ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00047163

Parties:

	Complainant	Respondent
Parties	Gavin Byrne	Poundland Limited Dealz

Representatives

Greg Caffrey Mandate Trade Union

Dajana Sinik IBEC

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00058181-001	09/08/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00058181-002	09/08/2023

Date of Adjudication Hearing: 17/04/2025

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant commenced employment with the Respondent on 29th of August 2021, as Assistant Store Manager, and worked in the Respondent’s Blanchardstown, Tallaght and subsequently the Ilac store in Dublin City Centre.

This complaint was received by the Workplace Relations Commission on 9th August 2023.

Summary of Complainant’s Case:

· The case relates to Mr Gavin Byrne and his former employer, Poundland Limited trading as Dealz, in relation to the unfair and unjust Disciplinary Sanction of dismissal and the unlawful withholding of pay owed to The Complainant by his former employer.

· The Investigation, Disciplinary and Appeal Processes were flawed, which we believe were fundamentally unfair and did not comply with Natural Justice when all the circumstances of the case are considered.

Background:

· The Complainant was employed as a Store Manager with Poundland Limited - Dealz since 2nd of August 2021.

· The Complainant's salary was €48. 000 per annum for the role as Store Manager, plus a bonus payment €584. 70. per month in recognition of winning best performing Store in the United Kingdom and the Republic of Ireland in 2022 and 2023, a first for any employee in the company to achieve.

· The Complainant was an inspiring leader to his employees and was on an upward trajectory within the company based upon exceptional performance, management, and leadership.

· On 17th of February 2023, the Complainant was suspended with pay from work pending an investigation concerning allegations, which Dealz categorised as gross misconduct regarding his behaviour and conduct at the Dealz llac store on 17th of February 2023.

· The Complainant was involved in an incident with Mr. Arron Walker, Profit Protection Manger, however following grievances raised by both employees the company only suspended the Complainant, no actions were taken against Mr. Walker, which immediately apportioned a bias of unfair treatment towards the Complainant.

· The Complainant was invited to attend an Investigation Meeting on 24th of February 2023, in the Dealz Clarehall store, chaired by Ms. Cara Mc Menamy, Area Manager. Mr. Dylan Mc Cann was present as the Complainant’s witness.

· The Complainant was presented with 2 written statements: Mr. Arron Walker, Profit Protection Manager- Statement A. Mr. Ishan Ullah, Area Manager - Statement B. CCTV footage was shown to the Complainant of the alleged incident.

· On 2nd of March 2023, the Complainant attended a reconvened Investigation Meeting chaired by Ms. Cara Me Menamy, Area Manager. The minutes of this investigation meeting demonstrate how the investigation was not conducted fairly and not conducted thoroughly as the investigator did not consider and investigate the actions of Mr. Walker and Mr. Ullah who were directly and indirectly involved in the incident which occurred in the warehouse of the store.

· In furtherance of these 2 key witnesses, the Complainant identified in the CCTV Footage provided by Dealz were not interviewed as part of the investigation, The Complainant’s Grievance against Mr. Arron Walker was not acknowledged until 6th of March 2023. To date this grievance has not been processed by the company.

· The Complainant raised a grievance on 24th of February 2023 that contrary to Common Law he was assaulted by Mr. Ishan Ullah at his place of work, and Mr. Walker used profanities, insulting phrases, and unprofessional conduct towards our member, this was ignored by the Investigator, as it was conveyed, the Investigation's scope was solely on our members actions on 17th of February 2024.

· The Complainant through his Union Official, requested a copy the CCTV Footage shown and requested CCTV Footage 25 minutes before and 25 minutes after the footage, to highlight the start and end of the incident and to demonstrate the entirety of the incident, this request was not fulfilled by the company. The Investigator also refused to answer any questions The Complainant raised regarding Mr. Walker, Mr. Ullah and other key witnesses being interviewed as part of the investigation.

· On 8th of March 2023, Ms. Olivia Me Loughlin, Regional Manager wrote to the complainant advising him to attend a Disciplinary Meeting on 10th of March 2023 in the Clarehall store. In this letter it states CCTV Footage of the incident on 17th of February 2023 is enclosed, however, it was not enclosed nor was it provided at the Disciplinary Meeting. Ms. Me Loughlin outlined the scope of the of the meeting was. "Were colleagues being paid for attending training & if bad language or swearing was used".

· The Complainant conveyed at the Disciplinary Meeting that he had been raising store security issues with Mr. Walker for months, as Mr. Walker was responsible for arranging security personnel to be on duty in the Dealz llac store, however, after significant gaps in security personnel being on duty in store for considerable periods of time, this led to daily barrages of verbal abuse, threats of physical assault on staff, damage to staffs personal property, increased shoplifting and high levels of anti-social behaviour and drug abuse in and around the store, which our member raised on Health Safety & Welfare at Work grounds repeatedly with Mr. Walker.

· On 17th of February 2023, the Complainant challenged Mr. Walker's inactions and ignoring of these serious issues citing an employer's obligations under the Health Safety & Welfare at Work Act 2005. Mr. Walker saw it fit to respond to our member in the stockroom, an open area of the workplace, disregarding privacy and confidentiality, with a verbal insult dismissing his concerns for his staff and his own safety.

· Ms. Mc Loughlin asked was there any record of these concerns been raised, the Complainant advised he had sent numerous emails to verify this, and he had escalated his concerns with Ms. Mc Loughlin's office which Ms. Mc Loughlin confirmed and gave an undertaking to track email threads as our member had no access to Dealz IT systems due to his suspension.

· On 23rd of March 2023, Ms. Olivia Mc Loughlin, Regional Sales Manager wrote to our member outlining a Disciplinary Outcome, which dismissed our member

"as you have a live Final Written Warning there was no other sanction, therefore I have made the decision to dismiss you".

On 24th of March 2023 the Complainant through his Union appealed the Disciplinary Sanction of Dismissal on a number of grounds of Procedural Unfairness, Disciplinary Processes not in adherence to Sl 146/2000, the un-thoroughness of the investigation.

CCTV Footage used does not portray a true reflection of the incident as a whole, our member's grievances and explanations of the incident and the build-up to the incident, the dismissal been disproportionate, unfair procedural transgressions within the Disciplinary Process.

· On 28th of March 2023 the complainant made a data access request under Article 15 GDPR of the Data Protection Act to the company, the company requested an extension to this data access request on the 3rd of May 2023, this gave the company an opportunity to provide our member with the information he had requested until 28th of July 2023. Following on from this request, no information was provided by Dealz on 28th of July 2023, therefore, the complainant referred a complaint to the data protection commission on 10th of August 2023.

· On 12th of May 2023, our member was invited to attend a Disciplinary Appeal Hearing on 18th of May 2023, via Teams by Ms. Mandy Fitzpatrick Head of Retail Services. Ms. Fitzpatrick restricted the Complainant's Union Official from making representations at the Complainant's Appeal Hearing. The Complainant raised with Ms. Fitzpatrick the un-thoroughness of the investigation by Dealz not interviewing all witnesses surrounding the incident, Ms. Fitzpatrick portrayed no other witness were captured in the CCTV Footage shown to the Complainant. Ms. Fitzpatrick refused our member's request to face his accusers and cross examine any witnesses in relation to the incident. Ms. Fitzpatrick closed the appeal and advised her decision would be conveyed within the next 10 days.

· The Disciplinary Appeal Outcome Decision was not conveyed within the timeframe Ms. Fitzpatrick indicated. On 16th of June 2023, Mandate Trade Union wrote to Ms. Fitzpatrick requesting an Appeal Outcome as the timeframe she had indicated at the Appeal Hearing had elapsed.

· On 24th of July 2023, Ms. Fitzpatrick wrote to the Complainant outlining her appeal findings: "It is my conclusion that dismissal was the correct outcome based on threatening behaviours and having previously received a final written warning for the same offence, the disciplinary process had become exhaustive, and dismissal was the correct and only sanction available. I confirm your appeal has been unsuccessful. For the avoidance of any doubt, be advised that the original decision to dismiss you taken by Olivia Me Loughlin, Regional Manager, on behalf of the Company is to be upheld. You have now exercised your Handbook, of appeal in accordance with Company Policy as set out within the Colleague Handbook; this decision is final".

· It should be noted the live Finial Written warning on the Complainant’s file states. "After a full and thorough investigation, I believe I cannot substantiate the above allegations made. I cannot establish if any racial intent was intended on your part. However, I believe your remarks were unnecessary and have caused offence to several colleagues, resulting in the colleague complaints being made against you". "This goes against our Respect each other Value and is not in line with the behaviours and conduct expected of a Store Manager. I appreciate your honesty throughout the investigation and disciplinary process and thank you for your cooperation for the reasons I have stated above. I feel the appropriate sanction was to issue a final written warning".

· Ms. Fitzpatrick's rationale for dismissing The Complainant's appeal does not corroborate with what is recorded in the sanction of Final Written Warning.

· The Complainant was not paid his performance bonus, the winner dinner bonus of £5000 Sterling equating to 5, 846. 47 at today's conversion rate. The bonus of £5000 Sterling is in acknowledgement of achieving and delivering the highest sales throughout the Company within the Republic of Ireland & the United Kingdom. Our member has carried out his duties and responsibilities diligently throughout his Employment.

· On 22nd of August Mandate Trade Union on behalf of its members wrote to the Health & Safety Authority to raise concerns regarding the company's inactions to address the ongoing and unresolved Health, Safety & Welfare at Work for our Members in Dealz llac Shopping Centre.

Union Position

· It is submitted that Dealz the Employer did not afford The Complainant Fair Procedures by way of Natural Justice in line with the stipulations set out in S1146/2000.

· The employer unlawfully dismissed the Complainant in contravention of the Unfair Dismissal Act 1977

· The employer unlawfully withheld pay owed to our member in contravention of the Payment of Wages Act 1991

· The employer suspended the Complainant which demonstrated an unfair bias by not applying equal treatment to all participants in the incident.

· The employer did not conduct a thorough investigation as key witnesses were not interviewed.

· The employer failed to process the Complainant’s grievances in contravention of its own Policies and Procedures.

· The employer repeatedly failed to comply with its obligations under the Data Protection Act 2018.

· The employer failed to comply with its obligations under the Health Safety & Welfare at Work Act 2005

· The employer withheld CCTV Footage used in the Investigation.

· The employer denied The Complainant's request to produce the full CCTV Footage of the incident in contrast to their edited version of CCTV Footage.

· The employer failed to process and disregarded The Complainant's Grievance against Mr. Walker & Mr. Ullah.

· The employer failed to produce evidence of emails by The Complainant to Dealz Management citing serious concerns of staff safety at work.

· The employer repeatedly failed to comply with The Complainant's Data Access Requests

· The Complainant had to pursue his Data Access Request through the Data Protection Commissioners Office.

· The Appeals Officer did not respond to The Complainant within the specified timeframe.

· The Appeals Officer based the dismissal of the appeal upon findings which are inaccurate and unlinked to this incident.

· It is submitted The Complainant's case has similarities on previous rulings such as the Company acted unreasonably in their determination of a Disciplinary Sanction in this case, in particular given their failure to afford the Claimant the Principles of Natural Justice and Fair Procedures throughout the process. An understanding of how far this right goes and what it means can be gleaned from some of the decided cases.

· In Gallagher v Revenue Commissioner ([1991] 2 1. R. 370), Morris J. in the High Court quoted with approval Henchy J. s decision in Kiely v Minister for Social Welfare ([1977] 1. R. 267). P9

"Of one thing I feel certain, that natural Justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi alteram partem means that both parties must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth eliciting process of a confrontation which is inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross examination. The dispensation of Justice, in order to achieve its ends, must be even-handed in form as well as in content."

· The Labour Court in LCR22162 Silicon & Software Systems v A Worker stated:

"The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also, that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice".

The Frizelle v New Ross Credit Union Ltd. High Court Judgement stated:

"The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. " And put very simply, principles of natural Justice must be unequivocally applied. " And This is a claim for relief for unfair dismissal by the Plaintiff against the Defendant in which the said principles are germane".

· For all the reasons submitted and set out above we respectfully request that this Unfair Dismissal Hearing declares this case is well founded and finds The Complainant was unfairly dismissed by Dealz in determining and instructing Dealz that The Complainant is reinstated, all payments owed to The Complainant returned.

Summary of Respondent’s Case:

BACKGROUND TO THE RESPONDET

Poundland is a variety store chain founded in 1990, selling most items at the single price of £1, including clearance items and proprietary brands. Dealz was created in the Republic of Ireland in August 2011. Dealz offer a wide range of products, including many well-known international brands, and local Irish brands for €1.50.

The first two stores were opened in Blanchardstown and Portlaoise in 2011. Rapid expansion in the first six months provided over 200 new jobs to the Irish economy and a total of over €2m in capital investment. Today, there are over 60 Dealz stores open in Ireland, and there are even more planned to open in future.

BACKGROUND TO THE COMPLAINANT

The Complainant was on a banded contract of 35 – 39 hours per week with average gross weekly pay of €942.31. The employment was terminated on 14th March 2023 by reason of gross misconduct.

TIMELINE OF EVENTS

On 11th August 2022 following a thorough disciplinary procedure, in line with the companies Disciplinary policy, including the provision of the rules of natural justice the Complainant was issued with a final written warning, for:

· On 16th July 2022 you made comments deemed to be of a racist nature about a colleague in the Mary Street Store resulting in a colleague complaint being made against you.

· A breach of the company behaviour and conduct policy and Bullying and Harassment amounting to a gross misconduct offence.

· That your actions described in allegation 1 are not in line with one of the core company vales ‘Respect each other’.

Issued by Kevin Scott, Area manager. The final written warning would remain on his file for 12 months, and the Complainant did not utilise the Appeal procedure.

On the 17th of February 2023 the Complainant was suspended on full-pay pending an investigation into alleged aggressive behaviour towards Aaron Walker, a Profit Protection Manager, in the presence of Ihsan Ullah, Area Manager.

· Namely on the 17th of February it is alleged that the Complainant used abusive and foul language and intimidatory behaviour, resulting in a breach of the Equality, Diversity and Dignity at work policy.

On the 22nd of February 2023 the Respondent initiated a full investigation into the alleged allegations and invited the Complainant to an investigation meeting to be held on 24th February in the Clarehall store by Cara Corrigan, the area Manager as the investigating officer.

On the 24th of February the Complainant attended the investigation meeting held in Clarehall store and was accompanied by Dylan McCann, Store Manager.

On the 28th of Februarythe Complainant was invited to a re-convened investigation meeting to be held on the 2nd of March.

On 8th of March the outcome of the investigation was communicated to the Complainant via a letter and was invited to a disciplinary hearing.

On 10th of March the disciplinary hearing took place with Olivia McLoughlin, Regional Manager as the Disciplinary Officer. The Complainant was accompanied by Greg Caffery, Union Representative.

On 23rd of March the outcome was issued via email.

In the letter it was noted that the purpose of the hearing was to consider the following allegations:

· That on 17th February 2023, your conduct was grossly unacceptable and without provocation whereby you behaved in a highly aggressive way towards a member of the Profit Protection team in the Ilac store, resulting in you using foul and abusive language and intimidatory behaviour towards this colleague. Specifically, it is reported that you said to this colleague: a) ‘You take the fucking keys, you run the fucking store.’ b) ‘You useless cunt.’ c) ‘You fucking bastard.’

· That as a result of allegation 1, your conduct on this occasion has resulted in a gross breach of our Company values and our Equality, Diversity & Dignity at Work Policy.

· That your conduct in relation to allegation 1, has also fundamentally undermined your leadership capability whereby this incident occurred within earshot of a number of your colleagues.

· That as a result of allegations 1 – 3, you have breached the trust and confidence that must exist between employer and employee.

The decision was that the Complainant’s employment would be terminated with immediate effect for gross misconduct. As a good will gesture, the Respondent also decided to pay the Complainant 4 weeks’ of notice.

On 24th of March the Respondent received an appeal letter drafted by the Complainants Trade Union, appealing the dismissal.

The grounds for appeal included were;

· An unfair and biased investigation,

· The Complainant not having the opportunity to cross examine witnesses, and,

· the concerns with the process of suspension.

On the 28th of March the Complainant submitted a Data Access Request.

Between the 30th of March and 12th of April, the Respondent obliged with the Data Access Request. On the 3rd of May correspondence was issued to the Complainant reiterating that due to the complexity of the information requested, the Respondent would require more time to fulfil the request. On the 14th of July the Complainant was issued with the SAR’S.

On the 17th & 27th of April the Complainants Trade Union sent an email to the Employee Relations team seeking an update on the appeal submitted.

On the 28th of April an appeal acknowledgement letter was issued via email to the Complainant from the Employee Relations team.

On 5th of May the Complainant contacted the HR Business Partner, Carmel Gordon, to inquire about the Winner Dinner Incentive competition which the Respondent organized.

The Winner Dinner Incentive is an incentive competition organised for achieving targets set over the Christmas Period. The total number of winner’s varies from year to year and this prize is a non-contractual benefit and at the discretion of the company.

On the same day, the HR Business Partner responded explaining to the Complainant that based on the fact of dismissal, it was decided that it would be inappropriate to pay the prize to the Complainant.

On 10th of May the Complainants Union emailed the HR Business Partner requesting that the decision to withhold the payment is reconsidered.

On 12th of May the Complainant received a letter in relation to his appeal hearing to be held on the 18th of May and heard by Mandy Fitzpatrick, Head of Retail Services, as the appeals Officer.

On the same day, the Complainant raised a concern regarding the appeal officer Mandy Fitzpatrick, and her impartiality to hear the appeal. Moreover, that the appeal meeting will not go ahead as the Complainants Union representative was not available to attend.

On the 15th of May a further letter was sent inviting the Complainant to an Appeal hearing to take place on the 25th of May.

On 22nd of May a further email was sent by the Complainants Union requesting that the Head of Retail Services, Mandy Fitzpatrick does not chair the appeal hearing.

On 23rd of May the Employee Relations team confirmed that Mrs Fitzpatrick would be a fully impartial chair and that the meeting would go ahead as scheduled for 25th of May.

On the 25th of May 2023 the appeal hearing took place with the Complainant and his representative Greg Caffery, Union Representative and Mrs Fitzpatrick as the appeals Officer.

On the 26th May the Union once again queried the Winner Dinner prize Incentive and the reason it was not awarded to the Complainant.

On the 16th of June the Union emailed requesting an update on the appeal hearing outcome.

On the 24th of July 2023 the Appeal outcome letter was issued underlining each point in turn and concluding the letter by stating that the Complainants appeal was not upheld.

RESPONDENTS POSITION

Unfair Dismissal Claim

Section 6(4) of the Unfair Dismissals Acts 1977 states;

Without prejudice to the generality of subsection (1) of this section, the dismissal

of an employee shall be deemed, for the purposes of this Act, not to be an unfair

dismissal, if it results wholly or mainly from one or more of the following:

b. the conduct of the employee,

The Respondent acted in accordance with Section 6(4) and terminated

the Complainant’s employment as a result of gross misconduct.

In the case of Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008,

The Tribunal sets out quite clearly the requisite remit of the Tribunal and the burden

which must be demonstrated by the Respondent in the matter at hand today:

“The Tribunal is not required to determine whether the Complainant did or did

not carry out the alleged act […]. The Tribunal’s function is to establish whether

the respondent has proven that the dismissal was not unfair, having regard to the

terms of the Unfair Dismissals Acts 1997 [sic] to 2001. For this to be established

the Tribunal must be satisfied that the alleged act […] was fully and fairly

investigated by the respondent, that the investigation and disciplinary process

respects the rights of the Complainant, that the conclusion that the offending act

had been perpetrated by the Complainant was reasonable on the balance of

probabilities and that the dismissal was a proportionate response within the band

of sanctions which could be imposed by a reasonable employer.”

Each of these criteria outlined by the Tribunal will be examined in turn.

(A) Fair procedures

· Firstly, the matters were “fully and fairly investigated” and at all times in the process, the Complainant’s rights were upheld. Drawing on SI 146/2000, the rights have all clearly been upheld:

· The Complainant was made fully aware of the allegations against him and was always aware that the matters being considered under the disciplinary procedure and the potential seriousness of the outcome.

· The Complainant was provided with an opportunity to respond fully to all allegations against him. There was a thorough investigation meeting into the incidents, and there was a comprehensive disciplinary hearing held where the Complainant was provided with a full and fair opportunity to present his case and to influence the decision.

· The Complainant was at all times advised of his right to representation which he

availed of during the process.

· The Complainant was afforded a fair and impartial determination of the issues. All relevant information and evidence pertaining to the matter were taken into consideration and the Respondent considered the situation thoroughly before reaching a conclusion. Furthermore, the parties who were involved in the decision making process were impartial and not previously involved with the process.

· The Complainant was advised of, and availed of, his right to appeal and was given access to any documents which he deemed as relevant to his defence before a decision was reached.

(B) Concluding based on the “balance of probabilities”

· It was “reasonable on the balance of probabilities” for the Respondent to conclude that

the Complainant had carried out an act of gross misconduct. The Complainant made

admissions that he did use foul langue and acted inappropriately and confirmed that he should have acted differently.

(C) A “proportionate response”

· Finally, the dismissal was “a proportionate response within the band of sanctions

which could be imposed by a reasonable employer.” The Respondent contends that

this sanction was proportionate in light of the severity of the situation and based on his previous Final Written Warning, which are of similar nature.

During the course of the incident in question, the Complainant exhibited a pattern of behaviour characteristic by the use of abusive and foul language, coupled with intimidating behaviour directed towards another member of staff. This conduct not only violated established workplace norms but also created an atmosphere of discomfort and hostility.

In light of the severity of the actions and considering that the Complainant had previously received a warning for similar misconduct, it was deemed necessary to take disciplinary action and ultimately result in a dismissal.

It is the Respondents position that the Complainant’s actions amounted to gross

misconduct, and they would not be in the position to trust the Complainant to

continue to work for them.

This position has been upheld by the Tribunal on a number of occasions as justifying

dismissal as a reasonable sanction, including in Moore v Knox Hotel and Resort Ltd,

UD 27/2004,where the Tribunal stated that:

“[The Complainant’s actions] destroyed the respondent’s trust and confidence in the

Complainant and rendered the continuation of the employment relationship impossible, thereby

justifying her […] dismissal”.

In relation to the sanction imposed by the Respondent, the principles to be

applied in cases of gross misconduct have been clearly established over time,

and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the Complainant,

nor is it for the Tribunal to indicate or consider whether we, in the employer’s

position, would have acted as he did in his investigation, or concluded as he did or

decided as he did, as to do so would substitute our mind and decision for that of the

employer. Our responsibility is to consider against the facts what a reasonable

employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and

decision be judged.”

Moreover, it is the Respondents submission that regrettably, despite efforts to address the issue through previous warnings, the behaviour persisted, leading to the difficult decision to terminate the Complainant’s employment contract. This decision was made with due consideration to maintaining a safe and respectful work environment for all staff members.

Evidence of Efforts to Mitigate Economic Loss in Respect of Unfair Dismissals

Claim

The Complainant was requested to furnish the Respondent with comprehensive details, together with supporting documentation, in respect of income received, full details of all and any efforts made to secure all and any work in any capacity and full details of their current position and availability for employment from the period of departure from the Respondent Company to date.

The Respondent would respectfully ask the Adjudication Officer to consider efforts to mitigate loss and the period of loss between employments.

Claim under section Section 6 of the Payment of wages Act, 1991.

In his WRC complaint form, the Complainant alleges “Mr Byrne was due a payment to the value of £500 or €580 which was withheld from him by his employer”.

The Complainant contends that he is entitled to a sum of money that he won in a company sponsored sales competition, also known as the Winner Dinner Incentive.

This competition was a one-time event and participation, as well as the awarding of prizes, was entirely at the discretion of the company. It is crucial to note that the terms of the competition were explicitly explained to employees which stated that awards were discretionary and contingent upon the employee’s adherence to company policies and overall conduct. At no point did this competition prize constitute a contractual right or obligation on the part of the company.

The Respondent submits that the once of payment in all the circumstances is not a breach of the Act and refers to section 1 of the Payment of Wages Act 1991 that defines, “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:

The Complainant was dismissed due to gross misconduct, a decision made in accordance with company policy following a thorough investigation. Given the nature of the dismissal, the Respondent maintains that the discretionary payment associated with the sales competition is not properly payable to the Complainant. The decision to withhold this award was based on the Complainants failure to meet requisite standards of conduct, which is condition implicitly tied to all discretionary rewards within the company.

The Respondent respectfully requests that the Adjudication Officer consider the discretionary nature of the competition prize, the Complainants breach of conduct, and the fact that this prize was not a contractual right at any time.

By way of a supplementary submission the Respondent rep addresses the Payment of Wages Complaint in more detail.

Preliminary Arguments

· The Respondent ran a Winners’ Dinner Incentive, an event hosted by the company following the achievement of targeted driven sales KPIs. During the Christmas period, the Respondent sets certain KPI’s. Once a store reaches these specified targets, the store managers of the winning stores are invited to a dinner hosted by the Respondent.

· This year, 100 employees from the winning stores who had met the set KPIs from across Ireland, were invited to the event. This event was hosted by the Respondent and held in Manchester, with flights, dinner and accommodation paid for by the company. The event is designed to reward group/team performance rather than individual achievements.

· During the event, attendees have the opportunity to win various prizes, differing in value, which include a paid weekend away, a jewellery box, access to subsidized vehicle for a certain period, car finance, or an IT package. During the evening, a quiz is conducted, and based on the individual answers, names are entered into a hat. At the end of the night, a draw takes place, and winners are selected randomly from the hat. At this year’s event there were only 20 winners in total from the combined attendees, for various draws conducted on the night.

· The Complainant was invited to the event of 2nd March 2023, as his store had met the performance targets. However, he was suspended on full pay from work on 17 February 2023, pending a disciplinary investigation. As a result of this suspension, he was away from work and did not attend this function. The outcome of the investigation was sent to the Complainant on 8 March 2023. And thereafter the disciplinary processes commenced. Consequently, he did not participate in the events of the night in question, and, therefore, did not win any prize as he did not participate in the quiz or the draw.

· The Respondent respectfully raises a preliminary point in relation to the jurisdiction of the Adjudication Officer to hear the Complainant’s claim regarding non-payment of a competition prize. The payments claimed are not wages, as defined in the Payment of Wages Act, and cannot be dealt with by the WRC.

· Section 1 of the Payment of Wages Act of 1991, defines a wage as follows:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment….

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.

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

(v) any payment in kind or benefit in kind.”

· The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55 made it clear that in considering a complaint under the Payment of Wages Act, the WRC and the Labour Court must first establish the wages which were payable to the employee on the occasion before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act was made, the WRC or the Labour Court could then consider whether that deduction was lawful.

· The amount claimed by the Complainant fails in two respects in terms of the Payment of Wages Act in that it was not properly payable to him and does not amount to awage.

· Section 6(4) of the Payment of Wages Act provides that:

“A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contraventionto which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

· The Respondent requests that this preliminary argument be addressed at the outset of this hearing as any other procedure would be prejudicial to the Respondent. Reliance for this is placed on the decision of the High Court inThe Minister for Finance v. The Civil and Public Service Union [2006] IEHC 14 wherein Laffoy J states clearly that it is reasonable to assume that the Oireachtas envisaged that the Labour Court (in that case) would manage its caseload in a sensible manner and that where a decision on a net issue might resolve a dispute that it would deal with that net issue as a preliminary point. It is submitted that this is the position here and the Adjudication Officer should address this time issue at the outset of the claim and without the need for submission on the substantive claim.

· Further support for the hearing of stand-alone jurisdictional issues at the commencement of a hearing is to be found in the decision of the Supreme Court in Brannigan v. The Equality Tribunal and County Louth VEC [2016] IESC 40 wherein McKechnie J stated: -

“It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence, and it cannot create, add to, or enlarge the jurisdiction so vested in it - see Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly……The Tribunal cannot as such freelance its inquiry.”

Conclusion

The Respondent respectfully requests that the Adjudication Officer finds that the wages claim falls outside the scope of the Payment of Wages Act and, therefore, cannot be dealt with by the WRC.

Findings and Conclusions:

Prior to making any findings in relation to this case it is important that both parties fully understand the job and duty of the adjudication officer. The Respondent has quoted the case of Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008, where the Employment Appeals Tribunal stated the following: