Payment of Wages Act 1991 Claim*
The case of Lee Overlay Partners Limited and Stephen Kiely PWD2038 is an unusual case. The complainant submitted a complaint. He claimed that the Respondent failed to pay him a sum of €6,300 in respect of two bonus payments.
The Respondent contended that the employee had been requested to attend a disciplinary meeting with management and at the conclusion of the meeting the firm considered that the matter had been adequately resolved and there was no necessity to progress further through the disciplinary procedure.
The Respondent argued that as the complainant had been subject to the disciplinary procedure the employee did not meet the conditions for the award of the bonus.
The particular provisions provided;
“You must be employed by the company”
“You will have not given notice to the company of the termination of your employment”
“You have received a ranking of 5 or above in your most recent performance appraisal”
“You have not been subject to the companies Disciplinary Procedure in the preceding twelve months”.
The Court pointed out the provisions of Section 5(1) and 5 (6) of the Act.
The Court in this case looked at the disciplinary procedure of the respondent.
The relevant provision provided;
“The company will attempt to resolve any complaint in an informal matter by way of private discussion between the employee and his/her immediate supervisor. However, where such discussion fails to adequately resolve the issue or where the matter is deemed as gross misconduct, the Company’s Disciplinary Procedure will be invoked”.
The Court stated that in their view the provisions of Clause 2.1 was highly significant as there was no dispute that the discussion took place but it was clear to the Court that those discussions resulted in the matter being resolved.
On that basis the Court was satisfied that what transpired was a private discussion in accordance with clause 2 of the procedures. The Court said that clause 2.1 was highly significant and was specific as to when the disciplinary procedure would kick in. The Court pointed out that as the matter was resolved in the discussion which took place on 22 January 2019 the Court was satisfied that the complainant was not subject to the disciplinary procedure. An award of €6,300 was made.
When dealing with the issue of a discretionary bonus which may be subject to performance issues by the employee particularly in relation to being put through a disciplinary procedure or otherwise it is vital to ensure that the company procedures relating to disciplinary policies are applied and that in determining the bonus it has to be determined in accordance with the policies and procedures in place. If the procedure provides that the employee will lose the bonus if they were put through the disciplinary process then if something less than the disciplinary process applies then in those circumstances the employee is entitled to the bonus.
There may be many situations where the bonus is subject to certain conditions being met or that the employee has or has not done certain things. It is vital so as to avoid cases going to the WRC or on appeal to the Labour Court as in this case that the appropriate policies and procedures are tested to make sure there are no issues that could subsequently arise.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.