Complainant

Respondent

Parties

Thomas  Freeman

Kingspan Insulation Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Mr. Thomas Faulkner, Connect Trade Union

Mr. Declan Thomas, IBEC

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-00064346-001

27/06/2024

The Complainant commenced employment with the Respondent on 21st January 2013. The Complainant was a permanent, full-time member of staff in receipt of an average weekly payment of €793.00. At all relevant times the Complainant’s role was described as that of “general operative”. The Complainant’s contract of employment terminated on 27th February 2024.

On 27th June 2024, the Complainant referred the present dispute to the Commission. Herein, he alleged that the Respondent had illegally withheld a payment of €1,324.64, comprising of a once off bonus payment and an increase in wages that was not applied at the relevant time. By response, the Respondent denied the allegations raised by the Complainant, stating that the wages were not properly payable in circumstances whereby the Complainant was not employed by the Respondent at the relevant time.

A hearing in relation to this matter was convened for, and finalised on, 8th October 2024. This hearing was conducted 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. No technical issues were experienced by either party in the course of the hearing.

Both parties issued substantive submissions in advance of the hearing. In circumstances whereby no material dispute existed as to the relevant factual matrix, no sworn evidence was called by with either side.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

By submission, the Complainant stated that towards the end of his employment, the Respondent had been in negotiation with his trade union regarding various terms and conditions of employment. Following such negotiations, an agreement was reached regarding the restitution of an annual bonus and an increase in wages to be retrospectively applied from January 2024. The Complainant left the Respondent’s employment on 27th February 2024. Following the same, the Complainant corresponded with the Respondent seeking payment of the bonus, and requested that the agreed increase in wages be applied to all earning accrued in 2024, in line with the terms of the agreement. By response, the Respondent stated that the Complainant’s employment had ended by the date of the agreement was executed, and that the same would not apply to him. The Complainant did not accept this position, as he stated that he was employed during the qualifying period for the purposes of the agreement and enjoyed a contractual right to the benefits sets out therein.

By submission, the Complainant stated that the terms of the agreement between the union, of which the Complainant was a member, and the Respondent were clear and unequivocal. In this regard, they submitted that the Complainant was clearly employed by the Respondent during the qualifying period set out in the agreement, and should be entitled to the benefits set out in the same. They further submitted that the agreement was silent as to any position as to leavers and persons that had completed the qualifying period and subsequently left the business. In this regard they stated that the position adopted by the Respondent was seeking to add new conditions into agreement following the execution of the same. In contemplation of the foregoing, the Complainant submitted that the Respondent made an illegal deduction from the Complainant’s wages to the value of €1,324.65.

By submission, the Respondent broadly agreed with the factual matrix presented by the Complainant. In this respect, they accepted that the proposed pay increase and the restitution of the annual bonus had been the subject an industrial dispute with the trade union of which the Complainant was a member. Following a conciliation meeting, the parties came to an agreement in respect of these issues, with a written agreement coming into force on 1st May 2024.

Regarding the Complainant is particular, the Respondent noted that the Complainant’s employment was terminated on 27th February 2024, some time prior to the execution of the agreement. In this respect, the Respondent submitted that on the date of the Complainant’s termination, all wages deemed properly payable to him had been discharged, and that the Complainant had suffered no deduction in his wages, illegal or otherwise.

Regarding the Complainant’s submission, the Respondent denied that they were seeking to introduce terms into the agreement. In this respect, they submitted that the agreement was clearly deemed to cover existing employees only, and could have no application to former employees that had no contractual relationship with the Respondent.

In the present case, the Complainant has alleged that the Respondent has made an illegal deduction from his wages. In particular, he has submitted that the Respondent failed to pay an annual bonus and implement an increase in wages as provided for in an collective agreement negotiated by his trade union. In the alternative, while the Respondent did not dispute the factual basis of the Complainant’s allegations, they submitted that the Complainant was no longer in employment with the Respondent on the date on which the agreement was reached, and that as a consequence of the same, he had no contractual right to the benefits contained therein.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which there is a deficiency in respect of those such payments”.

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…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”.

Regarding the present matter, it is common case that on the date of the termination of the Complainant’s employment he had received all wages due and owing to him with no allegation any deduction arising at this point. The Complainant’s case is that following the termination of his employment, his trade union successfully negotiated an increase in wages and the restitution of an annual bonus. In circumstances whereby the Complainant was employed during the qualifying period set out in the agreement, he submitted that he was entitled to payment in respect of the same, and that the subsequent non-payment of the same represented an illegal deduction for the purposes of the impleaded Act.

In the matter of Bord Gáis Energy Limited v Thomas (PWD 1729), the Labour Court found that an employee was not entitled to a performance related bonus in circumstances where he had terminated his employment prior to the date of payment of the bonus. In so finding, the Court placed considerable weight on the eligibility requirements contained in the Complainant’s contract of employment and held that as he did not meet the eligibility criteria, the bonus was not ‘properly payable’ andno contravention of the Act occurred. 

In the matter of Jessica Davis -v- St. Vincent’s Private Hospital ADJ-00046159, the Adjudicator heald that,

“…the decision of the (Employer) to follow the terms of the agreement and to pay retrospection to its employees was not provided for in the complainant’s contract of employment, and, for the duration of her employment, she was on the correct rate of pay.  The fact that the pay of her colleagues was enhanced after she resigned is not an argument for applying the increase to her wages.”

Regarding the instant matter, it is noted that the agreement opened by the parties contains no express stipulation that an employee must be currently employed by the Respondent to avail of the benefits contained therein. On this basis, the current dispute may be distinguished from the factual matrix presented in Thomas, cited above. Notwithstanding the same, it is common case that the Complainant was received all wages due and owing to him on the date of the termination of his employment. Thereafter, the Complainant enjoyed no contractual relationship with the Respondent and, it follows, he cannot avail of any increase to the terms of employment successfully negotiation on behalf of his former colleagues.

Having regard to the accumulation of the foregoing points, I find that the sum in question does not constitute “wages” that are properly payable for the purposes of the impleaded Act. As a consequence of the same, I find that the complaint is not well-founded and the Complainant’s application fails.

I find that the complaint is not well-founded.

Wages, Properly Payable, Post Termination