PWD1617

The Complainant worked for the Appellant as a sales representative between 19 January 2015 and 14 April 2015. Following the installation of a GPS tracking device on the Complainant’s company car it emerged that the Complainant was not engaging in, what the Appellant would consider, the level of travel consistent with the proper discharge of his duties. The Appellant decided to terminate the Complainant’s employment and gave him the appropriate notice. The Complainant tidied up his trade accounts, collected outstanding sums due to the Appellant and forwarded the sums collected and relevant paperwork to the Appellant. He also returned the company car and the company property that had been entrusted to him.

The Complainant submits that when he finished up in work he was due outstanding wages in the sum of €1300 and commissions in the sum of €432.25, making a total sum due of €1,732.25. He asks the Court to instruct the Appellant to pay to him the monies due and owing.

The Respondent concedes that the Complainant is due payment of his outstanding wages of €1300. However it submits that the Complainant did not, as claimed, collect the monies owed to the Company. By its calculations he collected outstanding monies due in such amount as would warrant commissions of €5.25. However it submits that the Complainant had outstanding debts on his own trading account with the Appellant in the sum of €1,788.57. When one is offset against the other the Appellant states that the Complainant was overpaid in the sum of €483.32. It makes other charges against the Complainant that are not matters that could be properly before this Court.

The Law

Section 5 of the Act states:—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

The Court finds that the Appellant has conceded that the Complainant is owed outstanding wages in the sum of €1,300 It disputes that he is due the commissions claimed.

Having heard the submissions of both sides the Court notes that the Appellant concedes that the Company had in fact received the total sum claimed by the Complainant. However it submits that its accounts staff collected that money rather than the Complainant. It further submits that commission is paid on monies collected rather than on goods sold.

The Court examined the documents upon which the Complainant relies to make out his case. The Appellant offered no evidence that any person, other than the Complainant, had collected those sums. Having examined those documents and considered the evidence of the Complainant, the Court finds, on the balance of probabilities, that he did in fact collect and pass the cheques to the Appellant as claimed. Accordingly the Court finds that the Complainant is owed the commissions claimed.

The Appellant submits that it is owed monies by the Complainant. The Appellant told the Court that it had supplied feed stock and other material to the Complainant and that the sums due and claimed by it arose out of those transactions.

The Court notes that offsetting deductions from wages due under the Act can only be made in respect of

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

The key words here are goods or services that are “necessary to the employment”.

In this case the Appellant did not present any evidence to the Court that the goods or services it wished to offset against the wages due to the Complainant were “necessary” to the employment. In those circumstances the Court cannot take them into consideration.

Determination

The complaint is well founded. The appeal is not allowed. The decision of the Rights Commissioner is affirmed. The Court orders the Appellant to pay the Complainant the sum of €1,732.25. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
19th May, 2016______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.