Complainant

Respondent

Anonymised Parties

A Sales Representative

A Pharmaceutical Company

Representatives

 O'Dwyer Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00024078-001

13/12/2018

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

CA-00024078-002

13/12/2018

The complainant was employed by the respondent as a Sales Representative from February 2011. The complaints relate to alleged breaches of the Redundancy Payments Acts, 1967-2014 and the Payment of Wages Act, 1991. The complaints were submitted to the Workplace Relations Commission (WRC) on 13^th December 2018.

The complainant contends that he is entitled to a redundancy payment of seven weeks pay per year of service in line with an agreement reached with other Sales Representatives employed by the respondent. The complainant outlined that he was still in the employment of the respondent albeit in the reduced capacity of payment collection on 27th November 2018 when redundancies were notified to staff, and as such he should receive the same redundancy entitlements as others. The complainant stated that he could not commence his new employment until December 2018 due to a delay in receiving his P45.

The respondent contends that the complainant is not entitled to a redundancy payment as he resigned from his position as a Sales Representative by email dated 16^th September 2018. The respondent stated that the complainant’s email confirmed that his resignation would take effect at the end of September 2018. The respondent also confirmed that the complainant was removed from the Company’s Department of Agriculture Licence to Solicit with effect from 8^th October 2018 which meant that the complainant could not have remained in its employment as a Sales Representative after that date as being in possession of the Licence to Solicit was a strict condition of the complainant’s employment. The respondent also contends that the complainant commenced employment elsewhere in early October 2018 but was able to remain in the payment collection role for the respondent while engaged in his new employment.

In relation to this complaint I find as follows

I find that the complainant’s employment did not end by reason of redundancy as notified to staff on 27^th November 2018. The complainant resigned from his role in September 2018 approximately two months before the redundancies were announced. In addition, I accept that the withdrawal of the Licence to Solicit would also have prevented the complainant from continuing in his employment as a Sales Representative beyond 8^th October 2018.  I find on balance that the complainant agreed to continue to collect payments from previous sales in order to complete transactions and to qualify for the payment of commission. I do not accept that the payment collection role continued the complainant’s contract of employment in circumstances where his resignation was submitted to the respondent in September 2018. Accordingly, I do not find in favour of the complainant.

Having considered the submissions of both parties to this complaint and for the reasons stated, I find that the complaint is not well founded.

The complainant stated that he is owed €2,287.89 in respect of commission due for November 2018 and €2135 in respect of commission due for December 2018. In addition, the complainant contends that he is owed a bonus of €650 in respect of the sale of Spray. The complainant stated that the total payment due to him is €5072.89.

The respondent stated that all monies have been paid to the complainant. The respondent contends that it was not provided with a breakdown of the €5625 claimed by the complainant in his referral to the WRC. The respondent stated that the complainant’s final commission payment of €2157.28 gross was paid on 6^th December 2018 which completed the payment of all outstanding money owed to him.

In relation to this complaint I note the following:

The complainant continued to collect payments in relation to previous sales made by him up until mid-December 2018. This was not disputed by the respondent. I note from reviewing the documentation submitted by the parties at the adjudication hearing that the respondent, by text message on 20^th November 2018, requested cheques collected by the complainant so that he could be paid his commission and be issued with his P45. There were no records submitted by the respondent that show that any payments were made to the complainant after the 31^st October 2018. The payment of €2157.28 gross (€1785.64 net) appears to relate to commission that was due for payment in October 2018 and had a payment date of 31^st October 2018 and not 6^th December 2018 as claimed by the respondent.

Based on the contents of the respondent’s text message of 20^th November 2018 and the lack of any records/payslips submitted to show that the complainant received the payments that were due to him in respect of November 2018 and December 2018, I conclude on balance that the complainant did not receive any payments in respect of those months. Accordingly, I find that the complaint is well founded.

Note:

The respondent accepts the complainant’s entitlement to outstanding annual leave entitlements calculated at a gross payment of €937. A cheque for €882.42 issued to the complainant in respect of accrued annual leave. It was clarified at the adjudication hearing that the cheque had not been cashed by the complainant, but it had not expired at that point in time. On the basis that payment has been discharged to the complainant, there is no requirement to issue a decision in respect of outstanding annual leave entitlements.

Having considered the submissions of both parties, I find that the complaint is well founded. The respondent is directed to pay the complainant €5,072.89 in respect of payments that are properly payable to him.

Redundancy entitlements, Payment of Wages