Complainant

Respondent

Anonymised Parties

A Consultant

A Recruitment Company

Representatives

Conor O'Dwyer O'Dwyer Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00013870-001

12/09/2017

The complainant worked for the respondent between the 2nd of August 2016. He was paid a monthly salary of €5,208. He is claiming that he is owed his final salary after working four weeks’ notice.

The complainant said that he joined the respondent company on the 2nd of August 2016 after he was headhunted by the employer from another employer.   He was owed considerable commission from his previous employment and the respondent agreed to compensate him for these monies owed.   The respondent’s solicitor assisted the complainant and prepared a contract of employment for him specifically providing for the payment to him to compensate him for the commission due from his previous employer.

The complainant said he performed his contract without any issues, but he decided for personal and career reasons to leave the employment. He notified the respondent and he handed in his notice on the 27th of June 2017.

The respondent requested a meeting and they met on the 29th of June and he agreed with respondent to work four weeks’ notice period from the 27th of June 2017. The complainant worked the four weeks’ notice as agreed but he has not paid at the end of the month. He queried this with the respondent who requested a meeting with him on the 26th of July 2016. At that meeting he was informed that he was not been paid for a month’s notice because commission had been paid to him which was repairable to the company. The complainant notified the respondent that he had not been provided with one week’s notice of any salary deduction and this was in contravention of the Payment of Wages Act.

The contention by the respondent that commission and bonus payments had to be repaid was not accepted. The complaint continued to engage with the respondent seeking to secure payment of the money due to him but the respondent refused to pay it.

It was submitted that the complainant has not been paid is monthly salary in contravention of section 5 of the Payment of Wages Act 1991.

The respondent said that the final salary was not paid to the complainant because there was a claw back of commission advanced to the complainant. In the complainant’s contract of employment, which the complainant accepted, there was a provision for the claw back if the complainant did not bill in excess of €120,000 per year to earn commission.   He did not reach this threshold and €4050 commission was advanced to him in January 2017 and €3,222 was due to be repaid on leaving of the employment. The bonus payment for July also had to be repaid.   The respondent also had paid a monthly amount towards the outstanding commission from the previous employer which he states that the complainant was not entitled to. This was due for repayment when the complainant left the employment together with an outstanding telephone bill. The amount due for repayment was more than his salary for the month of July. Therefore, he was not paid any salary for the four weeks’ notice he worked.

The complainant was not paid any salary for the last four weeks of his employment. The respondent submitted he was entitled to deduct commission and bonus payments as per the terms of the contract. The complainant does not accept that any commission or bonus was repayable.

The Payment of Wages Act Section 5(1) of the Act provides:

“(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 inwriting 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, unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I)                  in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II)                in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage,”

I have examined the contract of employment and emails from the respondent clarifying the salary, bonus and commission payable to the complaint and there is no term in any of these documents providing for the deductions pursuant to S. 5(1)(b) the Act. The employee must be given written details of the contractual term providing for the relevant deduction in advance and no such notice was given. The respondent deducted the commission and bonus from the final salary without any consultation with the complainant or giving him one week’s notice of the deductions in contravention of the Act. For these reasons, I find the complaint is well founded.

I find that the complaint made pursuant to the Payment of Wages Act, is well founded. I direct the respondent to pay the complainant compensation in the amount of €3,533.30 nett within 42 days of the date of this decision.  

Payment of Wages Act, deduction of bonus and commission