Complainant

Respondent

Anonymised Parties

Shop Assistant

Retail Chain

Representatives

Complainant

Paula Quinn Mason Hayes & Curran

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-00028697-001

23/05/2019

The complainant states that her pay is made up three amounts -a basic hourly rate of €10.62, commission based on sales amounting to €95 to €130 every four weeks and a Healthy expert allowance of €54.92. Effective the 1st April 2019 her commission ceased, and her expert allowance was taken away.

On the 10th April 2019 the company emailed the complainant to state that they were taking back the expert allowance as they had paid it in error. In March 2019 the company stated they were likely to replace the commission payment with a new pay structure incorporating an enhanced payment into salary and ensuring that earnings for 2020 would be maintained at the same level as 2019. They also stated that they would separate out the hourly expert rate of 35 cent as it was not well understood that it had been incorporated into the hourly rate.

The complainant alleges that her employer reduced her hourly rate unlawfully, withdrew her commission and withdrew an allowance for completing a training course.

The company states it did not reduce her hourly rate, it simply introduced a new payslip format to show her basic rate separate from her hourly allowance. The company due to an administrative error was overpaying the complainant a monthly payment for completing training and an hourly rate allowance. The monthly payment was an error. The company did operate a discretionary commission incentive plan; communicated that it would be stopping the system, paid all amounts due prior to ending and also introduced an enhanced discretionary payment to ensure year on year there was no reduction in earnings post the decision to end the commission system

The complainant’s original contract dated 7th January 2013 has no reference to a commission payment. It states that the hourly rate of pay is €8.65 and states it is also subject to the terms and conditions in the staff handbook. There is a letter of 30th July 2017 referencing a revised statement concerning terms and conditions.

There is also an unsigned contract dated 31st July 2018 detailing terms and conditions of employment. This contract details an hourly rate of €10.25 as per the National Wage Act 2000.

There is a communication detailing the company commission scheme commencing 28th September 2014 and it states the commission scheme remains discretionary and can be changed or altered at any time.

In January 2019 the complainant’s hourly rate in line with the National Minimum wage order 2018 increased 2.6% to €10.62.

The complainant states that on average her average yearly commission was €1000 -the company has paid her in advance €868 as an enhanced payment reflecting the fact that her commission on average was €66 paid every 4 weeks for 2019. She states that she also received backdated commission to bring her up to date prior to the new reward plan commencing on the 1st April 2019 and the previous commission system ending.

She states that her hourly rate was reduced by 17 cents to €10.45 which she states is the new starter rate.

The company states on the 9th of May 2019 that based on her completing 1 training module she will receive an allowance of €0.35 per hour.

The company states that pay in stores classed as standard was increased to €10.45 an hour and the complainant was also paid .35 cent an hour as an allowance. They also state that as per the company statement dated 31st July 2018 her hourly rate of pay is €10.25 and by paying her €10.45 as a basic rate the respondent is currently paying the complainant more than her contracted hourly rate.

While the commission system has ceased the company has paid the complainant €877.56 on the 10th May 2019 as an earnings enhancement which ensured that her pay for the year wold be comparable to the previous year.

In April 2019 the respondent in implementing the new pay system became aware that they were overpaying the complainant by €54.92 per month for approximately the last 18 months and wrote to her advising they would not be seeking a repayment; however, they would be correcting the administrative error.

The company has paid commission up to the date that it ended. It has also not sought to deduct the overpayments made to the complainant for 18 months. The respondent has made an enhanced payment for 2020 so that earnings for 2019 and 2020 are comparable. On these facts no unlawful deduction has been made and the complainant’s case is not well-founded.

The commission payment was discretionary as detailed in the 2014 communication. Liability exists to pay commission up to the date it was in existence; the respondent has the right to terminate the scheme and has done so.

However, the respondent has also made an enhanced payment for 2020 and paid that sum in advance.

Section 5(1) of the Act states:

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

b)      the deduction (or payment) is required or authorised to be made by a term of the employee’s contract of employment included in the contract, and in force at the time of, the deduction or payment

and 5 (5)

a)       a deduction made by an employer from the wages of an employee, or any payment received from an employer by an employee, where—

                                                   i.            an overpayment of wages

made (for any reason) by the employer to the employee, and

                                                 ii.            the amount of the deduction or payment does not exceed the amount of the overpayment

On the facts of this case no deduction in fact has taken place and on that basis the claim in whole is not well founded.

In accordance with section 41 the complaint of a contravention of section 5 of the Payment of Wages Act 1991 is not well founded as no unlawful deduction has occurred.

Unlawful deduction-commission