CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision (ADJ-00041529) issued on 29/11/2023 and should be read in conjunction with that Decision.
The Complainant contacted the WRC stating an omission of the Respondent named in the original decision, supporting evidence was received with a request to amend the name. Comments were sought from the Respondent. I am satisfied that that there was an omission in the original decision, the correct legal entity is now named.
As the deciding Adjudication Officer has ceased to provide a service to the WRC, following referral from the Director General I have issued this Correction Order.
Workplace Relations Commission Adjudication Officer: Mary Coyle
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041529
Parties:
| Complainant | Respondent |
Parties | Brendan Sweeney | Phi Consultant Engineering Limited |
Representatives | Self-Represented | Did not attend |
Complaint(s):
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-00052713-001 | 08/09/2022 |
Date of Adjudication Hearing: 03/08/2023
Workplace Relations Commission Adjudication Officer: Paul McKeon
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
The hearing was held in public, and evidence was taken on oath pursuant to the Workplace Relations (Miscellaneous Provisions) Act 2021, amending the Workplace Relations Act 2015.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland, and the Attorney General [2021] IESC 24 on 6/04/21 and the Complainant agreed to proceed in the knowledge that decision issuing from the WRC would disclose his identity.
All of the evidence, submissions submitted have been considered herein. While the parties are named in this decision, for the remainder of the document, I will refer to Mr Sweeney as “the Complainant” and Phi Consulting Engineers as “the Respondent.”
The hearing of this complaint was originally scheduled to take place on 16 June 2023 but was adjourned due to the Respondent informing the WRC scheduling team that they were just notified of the hearing on the date the link for the hearing was sent to their email.
In the interest of fair procedures, I adjourned the hearing in order to afford the parties the opportunity to attend a second hearing date.
In this regard, the hearing arrangements for the hearing were issued from the Workplace Relations Commission to the Respondent by way of letter and email dated 19 June 2023 to attend a hearing on the 03 August 2023.
On this note, the Respondent did not attend the hearing on the 03 August 2023 and did not submit a defence in the case. I also further note that there was no further application by or on behalf of the Respondent for a postponement or adjournment of the hearing arranged for 03 August 2023.
Furthermore, I was not informed at the hearing of a reason for the Respondents non-attendance and did not receive any communication after the hearing offering explanation for non-attendance.
Accordingly, I am satisfied that the Respondent was on notice of the within claim to the Workplace Relations Commission and was properly notified of the hearing arrangements on 19 June 2023 to attend a WRC hearing on 03 August 2023 and that it is appropriate for me to adjudicate on the claim before me.
Preliminary Matter
The Complainant submitted at the hearing that he would also like to claim redundancy pay which he alleges he is entitled to. I informed the Complainant that the complaint before me and the narrative set out in his complaint form that he submitted to the Workplace Relations Commission on the 08 September 2022 does not refer at any point to Redundancy and it is in this context that I will just be hearing the complaint under Section 6 of the Payment of Wages Act, 1991.
The Complainant accepted this and did not raise any other preliminary points before the commencement or during the hearing.
Background:
The Complainant submitted a complaint on the 08 September 2022 under Section 6 of the Payment of Wages Act, 1991 alleging that the Respondent has not paid him wages to the total amount of €4693.73 for wages owed to him from late June until mid-September which was due to be properly paid to him.
Also, he was not paid an agreed promised bonus of €3000 that was never received.
He states that the refusal to make such a payment is contrary to the Payment of Wages Act 1991.
The Respondent did not attend the hearing on the 03 August 2023 and did not submit a defence in the case. |
Summary of Complainant’s Case:
The Complainant submitted that he started working for the Respondent on the 25 May 2020 until the 16 September 2022 as a Senior Structural Engineer.
He submitted a complaint on the 08 September 2022 under Section 6 of the Payment of Wages Act, 1991 alleging that that the Respondent has not paid him wages to the total amount of €4693.73 for wages owed to him from late June until mid-September which was due to be properly paid to him.
Also, he states he was not paid an agreed promised bonus of €3000 that was never received.
The Complainant submitted at the hearing that he had a discussion with the Respondent in relation to the bonus and was promised by way of verbal agreement that it would be paid to him.
The Complainant also noted at the hearing that nothing was ever put in writing, nor did he ever receive any written agreement/contract specifying the criteria required to earn and also receive the bonus of €3000.
Nonetheless, the Complainant states that the refusal to make such a payment is contrary to the Payment of Wages Act 1991. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing of the complaint.
|
Findings and Conclusions:
The Complainant submitted a complaint on the 08 September 2022 under Section 6 of the Payment of Wages Act, 1991 alleging that that the Respondent has not paid him wages to the total amount of €4693.73 for wages owed to him from late June until mid-September which was due to be properly paid to him.
Also, he was not paid an agreed promised bonus made by way of verbal agreement of €3000 that was never received.
He states that the refusal to make such a payment is contrary to the Payment of Wages Act 1991.
The definition of Wages in the Payment of Wages Act 1991 is as follows:
“wages”, in relation to an employee, 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, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.
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 Complainant in his submission and during the hearing provided copies and made reference to pay slips and documentation which show that he was underpaid over the course of the period from the end of June to mid-September 2022. In this regard, I accept such evidence as an accurate summary of events, and I award the Complainant the full amount of €4693.73 for the months of June, July and August and September 2022 that he was not paid. Regarding the payment of bonuses, the Payment of Wages Acts prevents an employer making unlawful deductions from the pay ‘properly payable’ to an employee.
The question here is whether the bonus was properly payable in the period in question, when it has been found that there was no extant contract of employment.
In this regard, I refer to the High Court decision in Cleary and Others -v- B&Q Ireland Limited, 2016 IEHC119. In that case Mr Justice McDermott stated:
“The discretion to withdraw the bonus scheme at any time, in my view, was always intended to apply in future and attached to the conferring of bonuses, as yet un-accrued, under the terms of the Scheme.
The payment of the bonus crystallised as a contractual obligation once it was earned in accordance with the terms of the Scheme as operated”.
The interpretation of this decision is that once a bonus has been earned it cannot be revoked.
However, it’s important to note that this is in the context of a written contractual obligation and in the context of this complaint no such obligation existed.
While the Complainant submitted at the hearing that he had a discussion with the Respondent in relation to the bonus, he confirmed at the hearing that nothing was ever put in writing or set out in his contract.
In this instant case, the Complainant argues that they are entitled to the bonus, and it is thus due to them despite the fact that they no longer work for the Respondent.
However, in the absence of a written agreement/contract specifying the criteria required to earn the bonus, I cannot find in the Complainant’s favour on this aspect of the claim.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00052713- seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991.
I declare this complaint to be partially well founded and I direct the Respondent to pay the Complainant the full amount of €4693.73 for the months of June, July and August and September 2022 that he was not paid.
In this regard, I now order the Respondent to make this payment of €4693.73 to the Complainant.
This payment should be made within 42 days from the date of this decision.
Regarding the payment of bonuses, in the absence of a written agreement/contract specifying the criteria required to earn the bonus of €3000, I cannot find in the Complainant’s favour and this aspect of the complaint is not well-founded.
Dated: 29/11/2023
Workplace Relations Commission Adjudication Officer: Paul McKeon
Key Words:
Payment of Wages |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041529
Parties:
| Complainant | Respondent |
Parties | Brendan Sweeney | Phi Consulting Engineers |
Representatives | Self-Represented | Did not attend |
Complaint(s):
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-00052713-001 | 08/09/2022 |
Date of Adjudication Hearing: 03/08/2023
Workplace Relations Commission Adjudication Officer: Paul McKeon
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
The hearing was held in public, and evidence was taken on oath pursuant to the Workplace Relations (Miscellaneous Provisions) Act 2021, amending the Workplace Relations Act 2015.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland, and the Attorney General [2021] IESC 24 on 6/04/21 and the Complainant agreed to proceed in the knowledge that decision issuing from the WRC would disclose his identity.
All of the evidence, submissions submitted have been considered herein. While the parties are named in this decision, for the remainder of the document, I will refer to Mr Sweeney as “the Complainant” and Phi Consulting Engineers as “the Respondent.”
The hearing of this complaint was originally scheduled to take place on 16 June 2023 but was adjourned due to the Respondent informing the WRC scheduling team that they were just notified of the hearing on the date the link for the hearing was sent to their email.
In the interest of fair procedures, I adjourned the hearing in order to afford the parties the opportunity to attend a second hearing date.
In this regard, the hearing arrangements for the hearing were issued from the Workplace Relations Commission to the Respondent by way of letter and email dated 19 June 2023 to attend a hearing on the 03 August 2023.
On this note, the Respondent did not attend the hearing on the 03 August 2023 and did not submit a defence in the case. I also further note that there was no further application by or on behalf of the Respondent for a postponement or adjournment of the hearing arranged for 03 August 2023.
Furthermore, I was not informed at the hearing of a reason for the Respondents non-attendance and did not receive any communication after the hearing offering explanation for non-attendance.
Accordingly, I am satisfied that the Respondent was on notice of the within claim to the Workplace Relations Commission and was properly notified of the hearing arrangements on 19 June 2023 to attend a WRC hearing on 03 August 2023 and that it is appropriate for me to adjudicate on the claim before me.
Preliminary Matter
The Complainant submitted at the hearing that he would also like to claim redundancy pay which he alleges he is entitled to. I informed the Complainant that the complaint before me and the narrative set out in his complaint form that he submitted to the Workplace Relations Commission on the 08 September 2022 does not refer at any point to Redundancy and it is in this context that I will just be hearing the complaint under Section 6 of the Payment of Wages Act, 1991.
The Complainant accepted this and did not raise any other preliminary points before the commencement or during the hearing.
Background:
The Complainant submitted a complaint on the 08 September 2022 under Section 6 of the Payment of Wages Act, 1991 alleging that the Respondent has not paid him wages to the total amount of €4693.73 for wages owed to him from late June until mid-September which was due to be properly paid to him.
Also, he was not paid an agreed promised bonus of €3000 that was never received.
He states that the refusal to make such a payment is contrary to the Payment of Wages Act 1991.
The Respondent did not attend the hearing on the 03 August 2023 and did not submit a defence in the case. |
Summary of Complainant’s Case:
The Complainant submitted that he started working for the Respondent on the 25 May 2020 until the 16 September 2022 as a Senior Structural Engineer.
He submitted a complaint on the 08 September 2022 under Section 6 of the Payment of Wages Act, 1991 alleging that that the Respondent has not paid him wages to the total amount of €4693.73 for wages owed to him from late June until mid-September which was due to be properly paid to him.
Also, he states he was not paid an agreed promised bonus of €3000 that was never received.
The Complainant submitted at the hearing that he had a discussion with the Respondent in relation to the bonus and was promised by way of verbal agreement that it would be paid to him.
The Complainant also noted at the hearing that nothing was ever put in writing, nor did he ever receive any written agreement/contract specifying the criteria required to earn and also receive the bonus of €3000.
Nonetheless, the Complainant states that the refusal to make such a payment is contrary to the Payment of Wages Act 1991.
|
Summary of Respondent’s Case:
The Respondent did not attend the hearing of the complaint.
|
Findings and Conclusions:
The Complainant submitted a complaint on the 08 September 2022 under Section 6 of the Payment of Wages Act, 1991 alleging that that the Respondent has not paid him wages to the total amount of €4693.73 for wages owed to him from late June until mid-September which was due to be properly paid to him.
Also, he was not paid an agreed promised bonus made by way of verbal agreement of €3000 that was never received.
He states that the refusal to make such a payment is contrary to the Payment of Wages Act 1991.
The definition of Wages in the Payment of Wages Act 1991 is as follows:
“wages”, in relation to an employee, 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, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.
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 Complainant in his submission and during the hearing provided copies and made reference to pay slips and documentation which show that he was underpaid over the course of the period from the end of June to mid-September 2022. In this regard, I accept such evidence as an accurate summary of events, and I award the Complainant the full amount of €4693.73 for the months of June, July and August and September 2022 that he was not paid. Regarding the payment of bonuses, the Payment of Wages Acts prevents an employer making unlawful deductions from the pay ‘properly payable’ to an employee.
The question here is whether the bonus was properly payable in the period in question, when it has been found that there was no extant contract of employment.
In this regard, I refer to the High Court decision in Cleary and Others -v- B&Q Ireland Limited, 2016 IEHC119. In that case Mr Justice McDermott stated:
“The discretion to withdraw the bonus scheme at any time, in my view, was always intended to apply in future and attached to the conferring of bonuses, as yet un-accrued, under the terms of the Scheme.
The payment of the bonus crystallised as a contractual obligation once it was earned in accordance with the terms of the Scheme as operated”.
The interpretation of this decision is that once a bonus has been earned it cannot be revoked.
However, it’s important to note that this is in the context of a written contractual obligation and in the context of this complaint no such obligation existed.
While the Complainant submitted at the hearing that he had a discussion with the Respondent in relation to the bonus, he confirmed at the hearing that nothing was ever put in writing or set out in his contract.
In this instant case, the Complainant argues that they are entitled to the bonus, and it is thus due to them despite the fact that they no longer work for the Respondent.
However, in the absence of a written agreement/contract specifying the criteria required to earn the bonus, I cannot find in the Complainant’s favour on this aspect of the claim.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00052713- seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991.
I declare this complaint to be partially well founded and I direct the Respondent to pay the Complainant the full amount of €4693.73 for the months of June, July and August and September 2022 that he was not paid.
In this regard, I now order the Respondent to make this payment of €4693.73 to the Complainant.
This payment should be made within 42 days from the date of this decision.
Regarding the payment of bonuses, in the absence of a written agreement/contract specifying the criteria required to earn the bonus of €3000, I cannot find in the Complainant’s favour and this aspect of the complaint is not well-founded.
Dated: 29/11/2023
Workplace Relations Commission Adjudication Officer: Paul McKeon
Key Words:
Payment of Wages |