Worker

Employer

Anonymised Parties

A Manager

A Retailer

Representatives

 IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002114

10/01/2024

The complainant says that he has been penalised unfairly in respect of the bonus he received as part of the respondent’s Bonus Scheme for the period September 1st, 2022, to Aug.31st 2023.

The eligibility rules for inclusion for the bonus, state that 180 days of continuous attendance are required to qualify. He says that completed 212 days of continuous attendance from February 1st, 2023, to  August31st 2023 upon his return from sick leave.

The bonus was performance-based and required the worker to achieve certain targets in sales, costs, and bottom-line performance. The phrase “Performance Based” is important as he believes the bonus scheme has been transformed into an attendance Bonus, either during the lifetime of the bonus period, or indeed after the end date in August.

In either event this is at odds with the scheme’s own rules, which clearly state all changes must be communicated and agreed by all parties before the commencement of the scheme

This change was confirmed in an email to him in which it was outlined that the payment calculation method now being used was the number of actual hours worked and that “Global rules changed after the Initial calculations were completed”

The complainant was expecting €6175.83 bonus to be paid based on his earnings, but he only received € 3522.50; 57% of what he expected.

He raised this issue with HR and used the company dispute resolution facility to try and resolve the issue, but  was not successful, and the matter was elevated to the HR manager. She wrote to the complainant  explaining the reasons as she saw it for his reduced payment, and his complaint was not upheld.

He believes the Q&A documents issued on the 28/11/23 to support those who had questions around the bonus pay out was absent prior to the start of the FY22/23 Bonus Scheme, but now show a whole suite of pay codes that are deemed to be ineligible for payment calculation purposes.

The complainant is seeking a  recommendation that the full amount of his bonus be paid as it is clear that there was a change to the eligibility criteria in that long term sick leave.

The respondent submits that the method for the calculation of the bonus pay-out wasexplainedin apresentationtoallemployeesinNovember 2022andconfirmed inindividuallettersissuedtothosewhoqualifiedforthebonus inFebruary2023.

The complainant had sufficient time to ponder this issue between the presentation and receipt of his individual bonus confirmation letter on  February 23rd, 2023.

This claim was submitted to the WRC on  January 10th, 2024, and should be determined as falling outside of the prescribed period of six months for referral of such complaints.

The complainant has offered no explanationat all for the delay in the filing of this complaint with the WRC. Even if he did offer such an explanation, this claim was referred in excess of twelve months after the date of the alleged issue in dispute. The respondent respectfully argues that this claim should be determined as being statute barred, as it falls outside of the jurisdiction of the WRC and should be dismissed.

In addition, the complainant has failed to exhaust internal remedies. 

The respondent paid out the bonus to its employees, including to the complainant, on December 15th,  2023. This followed the confirmation letter that he received on  February 28th, 2023.

On  December 20th, 2023, the complainant sent an email to HR, querying the bonus.  (The details of his questions were submitted to the hearing)

His query was referred to the HR manager who responded on January  3rd 2024, explaining how the bonus was calculated. In that response, the explanation was that:

“Pop up to me if you want to chat through these. The [Bonus] is governed by Global rules which is applies to all countries. Sick paid/unpaid pay codes were never part of the bonus rules in the past. Worked hours were taken as part of this calculation in the past.

‘Employment without interruption’ means that you were still employed (without leaving)

throughout your illness so therefore you did qualify as you remained employed.

180 days unbroken attendance refers to being employed by [the respondent] for qualification which you qualified for as you were still employed by [the respondent] throughout your sickness. (an example of broken attendance would be someone leaving and then coming back and doesn’t reach the 180 days)

Bonus calculation is non contractual and is based on your total worked hours in a fiscal year FY23 including some absences) outlines in the Q&A) which runs from Sept 1st, 2022, to Aug 31st, 2023.

On January 3rd, 2024, the complainant responded to the above as follows:

“Thanks for this, it confirms my initial thoughts on the matter and gives me what I need to proceed, I'll wait for the final calculation to arrive from Sarah, as I’ll require exact figures.

No need to bother you any further with it as I suspect it'll still be rumbling on after you've moved !!”  

(Note: the HR Manager was due to leave the respondent‘s employment).

OnJanuary10th,  2024,thecomplainantreferredthisclaimtotheWRC.

He did not take up the HR manager’s offer to discuss this matter further, nor did he pursue any other available internal avenues to resolve the issue. He simply referred this complaint to the WRC.

It is clear from the complainant’s reply that he was not willing to explore further internal avenues on this and neither was he interested in pursuing internal resolution to the issue. As a senior manager in the business, he knows the company’s Grievance Procedures and is expected to respect and comply with those.

These procedures are widely available to all employees on the respondent’s internal portal.

This conduct goes against the company’s internal grievance procedure of exhausting internal remedies, which are designed in line with Statutory Instrument No. 146 of 2000. This procedure requires an aggrieved employee to formally lodge a grievance, for an investigation to be conducted, a grievance hearing held, and an outcome issued to the employee who lodged the grievance. If that employee is not satisfied with the outcome, they have a right to lodge an appeal within five days of receiving the grievance hearing outcome.

It is an established legal principle of good industrial relations that an employee has a legal obligation to exhaust an employer’s internal grievance processes before seeking to enforce their rights externally of the workplace.

The Labour Court has emphasised these principles in Dunnes Stores v A Worker LCR22639 and Melinda Pungor and MBCC Foods (Ireland) Limited LCR22639.

The obligation to exhaust internal grievance procedures extends even in situations where there exists a purported breach of a contract. In Travers v MBNA Ireland Limited, D720/2006, an employee’s role was changed by his employer in a manner which was “not in keeping with the contract of employment”. The employee initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. He later referred a claim to the Employment Appeals Tribunal. The Tribunal found as follows:

“… the [Complainant] did not exhaust the grievance procedure made available to him by the [Respondent] and this proves fatal to the [Complainant’s] case… in constructive dismissal cases it is incumbent for a [Complainant] to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

The complainant failed to take up the HR manager’s invitation to discuss this matter further if he was still not happy with her written response. His failure to do so was intentional and by his conduct he failed to give an internal resolution process a chance and in that way he failed to fully exhaust internal grievance procedures.

That failure should be considered as fatal to the claim he referred to the WRC, in line with the case law quoted above.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Conclusions on preliminary Issue of jurisdiction

On the issue of time limits, the respondent’s submission raised these based on the strict time limits which apply generally in employment rights statutes, but which do not apply in the Industrial Relations Act, 1969.

This does not mean that delay in submitting a complaint may not be of interest to an Adjudicator in assessing the gravity of a complaint.

An Adjudicator will be interested to hear why, if the complaint was not perceived by a complainant as being of sufficient gravity to make a referral close to the time the issue arose,  it has become so with the passage of time, or whether there is some other acceptable explanation for the delay. But that places it in a different category to the strict, jurisdictional time limits in other statutes.

In this case the complainant was on sick leave from August 2022 until January 2023. The respondent’s submission above is that he was advised of the terms of the bonus scheme in November 2022, the subject of further correspondence in February 2023. His illness may explain the fact that he did nothing in that period.

The complainant had sufficient time to act on his concerns between the presentation and receipt of his individual bonus confirmation letter which he received on February 23rd, 2023, and the referral to the WRC almost a year later.

However, having returned to work in January 2023 he did nothing to address any issue he had with this material, until after he received the actual bonus payment in December 2023.

This is where the issue of delay is overtaken by the much more decisive issue related to the alleged failure of the complainant to avail of the company’s internal grievance machinery to process his grievance before referring it to the WRC.

In the case of Gregory Geoghegan t/a TAPS v A Worker the Labour Court has held

The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.

This case was cited in A Worker v An Employer (ADJ 40376) and the respondent has referred to other such cases above.

There are critical considerations.

On both his complaint form and in his written submission the complainant made reference to having ‘exhausted the internal resolution option’.

On being further questioned on this at the hearing he relied on the correspondence with HR referred to in the respondent’s submission in December 2023 and early January 2024 which makes it very clear that he had done nothing of the sort.   

On January 3rd, 2024, his HR Manager invited him to an informal chat to which he, somewhat disingenuously replied stating that there was ‘no need to bother [her] any further’ as her reply gave him ‘what I need to proceed’.

In fact, this was a disguised reference to his intention to refer the matter to the WRC, as he confirmed to the hearing.

So, not only had he not availed of the grievance machinery, at the point at which he referred the matter to the WRC it might be said on the basis of the correspondence above, that the grievance had not even properly crystallised, based on the offer by the HR manager to have a further chat about it.

I accept, as a matter of probability and arising from the facts of the case, that the company’s position was unlikely to change, but the complainant was two steps away from being properly entitled to make a referral to the WRC on January 10th, 2024.

The first step was the invitation to continue talking to the HR department, notwithstanding the improbability of the respondent changing its position. There was always the possibility that the complainant might have accepted its explanation without the need for any further dispute about the matter.

While this too may have been improbable, the second step that was required was the obligation to process any grievance through the company’s procedures, with which, it was established he was familiar. Hs attempt to represent the correspondence with HR as initiating a grievance is without merit.

Accordingly, he is not entitled to an audience at the WRC under this legislation until he does so.

I did not hear the substantive issue in any detail for the reasons just set out, but I note the submission of the respondent that the terms of the bonus scheme, which is discretionary, have not changed since 2020 and possibly earlier.

And despite no bonuses having been paid during the pandemic period, this fact will be a formidable obstacle in the way of any future successful referral to the WRC by the complainant, having exhausted the internal machinery.

The complaint does not meet the established criteria for a referral under the Industrial Relations Act, 1969 and the complainant must exhaust fully all internal processes before it will be considered again.

Failure to exhaust workplace procedures