Complainant

Respondent

Parties

Krzysztof Figiel

Diageo Baileys Global Supply

Complainant

Respondent

Anonymised Parties

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Representatives

Terry Bryan -  SIPTU

Judy McNamara -  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-00062583-002

04/04/2024

On the 4th of April 2024 the Complainant referred their complaint, pursuant to s6 of the Payment of Wages Act, 1991 and under s13 of the Industrial Relations Act, 1969.

Having been originally submitted by the Complainant under s6 of the Payment of Wages Act, 1991 and under s13 of the Industrial Relations Act 1969. A submission was made by the Respondent that it was inappropriate to hear the matter under both. The Complainant withdrew the IR claim, and the matter progressed under the Payment of Wages Act.

The meeting was attended by:

Mr Fiegel, Complainant, Mr Bryan, Representative (SIPTU), Mr Ben Molloy, Witness.

Ms O’Connor, Respondent Employee Relations Manager, Ms McNamara, Representative (IBEC).

The Complainant and Witness all gave an undertaking to give truthful evidence, under affirmation.

In order to have a full view of the case the parties were invited to provide some further specific details by the 18th of March. They duly responded and the further submissions were accepted and considered.

The Complainant began working in July 2014 and resigned his post in June 2023 to return home to Poland for personal reasons. He was initially employed on an 18-month fixed term contract as a Level 6 Technician and received a letter confirming his permanency, before that contract ended. He had worked until the end of June as this was the period that was measured for the October bonus payment. The Respondent withheld this payment on the basis that he was not in employ in the October of that year and had no entitlement to the bonus. It is the Complainant’s case that this is contrary to his contract and to established practice; that there is no clause, express or implied, in the standard Level 6 Contract stipulating October employment for receipt of the bonus. Further, that no other Level 6 contract contains the October clause and that others have left before the October date and gotten the bonus.

The Complainant is of the view that he did not get a contract for permanency but a letter that does not refer to the bonus clause in contention.

The Complainant has referenced other staff who had not worked in October and received the bonus.

The contents of the Complainant case in terms of dates and the nonpayment of the bonus are not in contention. What is contended is the Complainants right to access the payment in a situation where he exited the employment before October and the bonus terms are that he be in employment in October to receive it.

It is the Respondent’s position that the letter of permanency issued referred to the fixed term contract its terms and conditions and the extension of the same with no change other than the termination date.

The Respondent rejects that there are any grounds for payments, that the Complainant was issued a contract of employment for a fixed term and the reference to the bonus payment payable to staff who are employed in October following.

The Respondent position is that other staff who were not in employment have received the bonus accrued despite not being in employment in October. However, these staff, including BM, were staff who had retired or were made redundant before the October date.

The Respondent bases their position on the fact that the Complainant was issued with a contract that clearly set out the controversial clause. He read it and confirmed it by signature, he also confirmed in evidence that he received the extension letter, and this clearly set out the terms and conditions of the fixed term contract.

The Complainant was employed between July 2014 and June 2023 initially on an 18-month Fixed Term Contract and this was extended by letter to a permanent contact. He had worked until the June of the last year as this was the cognisable period for the bonus.

Under cross-examination he confirmed that the contract exhibited to the hearing was his and he had signed it, further that the letter exhibited was correct and he had confirmed his acceptance of the terms which included that he would have to be employed in October to receive the payment.

Under exam-in-chief, BM confirmed that the matter was brought to his attention in June 2023 that the bonus was denied, and he met with the former HR Manager SMcC. This person told him that he had never seen the clause before and this was in Level 5 contracts, but not in Level 6 and 7 contracts. On investigation, he could not find Level 6 contracts with this clause and if such a clause was introduced it was not with the agreement of the union and should not have gone into the contract. However, the former HR Manager was not available to be tested on this and I can give the assertion no further weight in my considerations.

In cross examination BM was asked of the numerous examples of staff at that level who left before October and received the bonus. His prime example was himself; he had retired in the June of the year following the Complainant’s departure. He was pressed on his understanding of the matter and the implication for someone who had retired or been made redundant versus his own case where he had retired in the June of that year. BM was not aware of the difference in the circumstances of leaving.

It was accepted that the contract did contain the clause, and that the Complainant had signed it. It transpired that HR were not asked for and had not provided a copy to the union. It was unknown to the parties if there was a collective agreement that the Unions would have sight of the contents of employment contracts in advance in terms of comment or agreement.

TB re-examined BM on his not having sight of the contract, the Complainant position is the Complainant was not issued with a permanent contract. The hearing was referred to appendix 7 of the Complainant submission “bonus scheme” at point 11 with no refence in that contract to the October employment clause; this was a generic contract and dated to 2000.

The matter of the Complainant position that the Complainant did not receive a permanent contract was addressed by the respondent as being a contract in law. In my own conclusions a contract existed on a temporary nature, and this was formally extended to permanency to the Complainant on the same basis as the temporary contract and to the effect that all the conditions were the same.

Exam-in-Chief of LOC

LOC was in the role of an ER Specialist since 2011 and had only worked in that capacity. The matter of an email was put to LOC, originating from FMcL and it emerged that FMcL was not a HR employee and was not clear of her role in this. LOC gave evidence on how the bonus would operate where staff leave for reasons of retirement an redundancy versus resignation. Others who had left and were paid the bonus were in situ on the October date of those years. The comments of FMcL are unhelpful in this issue given they were not called to give evidence, and it is not clear that any evidence they may have given would have been helpful.

Adjudicator Queries

I had some queries of my own arising from the hearing in terms of; if there is a collective agreement on the contents of contracts between Diageo and SIPTU, it appeared that there was no agreement though there have been discussions on contracts in the past. The parties were asked to provide evidence by the 18th of March if this was the case. The Complainant set out that they understood there was an agreement, LOC thought there was agreement on some clauses, but could not be sure. LOC undertook to research and provided further information by the 18th of March. TB had no direct knowledge.

I asked the Respondent to elaborate on why October was chosen as the date for payment. The Respondent undertook to provide the same in advance of the 18th of March.

Further Complainant Submissions

The Complainant supplied a copy of what is referred to as the “Aero Agreement” which appears to deal with matters related to a change in shift patterns.  On page 7 of this agreement Bonuses are referred to as being in place and payable in the October of that year. It does not shine light on the queries in this case in terms of agreements to review or comment on contracts of employment.

Further Respondent Submissions

On the 12th of March the Respondent replied to the queries and copied the Complainant, to the effect that they had no record of an agreement on the matter of contractual clauses. They further set out that on examination of contracts the Complainant contract as a Level 6 is in line with all other level 6 contracts. In addition, the Respondent answered an Adjudicator query as to why October is the chosen date for paying bonuses which they set out:

“due to the business multiple not being confirmed until circa August for each business unit this we use to calculate the bonus and the profit share process also employees have the option to sacrifice their bonus into pension which give them the time to make that decision. Since the inception of the bonus it has been paid in October of the financial year.”

Conclusions

The question to be dealt with is whether or not the Complainant had a right to the bonus payment due in the October having worked the period of time for calculation of the bonus.

There is a dispute as to the nature of the contract of the Complainant and if it is agreed by union and management that content of such a written contract and if that contract should reference the requirement to be in employment in the October to receive the payment. I have been provided with no evidence orally or in writing that such an agreement exists and have discounted it in my findings and conclusions.

The Complainant received a written fixed term contract with the disputed term that he would be required to be employed in the October to receive the bonus. He then had confirmation from the employer that his contract was converted to permanency by the employer on the same terms and conditions, these included the October provision. I am satisfied that he was under legal notice of the clause, and he was a permanent employee with the same terms and conditions in the preceding contract except for the fixed term.

The Complainant put forward that other employees received this payment despite not being in situ in the October and I am satisfied that these were notable exceptions in terms of Redundancy and Retirement and are distinct from the complainant case.

It is a matter of disappointment for the Complainant, having been a good servant to the Respondent for so long that he finds himself on the wrong end of the bargain for reasons beyond his control. However, the bargain as it stands is that he was not in employment in the October and not due the payment.

It is for the reasons outlined above I cannot find for the Complainant

CA-00062583-002

For the reasons outlined above I have decided that the complaint is not well founded.

Bonus, Collective Agreement,