Complainant

Respondent

Anonymised Parties

A Sales   Manager

A Beauty College

Representatives

None

None

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 6    of the Payment of Wages Act, 1991

CA-00008751-001

13/12/2016

The   complainant seeks redress for sales commission she earned due the course of   her employment with the respondent, who denies the claim.

The   complainant worked for the respondent between the 1^st October 2015   and the 1^st July 2016. Her role was to sell places on college   courses run by the respondent. She was paid a salary plus commission. When   the complainant ended her employment in July 2016, she was paid her basic pay   but asked to wait until September 2016 for the commission to be paid. She   agreed to this as it would not be apparent what her precise commission would   be until this time. The complainant has been unable to recover any of the   commission due to her and she is owed €4,400.06.

The   complainant exhibits her contract of employment. It provides at point 4 that   “sales commission is payable at the rates set by the employer.” She also exhibits   email correspondence from the respondent accounts officer that states that   the complainant has been paid all monies due and that she is not entitled to   further commission payments as she is no longer an employee of the   respondent. The date of the email is the 19^th August 2016.

In   evidence, the complainant outlined that commission was paid on all sales at   the rate of 3%. He role was to sell places on a variety of courses, for   example one-day, six-week or one-year courses. She was successful in this role   and increased student numbers. The complainant referred to a spreadsheet of   sales to show that she was paid commission on a deposit being paid, referring   to two particular students as examples. She referred to another in relation   to commission for the special effects course.

In respect   of the end of her employment, the complainant said that she was let go   because the respondent was downsizing. The respondent accountant asked her to   wait until September 2016 to be paid the commission, so that they could see   which students started their courses. The complainant then sent the   respondent a list of commissions she was due payment. While the respondent   agreed to pay some, it paid nothing at all. The respondent acknowledged that   it would pay the commission due on the full-time course and this amounted to   €1,507. It denied that it was liable to pay commission on the other courses,   but this differed from previous practice, referring in particular to previous   commission paid on upskilling courses. The complainant acknowledged that she   worked with a named colleague on the special effects course, she did 75% of   the work in getting sales. The complainant also referred to her email to the   accountant of the 1^st February 2016, where she set out when   commission would be paid on deposits, and the respondent never replied to say   that commission was not payable.

The   complainant referred to her email of the 19^th August 2016 where   she sets out 20 sales made on behalf of the respondent. She sets out how the   sum of the commission due is €4,400.06.

The   respondent did not attend the adjudication and did not make submissions on   the issues raised by the complainant. The email of the 19^th August   2016 exhibited by the complainant and sent by the accounts officer states   that “sales commission is payable to an employee while they are an employee   of [the respondent]. As you are no longer an employee, commission is no   longer payable.” The email later expresses surprise that the complainant   would expect a continuing payment after she left her employment.

The   complainant seeks redress for unpaid commission she says she is entitled to.   In emails sent by the respondent to the complainant, the respondent denies   that she should recover these amounts due.

The   Payment of Wages Act defines “wages” as

“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”

The   definition of “employee” is

“employee”   means a person who has entered into or works under (or, where the employment   has ceased, entered into or worked under) a contract of employment and   references, in relation to an employer, to an employee shall be construed as   references to an employee employed by that employer…”

It is clear from the above definitions that   sales commission forms part of wages and are recoverable via the Payment of   Wages Act. The respondent does not appear to dispute that commission was   earned on particular accounts but that it was not payable because the   complainant was no longer an employee. I find as fact that the email list of   sales presented by the complainant to the respondent on the 19^th   August 2016 sets out the total commission payments due to the complainant.   They were commission payments earned by the complainant while working for the   respondent. They remain unpaid. The Payment of Wages Act specifically provides   that a former employee is included within the definition of “employee” for   the purposes of the Act. It follows that the complainant is entitled to   recover the full amount claim, i.e. €4,400.06.

CA-00008751-001

I find that the complaint made pursuant to the   Payment of Wages Act is well-founded and the respondent shall pay to the   complainant redress of €4,400.06.

Payment   of Wages Act

Sales   Commission