Complainant

Respondent

Parties

Owen Murtagh

Sonoma Valley Limited t/a GSLS

Representatives

  Self-represented

Anne O’Connell Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00060143-001

17/11/2023

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

CA-00060143-002

17/11/2023

The complainant is employed with the respondent as a driver.

The complainant referred to the WRC a complaint under the Payment of Wages Act 1991 in relation to non-payment of a €1,000 retention bonus and a complaint of penalisation under the Terms of Employment Information Act 1994.

The respondent disputed both complaints; the retention bonus contended for was not properly payable to the complainant and the complaint of penalisation was not well founded.

The complainant commenced employment with the respondent as a driver in November 2022.

The complainant spoke with HR prior to commencing employment about a signing bonus and retention bonus offered with the position.  He was informed that both were valued at €1,000, and that he would receive the signing bonus in two instalments at 3 months and 6 months of employment, and the retention bonus after a year’s employment.

There was a message exchange between the complainant and HR in January 2023 in relation to the first payment of the signing bonus; the retention bonus was again referred to, subject to there being zero sick days.

The €1,000 signing bonus was paid to the complainant in two payments of €500 in February and August 2023.

In October 2023, the complainant was notified of a Q4 performance bonus, payable in January 2024, by way of an email to all drivers.   The relevant email referred to the company being delighted to introduce this performance related bonus.  From the complainant’s perspective, this had nothing got to do with the retention bonus which he had been messaging HR about in January 2023.  The Q4 performance bonus was specifically by reference to certain criteria applicable to October, November and December 2023.

The complainant wanted to ensure he had the detail of the Q4 performance bonus and retention bonus in writing.  Therefore, he contacted his line manager in the first instance to confirm he had zero sick days.  His line manager referred him to HR. In messages to HR in October 2023, the complainant sought confirmation that he was entitled in January 2024 to both a retention bonus of €1,000 and the Q4 performance bonus.  The response received was that he was entitled to the bonus communicated to all drivers by email, that it was a retention and performance bonus and that there was no other bonus.  The complainant took issue with this in further messages to Ms Lawlor on the basis that the Q4 performance bonus had nothing to do with his retention bonus.  The complainant then made contact with the HR Director on the issue.  There followed messages between the complainant and HR Director which culminated in the complainant advising the HR Director that he was off work the following day and would contact the WRC to confirm that all was above board.  At this point, the HR Director messaged the complainant saying that he was the one causing issues to HR and that it would be a disciplinary issue if he did not show up for work the following day.  The complainant responded that he was rostered off the following day, which was acknowledged in a response from the HR Director.

A meeting took place on 2 November 2023 between the HR Director, the complainant and a driver’s representative.  The complainant was unhappy with the HR Director’s response and felt that there was no effort made to try to resolve differences.

Following the meeting, the HR Director contacted the complainant about attending the company doctor on foot of the complainant’s reference to stress in a message 10 days previously.  The complainant was then told by his line manager that he was removed from the roster.  There followed an exchange of emails between the complainant and the HR Director on various matters, including whether a doctor’s appointment was needed, with the HR Director saying that she would try to facilitate the complainant back on the roster as soon as she could if he did not need or want an appointment.

The complainant submitted that there was a clear offer and commitment in January 2023 to pay the complainant a retention bonus in January 2024.

Since the complainant raised as an issue the non-payment of the retention bonus and expressed his dissatisfaction with the respondent’s excuses for non-payment, the complainant had been threatened with disciplinary action, removed from the driver roster, had his routes changed and not been offered bank holiday work.  In addition, payment to the complainant of the Q4 performance related bonus was delayed without notice of, or reason for, the delay.  The complainant was subsequently told by the HR Director that it had been suspended pending outcome of the WRC hearing. 

A grievance meeting at local level did not uphold the complainant’s grievances.

The complainant sought payment of his retention bonus and a return to normal working arrangements.

In support of his case, the complainant relied on documentation, including communications between the parties on the matters in issue.

The complainant confirmed that he is currently on the roster, paid an hourly rate and working 4 days per week.  His line manager has offered him extra shifts and he has undertaken same.

Under cross-examination, the complainant confirmed that there is no reference to a bonus payment in his contract and that he did not query this at the time of signing the contract.   The complainant did not accept that the Q4 performance bonus included a retention aspect, rather it included an attendance payment.  The complainant did not mention stress at the meeting of 2 November 2023 with the HR Director.  He complained at the meeting that when he referenced stress in a message on 24 October, HR never did anything about it.  The complainant did not want to be off the roster for 2 weeks pending a doctor’s appointment. The complainant accepted that he was only ultimately off the roster for one day.  He did not accept that routes are required to be changed from time to time due to the nature of the respondent’s business.  Drivers are on the same routes all the time and it was unusual that the complainant was changed from the routes he had been trained on.

The respondent fully disputed both complaints against it.

The respondent accepted the complainant was entitled to a €1,000 signing bonus, which he had been paid in full. 

The respondent has never had a €1,000 retention bonus of the nature the complainant is seeking.  At the time the complainant commenced employment, the respondent had a signing bonus and an attendance bonus it had introduced in June 2022, which was payable in January 2023 on an employee having zero sick days.

Prior to the complainant commencing employment, the respondent had negotiated a new performance pay structure for drivers.  As part of these negotiations, a new, once-off attendance bonus was introduced in June 2022, payable in January 2023 to drivers who had zero sick days for the year.  The payment was based on attendance and length of service, with a maximum payment of €1,000.  As the complainant commenced employment in November 2022, he did not qualify for this bonus as he had not been employed for the relevant period upon which it was based.

In 2023, a decision was made to replace the 2022 attendance bonus with a new bonus, based on a combination of criteria.  The maximum amount of the new bonus, payable in January 2024, was €750.  The complainant qualified for the maximum bonus for 2023.  The complainant could elect between a taxable payment of €750 or receiving a €500 voucher. 

The respondent disputed that the complainant had been informed he was entitled to a retention bonus of €1,000 after a year’s service or that he had any contractual entitlement to a retention bonus based on a job advertisement.

The respondent further submitted that there was no penalisation of the complainant within the meaning of the Terms of Employment (Information) Act 1994.  The complainant had not invoked any rights under the 1994 Act.  The respondent is required to change its routes regularly; it is an operations matter in which HR is not involved.  The complainant was removed from the roster in order to attend an occupational health appointment.  The HR Director’s reference to a disciplinary issue was made in circumstances where she thought the complainant had indicated taking unapproved leave.

The respondent addressed by way of its grievance procedure the complaints of non-payment of the retention bonus and penalisation.  A thorough and independent investigation by the respondent’s Commercial Director found there was no payment due to the complainant in respect of a retention bonus and there was no evidence of victimisation. 

Ms Lawlor, HR Manager with the respondent, gave sworn evidence.  The witness was introduced to the complainant through an employment agency.  The initial contact did not result in the complainant taking up employment.  However subsequent contact from the agency resulted in a start date for the complainant being confirmed by the agency and the witness making direct contact with the complainant by telephone to discuss reference details.  The witness did not recall a discussion about bonuses during that call.  The witness did not recall any other conversation or telephone call with the complainant about bonuses.  In January 2023 and October 2023 messages with the complainant about bonuses, the retention bonus referred to by the witness was the January to December 2022 bonus that was payable in January 2023.  The respondent has many different bonus structures, all with the objective of retaining staff.  Operations has responsibility for setting rosters and routes.   Under cross-examination, the witness said that she had not expressly disputed in October 2023 messages with the complainant his position regarding payment of the €1,000 retention bonus because she had wanted to keep it short.  The witness knew about the signing bonus but could not recall discussing bonuses with the complainant. 

Ms McCullagh, Director of HR, Security & Compliance with the respondent, gave sworn evidence.  When the complainant joined the company, there was an attendance and signing bonus.  The complainant did not qualify for the attendance bonus because he had joined too late in the year.  If he had been eligible, €200 would have been payable to him based on his tenure.  A decision was taken in Q3 2023 to replace the attendance bonus.   At no stage has there been a retention bonus of the type contended for by the complainant.  It is critical for the respondent to retain drivers through the last quarter of the year.  The complainant qualified for the Q4 performance related bonus which was either €750 payable through payroll or a €500 voucher.  The complainant received the voucher.  The respondent processed the vouchers and payroll separately.  The vouchers were ordered after payroll was done, and were given out in the last week of January 2024.  The witness had not realised the complainant was rostered off the following day when she referred to disciplinary action.  It was her mistake.  Operations are responsible for setting driver routes and rosters.  HR only become involved if a driver is making a specific request around routes.  It is an operational requirement by reason of the nature of the respondent’s business that drivers’ routes are varied.  This applies to all drivers, and it is common to change a driver from the routes they trained on.   The witness could not say how public holiday routes are assigned to drivers.  It can be a popular shift for drivers because of the pay.  It is worked by less drivers than a normal working day.  The witness was sure that Operations take steps to make sure it is fairly managed.  There was a huge focus on recruitment in 2022 to try restore driver numbers.  There is more awareness in the respondent organisation around the cost to the organisation of public holiday work.  Under cross-examination, the witness said the various bonuses operated in 2022 and 2023, including the signing bonus, were all incentives aimed at retention of drivers.  The witness accepted that the complainant’s payslip did not record the €500 performance related voucher at the same time as other drivers’ payslips. The complainant acknowledged her mistake in not reading the complainant’s messages properly and referring to disciplinary action. The respondent organisation has no issue with the complainant as an employee but does not believe he is entitled to a €1,000 retention bonus of the type he asserts.  The witness thought the complainant was mixing up the signing bonus with the retention bonus.  No other driver has received a €1,000 retention bonus.

The witness confirmed for me that there is no employment-related documentation in which the signing bonus, or any other bonus, is referred to.  The witness further stated that bonus payments are 100% discretionary and subject to company performance.

In coming to my decision on the complaints before me, I have taken account of the oral and documentary evidence before me and the submissions of the parties.

CA-00060143-001 (Terms of Employment (Information) Act 1994)

The complaint referred was that the complainant was penalised or threatened with penalisation for invoking or having given notice of an intention to exercise any rights under the Terms of Employment (Information) Act 1994 (the “1994 Act”).

Section 6C of the 1994 Act provides:-

 “(1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint that subsection (1) has been contravened, it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.

(4) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts.

(5) In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.”

To ground a complaint under section 6C of the 1994 Act, the complainant must have undertaken a protected act as set out in section 6C(1) of the 1994 Act.   The evidence before me is that the complainant queried with members of the respondent’s HR team payment of a retention bonus to which he believed he was entitled, expressed his dissatisfaction with the respondent’s position and communicated that he would be contacting the WRC about same.  The complainant submitted that he was penalised as a result of the foregoing by HR’s reference to a disciplinary issue, its removal of him from the roster, a change in his routes and a delay in treatment of his performance-related bonus.

The complainant’s communications, on which his penalisation complaint is grounded, related to a payment the complainant believed he was entitled to under his contract of employment with the respondent.  I do not find that there was a protected act, communication or complaint within the scope of section 6(C) of the 1994 Act.

I must therefore find that this complaint is not well founded.

CA-00060143-002 (Payment of Wages Act 1991)

A bonus is included in the definition of wages payable to an employee under section 1 of the Payment of Wages Act 1991 (the “1991 Act”). 

Section 5 of the 1991 Act prohibits the making of deductions from wages save in certain circumstances.  Section 5(6) of the 1991 Act provides that where on any occasion an employee is paid less than the total amount of wages, or none of the wages, that are properly payable to the employee on that occasion, the amount of the deficiency or non-payment is to be treated as a deduction, save where it’s attributable to an error of computation.

For completeness, the text of section 5(6) of the 1991 Act is as follows:-

“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 complaint concerns non-payment to the complainant of a €1,000 retention bonus.  The complainant was informed in October 2023 that he would not be paid in January 2024 a €1,000 retention bonus and Q4 performance bonus payment.  There followed communications between the complainant and members of HR in the respondent company regarding bonus payments.  The respondent confirmed to the complainant in October 2023 that a €1,000 retention bonus would not be paid to the complainant. The complainant expressed his dissatisfaction with the respondent’s position.  He maintained that it had been confirmed to him by HR prior to and/or on recruitment and in January 2023 that he would be paid a €1,000 retention bonus and that this was payable to him in January 2024.  The complainant invoked the respondent’s grievance procedure, the outcome of which was that there was no payment due to the complainant in respect of the retention bonus asserted.

I must ascertain in the first instance the wages properly payable to the complainant under his contract with the respondent.  In this case that means determining whether the complainant was properly entitled to payment of a retention bonus following a year’s service in January 2024. 

The complainant construed the advertisement for his role, the fact that a signing bonus was paid and his communications with HR, principally prior to joining and in January 2023, to evidence an agreement and entitlement to payment of a €1,000 retention bonus after one year’s service, subject to having zero sick days.  I acknowledge a lack of clarity for the complainant on the retention bonus issue however I am not satisfied that a retention bonus of €1,000 was properly payable to the complainant after one year’s service with the respondent for the following reasons.

The message exchange between the complainant and Ms Lawlor in January 2023 is not consistent with the complainant’s evidence that he was told prior to recruitment by Ms Lawlor that he would be paid a €1,000 retention bonus after a year’s employment.  In particular, I note that the complainant asked Ms Lawlor whether the August 2023 payment of €500 is the retention bonus.   I further note the response of Ms Lawlor which expressly stated that the respondent only had a signing bonus.    Whilst the job advertisement referred to a signing bonus and retention bonus under the description of the role, there was no detail provided on the value of either bonus and the complainant’s contract of employment did not provide for bonus payments.    On balance, the respondent’s evidence that it has operated various bonus arrangements over the years based on attendance, performance and other criteria, with staff retention being the primary objective, is consistent with the reference to same in the job advertisement, the message exchange between Ms Lawlor and the complainant, and the respondent’s announcement in October 2023 of its Q4 bonus arrangements.  Having carefully considered the documentary evidence relied upon by the complainant, I am not satisfied that an agreement to pay or an acknowledgement that a €1,000 retention bonus was payable in January 2024 is represented or reflected in same. 

I cannot find on the evidence before me that a €1,000 retention bonus, subject to having zero sick days in 2023, was properly payable to the complainant in January 2024.  In the circumstances, I do not find there to have been deduction within the terms of the 1991 Act.  I therefore find that this complaint is not well founded.

CA-00060143-001 (Terms of Employment (Information) Act 1994)

For the reasons set out above, I find that this complaint is not well founded.

CA-00060143-002 (Payment of Wages Act 1991)

For the reasons set out above, I find that this complaint is not well founded.

Wages – Retention bonus payment – Properly payable – Terms of Employment (Information) Act 1994 - Penalisation