ADJ-00019399

Complainant

Respondent

Anonymised Parties

Recruitment consultant

Recruitment agency

Representatives

 Self-represented

 IBEC

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-00025366-001

29/01/2019

The complainant commenced employment as a recruitment consultant with the respondent on 14 September 2017. Her employment ended on 31 May 2018.

She states that the respondent failed to pay her commission/ salary to the amount of €1885.08. Neither did she receive her paid annual leave entitlement or notice.

 The date of contravention is 19/12/2018.

She worked 37.5 hours a week for which she was paid €538 gross.

She submitted her complaint to the WRC on 29 January 2019.

Paid annual leave entitlements.

The complainant states that she estimates that she is owed 2 days paid annual leave.

Payment of Commission

The complainant worked as a recruitment consultant and manager of the radiography division. Her job was to win client accounts, source candidates for these clients and assist with the pre-employment requirements.

The complainant contends that she was owed commission on sourcing positions for 5 radiographers for whom she secured placements in medical facilities. She achieved these placements before her employment ended on 31 May 2018.  By that date, these 5 radiographers had received offers of positions, had passed pre-employment, had been approved for appointment and were waiting to be placed in hospitals. Appointments were pending. All that remained for them to be placed was the acquisition of work permits and visas.

 The then managing director, Mr F, provided the complainant with a written letter dated 25 May 2018, guaranteeing that she would receive all outstanding commission due on upcoming placements – the five aforementioned candidates- following their start dates in their new roles. The agreed commission rate at this time was 12% per placement. Upon her employment finishing she left a detailed handover for her colleagues outlining the circumstances between candidates and clients so there would be a smooth transition as little remained but to wait for work permits to come through. Mr F then left his role as managing director in June and was succeeded by Mr L. CEO. He agreed to honour her agreement with the respondent in relation to payment and advised that she would receive all outstanding commission payments. Mr L appeared to demonstrate sincerity that he would honour the original agreement by paying commission on the first two placements on their start dates with their respective client organisations on the 19/7/2018 and 16/8/2018. She understands that the respondent had already been paid for at least one of the placements.

Mr L informed   the complainant on the 19th of November that he would not be paying out any more commission that was due to her and also forwarded a letter from a client HR Director outlining grievances against the respondent which occurred after her resignation.

 The complainant states that the remaining three of the original five placements materialised. Candidate A commenced employment on 24/9/2018, candidate B on 8/10/18 and candidate C on 29/10/18. The payments outstanding for these three placements respectively are €629.90, €645.18 and €610.00 amounting to a total of €1,885.08 in unpaid wages.

The respondent failed to provide her with a copy of her contract of employment despite a number of requests to do so.

Respondent.

Preliminary point; time-barred complaint.

Complaint concerning non- payment of annual leave and notice pay.

The respondent states that by virtue of section 41 (6) of the Workplace Relations Act, 2015 the complaint concerning non-payment of annual leave entitlements is inadmissible having been lodged outside of the time limits prescribed by that section. The complainant’s employment ended on 31 May 2018.Her complaint was lodged on 29 January 2019. She has not submitted her complaint within 6 months of receipt of her last pay slip which was on 7 or 14 June 2018.The respondent argues that the complainant has not discharged the burden of proof that reasonable cause exists for an extension to the six- month deadline.

Without prejudice to the above, the respondent argues that she received 14.94 paid days leave based on hours clocked in by the complainant which complies with their statutory obligation towards the complainant. She did not clock in on 32 days.

Substantive case.

Non- payment of commission

The respondent denies that there was an unlawful deduction from her wages. The complainant did not meet the requirements for payment of commission in respect of the placement of 5 radiographers.

The custom and practice within the organisation is that recruitment consultants only receive commission for placements once all of the following criteria are met;

•             The candidate has been placed

•             The candidate has started the placement prior to the recruitment consultant leaving the   

               employment of the respondent

•             The invoice was paid

•             The guarantee period had been successfully passed.

At the time of the complainant’s exit from the company, only two of the 5 outstanding placements had met the above criteria and she therefore received payment for these two placements only.

According to the established criteria not met by the remaining 3 candidates, she was not entitled to receive commission for these candidates.

On 19 December 2018 the CEO, Mr. L emailed the complainant to state that no monies were outstanding.

The respondent states that the commission, claimed by the complainant in respect of 3 candidates was not properly payable on the 19 December 2018 – the date of contravention identified by the complainant. The three contested payments for commission referred to candidates who did not have confirmed starting dates as these were contingent on work visas being issued which had to be overseen by another recruitment consultant. Furthermore, the respondent states that the recruitment industry standard is that once a recruitment consultant leaves the employment of the agency, they receive no further commission irrespective of the circumstances. Hence in other companies the complainant would not have received commission for even the two candidates for whom commission was paid.

The respondent submitted an email dated 17 July 2018, received from the previous managing director, Mr. F in which he states

“I agreed with A when she was finishing up that she would be paid 12% for her first two clients …… in line with 60% payment on fees in contracts on leaving and the rest payable is paid by the client.

I can confirm that A is entitled to 12% commission on these placements and that that was reconfirmed with her when she was leaving”

The respondent asks the adjudicator to reject these complaints

Preliminary point; time -barred complaint.

Complaint concerning non-payment of annual leave entitlements.

The complaint was submitted on 29 January 2019. The complainant’s employment ended on 31 May 2018. She was paid weekly. These payments should have been made on 7 June. Section 41 (8) of the Workplace Relations Act, 2015 provides that

“ An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”

The test for determining reasonable cause was formulated in Determination DWT0338 –Cementation Skanska and Carroll in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”.

The complainant’s explanation for non- compliance with the time limits was that she was uncertain and a bit” naïve”. This explanation does not meet the above test.

Accordingly, I find that I do not have jurisdiction to hear this element of the complaint.

Non- payment of Commission

The question for determination is whether the respondent’s failure to pay the complainant commission amounting to €1885.08 and due, the complainant asserts, on 19 December 2018 in respect of the placement of 3 radiographers contravened the provisions of the Act of 1991.

The complainant argues that the respondent by virtue of the former director’s letter of 25 May 2018     was obliged to pay her commission and this failure has infringed section 5(1)(2)(ii) which prohibits a deduction unless the

“deduction is of an amount that is fair and reasonable having regard to all the circumstances”.

Section   5 (6) of the Act of 1991 goes on to identify a deduction as follows:

“the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) [….]

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from

Were the wages properly payable?

In order for the complainant to succeed in a complaint that the employer has unlawfully deducted her wages, she must demonstrate that the sum withheld from her was “properly payable” -that she had a contractual entitlement or an entitlement on some other basis to  the sum of €1885.08, a sum based on 12 % of the invoiced fee to the client for the placement of  3 radiographers.

She has no contract of employment upon which I can rely in identifying when commission should be paid and under what circumstances. The respondent’s criteria for payment of commission, submitted at the hearing  -criteria which they maintain were provided to her in induction training- were not supplied to her in advance of her exit from the company, are not adverted to by the former managing director in his letter of  25 May 2018,  nor in the responses from his successor, Mr L. in his email of 16 July 2018 in which he states that

Standard company policy for payment of commission on placements for consultants who have exited the firm, is to pay out once the invoice has been fully paid by the client and the guarantee period has passed”

The exit agreement expressed in the letter of 25 May  guarantees commission to her in respect of “upcoming placements” which stood at 5 at that date, was not limited to two placements as was later argued by the respondent, was written in the  knowledge that she would be  resigning and that the start date of the radiographers will proceed the actual date of her departure and last pay slip. It makes no mention of any of the qualifying grounds cited by the respondent for payment- grounds not met by the complainant.

In addition, a supplementary statement dated 20/6/2018 by Mr F, former managing director and submitted in evidence by the complainant stated.

In relation to A’s exit agreement, as managing director I presented A with written assurances in May 2018 that she would receive payments in full as each placement started. These payments should have been paid a 12% percentage of the invoiced fee to the client.

My understanding is that the respondent continued to honour the agreement with A for the first two placements in July and August but subsequently decided not to honour the remaining three placements not on the basis of the agreement (or any part of it) but based on a statement that A had not done sufficient work  on the placements or some such…………… I can confirm that the invoices for the 5 placements were generated in the respondent’s accounts on June 2018………. All that remained to be done after A left was to confirm a start date once the government had issued work permits.

While the respondent expressed puzzlement at this statement there was no objection to its submission.

Commission is comprehended within the definition of wages as set out in Section 1 of the Act of 1991.

 The weight of evidence made up of a written exit agreement containing assurances provided to her in advance of her departure, the co-signatory’s record of 20 June  assurances given to the complainant - assurances devoid of any reference to non-payment after exiting the employment, the absence of any reference to the qualifying conditions  until December and at the hearing,  lead me to conclude that  the  totality of this evidence constitutes an “entitlement” to the payment. I find that the sum of €1885 is properly payable to the complainant.

Section 6(2) of the Act of 1991 states

“Where a rights commissioner decides, as respects a complaint under this section in relation to a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—

(a)    the net amount of the wages (after the making of any lawful deduction therefrom).

I require the respondent to pay the complainant the sum of €1885.08 subject to all lawful deductions. 

I find this complaint to be well founded. I order the respondent to pay the sum of €1885.08 to the complainant subject to all lawful deductions.

Non- payment of commission following termination of employment.