Complainant

Respondent

Anonymised Parties

Shop Assistant

Retail Chain

Representatives

Complainant

Ms Paula Quinn Solicitor Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00028982-001

11/06/2019

A change was made by the company to a commission incentive system and the complainant states that she never received any notification of the changes to her terms and conditions. While a statement was received last August 2018 the complainant states that she was unhappy with it and didn’t sign it. The company state that they did inform the complainant about changes to her terms both through briefings and then by correspondence dated 9th May 2019.

The complainant alleges in the related complaint ADJ-0021885 that her employer unlawfully reduced her hourly rate; unlawfully withdrew her monthly commission and a monthly allowance amounting to €54.92 per month which she received after completing a recognised training module. This complaint ADJ00022097 made under the Terms of Employment (Information) Act, 1994 relates to an allegation that her employer never notified her of the changes in her terms and employment as required by the Act.

The complainant states that her hourly rate is €10.62; commission of €95-€130 and an allowance of €54.92 every four weeks and that the latter two payments have been withdrawn.

There was no reduction in the hourly rate of pay. A change was made to the company’s commission scheme. On the 26th March 2019 store managers were briefed on the new changes to employees’ remuneration who then briefed store staff. The company decided to simplify their reward plans as the commission system had become overly complex and difficult to communicate and was deemed to be no longer fit for purpose. The scheme is a discretionary one and this has clearly and consistently been communicated to staff.

Separate to the change in the commission structure the complainant also had been receiving an overpayment of an allowance referred to as an APA/Healthy Expert supplement amounting to €54.92. She was entitled to an enhanced hourly rate of €.35(cent) to reflect that she had completed a training module, and this was incorporated into her hourly rate. However, it had never been shown in the complainant’s pay slip as a separate payment. However, from the 1st April 2019 that change has been made to show it as a separate payment on the pay slip. At this time the overpayment came to the respondent’s attention. The respondent wrote to the complainant and informed her of the administrative error

The company provided a written statement to the complainant on the 9th of May 2019 about the changes to the commission scheme and salary review complying with the Act to provide such a statement not later than one month after the change comes into effect.

In the complainant’s submission and the respondent’s there are facts regarding emails and communication not disputed such as the complainant’s manager in the first instance informing her that:

“From word of mouth from the Manager that they were taking commission but it would be added to our hourly rate of pay”.

A company letter informing the complainant of the changes being implemented:

An email regarding the overpayment of the Healthy Expert allowance:

“As of an email I received from my employer the day before my wages on the 10th of May they are taking away my commission and give me a reduced hourly rate of €10.45 plus an APA Healthy expert of 35 cent an hour.”

The company state in their correspondence about the overpayment:

“As a result of this administrative error you have been overpaid and I write to you today, to give you 30 days’ notice that this overpayment will cease. Please be assured that we will not be recovering any monies paid to you in error in relation to this.”

In subsequent correspondence the error was explained as follow:

“You have been overpaid by approx. €50 a month. You were in receipt of a supplement for passing APA as well as an additional pay increase for passing APA. You should have just got the pay increase and not the additional €50 supplement. It was an admin error.”

The correspondence sent to the complainant and received on the 10th of May 2019 states:

“Your store is classed as standard”

“You have currently completed 1 module(s) and will therefore receive an additional payment of €0 .30 per hour”

“Please note, it may appear that your base rate has reduced, this is not the case, as your Healthy Expert Supplement is now shown separately”.

Earnings Enhancement

“Where your previous hourly rate of pay for your contacted hours last year, plus last year’s commission, was greater than your new rate of pay at contracted hours, you will be paid a 4-weekly earnings enhancement. This is to ensure that you earn at least as much this year than you did last year on this basis.”

“ Please note that this enhancement is discretionary and non-contractual, and the Company reserves the right to vary or withdraw this at any time.”

“As communicated last year, we have now removed commission from our pay model in favour of a higher rate of pay”.

“Based on your role, store banding and the removal of commission, your rate of pay has been reviewed and I can confirm that your basic pay will be €10.45 per hour from April 1st 2019.”

While the complainant states she never signed the contract dated the 31st July 2018, the contract reflects the statutory provision relating to providing a statement within one month of the date of a change to a term in the contract.

Section 5 of the Act states:

“that the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

a)      1 month after the change takes effect

The company’s email and notification of a change is dated 9th of May 2019. The letter states that “Based on your role, store banding and the removal of commission, your rate of pay has been reviewed and I can confirm that your basic pay will be €10.45 per hour from April 1st 2019.”

Technically this is more than 1 month after the change takes effect.

While the complaint is therefore well-founded having regard to all the circumstances of this case it is a minor contravention of the Act having regard to the all the facts and the prior communication regarding the change and the right of the company to make those changes.

Section 7(2)(d) provides:

“order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment”

On the facts of this case I award no compensation as I determine that the employer has acted fairly throughout the process and to sanction for a technical breach of a few days’ lateness would be unjust having regard to all the circumstances.

Regarding the overpayment of an allowance, an employer is allowed to make a deduction; however, in this case the employer allowed the employee to keep the overpayment and simply stopped overpaying her, which is not a deduction. They wrote to the employee stating that they were correcting their error.

(5) Nothing in this section applies to—

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

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages,

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

a)      any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise

I declare that the complaint is well founded; although, having considered what is just and equitable having regard to all the circumstances I award no compensation and confirm that the statement provided by the employer on the 9th of May 2019 while late was in compliance with Section 5 of the Act.

Failure to provide statement