PWD1618

• Background

  1.This is an appeal by Colin Reid (the Complainant) against a decision of the Adjudication Officer , reference number r-136301-pw-13/MMG, regarding a complaint under the Payment of Wages Act 1991 (the Act) that McAllister’s Garage Limited did not pay him commissions in the sum of €860 that were properly and lawfully owing to him under the Act.

  2.The Adjudication Officer decided on 4 December 2015 that the complaint was not well founded. The Complainant appealed against that decision to this Court on 22/12/2016. The Case on for hearing before the Court on 19 May 2016.

  3.The Complainant worked for the Respondent as a salesman from 2001 or 2004 until November 2013. There is a dispute between the parties regarding the Complainant’s commencement date. However nothing turns on this point.

  Complainants Case

  4.The Complainant submits that he had a contractual entitlement to 20% commission of the profits on the sales of motor vehicles for which he was responsible. He submits that this entitled him to €950 commission in March 2013 and €575 commission in April 2013. He submits that he was paid €440 commission in April 2013 for sales in March 2013 and €225 in May 2013 in respect of sales achieved in April 2013. He submits that he is entitled to the outstanding commissions due to him in the sum of €860.

  Respondents Case

  5.The Respondent concedes that the Complainant had an entitlement to 20% commissions until April 2013. Thereafter it submits that it halved the rate of commission from 20% to 10% in accordance with the Complainant’s contract of employment.

  The Law

• (a) a contract of service or of apprenticeship, and

  (b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer, whether the contract is express or implied and if express, whether it is oral or in writing

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—;

• (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

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

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

Findings

• 
  6.It is common case that the Complainant had in 2013 an established entitlement to 20% commission as outlined above. It is also common case that the Respondent advised the Complainant of its intention to reduce that to 10% with effect from April 2013. It is common case that the Complainant did not agree to that reduction and continued to claim payment of his contractual entitlement.

  7.The Respondent submits that it altered the Contract in accordance with the terms of the Contract by giving the required notice of the change. The Complainant disputes this.

  8.The Court has examined the terms of the Contract relied up by the Respondent. However the Court can find no provision in the Contract that permits it to unilaterally alter its terms. The section upon which it relies merely requires the Complainant to be “flexible”. It does not require him to accept whatever change is notified to him.

  9.In these circumstances the Court finds that the Respondent cannot rely on the contract to justify its decision.

  10.The Respondent made no other case to the Court in support of its position.

  11.Accordingly the Court finds that the Respondent conceded the Complainant is entitled to the commissions claimed for sales made in March 2013 and made no substantive case justifying its entitlement to unilaterally deduct 50% of the commissions to which the Complainant was contractually entitled in April 2013.

  Determination

  12.The Court determines that the Complaint is well founded. The decision of the Rights Commissioner is set aside. The appeal is allowed. The Court orders the Respondent to pay the Complainant sum of €860 being wages lawfully due and owing to him.