Labour Court Database __________________________________________________________________________________ File Number: CD91195 Case Number: LCR13316 Section / Act: S20(1) Parties: CANADA LIFE ASSURANCE COMPANY - and - A WORKER |
Claim by a worker for payment of alleged monies due to him.
Recommendation:
6. It appears to the Court that the reference in Clause 16(e)
Termination of Employment, in page 5 of the Career Contract,
supports the view that the complainant might have reasonably
expected to receive benefit from the business won during the
period up to the date of termination.
Accordingly the Court recommends that the Company make payable to
the complainant such amount as may be agreed between them which
reflects earnings on business won up to the date of termination.
The effect of the personal account established to be taken into
account in the calculations of any earnings outstanding.
Further the Court would suggest the Company examine their Career
Contract with a view to eliminating any ambiguity in its wording
likely to be misleading to an employee.
The Court so recommends.
Division: MrMcGrath Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD91195 RECOMMENDATION NO. LCR13316
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: CANADA LIFE ASSURANCE COMPANY
(Represented by Byrne, Collins & Moran)
AND
A WORKER
SUBJECT:
1. Claim by a worker for payment of alleged monies due to him.
BACKGROUND:
2. The worker concerned was employed by the Company at its
Drogheda branch. In late June, 1989 the worker advised the Branch
Manager that he wished to resign from the Company to take up other
employment. The worker concerned states that he was in the
process of offering the Branch Manager a month's notice when he
was told that he could backdate it so that he could finish the
following day, i.e. 30th June, 1989, which he did. The worker
claims that on that date, when he went to collect his wages, etc.
from the Branch Manager it was agreed that the wages due of #1,468
would be paid in the normal fashion or perhaps at monthly
intervals. On 20th July, 1989 the worker called back to the
office to collect his wages and was told that he had been paid in
full and no money was due to him. On 7th September, 1989, a firm
of solicitors on behalf of the worker wrote to the Company stating
that the worker was due commission from insurances sold and
seeking payment of this. On 25th October, 1989 the Company wrote
to the worker's solicitors stating that no more monies were due to
the worker, in accordance with the terms of his contract. On 16th
April, 1990 the worker referred the matter to the Rights
Commissioner's Service. However, the Company declined an
invitation to attend a Rights Commissioner's investigation on the
basis that this matter had already been dealt with and the worker
was not entitled to any more payments. On 8th April, 1991 the
worker referred the matter to the Labour Court for investigation
and recommendation under Section 20(1) of the Industrial Relations
Act, 1969. The worker agreed to be bound by the Court's
recommendation. The worker claims that he should be paid
commission earnings in respect of June, 1989. The Company's
position is that Clause 16(e) of the worker's contract of
employment clearly specifies the payments to which an employee is
entitled on termination of employment and that the payments
claimed by the worker (as a phase one employee) are excluded as he
is not entitled to commission payments due after he leaves. The
relevant section of Clause 16(e) is as follows:
"Payments of remuneration on termination of employment:
(i) during Phase I of the Contract, Representatives will
receive in the month of termination any earnings
calculated in accordance with the terms of the contract
on a pro-rata basis up to the date of termination.
(ii) during Phase II of the Contract, Representatives will be
paid commission earned and payable as at the date of
termination".
3. When a worker commences employment she/he is classified as a
Phase I employee for the first 24 months. A personal account is
established from which a monthly draw, agreed with the relevant
manager, is made (unless the fund is exhausted). All nett
commission credits earned are credited to the account. When nett
commission credits earned exceed the level of draw, 50% of the
excess is paid with the monthly earnings, the other 50% remaining
within the account. If the account is exhausted, monthly earnings
only comprise nett commission credits earned. The Court
investigated the dispute on 20th May, 1991.
WORKER'S ARGUMENTS:
4. 1. The worker voluntarily left the Company's employment on
30th June, 1989. On that day the worker went into the Branch
Manager to arrange the collection of his wages and his P45,
etc. The worker and the Branch Manager agreed that the wages
due were #1,468. The Branch Manager said that these would be
paid in the usual fashion (which would have been on 20th
July, 1989), he then hesitated and told the worker that in
all probability he would only get 1/12th of the amount that
day and the rest would be paid in monthly intervals. On 20th
July, 1989 when the worker went to collect his wages he was
told by the girl in the office that there were no wages for
him. The worker later returned to the office and was told
that according to the wages department in the U.K. he had
been paid in full and no monies were due to him. The worker
should be paid the money due to him in respect of business up
to the end of June, 1989.
COMPANY'S ARGUMENTS:
5. 1. When the worker advised the Branch Manager that he was
resigning from the Company he thought that he was obliged to
give the Company one month's notice of termination. The
Branch Manager advised the worker that he only had to give
one week's notice and that if he wanted to leave before this
he could. It was agreed that the worker would leave the
Company on 26th June, 1989. Full payment was made to the
worker of commissions due to him. Under the terms of his
contract with the Company the worker was not paid a salary or
wages and his remuneration was entirely commission based.
The Branch Manager was not therefore in a position to agree
"wages due" with the worker as he would have no idea what the
worker's entitlement might be at any given time without going
to some considerable trouble to ascertain the exact
commission due to him at that time.
2. There is no logic in the case being made by the worker
that the Branch Manager knowing that the worker was in a
position to take up a new job immediately agreed to pay him
almost #1,500 of Company money, where firstly he did not have
any entitlement to it and secondly where he would not be at
any loss of wages as he would be working in his new job
during the period to which this #1,500 would relate. On 7th
September, 1989 solicitors on behalf of the worker wrote to
the Company stating that the worker was due commission from
insurances sold and enclosing details. No mention was made
in that letter of any alleged promise to pay wages due or any
sum of #1,468 and this indicates that no such agreement was
ever made. In October, 1989 the Company advised the worker's
solicitors that all commissions due to him had been
discharged and nothing further was heard from them. The
worker has received all monies due to him under the terms of
his contract.
RECOMMENDATION:
6. It appears to the Court that the reference in Clause 16(e)
Termination of Employment, in page 5 of the Career Contract,
supports the view that the complainant might have reasonably
expected to receive benefit from the business won during the
period up to the date of termination.
Accordingly the Court recommends that the Company make payable to
the complainant such amount as may be agreed between them which
reflects earnings on business won up to the date of termination.
The effect of the personal account established to be taken into
account in the calculations of any earnings outstanding.
Further the Court would suggest the Company examine their Career
Contract with a view to eliminating any ambiguity in its wording
likely to be misleading to an employee.
The Court so recommends.
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Signed on behalf of the Labour Court
14th June, 1991 Tom McGrath
U.M. / M.O'C. _______________
Deputy Chairman