Complainant

Respondent

Parties

Deepak  Kumar

Old Ground Hotel

Representatives

Self-represented 

 Mary Gleeson, General Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00068591-001

14/01/2025

The Complainant referred his claim to the Director General of the WRC on 14 January 2025 alleging that the Respondent has not paid him or has paid him less than the amount due to him. The Complainant alleged that on 30 October 2024 he was due to receive €2,000 from the Respondent.

The Respondent rejects the claim.

The Complainant submits that he worked for the Respondent from 30 October 2023 to 30 October 2024. As per his contract he was supposed to get €3,000 as a yearly bonus after his one year of service but after several reminders the Respondent has only paid €1,000.

The Complainant submits that he accepted the job of an Assistant Hotel Manager but the kind of work he had been assigned was not as per his contract. It was big humiliation for him as a non-Irish employee; he was not treated well.

The Complainant submits that his resignation was conducted as per his contract but the Respondent did not pay his yearly bonus.

Summary of direct evidence and cross-examination of et Complainant

The Complainant stated at the hearing that he was entitled to a bonus. He said that he worked very hard and that his performance was never discussed with him. He said that nobody gave him a warning so he was very surprised that there were concerns.

It was put to the Complainant that he was unable to manage a bigger gathering such as a wedding and that the Respondent was surprised to learn that he was not able to deal with duties an Assistant Manager should be able to deal with.

It was put to the Complainant that the Respondent’s emails that indicated inadequacies in his performance were sent to him and a variety of concerns were highlighted. The Complainant did not dispute that he received the emails, but he asserted that the issues raised in the emails were someone else’s mistakes. It was put to the Complainant that the emails are reflective of the inadequacies in his performance, and that when he was the manager on duty, he was in the position of responsibility.

The Complainant asserted that he did not have training and things were not explained to him. It was put to the Complainant that he had more than adequate opportunity to learn and ask questions, that he worked alongside another manager for a period so could have asked all the questions.

The Respondent, in its written submission dated 20 February 2025, stated that the Complainant was employed as an Assistant Manager under the agreed job description. However, his performance and duties did not align with the expectations outlined in his role. Specifically, key discrepancies included e.g. failure to meet targets, lack of required skills, lack of improvement despite meetings on performance etc.

Regarding the bonus payment, the Respondent follows a structured performance-based bonus system. As the Complainant did not fulfil the necessary criteria, he was not eligible for the full bonus. The bonus amount he received was reflective of his actual performance and contributions.

Ms Gleeson submitted that the Complainant’s duties were the same as any other Assistant Manager.

Summary of direct evidence and cross-examination of Mr Maher, Deputy General Manager

Mr Maher said that he spoke with the Complainant quite a bit, most times at a handover.

Mr Maher said that there is a certain level of competency that is required. His emails to the Complainant raised repetitive issues such as staff sent home early, guests not getting their orders, candles left lit on a staircase overnight.

Mr Maher said that there was no formal report as this would have been done after a year of service. However, they would have worked together and he had conversations with the Complainant on a daily basis, issues were raised with the Complainant as they occurred.

Mr Maher said that with more junior staff he would have a formal meeting and, if there was no improvement, steps would be taken. However, at managerial level, he would have sent emails and discussed issues during the handover.

In cross-examination, it was put to Mr Maher that the Complainant’s view was that, in most cases, it was not him who made a mistake, it was always someone else. Mr Maher, in reply, said that the Complainant was a manager in charge.

Mr Maher said that the Complainant was polite and well able to speak with customers but he was not able to leave the Complainant in charge of a function. He said that the Complainant should have been able to lead without having someone else leading him. If a staff member, even if long serving staff member, made or was about to make a mistake, the Complainant should have stepped in and intervened. The Complainant was unable to take responsibility.

This is a complaint pursuant to the Payment of Wages Act, 1991 as amended. At issue is whether the Complainant is entitled to a full bonus of €3,000 after the completion of one year of service.

 Bonus payments fall within the definition of ‘wages’ in Section 1 of the Payment of Wages Act.

“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, 

Section 5 of the Payment of Wages Act provides as follows:-

5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

In Sullivan v Department of Education PW 2/1997, the Employment Appeals Tribunal took the word “payable” to mean “properly payable”, consequently it was not simply a matter of what may have been paid from the outset but all sums to which an employee is properly entitled.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 MacGrath J considered Section 5 of the Act as follows:

36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to him during the period encompassed by the claim are properly payable to him under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT 194 held as follows;-

This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273, that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’

Section 5(6) of the Payment of Wages Act provides that the non-payment of part or all the wages ‘properly payable’ to an employee shall be treated as a deduction by the employer of wages due to the employee.

In the within case, the Complainant asserted that he had completed a year of service with the Respondent and, therefore, was entitled to a full bonus. The Respondent contended that the full bonus was not properly payable to the Complainant as the Complainant’s performance was lacking. There was no dispute that the Respondent paid the Complainant €1,000 in respect of the bonus.

The Complainant’s contract of employment dated 21 March 2023 was exhibited at the hearing. It provides, in relevant part, as follows:

“There will be a bonus of Euro 3,000 paid after the completion of one year of successful duty.”

There was no dispute that the Respondent’s email of 9 February 2023 with a job offer specifically addresses the matter of bonus and clarifies that:

“The bonus of Euro 3,000 will be paid after one year based on you ensuring that we provide consistent, excellent service to our customers. The quality of service must exceed what is expected in a good 4* property.”

The emails exhibited by the Respondent are clear that the management had some concerns regarding the Complainant’s performance. The Complainant made attempts to explain the reasons behind the emails sent to him and his response to them. He appeared to be of the view that my decision would somehow assess his performance. It is not my role to attempt to retrospectively assess the Complainant’s performance. My role is to establish whether or not the Complainant was properly entitled to a bonus in October 2024.

It is evident that it was made known to the Complainant that a bonus would only be paid on successful completion of one year service that ensured that the Respondent provided “consistent, excellent service” to its customers. It is also evident from the emails exhibited that the Respondent had difficulty with the Complainant’s ability to deliver what was required of him.

The bonus as outlined in the Complainant’s contract of employment does not set out any metric for determining what level of bonus was payable to the Complainant having regard to his performance.

I note that in HR Foods Ltd v Noel O' Loughlin PWD1815 the Labour Court held that;-

“Neither the bonus scheme as outlined in the Complainant’s contract of employment nor the document outlining his KPIs for 2017 sets out any metric for determining what level of bonus was payable to the Complainant having regard to his performance in any particular quarter. It is not for the Court to superimpose a metric on such a bonus scheme nor it is the Court’s role, in an appeal under the 1991 Act, to attempt to retrospectively assess the Complainant’s actual performance vis-a-vis his agreed KPIs. In the circumstances, therefore, the Complainant has not made out a stateable case to the Court in respect of this aspect of his claim.”.

On the evidence before me, I am not satisfied that a bonus in addition to salary was properly payable to the Complainant in October 2024.  Accordingly, I do not find there to have been a deduction contrary to section 5 of the 1991 Act in respect of a bonus payment.

I declare this complaint to be not well founded.

Bonus- wages- performance-