Complainant

Respondent

Parties

Jonathan  Newman

Musgrave Wholesale Partners

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Niamh Daly 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-00059330-001

10/10/2023

The hearing took place in person in Lansdowne House.

The complainant and two witnesses for the respondent gave their evidence under oath and cross examination was facilitated for all witnesses.

The complainant submitted that the Act was contravened when he was not paid a bonus payment to which he was entitled.

The complainant stated that he handed in his notice on 9 February 2023 and worked out a monthlong notice period in accordance with his contract.  He stated that he was told that he would not be entitled to a bonus if he left under that timeframe.  He stated that he was initially told that this was company policy but was subsequently told that there was no policy and that a bonus was paid under company discretion.  He stated that he was aware of a named former employee who had receive a bonus payment after leaving the company.  Cross examination was offered but not availed of.

The respondent submitted that complainant was not entitled to a bonus as he was not an employee when the bonus payments were made.  The respondent noted that the contract is silent on the issue of a bonus and that a written policy does not exist.  The respondent referred WRC adjudication decision ADJ – 00044419 to support its contention that he was not entitled to receive a bonus payment.

The first witness for the respondent was the Head of Human Resources.  She noted that the financial results for the previous year’s trading only become available in March and the bonus is usually paid over to employees in April. She noted that the bonus was not paid to the complainant as he had left the company at that stage.  Under cross examination, she stated that she was not aware of any bonus payment having been paid to an employee after they had left.

The second witness was the Head of Retail Sales.  He noted that the former employee referred to by the complainant had finished up in around 2016 but he had no knowledge as to whether he received a bonus payment after he left.  The witness stated that it was well known that the company paid its bonus payments to staff in April.  Under cross examination he was asked why he didn’t respond to a request for details of the bonus scheme, he replied that the documentation had already been shared and that there had been phone calls between the parties to explain the situation.

The respondent submitted that it was clear to the complainant from the outset that he would not be paid a bonus if he retired in the time frame he suggested when he gave in his resignation.  The complainant confirmed that he was aware that that this was the situation.

In ADJ-00044419, Mikolajczyk v Musgrave Wholesale Partners, the adjudicator, Gaye Cunningham, stated as follows:

“The Complainant argues that he made and exceeded targets for the year ending December 2021 and his complaint is that the related bonus was not paid by the Respondent on the date which he submitted was in or around 31 March 2022.

The definition of wages in the Payment of Wages Act 1991 provides:

“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:

 The definition includes any bonus payable under the Complainant’s contract of employment.

The Respondent argued that the bonus was a discretionary payment and as provided for in the Complainant’s contract of employment subject to ‘’change in line with the needs of the business each year’’.   the Respondent argued that it was contractually entitled to change the scheme based on the needs of the business and submitted that any sanctioned bonus has only ever been paid to employees still in employment on the date of the bonus payment.

Section 6 of the Act provides:

(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.

In considering whether the bonus payment was wages ‘properly payable’, I take into consideration the contractual situation, the practice of the Respondent regarding the date of payment and the Respondent’s contention that it was a requirement for the employee to be an employee at the date of payment.

The Complainant’s contract provides a requirement that he meet or exceed the targets on an ongoing basis.  The contract is silent on the matter of whether the bonus is discretionary.                  The practice of the Respondent as outlined in the email of 21 January 2022 from HR to the Complainant was that he was paid the bonus each year in April.  The Complainant was notified orally before his departure that the bonus was not payable to employees who were not in employment at the date of payment, and he was notified in writing by the email of 21 January 2022.  In the circumstances, I find that despite the Complainant’s obvious disappointment, the bonus at a time when he was no longer an employee, was not wages ‘properly payable’ and I find his complaint to be not well founded.”

The instant case revolves around similar circumstances, in fact the respondent is the same in both cases.  The issues are identical, and this case also revolves around the interpretation of ‘properly payable’.  I find no reason to differ from the findings of Ms Cunningham.  As the complainant was no longer an employee at the point where the bonus was paid, I find that the bonus was not properly payable to him and he has not established a well founded complaint.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is not well founded.

Payment of Wages – former employee – wages not ‘properly payable’ – not well founded