Complainant

Respondent

Parties

Oksana  Snihur

GXO Logistics Services Ireland Limited

Representatives

Marius Marosan

Emma Twomey IBEC

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-00071890-001

26/05/2025

The Complainant states that In Mulholland - v - QED Recruitment Ltd, [2015] IEHC 151, the High Court demined that:

"A person seeking to rely on the protections offered by the Act must be able to establish that a contractual term, collective agreement, or some other entitlement or agreement is in place which they had been denied by virtue of being an agency worker."

 The Respondent it is alleged breached Section 5 of the Payment of Wages Act, 1991 by ignoring the provisions of the Protection of Employees (Temporary Agency Work) Act, 2012. The Complaintant stated that It is important to note that this is not a misunderstanding on behalf of one employee, as there were several people at the meeting, many of them agency workers that worked with the impression that if they accepted the proposed changes and stay with the company until the end of January, they would receive the €1200. When they were refused, they sent a formal letter, signed by 19 agency workers, demanding payment as discussed at the meeting in May 2024.

 The Complainant alleges that she was entitled to receive the €1200 after the end of January 2025, as the company changed the working conditions, working patterns and pay rates for everyone that worked on site. It is only logical that if all the other terms applied to everyone, so does the loyalty bonus, which is a "wage properly payable" to the complainants

The Respondent denies that any representation was made to make such payment to the agency workers. The loyalty bonus was only ever intended to be paid to employees of the company arising from a change to their terms and conditions. It was never meant to apply to agency staff working at that time when the changes were made. The Agency staff have not been treated less favorably to permanent staff as the payment was made as part of a collective process to change the terms and conditions of permanent employees.

On the same facts there is a related case brought under the Protection of Employees (Temporary Agency Work) Act, 2012 Adj-00058755 that will also apply to the named Complainants as a test case. In that case the following findings were made:

 The Act provides for the Agency to see indemnity from the hirer where they have not been provided with the required information so that full payment can be made.

I have not settled the matter whether the retention bonus payment made under a collective agreement was a payment that the Complainant should have received as the payment to be made would be against the Agency and not the hirer.

The argument that the hirer entered into a new contract with the Complainant about the retention bonus to be paid on date in January 2025 has not been credible argued for the purpose of this Act.  An existing employment contract was in place with the Agency, and no compelling argument has been presented under this Act to challenge the Complainant’s status as an agency worker. As mentioned in the decision section 15(2) of the Act provides for the following:

Duty of hirer to provide information to employment agency.

15.— (1) It shall be the duty of the hirer of an agency worker to provide the employment agency that employs that agency worker with all such information in the possession of the hirer as the employment agency reasonably requires to enable the employment agency to comply with its obligations under this Act in relation to the agency worker.

(2) Where proceedings in respect of a contravention of this Act are brought by an agency worker against an employment agency and the contravention is attributable to the failure by the hirer of the agency worker to comply with this section, the hirer shall indemnify the employment agency in respect of any loss incurred by the employment agency that is attributable to such failure.

The alternative being argued is that the payment is properly payable under a different Act which is the Payment of Wages Act 1991 and that is dealt with under a different Adjudication case file.

This complaint is brought under the Protection of Employees (Temporary Agency Work) Act 2012. The first question that must be asked has the right Respondent being named and on the plain reading of the Act the person who is liable to pay the Complainant is the Employment Agency and not the hirer pursuant to section 2(4) of the Act. As I have determined that the wrong Respondent has been named who was the hirer and not the Agency, I must determine that the complaint being brought against the Respondent is not well founded as liability for payment rests with the Agency and not the hirer pursuant to this Act.

Both parties made supplemental submissions to be considered when the hearing reconvened  to hear the payment of wages claim.

The hirer (GXO in this case) did not inform the agency about the bonus that forms the basis for this complaint. The agreement was directly between GXO and workers on site, as can be seen again from the attached documents and also the email requesting payment for the bonus. It is not the agency that promised the said bonus to the workers, but the hirer, failing to inform the agency of any agreement made on site. The Respondent company, in their supplementary submission, at paragraph 1.5 interprets Section 2(4) of the 2012 Act in a way that only refers to the contract of employment and payment of wages, but the bonus falls somewhat outside of those two aspects. In Translator -v- Translation Services Company, ADJ 00029108, a similar aspect in terms of money owed and not paid were largely and thoroughly debated: " The Payment of Wages Act 1991 in its own right defines an employee and a contract of employment for the purposes of protection to be provided under the Act for unlawful deductions or non-payment of earned wages. The statutory definition in the Act applies to a contract where an individual agrees with another person to do or perform work personally. And an employer in the Act is defined as: “employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;”

 And a contract of employment is defined as: any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person. In this case the complainant as a freelancer, worked under the Translation Services Company who assign her work to complete on their behalf, for third parties. And wages are defined as: “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.

In Boyle [2018] IESC 52 the Chief Justice stated: 9.8 Likewise, the definition of “contract of employment” for the purposes of the 1991 Act clearly includes any person “who is liable to pay the  wages” of the relevant person." (emphasis added) The reason I outlined parts of the citation is that those aspects are clearly applicable to the instant case: the workers entered into "any other contract" with GXO where they were promised a retention bonus. That, as per the definition presented above, is a contract of employment. Therefore, the payment of bonus was the sole responsibility of GXO, which failed to notify the agency about any of the changes discussed directly with the employees on site. It is also important to note that GXO handed the form directly to the employee to fill and sign. That aside, along the email exchanges and discussions between the agency workers and GXO management, there was no mention that the bonus is not payable to the agency workers. The email attached to this submission, sent in March 2025, was left unanswered.

Section 1 of the Payment of Wages Act states:

 “Contract of employment” means – A contract of service or of apprenticeship, and any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer”

Employer in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment. Therefore, the Respondent submits that the Complainant has no entitlement to the goodwill payment. The payment was not properly payable to them as per the Payment of Wages Act 1991, as the Complainant was not an employee at the time the payment was agreed and subsequently no wages were payable and notwithstanding that point, this payment would not form an element of the wages in line with the 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, 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 Respondent asserts that it was explicitly communicated to all workers in May 2024, both directly employed and agency staff, at the time of the shift change announcement that the payment in question related solely to the acceptance of contractual changes by direct employees.  The Respondent maintains that this payment was not properly payable to the Complainant.

The agreement pertains exclusively to an arrangement between the Respondent and its direct employees, whereby a goodwill payment was offered upon acceptance of contractual changes by the  21st June 2024. This payment was conditional on a direct employee agreeing to those changes at that time, and no such agreement extended beyond direct employees. The Complainant has provided no evidence of any entitlement to such payment. Accordingly, the Respondent respectfully submits that the claim is without merit.

 The Respondent affirms that this goodwill payment was not properly payable under the Payment of Wages Act 1991, and therefore the claim must fail as set out in Dunnes Stores (Cornelscourt) v Lacey and Nuala O’Brien [2005] IEHC 417. The High Court in this case found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the complainant. The Adjudication Officer must first decide whether the claimed unlawful deductions were in fact properly payable to the Complainant. If so, and there is no lawful basis for non-payment, the WRC may order that the employer make such payment as was owed.

The Complainant relies on the following section of the Payment of Wages Claim to ground their claim:

1.—(1) In this Act—

"cash" means cash that is legal tender;

"contract of employment" means—

(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer, whether the contract is express or implied and if express, whether it is oral or in writing;

It is argued that the Complainant agreed to work the new shift pattern and work alongside permanent staff who had agreed to amend their terms and conditions of employment. She attended the briefing meeting and was given the form to sign which she did and that must mean that this employer entered into agreement with her to pay the retention bonus if she met the required condition. Her employment ended on the 28th of January 2025.

The Complainant has attached her signed agreement which details the changes that she agreed to and the retention payment commitment to be paid in January 2025. That agreement was made between her and the Respondent. The Respondent denies that the retention bonus was intended for Agency workers. However, they were informed of the shift changes and in turn their Agency was informed of the new hourly rates of pay that would apply to them and to the direct permanent staff.

The facts show that a change to the shift pattern did occur and that applied to the Agency staff as well. The hourly rates of pay when they changed were also communicated to the Agency or employer of the agency workers.

The Respondent asks the Adjudicator to decide if the payment is properly payable. There is no specific exclusion in the Protection of Employees (Temporary Agency Work) Act 2012 with regard to a retention bonus and a bonus is referred to under the Payment of Wages Act 1991 under what constitutes wages. So on the facts I find that the retention payment does not fall outside the remuneration of the Agency workers.

However, I don’t agree with the Complainant that a new contract of employment had been entered into between her and the hirer and that it was a parallel employment contract with them. The terms and conditions had changed which she was entitled to and her employment continued with the Agency. The Hirer may have had an honest belief that the payment was only for direct workers; however, it was linked to being in employment on a certain date and that would ensure that the new shift pattern would have been established by then. That applied to the Complainant where she also would work that pattern and since it was a new shift pattern she was entitled to that retention payment if she was in employment in January 2025 and if  she met that condition, which she did.

The claim should have been brought against the Agency and not the hirer as the Agency is liable for payment of the Complainant’s wages and not the hirer. It was not a new contract of employment.

I note the reference to In Boyle [2018] IESC 52 where the Chief Justice stated:

 9.8 Likewise, the definition of “contract of employment” for the purposes of the 1991 Act clearly includes any person “who is liable to pay the  wages

Consistent with this finding the person liable to pay the wages was not the hirer but the Agency who could in turn assert that the payment shall be indemnified by the hirer. However, that is not what occurred in this situation. The hirer was not liable for the wages of the Complainant; although, I have found that the retention payment for the purpose of the Payment of Wages Act 1991 did form part of wages properly payable and was owing to the Complainant. However, the hirer was not liable for the wages of the Complainant rather it was the Agency who employed the Complainant. Arising from this finding I have determined that the complaint against this Respondent is not well founded.

The claim should have been brought against the Agency and not the hirer as the Agency is liable for payment of the Complainant’s wages and not the hirer. It was not a new contract of employment.

I note the reference to In Boyle [2018] IESC 52 where the Chief Justice stated:

 9.8 Likewise, the definition of “contract of employment” for the purposes of the 1991 Act clearly includes any person “who is liable to pay the wages

Consistent with this finding the person liable to pay the wages was not the hirer but the Agency who could in turn assert that the payment shall be indemnified by the hirer. However, that is not what occurred in this situation. The hirer was not liable for the wages of the Complainant; although, I have found that the retention payment for the purpose of the Payment of Wages Act 1991 did form part of wages properly payable and was owing to the Complainant. However, the hirer was not liable for the wages of the Complainant rather it was the Agency who employed the Complainant. Arising from this finding I have determined that the complaint against this Respondent is not well founded.

Wrong party