ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033389
Parties:
| Complainant | Respondent |
Parties | Barry Redmond | Aquachem DAC |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Self | Robin Hyde, Alastair Purdy and Co |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00044019-001 | 10/05/2021 |
Date of Adjudication Hearing: 10/08/2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaintto me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
The parties were advised at the outset that following the commencement of the Workplace Relations (Miscellaneous Provisions) Act 2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. It was also explained to the parties that this act also grants Adjudication Officers the power to administer the oath. Both the complainant and the respondent were then sworn in.
Background:
The complainant worked for the respondent from 1/11/2016 and promoted to a new role on 09/11/2020. He resigned on 23/04/2021 and is claiming that he was not paid all his outstanding commission of €10,534 when he received his final pay slip. The respondent disputes that he is owed any money as the sales claimed were either not entitled to commission or not fully invoiced or otherwise completed prior to his resignation. The complainant was paid €3,858 gross per month. He submitted his complaint to the Workplace Relations Commission on 10/05/2021. |
Summary of Complainant’s Case:
The complainant commenced as a Water Treatment Consultant with the respondent on 01/11/2016. He was promoted to the role of Sales Manager on 09/11/2020. His salary in that role was €47,500 and he was to be paid “10% commission on all New Sales Turnover (achieving greater that 25% Nett Profit [N.P.)]”. The complainant submitted his letter of resignation to the respondent on 13/04/2021 and this was accepted. In his final pay slip he was paid a total of €3,718 for outstanding commission. The complainant submits that he was entitled to a further €10,534 based on the sales and other business he brought in for the months of January, February and March 2021. The complainant provided the hearing with a detailed breakdown of each sale he had secured. |
Summary of Respondent’s Case:
The respondent confirms that the complainant worked for him from 01/11/2016 until his resignation on 23/04/2021. He was appointed to a new role on 09/11/2020 and the details of his pay and commission were outlined in a letter dated 09/11/2020. This confirmed that his salary was €47,500 and a commission on all new sales turnover achieving greater than 25% nett profit. Other details such a pension, car, health insurance and company phone were also confirmed. The complainant submitted his resignation on 12/04/2021 and this was accepted. His final pay included a payment of €3,718 in respect of all his outstanding commission. This commission was calculated in line with the company’s commission criteria. The respondent also provided the hearing with a detailed analysis of the complainant’s sales for the period January 2021 to March 2021 along with a breakdown of the amount of each sale and an analysis of whether or not it met the three criteria to be eligible for commission. These criteria were (a) that each sale would be a “New Sale” which in essence is a new customer; (b) that each new sale would achieve 25% net profit. The respondent defined “net profit” as the “value of the sale less costs/overheads”. Further clarification was provided in relation to the types of contract and the stage at which commission, if it qualifies, becomes determinable. The clear interpretation is that no commission can be paid until each contract has been fully concluded and paid. Likewise, any new sale must achieve a nett profit of 25% and then invoiced and paid before commission is paid. The respondent submitted in evidence a detailed analysis of the complainant’s sales for the period January 2020 to March 2020. The respondent confirmed that this analysis was done by the finance function with input from the CEO. This analysis was divided in three parts. The first was the successful quotations which met the criteria for commission and which was paid to the respondent. The second was a list of the successful quotations which did not meet the criteria and the third was a list of the work which was completed after the complainant resigned and for which the costs were not realised. Most of these would be invoiced quarterly and therefore had not matured at the time the complainant resigned. The respondent also noted that some of those had to be re calculated and corrected. The respondent accepts that “commission” falls within the concept of “wages”. It was submitted on behalf of the respondent that there was no unlawful deduction for the purposes of Section 5(6) of the Payment of Wages Act 1991 as the “wages” challenged by the complainant must be properly payable. It is the respondent’s position that there was no commission withheld from the complainant. All commission due to the complainant were properly paid while he was employed. Any works which were invoiced after the complainant resigned cannot be inferred as falling within the complainant’s contract of employment. |
Findings and Conclusions:
The Payment of Wages Act, 1991 defines 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, and (b) […} It is not disputed that any commission payable to the complainant falls within the concept of wages in accordance with the Act. The complainant and the respondent have a different interpretation of what the criteria for commission was. The complainant made a reference to his initial commission payment while the respondent submits that the only criteria are those outlined in the letter dated 09/11/2020. The criteria are clear: “10% Commission on all new sales turnover (achieving greater that 25% nett turnover)”. It is also clear that there is a different interpretation of what constitutes a “new sale” and when such a sale meets the criteria for the payment of commission. The respondent is clear that no commission can be considered until an invoice is issued and paid. The respondent also clarified that commission is not payable for an annual contract. The commission cannot be paid until the entire contract is invoiced and paid. The complainant submits that his letter of appointment is unambiguous. This states that he will receive 10% commission on all new sales turnover which achieves greater than 25% nett profit. There was also a conflict in relation to what constituted a “new sale”. The complainant believes that any new sale qualifies for commission if it meets those criteria while the respondent believes that a new sale is any job which is outside of an existing contract with a client. The respondent disputed a document submitted by the complainant in relation to commission payments. This was related to his original contract of employment and did not have any bearing on his promoted role. The respondent also questioned the origin of the document as they had not sight of this prior to the hearing. The complainant subsequently sent a copy of this document along with an e mail from a previous colleague which showed that this sent from the CEO. However, this document did not have any relevance to the commission structure which was outlined in the letter sent to the complainant on 09/11/2020. Having reviewed the extensive documentation and the evidence adduced at the hearing I find that the complainant has failed to establish that he was entitled to commission on the various sales that he was responsible for. He also disputes the respondent’s interpretation of various aspects of the commission structure and analysis. I note that he does not accept the respondent’s review of all the sales and the application of the criteria. I also note that he has made at least two errors in his claim that were already paid. Deductions made by an employer from the wages of an employee are set out in Section 5 of the Act as follows: “5 (1) “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless – (a) The deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) In the case of a deduction, the employee has given his prior consent in writing to it.” Having carefully considered the evidence adduced in the within case I am satisfied that the complainant’s commission for the period January to March 2021 was paid and that there was no unlawful deduction from his wages due to non-payment of commission. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the complainant’s complaint under the Payment of Wages Act, 1991 is not well founded. |
Dated: 25th August 2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Commission. Wages. |