination it was clarified that it wasn’t until June 2021 that he was promoted and his role was as assistant manager.

The Complainant was clear that the first time he saw documents detailing the terms of the bonus scheme was at the hearing. They never discussed the rules of the scheme but the bonuses themselves were often discussed. These discussions were about encouraged the staff to maximise sales. For instance at shift handover there would often be an update on how sales were doing.

When he spoke to Mr Sherry on the day he handed in his notice they had a discussion about the bonus.  Mr Sherry brought the likelihood of non-payment to his attention.

At a later stage they discussed delaying the notice period but he had a fixed date he had to start with the civil service..

He thought they might exercise a bit of discretion for his case and make an exception for him. On his last day Ms Swift indicated that they could not.

The Respondent provided detailed submissions.

They point to the history of their bonus schemes and that the terms and conditions of these schemes have always been consistent. The details of these scheme are always available for staff to check. The Respondent’s long standing and consistent approach is that to eligible for any bonus a person has to be an employee and cannot be working out their notice.

It is common case that in the final month of employment that the Complainant was told of this and that the Respondent was willing to keep him in his role in order to facilitate him getting the bonus.

Ms Aoife O’Connor gave evidence under affirmation. She is a people partner working for the Respondent.

Each year there is a general bonus structure scheme where a bonus is paid in two phases. The General Managers and Assistant Manager on two different schemes. Assistant Managers receive set amounts whereas managers can receive percentages of overall sales.

It can often take quite a few months before a bonus gets paid out.

The Respondent’s sales had suffered through covid. They announced their usual bonus scheme in August but then announced an enhanced scheme whereby Assistant Managers could earn a percentage of sales for 20 weeks.  This was to get some energy back into the business however as with all bonuses this was a retention scheme as well. Employees have to remain in employment to receive the bonus payments.

Communications in the Respondent organisation involves cascades from Corporate HQ, to Regional Management, then to General Management, then on to their teams.

In addition the Respondent’s intranet is also available to staff. This system is regularly used for wages, rotas, access to manuals and re-ordering stock.

No one has ever received the bonus before who has left the company or been on notice.

Ms O’Connor clarified that the Respondent doesn’t send general policies and terms directly to employees via their personal email addresses.

Mr Niall Sherry then gave evidence under affirmation. He is General Manager of the Respondent’s Liffey Valley store.

He generally confirmed Ms O’Connor’s account of the Respondent’s cascading communications systems. He would expect assistant managers check emails regularly throughout the day.

The bonus scheme was well known to staff. It was always paid out a few months after the relevant sales results come in.

When the Complainant came to him to tell him he was leaving he told him that if he was no longer an employee, he would not be paid the bonus. They discussed the option of him staying on until the bonus is paid.

A few days later they had a further conversation about the bonus. The Complainant knew at this point he wouldn’t get the bonus. He asked for an exception to be made and for it to be referred up to Ms Swift, the regional manager.

The Complainant was fully aware of the consequences of leaving on his bonus.

Section 5 of the Payments of Wages Act regulated deductions from wages.

For the avoidance of doubt the act is clear "wages" 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…

As such the failure to pay a bonus can be considered a breach of Section 5(6) of the Act which states:

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 there from 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.

Ultimately the Complainant was no longer an employee of the Respondent when the bonus was paid out to all staff. While the Complainant was not properly notified of this condition during course of the scheme, when he submitted his resignation he was told that his leaving would cause him to lose any entitlements to the bonus. He was then given the option to stay on to facilitate him receiving the bonus. This was not possible due to the set start dates offered by the civil service which the Complainant was joining.

While I am critical of how the Respondent failed to tell employees about the bonus eligibility criteria during the sales campaign, this does not make it properly payable to a former employee for the purposes of Section 5(6).

I note the Complainant’s point that he had just missed out on the payment and indeed his final payslip was issued the same day his former colleagues would receive the bonus payments, however he had ceased being an employee some two and a half weeks before the date of the bonus payment.

I find that the complaint is not well founded.