Complainant

Respondent

Parties

Susanne  Dillon

Cognito Hrm Ltd

Representatives

  No Appearance by or on behalf of the Complainant

 Denis Coleman

Act

Complaint Reference No.

Date of Receipt

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

CA-00057452-001

30/06/2023

On 30 June 2023, the Complainant a then Business Development Representative submitted a claim for unpaid bonus payment of €4,377.00 and holiday pay of €1717.00.

On July 5, 2023, on receipt of the complaint, the complainant was invited to make an outline submission in the case no later than 15 working days before the scheduled date of hearing.

“At the hearing, the Adjudicator will inquire into the complaint, give both parties an opportunity to be heard and to present any evidence relevant to the complaint ….”

The Complainant has introduced herself as a Lay Litigant and has submitted a number of documents in support of her claim on 10 July 2023.

All correspondence was copied to the Respondent.

On 27 October 2023, both parties were invited to an in-person hearing scheduled for 17 November 2023 at 10 am.

On November 8, 2023, having not received the respondent submission, I wrote to the company seeking the required documentation in defence of the claim to balance those already received from the complainant.

On Tuesday, November 14, 2023, the complainant acknowledged receipt of the respondent correspondence in the claim to which she prepared submissions in response.

On 16 November 2023 further submissions were received from the Respondent and shared with the Complainant.

I prepared the case for hearing and was disappointed to discover that the Complainant did not make an appearance at hearing or send a representative.

I waited a period of 20 minutes in case of mishap or delay. I then commenced the hearing and explained that the complainant had not made an appearance.

The Respondents Mr. Coleman offered to call the complainant on a phone number retained on his phone.

I asked him to complete that task outside the hearing room.

He reported back promptly that he had managed to make contact with the complainant and established that she was not coming to hearing.

I proceeded to complete the hearing on an ex parte basis.

The Complainant filed her complaint form on 30 June 2023. She submitted that on 30 June 2023, she had not received wages due:

The Complainant marked the duration of employment as 15 November 2021 to 23 June 2023, where she earned a gross pay of €3083.00 per month.

She made claim for:

€4377.00   unpaid bonus

€1717.00 holiday pay

Her complaint stated:

I finished my employment with Cognito HRM on 23 June 2023 after working my notice period. At the end of my employment, I was due.

Gross wage   €2,383

Holiday pay € 1,717

Commission €1,944

She stated that she had not been paid on the due date of 30 June 2023.

She qualified that she had expected to receive the first two payments, but not the last.

The Complainant exhibited a contract of employment, staff handbook and details of a commission earned.

The Complainant acknowledged receipt of the respondent’s defence in the claim.

The Complainant did not make an appearance as requested at hearing.

Five days have now passed since the hearing occurred and I am disappointed to record the complainant as a “no show “in her own case.

The complainant has since sent two emails to the WRC where she reflects a disappointment that she received a call from her former employer and secondly that she was not notified of hearing.

For my part, I engaged in an analysis of the notification papers and proof of send and I am satisfied that the complainant was on full notification of the time, place and location of the hearing. The documents received from her email, matched the notification of hearing sent. This was the same notification that brought the respondent to hearing.

Her correspondence arriving as it did on 14 November 2023, so close to the hearing date suggests to me that she was aware of the hearing.

I would much prefer to have met with the complainant to take evidence in her own case, rather than write a decision without her, but I have documented her nonappearance as a “no show “on this occasion.

I will return to this in my findings.

The Respondent operates a Tech Company and has contested the claim made.

The Respondent, Mr Coleman, gave evidence under oath.

Mr Coleman submitted his outline submissions in response to the claim in the last days before hearing. These were shared with the complainant.

As the hearing was due to commence, I met Mr Coleman in the waiting area. I explained that I had not been notified of the complainant’s attendance on the premises but in line with protocol, would give 20 minutes wait time to allow for any mishap or delay which may have befallen the complainant.

At approximately 10.30am in the continued absence of the complainant, I invited the respondent to the hearing room and explained that I would now start the hearing.

Mr Coleman asked if he should call the complainant as he had retained her number. I explained that I was not permitted to call her, but if he wanted to try, he was welcome, but would have to vacate the hearing room.

The Respondent, Mr Coleman gave evidence that he had made contact with the complainant by phone and her response said that the complainant was at her home and queried whether the hearing was on that day?

Mr Coleman told me that the complainant said she had not been notified of the hearing. He said that he asked her “can you get here? “And she said “no “.

The Respondent was invited to make any comment he wished in the case.

His primary point was that he had held the complainant in high regard during her employment and wished her all the best.

He said that he contested the claims made for business reasons. He confirmed that the complainant had received payment for annual leave and wages on the conclusion of her tenure, albeit with some delay.

However, he contested that the bonus payment claimed was not owed as payment of bonus was not due until July 2023, by which time, the complainant was no longer employed.

He submitted that the complainant had not advanced her claim locally through the company grievance procedure.

Mr Coleman had submitted details of a Financial Recovery process, SCARP which was entered into by the company from August 4, 2023. This resulted in a radical change agenda to chase commercial viability and restructure at the business.

He pointed to the accompanying Companies Act, 2021 and read out a limiting clause that demands from preexisting creditors were prohibited in a SCARP process. He provided extensive detail on this process, which was overseen by an Accountancy Company.

He confirmed that he was not relying on an argument of “inability to pay “. He said the Company was trading post seismic changes.

Mr Coleman confirmed that the complainant had been provided with a staff handbook at the commencement of her employment. She had signed acceptance of same.

I have been requested to reach a decision in this case on whether the payment of bonus was properly payable on 30 June 2023.

My jurisdiction rests in Section 5 of the Payment of Wages Act, 1991

Regulation of certain deductions made, and payments received by employers.

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

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

There are two amounts mentioned as claimed on the papers.

1 The Complaint form €4377.00

2 Document titled salary holidays and commission owed €6,094.

In order to inquire into the facts of this case, I needed the complainant to be in attendance at hearing to navigate through her evidence and supporting documents. Instead, I just had the Respondent evidence and supporting documentation in the case.

I found the complainants nonattendance puzzling given her record on submitting documents in the aftermath of her complaint in June, 2023.

My first hurdle in this case is to establish whether the wages as claimed are properly payable under the Act.? Section 5(6) applies followed by significant case law on this topic.

I am satisfied that the complainant was on full notice of the hearing and made a decision not to attend the scheduled hearing.

I am also satisfied on the evidence adduced at hearing that the complainant decided not to attend the hearing and is indeed a no show, which in light of all the preparation engaged in prehearing, I find unreasonable.

I am not satisfied that the complainant has provided a reasonable excuse for her nonappearance. She was invited to hearing and did not seek leave via the postponements policy open to her.

I did explain the status of the case going forward to the respondent in terms of an appeal by either party or both to the Labour Court. I also explained that I like to exhaust every effort to have both parties heard at first instance Court at WRC.

I also explained that it was open to him to approach the complainant to seek an informal resolution at any stage. He said that he may give this consideration.

As the Complainant did not attend to give evidence in her own case and having heard evidence in defence of the claim from the respondent, I must conclude that the claim is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages act, 1991, requires that I make a decision in this complaint in accordance with Section 5 of that Act.

I find that in the absence of the complainant at hearing, I was unable to take her evidence in her own case. I did take evidence from the respondent which was uncontroverted.

I must find that the claim is not well founded

Claim for bonus payment at the conclusion of employment