ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002823

Complaint for Resolution:

Date of Adjudication Hearing: 6^th July 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 18^th April 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Payment of Wages Act. The complainant was a sales manager and the respondent is a courier firm. The complaint was scheduled for adjudication on the 6^th July 2016. The complainant attended in person and two representatives attended for the respondent.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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. 

Complainant’s Submission and Presentation:

The complainant worked as sales manager/sales representative for the respondent from the 14^th September 2015 to the 5^th April 2016. This claim relates to his entitlement for notice pay. He states that, pursuant to his contract of employment, he is entitled to four weeks of notice pay. In respect of the end of his employment, the complainant said that he had been shocked when two representatives of the respondent approached him in the office to say that his employment would be coming to an end that very day. They raised performance issues. He sought to negotiate the continuation of his employment, for example suggesting reduced remuneration.

In respect of his entitlement to notice pay, the complainant indicated that he was relying on clause 7 of his contract of employment, which provides for four weeks of notice pay. In relation to clause 1 of the contract, he said that he had passed his period of probation and his probation had not been extended.

In reply to the respondent, the complainant said that he had never asked for leniency. There had not been any targets set for his role and it always takes time to build sales in a business. He outlined that he had brought in a couple of new clients and there were good prospects in the pipeline. He stated that he would have been able to cover his costs by month 12. He said that the contract was for 12 months, with a clause provided for six months’ probation. There had been no verbal or written warnings issued to him.

Respondent’s Submission and Presentation:

The respondent outlined that when the complainant was employed on the 15^th September 2015, he was expected, at a minimum, to meet his costs. He was unable to achieve this and the respondent was disappointed with the sales figures. The fixed term contract committed the parties to a period of six months. By April 2016, the complainant was out of contract.

The respondent raised performance issues with the complainant on the 14^th March 2016 (the time the contract expired) and the complainant asked for leniency and for more time. There were many occasions when the respondent raised sales and performance issues. The respondent had made an investment in the complainant and was not happy with the return. The respondent asked the complainant to provide a 12-week plan to improve sales. He submitted a plan but was asked to revise it. He did this on his return from annual leave on the 4^th April 2016, but the respondent was not satisfied with its contents. There were too many words and too few facts. It relied extensively on old customers and old sales practices. The respondent did not acquire any degree of comfort about the prospects of reversing low sales.

The respondent informed the complainant that his contract was coming to an end on the 5^th April 2016. The complainant was paid on the 7^th April 2016 and again on the 14^th April 2016. It confirmed that the complainant’s weekly pay was €1,169.86.

Findings and reasoning:

The complainant claims an entitlement to four weeks of notice pay and the respondent disputes this entitlement. It was agreed that the weekly pay was €1,169.86.

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

“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

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

My role in this adjudication is to determine the entitlement of the complainant to notice pay. Clause 1 of the contract of employment provides as follows: “Fixed term: Commencement will be on the 14^th September 2015 and your probation period will be six months. During this period, the company may at its sole discretion, terminate your employment for any reason. The probationary period may be extended at the company’s discretion but will not in any case exceed twelve months. A maximum one week’s notice period both by the company or employee will apply during the probation period.” Clause 7 provides “Termination of Employment: In the event of termination of your employment, you are required to give the company, and the company undertakes to give you, four weeks notice. However, both parties are free to waive their right to notice and/or accept pay in lieu of notice, if agreed between them.” The contract later provides that no notice or pay in lieu of notice is due for “serious breaches”. This provision has no application here as this was not a conduct dismissal. The contract further provides that wages will be paid in arrears. While it states that this will occur on a monthly basis, the practice was to pay wages on a weekly basis.

Having considered the written and oral submissions of the parties, I find as fact that the complainant has an entitlement to notice pay of four weeks as per clause 7 of his contract of employment. Clause 1 does not apply as the period of employment had surpassed the six months’ probation period and probation was not formally extended by the respondent (even though they had raised performance and sales issues). While clause 1 is entitled “fixed term”, the words used in the clause do not provide for a six-month contract. Given that wages were paid in arrears, the wages paid on the 7^th April 2016 related to the week prior to the end of the complainant’s employment. A further payment was made on the 14^th April 2016, meaning that the decision below provides for the payment of three weeks of wages to the complainant.

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.

Pursuant to this Payment of Wages Act complaint, I find that the claim is well-founded and that the respondent shall pay to the complainant the amount of €3,509.58 (an award of three weeks of wages).

Dated:   21 September 2016