EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Jim Fallon PW191/2013
against the recommendation of the Rights Commissioner in the case of:
IPOS Retail 83 Limited T/A Keanes Pharmacy
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Hennessy
Mr F. Dorgan
heard this appeal at Kilkenny on 31st October 2014
Appellant: In person
Respondent: IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
This matter comes before the Tribunal by way of an appeal of the decision of the Rights Commissioners to disallow the claim under the Payment of Wages Act 1991 for payment of what were claimed to be outstanding bonuses for the years 2010 and 2011.
The Claimant’s contract dated the 30th October 2009 provided for bonus payments (Clause 6) based on certain targets being achieved in the Respondent Company’s financial year end 31st October.
The contractual relationship here existed between IPOS Retail 83 Limited a separate legal entity, and the Claimant and, accordingly, the Claimant had a legal entitlement to bonus payment provided specified targets were achieved in that company. This right cannot be diluted by what was happening in other companies in the Group.
Further, the Claimant had a legitimate expectation of bonus payments linked to reasonable targets and the Respondent Company could not avoid its obligations in this regard by failing to set any targets. To act in this way was to attempt to change the Claimant’s Terms and Conditions of employment without agreement.
The Claimant informed the Tribunal that there was an increase in gross profit margin in the company during the relevant years and this was not disputed.
The Claimant quantified the amount of the bonus claimed by him as follows:-
2010 - €7,113.60
2011 - €2,766.40
In the absence of targets he based this calculation on the bonus calculation for 2009 which seems to the Tribunal as having been a fair way in which to quantify his claim.
The Tribunal finds that the Claimant had a bonus entitlement for both 2010 and 2011.
The Tribunal must now consider the provisions of Section 6 of the Payment of Wages Act 1991 and, specifically, the provisions of sub-section (4) which read:
“A Rights Commissioner shall not entertain a complaint under this section unless it is presented to him within a period of 6 months beginning on the date of the contravention to which the complaint relates……”.
When was the date of contravention in respect of the 2010 and 2011 bonuses? The Contract is silent on when bonuses are paid. Therefore, it is difficult to objectively assess when a bonus is payable.
Based on the payment of bonus in December 2010 for the company’s financial year ending on 31st October 2009 it would appear reasonable to assume that the company believed it could pay at any time in the calendar year following its financial year. This would therefore suggest that the contravention occurred on the 31st December 2011 as regards the 2010 bonus and that the company had until 31st December 2012 to pay the 2011 bonus.
The company advised the Claimant on the 14th September 2011 that he would not be paid his bonus for 2010. The Claimant then initiated a grievance under the Respondent’s Grievance Procedure. On the 4th October 2012 the Respondent indicated that while he had a grievance as regards part of his 2010 bonus he was not entitled to a 2011 bonus.
This brought the contravention date as regards the 2011 bonus forward to the 4th of October 2012. In the meantime on the 29th of May 2012 the Claimant had already initiated his claim before the Rights Commissioner.
Accordingly as the Tribunal has found the contravention dates to be the 31st December 2011 as regards the 2010 bonus and 4th October 2012 and that both claims were initiated within the period specified in Section 6 Payment of Wages Act 1991.
The Tribunal awards the Claimant the sum of €9,880 under the Payment of Wages Acts 1991.
Sealed with the Seal of the
Employment Appeals Tribunal