Complainant

Respondent

Anonymised Parties

Sales Operative

Car Sales Business

Complainant

Respondent

Anonymised Parties

Sales Operative

Car Sales Business

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-00010338-001

21/03/2017

The claimant submitted the respondent was in breach of the Act for failing to pay him commission due from the period 23rd. September 2016 to March 2017.The claimant had been employed as a sales person with the respondent from 1980 until he was made redundant in April 2017.

The claimant’s gross pay was €435 plus commission in respect of sales, rebates (15%) and finance loans sold (20%).The payments were made quarterly. The claimant became concerned in Jan 2017 when   commission was outstanding for 4 months and was advised by the respondent that in order to secure commission going forward he would have to take on additional responsibilities - specifically outstanding debts. This work had been the responsibility of the accounts dept. The union set out a chronology of the ensuing exchanges between the parties when the claimant indicated he was unwilling to accept this new proposal.

It was submitted that for the purposes of the Act commission payments constitute wages. It was submitted that the claimant never agreed to this cessation of wages due and that consequently the respondent was in breach of the Act by making this illegal deduction. At the first hearing the claimant estimated that he was owed approx. €10,000.At the second hearing , he asserted having reviewed his sales activities he was due €15,000- €9,000 for cars, €3,000 for commercial vans and €3,000 for car wash outs.

At the second hearing the claimant submitted that the original sales system was manual rather than elactronic and that the paperwork was dealt with by the admin staff.When these supports were taken away from the claimant , he did complain about the challenges he was having with the recording system. It was submitted that the respondent in any event had all of the information on the sales and wash out transactions on file. It was advanced that the respondent had erred in the calculations submitted into evidence and had underpaid commission at a rate of 15% when it should have been 20%.The claimant disputed the respondents account of the meeting on the   21st.June 2016 .It was submitted that the paperwork submitted by the respondent supported the claimant’s contention that commission was owed and it was clear that the claimant had complained about the absence of administrative support. The claimant stated that he was unable to comment about the allegations regarding trade ins for 2 cars sold in January 2017 as he had no details or information on these transactions.

The respondent denied any breach of the Act and suggested that the company had been generous with the claimant over the years , giving him advances when requested for college fees and family expenses. It was submitted that commission payments were not paid because the claimant did not complete the required paperwork and that there was a long paper trail of correspondence which put the claimant on notice of this requirement. On the 21st June 2016 ,the respondent wrote to the claimant advising him of the necessity of completing paperwork   , insisting that “ failure to submit sales dockets on a timely basis was seriously detrimental to the performance of the respondent and for this reason cannot be viewed as an acceptable business practise in the modern era”.In the same correspondence , the respondent went on to say that the claimant “ requested an opportunity to continue to use the book form of sales dockets as you felt that computer entry of customer information might be frustrating to you.” Ultimately it was agreed , according to the respondent , that the claimant would submit each sales docket within a maximum of 3 days from the day the vehicle is delivered to the customer”. Follow up reminders to the claimant about the submission of the necessary paperwork was submitted into evidence. A copy of a warning dated the 10th.Jan. 2017 was submitted in evidence.

It was further submitted that the claimant had failed to reconcile payments for 2 vehicles sold by the claimant in January 2017.

I have reviewed the evidence presented at both hearings and noted the absence of the respondent at the second hearing.While I acknowledge that the claimant was not furnished with a written contract , I am satisfied on the basis of the evidence presented that the payment of commission was an implied term of the claimant’s contract of employment. I am further satisfied that the claimant did not consent to the non-payment of commission and accordingly I have concluded that the withholding of commission constitutes an illegal deduction under the Act.I require the respondent to pay the claimant €10,000 compensation within 42 days of the date of this decision.