ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000276

Complaints for Resolution:

At:                          Workplace Relations Commission, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 31/03/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background.

The Complainant was employed as a Sales Executive from 12^th July 2010 until the employment terminated on 25^th September 2015. The Complainant was paid €580.00 gross per week and he worked a 40 hour week. The Complainant was provided with a written statement of his Terms and Conditions of Employment.

The Complainant referred a complaint to the Workplace Relations Commission on 21^st October 2015 under the Payment of Wages Act, 1991 alleging his Employer had made an unlawful deduction from his wages effective from 6^th January 2015.

At the Hearing on 31^st March 2016 the Complainant withdrew his complaints lodged under Schedule III of the Competition Act, 2002 – 2010, S.I. 36 of 2012 and Schedule 2 of the Employment Permits Act, 2003 – 2006

Summary of Complainant’s Position.

The Complainant stated that his Employer had unilaterally revoked a part of his remuneration without notice, discussion or recourse in January 2015 and this amounts to an unlawful deduction under the Act. For a period of 2 years from January 2013 to January 2015 the Complainant stated that he was paid Commission of 2% on sales and it was reasonable for him to assume that this was part of his Terms and Conditions of Employment. The Commission Payment continued to be paid to the Complainant for a period of 7 months even though he was no longer a Sales Executive outside the Office. At no stage was he informed that he would not be returning as Sales Executive outside the Office or that the 2% Commission would be taken from him. As acknowledged by Management he continued to look after customers and to earn the relevant commission despite being confined to the Office.

He is claiming payment of a total loss of €2500.00 from January 2015 to the termination of his employment on 25^th September 2015.

The Complainant also sought an extension of time by way of submission at the Hearing. The unlawful deduction was notified to him on 2^nd January 2015. He lodged a formal grievance complaint on 26^th January 2015. He received the findings on 20^th April l 2015 – the findings are dated 19^th March 2015. He requested what other internal procedures were available to him to pursue his grievance and he lodged an appeal on 1^st May 2015. He received a letter dated 5^th may 2015 from the Chairman of the Company advising that the internal procedures had been exhausted. He was subjected to a disciplinary process in July and August 2015 and there was a fact finding investigation conducted externally and completed in September 2015. The Complainant resigned on 25^th September 2015 and lodged his complaint on 21^st October 2015 with the WRC.

Summary of Respondent’s Position.

The Respondent objected to an extension of time and argued that the Complainant had not established any “reasonable cause” to explain the delay. The Complainant was involved in an internal process in relation to his complaint for a period of 6 weeks. He raised a grievance by email dated 9^th January 2015 and a formal grievance by letter dated 26^th January 2015. A full investigation was carried out and the investigation report was issued to the Complainant on 19^th March 2015 – a period of 6 weeks. The Complainant acknowledged receipt of this on 20^th April 2015 as the Complainant had been on sick leave.

In relation to the substantive complaint, the Complainant was an office based worker and in 2013 he took on some sales related functions 2 days a week. These functions ceased in July 2014. However the Respondent continued to make the Commission Payments to him in error and argued that this constituted an overpayment within the meaning of the Act. The Respondent notified the Complainant that this would cease by email dated 2^nd January 2015. The Complainant raised a grievance under the Internal Grievance Procedure of the Company informally on 9^th January 2015 and then formally on 26^th January 2016. There was an independent investigation which did not uphold his complaint. The Investigator found that “the only staff who are paid commission are those involved in field based, direct face-to-face selling/contact with customers”.

Preliminary Issue – Time Limits..

The Payment of Wages Act as amended provides that a complaint must be lodged within the period of 6 months or this can be extended by a further period of 6 months due to “reasonable cause”. The first occurrence of the alleged deduction was January 2015 and the Complainant cited an internal grievance process as the reason for the delay. This process concluded on 19^th March 2015 when the investigator issued his findings. There was no excuse/reason put forward by the Complainant to explain the delay from March to October 2015. I do not accept the reasons advanced by the Complainant for an extension of time.

However following the decision of the High Court in Health Service Executive v McDermott the period covered by this complaint is from 22^nd April 2015 to the date the employment terminated on 25^th September 2015.

Findings

The Complainant was employed, according to the written statement of his Terms and Conditions of Employment dated 23^rd February 2011, as a Sales Office Assistant. Both Parties confirmed at the Hearing that between July 2010 when the employment commenced and January 2013 the Complainant was not paid Commission. Both Parties confirmed that from January 2013 to July 2014 the Complainant was assigned additional functions outside the office for 2 days a week and was paid 2% commission on sales. Both Parties confirmed at the Hearing that he resumed his office based position on a full-time basis in July 2014 and both parties confirmed that he continued to be paid Commission until December 2014. The Respondent stated this was an error and an overpayment.

The Complainant lodged a Grievance under the Company Grievance Procedure which was investigated by an independent investigator who concluded that the Complainant was not entitled to continued payment of Commission.

The Complainant was informed by email dated 2^nd January 2015 – copy provided- that as he been office based for the last 6 months that the commission payment would cease after January 2015.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991 I declare the complaint is not well founded. I have established that Commission is only paid to those employees of the Company who are not office based. The Complainant was office based effective from July 2014.

Rosaleen Glackin

Adjudication Officer

Date:     16^th May 2016