Complainant

Respondent

Parties

Martin  Currams

Hickey Fabrication Service

Complainant

Respondent

Anonymised Parties

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Representatives

Ger Mooney, Connect

William Wall, Peninsula

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-00063675-001

24/05/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and his shop steward gave their evidence under affirmation while a witness for the respondent undertook to give her evidence under affirmation.  The facts of this complaint were not in dispute, rather the dispute revolved around the interpretation of the facts.

The complainant submitted that he was not paid a Christmas bonus nor a tool allowance to which he was entitled.

The complainant stated that he has been out on sick leave since 5 May 2022.  He stated that the twice-yearly allowance was provided for under contract and that the tool allowance was provided for under custom and practice.

The complainant’s shop steward also outlined that the twice-yearly allowance was provided for under contract and that the tool allowance was provided for under custom and practice.

The respondent submitted that although there was a contractual commitment to pay a twice-yearly bonus it was based on the complainant normal working week. It submitted that as he has not been working since 5 May 2022, his normal working weeks’ pay amounted to zero accordingly he was not entitled to a bonus payment. It was submitted that there was no contractual requirement to pay a bonus while an employee was out on sick leave.

As regards the tool allowance, the respondent submitted that this was not a matter of custom and practise, that it had paid it previously on the basis of gesture of goodwill.

The Payment of Wages Act, 1991, as amended defines wages as follows:

"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:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.

Documentation provided by the union indicate how bonuses are due to be paid to members. Is outlines how a contractual bonus payment of a week's wages twice yearly, is to be paid around the summer shutdown and Christmas. Section 17 of the Union/Employer agreement also provides the day rate and the shift rate payable to employees.  It also includes following sentence “the Christmas and summer bonuses of one week's salary will also be based on a normal week.”

The argument put forward by the respondent is that the complainant was out sick for more than the past two years and in that time his ‘normal’ week amounted to zero. Accordingly, it argues that he was not entitled to a bonus because he was not in work.

The agreement concluded between the Employer and the complainant’s Union is silent on whether a bonus is payable when a worker is absent for work for a prolonged period.

Having regard to the definition of wages contained in the Act and to the terms of his contract of employment, I find that the respondent was not obliged to pay the complainant a bonus during a period when he was out on long term sick leave and the complaint is not well founded.

As regards the payment of a tool bonus, the complainant outlined how the allowance was payable to staff to replace worn out tools with local suppliers.  As such I find that this does not fall into the definition of wages in the Act but is comprehended as an exclusion at (i) above by the phrase “any payment in respect of expenses incurred by the employee in carrying out his employment”.

Accordingly I find that the Act has not been contravened and the compliant is not well founded.

Having regard to the written and oral submissions made in relation to this complaint, my decision is that the Act has not been contravened and the compliant is not well founded

Payment of wages – no contravention – not well founded