ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000194
Complaint(s)/Dispute(s) for Resolution:
|
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00000234-001 |
14/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00000234-002 |
14/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 |
CA-00000234-003 |
14/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00000234-004 |
14/10/2015 |
Date of Adjudication hearing: 04/02/2016
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 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).
Complainant’s Submission and Presentation:
I started working with the Respondent in late October 2013.A verbal contract was agreed. I agreed to a six month probation period on the promise of making targets and the option to discuss a pay rise and higher rate of commission, which I met easily with new cars and second hand sale targets. I never received a written contract with my terms and condition on it. I did not sign a contract. |
I started working in with the Respondent in late October 2013. I agreed to a six month probation period on the promise of making targets and the option to discuss a pay rise and higher rate of commission, which I met easily with new cars and second hand sale targets. October 2014 and I did not receive commission, I asked the lady in accounts department and the lady said I did not have commission due to me, because the Respondent is placing a 5,000 cap on my commission each month, and if I did not meet this target set I would not receive any commission each month and I would be paid my commission not monthly but every two months. I asked my employer for numerous meetings to discuss further, and was told this criteria is in the contract that I signed I agreed to a six month probation period on the promise of making targets and the option to discuss a pay rise and higher rate of commission, which I met easily with new cars and second hand sale targets. I never received a written contract with my terms and condition on it. I did not sign a contract. Yet at this meeting it was stated that my original contract that a cap of €5,000 had been in place since I started working the employer. For the previous twelve months I had received my commission regardless of any cap. I feel my employer did not give me adequate notice of change in the terms and conditions of my Employment. |
I started working with the Respondent in late October 2013.This consisted of six days a week, a minimum of fifty five hours, a basic wage of 250 euro gross per week and 10% commission per car and also commission to be paid in full when a multiple car deal should arise ie sale of a new car, trade in and trade in that I would receive my commission in full every month. I agreed to a six month probation period on the promise of making targets and the option to discuss a pay rise and higher rate of commission, which I met easily with new cars and second hand sale targets. October 2014 and I did not receive commission, I asked the lady in accounts department and the lady said I did not have commission due to me, because the Respondent is placing a 5,000 cap on my commission each month, and if I did not meet this target set I would not receive any commission each month and I would be paid my commission not monthly but every two months. I asked my employer for numerous meetings to discuss further, and was told this criteria is in the contract that I signed I agreed to a six month probation period on the promise of making targets and the option to discuss a pay rise and higher rate of commission, which I met easily with new cars and second hand sale targets. I never received a written contract with my terms and condition on it. I did not sign a contract. . Due to customers not being unable to meet or purchase vehicles during normal office hours, on many occasions I worked extra hours over my allocated weekly hours. Each week would consist of at least sixty hours per week, which I feel I was not paid the minimum wage for working these hours and earning 250 euro per week. I have since moved on from employment with the Respondent since Early October 2015 and I am now working in a larger dealership. I have many vehicles and deals existing with the Respondent that I am seeking payment for along with back paid commission and minimum wage. I am willing to avail of mediation services to facilitate the resolution of my complaint/dispute should the workplace relations commission be in a position to offer these services. |
I started working with the Respondent in late October 2013.A verbal contract was agreed. This consisted of six days a week, a minimum of fifty five hours, a basic wage of 250 euro gross per week and 10% commission per car and also commission to be paid in full when a multiple car deal should arise ie sale of a new car, trade in and trade in that I would receive my commission in full every month. I agreed to a six month probation period on the promise of making targets and the option to discuss a pay rise and higher rate of commission, which I met easily with new cars and second hand sale targets. October 2014 and I did not receive commission, I asked the lady in accounts department and the lady said I did not have commission due to me, because the Respondent is placing a 5,000 cap on my commission each month, and if I did not meet this target set I would not receive any commission each month and I would be paid my commission not monthly but every two months. I asked my employer for numerous meetings to discuss further, and was told this criteria is in the contract that I signed I agreed to a six month probation period on the promise of making targets and the option to discuss a pay rise and higher rate of commission, which I met easily with new cars and second hand sale targets. I never received a written contract with my terms and condition on it. I did not sign a contract. . Due to customers not being unable to meet or purchase vehicles during normal office hours, on many occasions I worked extra hours over my allocated weekly hours. Each week would consist of at least sixty hours per week, which I feel I was not paid the minimum wage for working these hours and earning 250 euro per week. I have since moved on from employment with the Respondent since Early October 2015 and I am now working in a larger dealership. I have many vehicles and deals existing with the Respondent that I am seeking payment for along with back paid commission and minimum wage. I am willing to avail of mediation services to facilitate the resolution of my complaint/dispute should the workplace relations commission be in a position to offer these services . |
The complainant did not present any additional documentary evidence at the hearing to support the complaints. Consequently, his contribution at the hearing was essentially an oral reiteration of the detail as set out in in his Complaint Form
Respondent’s Submission and Presentation:
The Respondent stated that the Complainant commenced employment on 18 October 2013 as a trainee car salesman. According to the Respondent, the Complainant had no previous experience in the industry and as a result had to be trained from date of entry on all aspects of the motor trade. The Respondent stated that this took up a considerable amount of the Respondent’s principal’s time and that of other staff. The Respondent stated that he received significant time/support from the principal during his first year, which included the commissions for some deals which the Principal closed being given to the Complainant.
The Respondent further contends that a Statement of Main Terms of Employment was provided to the Complainant in May 2014 and that its contents were fully explained to him, particularly the part pertaining to commissions and how they were paid. The Respondent presented an unsigned copy of a Statement of Main Terms of Employment, dated 22 May 2014. The Respondent admitted that they did not follow up with the Complainant to have it signed and returned.
The Respondent stated that all commissions for staff, including the Complainant, had a cap of €5,000 profit before the commission kicked in. The Respondent explained that the system operated in their dealership is called the “long washout” system and that this had been explained to the Complainant on numerous occasions. The Respondent further stated that the Complainant was fully aware that the €5,000 cap applied in the first year as well as the second year and there was no change in its application from year 1 to year 2.
The Respondent stated that the Complainant had been provided with all the appropriate commission due to him in relation to his sales. In support of this the Respondent submitted Tax Deduction statements for the Complainant for the tax years 2014 and 2115. These statements showed the Complainant receiving commission payments of €6,200.59 and €1,371.97 in 2014/2015 respectively. The Respondent stated that the drop in commissions in 2015 was simply down to the fact that the Complainant sold less cars in the second year when he was required to operate on his own, without the support of the Respondent’s Principal. The Respondent stated that the Complainant was out performed by other colleagues, including a new member of staff, during 2015.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Issues for Decision:
The Complainant submitted four specific complaints in relation to his employment with the Respondent as follows:
- A complaint under the Terms of Employment (Information) Act (1994) in relation to the alleged non receipt of a statement in writing of his terms and conditions of employment.
- A complaint under the Terms of Employment (Information) Act (1994) in relation to the alleged failure of the Respondent to notify him of a change to his terms of employment.
- A complaint under the National Minimum Wage Act (2000) in relation to his allegation that he did not receive the National Minimum rate of pay.
- A complaint under the Payment of Wages Act (1991) in relation to his allegation that the Respondent did not pay him or paid him less than the amount he was due.
Legislation involved and requirements of legislation:
All four Acts as detailed in the previous section apply.
Decision:
Having carefully considered all the evidence presented by both sides I have come to the following decisions in relation to the individual elements of the Complainant’s complaints:
1) Non receipt of a statement in writing of the Complainant’s terms and conditions of employment
The evidence presented by the Respondent was that the Complainant was provided with a Statement of Main Terms of Employment in May 2014 but he failed to sign and return it. The Complainant contends that he was never provided with such a document. It is not possible to determine with any degree of certainty which account of events is the more accurate.
However, throughout the entirety of the hearing, I found the evidence of the Respondent to be more consistent and credible than that of the Complainant. On that basis, I find, on the balance of probability, that it is more likely that the Respondent’s account of events is the more credible.
2) Failure of the Respondent to notify the Complainant of a change to his terms of employment
Having carefully considered all of the evidence adduced in relation to the matter of commission, I am satisfied that the Respondent has a specific system with regard to the application of commission on sales. It is clear that this includes both the €5k cap and the application of the “long washout” system. The Respondent’s understanding of the process, as articulated by him during exchanges at the hearing, appears to be at odds with the Respondent’s stated processes, to the extent that it raises questions as to the credibility of the Respondent’s position in this regard.
Consequently, taking all of the above into consideration I am satisfied that the €5,000 profit cap on commission applied in both 2014 and 2015 and, therefore, there was no material change in the Respondent’s terms of employment as alleged. On that basis I do not uphold the Complainant’s complaint in this regard.
3) Failure of the Respondent to pay the National Minimum rate of pay
While he stated that he regularly worked long hours, the Complainant was not in a position to refute the Respondent’s strong challenging of his contention in this regard. He was not in a position to support his allegation in relation to hours worked with any documentary or otherwise credible evidence.
Consequently, when taking into consideration Section 16 (1) of the National Minimum Wage Act (2000) and when taking his commission payments into account, I am satisfied that the Respondent was not in breach of the requirements of the Act in relation to its payments to the Complainant. Consequently, I find that the Complainant’s complaint in this regard fails.
4) Respondent did not pay the Complainant or paid him less than the amount he was due.
Based on the findings at (2) and (3) above and on the fact that the Complainant did not provide any credible evidence to support his contention that the Respondent did not pay him or paid him less than the amount due to him, I find that his complaint fails in this regard.
Consequently, taking all of the above into consideration, I find that the Complainant’s complaints fail on all four counts presented.