Complainant

Respondent

Parties

John  Murphy

Bausch Health Ireland Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Rachel Hartery SIPTU

Robin McKenna IBEC

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-00062000-001

05/03/2024

The Complainant alleges that the Respondent has unlawfully deducted the winter annual bonus from him. The Respondent states that he is not entitled to it.

The Complainant took the affirmation as gave his evidence as follows:

The Complainant’s last day of work was the 29th October 2023.

There are two bonus payments a year, summer and Christmas. He did receive the summer payment. He never received the second one. That was paid out to employees on the 18th November. The Complainant wrote to HR about the non-payment on the 20th November. On the 4th December he received a reply which stated “employees must be employed on the date that the vouchers are distributed” and “ your employment ceased with the company in October and therefore you are not eligible to receive this voucher”

In 2022 there were bonus pay talks between the Union and the Respondent. The previous scheme was a bonus shared scheme assessed on a monthly basis. The new scheme came into being in November 2022.  The new scheme made changes to the previous one.  The Respondent states that the eligibility criteria set out that the payment wasn’t to be made to employees who left before the payment was due. The Complainant worked almost the entire period relevant to the bonus save for a few days at the end.

Glenn Connolly took the affirmation and gave his evidence as follows:

Mr. Connolly was involved in the pay talks that were had in 2022. The talks went on for four days. The terms and conditions document and the payment of bonuses were discussed at those talks. The issue of employees not being eligible if they left before the bonus was due to be paid was discussed. The then HR manager stated that “the company has given due consideration to employees retiring at 65 and the pro rata payment of the bonus in the recent pay discussion. Any B&L Waterford employees retiring at 65 will be paid the bonus prorated to their months worked since the previous bonus payment”. That document is the one relevant to today’s case. Those terms and conditions of this document were agreed by the Union.   

 The Respondent has produced a document headed “T’s & C’s for WRC Bonus 2022. Mr. Connolly has never seen this document before, nor has it ever been never balloted on. That document states the eligibility criteria for the bonus are:

·       Only employees employed and attending work at the time of the payment will receive the vouchers.

·       No Pro rata payments to leavers throughout the year.

There are other criteria not relevant to this case.

The non-payment of the bonus to Mr. Murphy was queried by the Union in November 2023. HR responded by stating “ you have to be an active employee for more that six months of the year to qualify for payment of the bonus/voucher.”  The Complainant meets that criteria and therefore the bonus payment should be made to him.

Niamh Hyden took the affirmation and gave her evidence as follows:

There was a bonus scheme in place prior to the summer of 2022. That calculation was done on a monthly basis. After the new agreement there was to be a payment twice a year in July and November. The eligibility of the bonus was not discussed in the pay talks to the best of Ms Hyden’s recollection. There were talks about the type of voucher. The Respondent used to pay a “one for all voucher” and the Union requested that that be changed. It was changed to an “all go”. That was the only issue raised by the Union in relation to the voucher.  The Respondent has never made an exception and paid the bonus after an employee has left.

Teresa Farrell took the affirmation and gave her evidence as follows:

Ms. Farrell is the HR business partner. She has been with the Respondent for 23 years.

Prior to the pay agreement of 2022 there was a performance bonus pay scheme. It was pro-rata for job sharers and weekender. Leavers received a prorate payment also. It was paid through payroll and was taxed. It was usually around €500.00.

The payment agreement in 2022 changed the system. Now two bonuses are paid annually, and they are tax free. The payment of €500.00 was made in vouchers. It was done under the rules of the small benefit exemption. It couldn’t be cash and all employees had to be paid at the same time. One other rule of the small benefit exemption was that the employee had to be active at the time of the payment. The change was made so that employees could get a tax-free payment twice a year, amongst other reasons.  The Complainant was not active at the time the second payment was made and therefore he did not meet the criteria.  

The Complainant alleges that he is due to be paid a bonus of €500.00. The Respondent states that due to the change in the criteria in 2022 the Complainant was not eligible for the bonus payment as he was not in active employment at the time it was paid.  There is conflict between the Complainant and the Respondent in relation to the criteria used to assess eligibility. The Complainant relies on correspondence from HR in 2022 which states “the company has given due consideration to employees retiring at 65 and the pro rata payment of the bonus in the recent pay discussion. Any B&L Waterford employees retiring at 65 will be paid the bonus prorated to their months worked since the previous bonus payment”. In addition, they rely on correspondence received from HR in November 2023 specifically in relation to Mr. Murphy’s non payment wherein the Respondent states “you have to be in active employment for more than six months of the year to qualify for payment of the bonus/voucher” The document relied on by the Respondent entitled T’s & C’s for WRC Bonus 2022 does state that “eligibility for each bonus will be conditional on 6 months attendance in the preceding 12months” However, it goes on to set out specific criteria some of which state that “no pro rate payments to leavers throughout the year” and “Only employees employed and attending work at the tie of the payment will receive the vouchers”. The new bonus scheme came into effect on the 1st January 2022.

The Complainant was employed and was working on full time basis for the six months preceding November 2023 save for the 30th and 31st October. The Respondent itself seems to be confused as to the precise criteria. In correspondence in 2022 they state, that bonus will be paid to retirees and will be paid the bonus on a pro rate basis. However, the document they adduced into evidence states the opposite “No pro rata payments to leavers throughout the year”. In correspondence in November 2023 it state you have to be in active employment for more than six months of the year to qualify for the payment. What that correspondence does not state is that you have to be in active employment at the time the payment is being distributed.  

Having considered the evidence of the parties I prefer the evidence of the Complainant. Based on the Respondent’s correspondence in 2022 wherein it states “the company has given due consideration to employees retiring at 65 and the pro rata payment of the bonus in the recent pay discussion. Any B&L Waterford employees retiring at 65 will be paid the bonus prorated to their months worked since the previous bonus payment” coupled with the Complainant’s evidence that the 2022 WRC bonus document has never been balloted on by the Union, I find that the Complainant is entitled to the bonus payment made to employees in November 2023 and in withholding that payment from him the Respondent has unlawfully deducted sums due to the Complainant.

The complaint is well founded. The Respondent is to pay to the Complainant the November 2023 bonus on or before the 1st August 2024.

The complaint is well founded. The Respondent is to pay to the Complainant the November 2023 bonus on or before the 1st August 2024.

Payment of Wages. Unlawful deduction. Union Negotiation. Ballot.