ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00027532
Parties:
| Complainant | Respondent |
Anonymised Parties | A financial advisor | A provider of financial services |
Representatives | None | None |
Complaints:
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-00035316-001 | 15/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035316-002 | 15/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035316-003 | 15/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00035316-005 | 15/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00035316-006 | 15/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00035316-007 | 15/03/2020 |
Date of Adjudication Hearing: 22/01/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 15th March 2020, the complainant referred complaints to the Workplace Relations Commission. They were heard at adjudication on the 22nd January 2021. The hearing was held remotely following the designation of the Workplace Relations Commission as a designated body under the Criminal Law and Civil Law (Miscellaneous Provisions) Act. The complainant attended the adjudication and two witnesses attended for the respondent.
In accordance with section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant commenced employment with the respondent on the 9th May 2019 and this came to an end on the 17th September 2019. It was agreed that no statement of terms of employment were provided to the complainant; the remainder of the claims are disputed. The respondent submits that the complainant’s role was commission-only and that the claims were subject to the settlement agreement of the 20th December 2019. |
Summary of Complainant’s Case:
The complainant outlined that he took the role on the basis of the agreement reached at the interview with the respondent. His role was to be that of financial advisor, but this did not transpire as intended. He was not provided with a job specification or contract, so was unclear where he stood. He did not know his terms and conditions. He had a wealth of mortgage-related experience and wanted to develop the residential mortgage side. His role was to set up this part of the business for the respondent. The complainant outlined that there was always a lead-in time in developing a mortgage business. His role was on the road. He had to use his old lap-top, as the respondent only provided one after six weeks. The relevant IT systems were only uploaded in September. He outlined that they discussed his remuneration as being between €2,500 and €3,500 per month. He received a payment of €2,500 at the end of May and a payment of €2,100 in June 2019. He never received information about commissions or how to set up clients. The complainant outlined that he was informed in July that the mortgage role was not developing. He said that he had not received the critical documentation required to pursue leads. Nevertheless, he made progress on some leads after about a month. These were regeneration leads, where other advisers had dealt with the customers or customers who had removed their business. The complainant outlined that he had brought 50 to 60 leads to the business, mainly through personal contacts. The complainant outlined that when he was not paid, he contacted the Department of Social Protection, who confirmed that he was registered for PAYE. A Social Welfare inspection was to take place. The Department of Social Protection was in touch with the respondent and the complainant’s employment was terminated within four days of this taking place. The complainant was asked to bring in the lap-top so that IT systems could be installed. It was when he went to collect the lap-top that he was told that he was being let go. In a throw-away comment, the respondent said that they could not have someone on social welfare. The respondent then contacted the Department of Social Protection to say that the complainant was no longer an employee, leading to the inspection being cancelled. The complainant outlined that he was dismissed on the 17th September and the inspection was meant to take place on the 19th September. He said that an inference could be made that the dismissal and the scheduled inspection were linked. Describing his work for the respondent, the complainant said that he made calls from the office and was also on the road. He brought in business through personal contacts and compiled documentation to send to leads. He described that he worked tirelessly. In respect of the Payment of Wages claim, the complainant outlined that there was no documentation setting out the rate of pay, but they had agreed monthly remuneration of between €2,500 and €3,500. He commented that he had generated income for the respondent. He said that whilst he was not moving at the fastest pace in the world, he was building up and meeting people. He outlined that this claim was for pay at €3,500 per month. The complainant outlined that there were two Terms of Employment (Information) complaints; one in relation to not getting the 5-day statement and a second in respect of not getting the section 3 statement. In respect of the Minimum Notice complaint, the complainant outlined that he was not given notice in accordance with the Act. In respect of the ending of his employment, the complainant said that the reason cited by the respondent did not reflect the reality. He was telephoned to attend the meeting of the 17th September to collect the lap-top on the understanding that IT updates were completed. He was told that his employment was being terminated because they could not have employees going to the Department of Social Protection. He was taken aback to be escorted off the premises. The complainant emailed the respondent, asking for his contract of employment. A meeting was set up for December and the complainant expected that he would be reinstated to his role or that there would be a satisfactory resolution. He had suffered an injury following an accident and was in great pain. It was also humiliating to attend the meeting in these circumstances. The respondent outlined that the complainant was only there because it was Christmas. It was put to him that he wanted this sorted or he didn’t. The complainant said that he was under pressure because he did not then have a salary. He said that he found the tone to be very aggressive. He was told that he could leave here empty handed or they could do something. The complainant outlined that at the conclusion of the meeting, he agreed to a payment of €2,500. He was told that he had the option to leave empty handed. It was ‘take it or leave it’, or that he could pursue the matter in 2020. The respondent director left the room and came back with the draft. The complainant signed the document to receipt the payment. It was taken away and returned with the director’s signature. The complainant received payment that day. The complainant decided to submit the complaints on the 15th March 2020 as he was not happy with the outcome and sought advice. He had still had not received the documents he had sought. He was still distraught over how the whole thing transpired. The complainant said that he resumed employment in February 2020. In reply to the respondent, the complainant outlined that he had been under stress and in pain at the December 2019 meeting. He had previously worked in a leading financial institution for 35 years and specialised in AVCs. He said that his relationship with a named business was transparent and would have transferred to the respondent. He was well aware that this was not a 9 to 5 job and involved being on the road. He had supplied the respondent with details of potential clients and there was never discussion of his pipeline. He had to wait for the opportunity to make the calls, for example in September or October. The complainant outlined that after his employment ended, he had outlined his financial loss to the respondent, estimating this at €12,000. The complainant outlined that he had been eager to learn and attended information sessions with the brokers. He was not provided with the documentation to kick start leads. He said that he had not put in his personal contacts to the respondent systems as they were his leads. He had approached the Department of Social Protection as he had no income coming in. They informed him that he should be paid an hourly rate and have a contract. They said that he was a PAYE employee. In further reply, the complainant outlined that he had not been able to drum up business in the absence of the pro forma document to go through with leads. The lap-top also did not have the right systems and he was denied access to the office. |
Summary of Respondent’s Case:
The respondent outlined that the complainant began employment on the 9th May 2019. It outlined that it had one financial advisor role, which is 100% commission based. The complainant agreed to this and was to be paid an initial retainer, off-set against future commissions. It was submitted that there was a very generous commission-split. The complainant received two payments: one of €2,500 and a second of €2,100. The respondent outlined that the complainant always had access to the office and the administration team. He could access any paperwork, including client packs, and the computers he needed. He was provided with a lap-top and one to one training. He did not progress leads and only provided one viable piece of business. The complainant did not have the required product knowledge. The respondent outlined that a standard 6-month probation clause applied. The respondent outlined that it was clear that the complainant was not performing, so, on the 17th September 2019, he was informed that his employment was being terminated. He had been given every opportunity. The respondent outlined that in December 2019, the complainant was offered €2,500 in full and final settlement, which he agreed to. The respondent outlined that the complainant worked for four months and was paid €4,600 and the further payment in full and final settlement. It was submitted that the full and final settlement encompassed all the claims. The director outlined that the respondent employed over 30 people, and this was their first attendance at the Workplace Relations Commission. The December 2019 meeting arose at the complainant’s request, but re-engagement did not make sense as he had left the business. The complainant was being hugely unfair and threatening the WRC as a blackmailing tool. The respondent had sought to help and provided training. The settlement of €2,500 was proposed. The director outlined that while the complainant’s CV had read very well, he had only provided one piece of business, and this was from a previous employer. The director outlined that the straw that broke the camel’s back was such little email activity on his lap-top. There were no sales proposals, quotations or enquiries. The respondent paid a retainer at the start of a person’s employment as there could be delay in getting paid commission. This can be extended where there is obvious activity, but this was lacking in this case. In respect of the December 2019 meeting, the complainant had texted his bank details prior to the meeting. It was an awkward meeting because the complainant was in physical pain. They discussed the reason for the meeting and the respondent was shocked that the complainant was looking for €12,000. The respondent presented the figure of €2,500, stating that this was a line in the sand and in full and final settlement. The monies were paid there and then. They created the settlement agreement from a draft they had on file. The respondent outlined that while the complainant had been given the benefit of the doubt, his employment was terminated because the respondent could not see activity and effort. Staff in sales should be out generating business and were provided with training and upskilling. The final straw here was the lack of activity. The respondent outlined that the involvement of the social welfare inspector was a coincidence, and the respondent did not care if the complainant claimed social welfare. The respondent submitted that the settlement covered all elements and was meant to be full and final. The respondent outlined that the complainant was aware of the role and that it was ‘financial advisor’. While the complainant had referred to his mortgage experience at the interview and the respondent said that it could look at this business, this was not the basis of his recruitment. The complainant had approached the respondent for the role and was aware of the retainer. It was submitted that business proposals needed to be written to generate business. There was no pipeline in this case. The complainant had been given access to the office and was only refused on a Saturday, after their relationship had deteriorated. |
Findings and Conclusions:
CA-00035316-001 This is a complaint pursuant to the Payment of Wages Act. The complainant asserts that he was not paid in full during the course of his employment. The respondent refutes the claim. It asserts that the role was commission-only and that the monies paid to the complainant were retainers until such time as the complainant was able to generate business and commissions. The respondent further submits that the settlement agreement of the 20th December 2019 encapsulates this claim. As noted elsewhere in the decision, there was no documentary evidence regarding the terms and conditions of this employment. There is nothing in writing in respect of pay or commission. There are pay slips, which mainly indicate that zero was paid in respect of wages. I find as fact that the complainant was due remuneration in the amount of €2,500 per month. While the complainant had sought a higher rate of pay, €2,500 was in the region discussed at interview. I find that it is the amount due per month because this is what the respondent paid at the end of the first month of employment. It paid the complainant €2,500 at the end of May 2019, which is strongly suggestive that this was the monthly rate of pay for this month and every month. Again, there is nothing in writing about this being a retainer. The pay for May was paid in full. Pay is due for June, July, August 2019 and for the 1st to the 17th September 2019. This is €8,897 (3 x €2,500 and €1,397 due for September 2019). I note that the respondent paid the complainant €2,100 in June 2019. This means that €6,797 is due in outstanding wages for June, July, August and part of September 2019. The Settlement Agreement is a termination agreement and therefore does not encapsulate the complainant’s entitlement to wages. There is no reference to the Payment of Wages Act in the Settlement Agreement. For the June, July and August 2019 payments, there is reasonable cause allowing the submission of the complaint on the 15th March 2020. The complainant sought to raise these issues during his employment and afterwards. He sought and secured alternative employment. He was also recovering from an accident. These circumstances, as well as the absence of prejudice for the respondent, explain and excuse the delay and constitute reasonable cause. CA-00035316-002 This is a complaint pursuant to the Terms of Employment (Information) Act on the grounds that the complainant was not provided with a statement within two months of the commencement of his employment (section 3). It was accepted that no statement was provided to the complainant, because there was then no one doing the HR function. This requirement, however, has been in force since the 16th May 1994. It follows that section 3 of the Terms of Employment (Information) Act was not complied with. This is a subsisting breach as the statement was not provided at any time in this employment, up to and including the date of dismissal, the 17th September 2019. The complaint was, therefore, lodged within six months of the date of contravention. The Settlement Agreement is a termination agreement and therefore does not encapsulate the complainant’s statutory entitlement to receive a statement. There is no reference to the Terms of Employment (Information) Act in the Settlement Agreement. I have found that the complainant’s monthly remuneration was €2,500. As redress, I award this amount, which is equivalent to four weeks’ wages. This amount is effective, proportionate and dissuasive redress pursuant to section 7 of the Terms of Employment (Information) Act. CA-00035316-003 This is a complaint pursuant to the Terms of Employment (Information) Act in respect of the failure to provide the complainant with a statement of his core terms. Per section 3(1A) of the Act, an employee must be provided with the statement of their core terms of employment within five days of commencing the role. This covers such information as the name and address of the employer, rates of pay and hours of work. The requirement for a statement of core terms was enacted on the 4th March 2019, i.e. two months before the commencement of this employment. No statement of core terms was provided to the complainant at any stage of his employment. This is a subsisting breach up to the end of the employment on the 17th September 2019. The complaint was, therefore, referred within six months of the date of contravention. The Settlement Agreement is a termination agreement and therefore does not encapsulate the complainant’s entitlement to receive a statement of his core terms. There is no reference to the Terms of Employment (Information) Act in the Settlement Agreement. Taking account of the circumstances, including that the requirement for a statement of core terms had only recently been enacted when this employment started, I award redress of €750. CA-00035316-005 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act. This complaint relates to not receiving statutory notice. The complainant’s employment was of a duration of over 13 weeks and less than one year, so the complainant was entitled to one week of notice. He was not given or paid this notice. The Settlement Agreement is a termination agreement and therefore does not encapsulate the complainant’s statutory entitlement to receive notice. There is no reference to the Minimum Notice & Terms of Employment Act in the Settlement Agreement. I have found that the complainant’s monthly remuneration was €2,500. He was not given notice of the ending of his employment. It follows that there was a contravention of the Act and I award the complainant the equivalent of one week’s pay as compensation, i.e. €576. CA-00035316-006 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act regarding the requirement in section 5 and the Second Schedule that the employee continue to be paid and receive their other contractual rights during a notice period. The complainant was summarily dismissed. Elsewhere, the complainant has obtained redress for pay and for notice pay. This encapsulates all his entitlements and I, therefore, find that there was no contravention of section 5. CA-00035316-007 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act regarding the requirement in section 6 of the employee to give notice to terminate their employment. This is a complaint that an employer can refer to the Workplace Relations Commission, and while a direction can be issued, it is generally held that compensation cannot be awarded for such a contravention. Given that this complaint was referred by the complainant employee and not by the respondent employer, and because the respondent ended the complainant’s employment, there is clearly no contravention of section 6. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00035316-001 I decide that the complaint pursuant to the Payment of Wages Act is well-founded and the respondent shall pay to the complainant €6,797. CA-00035316-002 I decide that the complaint pursuant to the Terms of Employment (Information) Act in respect of section 3 is well-founded and the respondent shall pay to the complainant redress of €1,500. CA-00035316-003 I decide that the complaint pursuant to the Terms of Employment (Information) Act in respect of section 3(1A) is well-founded and the respondent shall pay to the complainant redress of €750. CA-00035316-005 I decide that there was a contravention of the Minimum Notice & Terms of Employment Act in respect of section 4 and the respondent shall pay to the complainant €576. CA-00035316-006 I decide that there was no contravention of the Minimum Notice & Terms of Employment Act in respect of section 5. CA-00035316-007 I decide that there was no contravention of the Minimum Notice & Terms of Employment Act in respect of section 6. |
Dated: 22nd September 2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Payment of Wages Act / Terms of Employment (Information) Act / Minimum Notice & Terms of Employment Act |
CORRECTION ORDER ISUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT, 1997.
This Correction Order should be read in conjunction with the Decision issued on the 22nd September 2021. The correction corrects the redress awarded in CA-00035316-002 in accordance with the amount stated in the findings, i.e. the correct award in CA-00035316-002 is €2,500.
ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00027532
Parties:
| Complainant | Respondent |
Anonymised Parties | A financial advisor | A provider of financial services |
Representatives | None | None |
Complaints:
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-00035316-001 | 15/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035316-002 | 15/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035316-003 | 15/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00035316-005 | 15/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00035316-006 | 15/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00035316-007 | 15/03/2020 |
Date of Adjudication Hearing: 22/01/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 15th March 2020, the complainant referred complaints to the Workplace Relations Commission. They were heard at adjudication on the 22nd January 2021. The hearing was held remotely following the designation of the Workplace Relations Commission as a designated body under the Criminal Law and Civil Law (Miscellaneous Provisions) Act. The complainant attended the adjudication and two witnesses attended for the respondent.
In accordance with section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant commenced employment with the respondent on the 9th May 2019 and this came to an end on the 17th September 2019. It was agreed that no statement of terms of employment were provided to the complainant; the remainder of the claims are disputed. The respondent submits that the complainant’s role was commission-only and that the claims were subject to the settlement agreement of the 20th December 2019. |
Summary of Complainant’s Case:
The complainant outlined that he took the role on the basis of the agreement reached at the interview with the respondent. His role was to be that of financial advisor, but this did not transpire as intended. He was not provided with a job specification or contract, so was unclear where he stood. He did not know his terms and conditions. He had a wealth of mortgage-related experience and wanted to develop the residential mortgage side. His role was to set up this part of the business for the respondent. The complainant outlined that there was always a lead-in time in developing a mortgage business. His role was on the road. He had to use his old lap-top, as the respondent only provided one after six weeks. The relevant IT systems were only uploaded in September. He outlined that they discussed his remuneration as being between €2,500 and €3,500 per month. He received a payment of €2,500 at the end of May and a payment of €2,100 in June 2019. He never received information about commissions or how to set up clients. The complainant outlined that he was informed in July that the mortgage role was not developing. He said that he had not received the critical documentation required to pursue leads. Nevertheless, he made progress on some leads after about a month. These were regeneration leads, where other advisers had dealt with the customers or customers who had removed their business. The complainant outlined that he had brought 50 to 60 leads to the business, mainly through personal contacts. The complainant outlined that when he was not paid, he contacted the Department of Social Protection, who confirmed that he was registered for PAYE. A Social Welfare inspection was to take place. The Department of Social Protection was in touch with the respondent and the complainant’s employment was terminated within four days of this taking place. The complainant was asked to bring in the lap-top so that IT systems could be installed. It was when he went to collect the lap-top that he was told that he was being let go. In a throw-away comment, the respondent said that they could not have someone on social welfare. The respondent then contacted the Department of Social Protection to say that the complainant was no longer an employee, leading to the inspection being cancelled. The complainant outlined that he was dismissed on the 17th September and the inspection was meant to take place on the 19th September. He said that an inference could be made that the dismissal and the scheduled inspection were linked. Describing his work for the respondent, the complainant said that he made calls from the office and was also on the road. He brought in business through personal contacts and compiled documentation to send to leads. He described that he worked tirelessly. In respect of the Payment of Wages claim, the complainant outlined that there was no documentation setting out the rate of pay, but they had agreed monthly remuneration of between €2,500 and €3,500. He commented that he had generated income for the respondent. He said that whilst he was not moving at the fastest pace in the world, he was building up and meeting people. He outlined that this claim was for pay at €3,500 per month. The complainant outlined that there were two Terms of Employment (Information) complaints; one in relation to not getting the 5-day statement and a second in respect of not getting the section 3 statement. In respect of the Minimum Notice complaint, the complainant outlined that he was not given notice in accordance with the Act. In respect of the ending of his employment, the complainant said that the reason cited by the respondent did not reflect the reality. He was telephoned to attend the meeting of the 17th September to collect the lap-top on the understanding that IT updates were completed. He was told that his employment was being terminated because they could not have employees going to the Department of Social Protection. He was taken aback to be escorted off the premises. The complainant emailed the respondent, asking for his contract of employment. A meeting was set up for December and the complainant expected that he would be reinstated to his role or that there would be a satisfactory resolution. He had suffered an injury following an accident and was in great pain. It was also humiliating to attend the meeting in these circumstances. The respondent outlined that the complainant was only there because it was Christmas. It was put to him that he wanted this sorted or he didn’t. The complainant said that he was under pressure because he did not then have a salary. He said that he found the tone to be very aggressive. He was told that he could leave here empty handed or they could do something. The complainant outlined that at the conclusion of the meeting, he agreed to a payment of €2,500. He was told that he had the option to leave empty handed. It was ‘take it or leave it’, or that he could pursue the matter in 2020. The respondent director left the room and came back with the draft. The complainant signed the document to receipt the payment. It was taken away and returned with the director’s signature. The complainant received payment that day. The complainant decided to submit the complaints on the 15th March 2020 as he was not happy with the outcome and sought advice. He had still had not received the documents he had sought. He was still distraught over how the whole thing transpired. The complainant said that he resumed employment in February 2020. In reply to the respondent, the complainant outlined that he had been under stress and in pain at the December 2019 meeting. He had previously worked in a leading financial institution for 35 years and specialised in AVCs. He said that his relationship with a named business was transparent and would have transferred to the respondent. He was well aware that this was not a 9 to 5 job and involved being on the road. He had supplied the respondent with details of potential clients and there was never discussion of his pipeline. He had to wait for the opportunity to make the calls, for example in September or October. The complainant outlined that after his employment ended, he had outlined his financial loss to the respondent, estimating this at €12,000. The complainant outlined that he had been eager to learn and attended information sessions with the brokers. He was not provided with the documentation to kick start leads. He said that he had not put in his personal contacts to the respondent systems as they were his leads. He had approached the Department of Social Protection as he had no income coming in. They informed him that he should be paid an hourly rate and have a contract. They said that he was a PAYE employee. In further reply, the complainant outlined that he had not been able to drum up business in the absence of the pro forma document to go through with leads. The lap-top also did not have the right systems and he was denied access to the office. |
Summary of Respondent’s Case:
The respondent outlined that the complainant began employment on the 9th May 2019. It outlined that it had one financial advisor role, which is 100% commission based. The complainant agreed to this and was to be paid an initial retainer, off-set against future commissions. It was submitted that there was a very generous commission-split. The complainant received two payments: one of €2,500 and a second of €2,100. The respondent outlined that the complainant always had access to the office and the administration team. He could access any paperwork, including client packs, and the computers he needed. He was provided with a lap-top and one to one training. He did not progress leads and only provided one viable piece of business. The complainant did not have the required product knowledge. The respondent outlined that a standard 6-month probation clause applied. The respondent outlined that it was clear that the complainant was not performing, so, on the 17th September 2019, he was informed that his employment was being terminated. He had been given every opportunity. The respondent outlined that in December 2019, the complainant was offered €2,500 in full and final settlement, which he agreed to. The respondent outlined that the complainant worked for four months and was paid €4,600 and the further payment in full and final settlement. It was submitted that the full and final settlement encompassed all the claims. The director outlined that the respondent employed over 30 people, and this was their first attendance at the Workplace Relations Commission. The December 2019 meeting arose at the complainant’s request, but re-engagement did not make sense as he had left the business. The complainant was being hugely unfair and threatening the WRC as a blackmailing tool. The respondent had sought to help and provided training. The settlement of €2,500 was proposed. The director outlined that while the complainant’s CV had read very well, he had only provided one piece of business, and this was from a previous employer. The director outlined that the straw that broke the camel’s back was such little email activity on his lap-top. There were no sales proposals, quotations or enquiries. The respondent paid a retainer at the start of a person’s employment as there could be delay in getting paid commission. This can be extended where there is obvious activity, but this was lacking in this case. In respect of the December 2019 meeting, the complainant had texted his bank details prior to the meeting. It was an awkward meeting because the complainant was in physical pain. They discussed the reason for the meeting and the respondent was shocked that the complainant was looking for €12,000. The respondent presented the figure of €2,500, stating that this was a line in the sand and in full and final settlement. The monies were paid there and then. They created the settlement agreement from a draft they had on file. The respondent outlined that while the complainant had been given the benefit of the doubt, his employment was terminated because the respondent could not see activity and effort. Staff in sales should be out generating business and were provided with training and upskilling. The final straw here was the lack of activity. The respondent outlined that the involvement of the social welfare inspector was a coincidence, and the respondent did not care if the complainant claimed social welfare. The respondent submitted that the settlement covered all elements and was meant to be full and final. The respondent outlined that the complainant was aware of the role and that it was ‘financial advisor’. While the complainant had referred to his mortgage experience at the interview and the respondent said that it could look at this business, this was not the basis of his recruitment. The complainant had approached the respondent for the role and was aware of the retainer. It was submitted that business proposals needed to be written to generate business. There was no pipeline in this case. The complainant had been given access to the office and was only refused on a Saturday, after their relationship had deteriorated. |
Findings and Conclusions:
CA-00035316-001 This is a complaint pursuant to the Payment of Wages Act. The complainant asserts that he was not paid in full during the course of his employment. The respondent refutes the claim. It asserts that the role was commission-only and that the monies paid to the complainant were retainers until such time as the complainant was able to generate business and commissions. The respondent further submits that the settlement agreement of the 20th December 2019 encapsulates this claim. As noted elsewhere in the decision, there was no documentary evidence regarding the terms and conditions of this employment. There is nothing in writing in respect of pay or commission. There are pay slips, which mainly indicate that zero was paid in respect of wages. I find as fact that the complainant was due remuneration in the amount of €2,500 per month. While the complainant had sought a higher rate of pay, €2,500 was in the region discussed at interview. I find that it is the amount due per month because this is what the respondent paid at the end of the first month of employment. It paid the complainant €2,500 at the end of May 2019, which is strongly suggestive that this was the monthly rate of pay for this month and every month. Again, there is nothing in writing about this being a retainer. The pay for May was paid in full. Pay is due for June, July, August 2019 and for the 1st to the 17th September 2019. This is €8,897 (3 x €2,500 and €1,397 due for September 2019). I note that the respondent paid the complainant €2,100 in June 2019. This means that €6,797 is due in outstanding wages for June, July, August and part of September 2019. The Settlement Agreement is a termination agreement and therefore does not encapsulate the complainant’s entitlement to wages. There is no reference to the Payment of Wages Act in the Settlement Agreement. For the June, July and August 2019 payments, there is reasonable cause allowing the submission of the complaint on the 15th March 2020. The complainant sought to raise these issues during his employment and afterwards. He sought and secured alternative employment. He was also recovering from an accident. These circumstances, as well as the absence of prejudice for the respondent, explain and excuse the delay and constitute reasonable cause. CA-00035316-002 This is a complaint pursuant to the Terms of Employment (Information) Act on the grounds that the complainant was not provided with a statement within two months of the commencement of his employment (section 3). It was accepted that no statement was provided to the complainant, because there was then no one doing the HR function. This requirement, however, has been in force since the 16th May 1994. It follows that section 3 of the Terms of Employment (Information) Act was not complied with. This is a subsisting breach as the statement was not provided at any time in this employment, up to and including the date of dismissal, the 17th September 2019. The complaint was, therefore, lodged within six months of the date of contravention. The Settlement Agreement is a termination agreement and therefore does not encapsulate the complainant’s statutory entitlement to receive a statement. There is no reference to the Terms of Employment (Information) Act in the Settlement Agreement. I have found that the complainant’s monthly remuneration was €2,500. As redress, I award this amount, which is equivalent to four weeks’ wages. This amount is effective, proportionate and dissuasive redress pursuant to section 7 of the Terms of Employment (Information) Act. CA-00035316-003 This is a complaint pursuant to the Terms of Employment (Information) Act in respect of the failure to provide the complainant with a statement of his core terms. Per section 3(1A) of the Act, an employee must be provided with the statement of their core terms of employment within five days of commencing the role. This covers such information as the name and address of the employer, rates of pay and hours of work. The requirement for a statement of core terms was enacted on the 4th March 2019, i.e. two months before the commencement of this employment. No statement of core terms was provided to the complainant at any stage of his employment. This is a subsisting breach up to the end of the employment on the 17th September 2019. The complaint was, therefore, referred within six months of the date of contravention. The Settlement Agreement is a termination agreement and therefore does not encapsulate the complainant’s entitlement to receive a statement of his core terms. There is no reference to the Terms of Employment (Information) Act in the Settlement Agreement. Taking account of the circumstances, including that the requirement for a statement of core terms had only recently been enacted when this employment started, I award redress of €750. CA-00035316-005 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act. This complaint relates to not receiving statutory notice. The complainant’s employment was of a duration of over 13 weeks and less than one year, so the complainant was entitled to one week of notice. He was not given or paid this notice. The Settlement Agreement is a termination agreement and therefore does not encapsulate the complainant’s statutory entitlement to receive notice. There is no reference to the Minimum Notice & Terms of Employment Act in the Settlement Agreement. I have found that the complainant’s monthly remuneration was €2,500. He was not given notice of the ending of his employment. It follows that there was a contravention of the Act and I award the complainant the equivalent of one week’s pay as compensation, i.e. €576. CA-00035316-006 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act regarding the requirement in section 5 and the Second Schedule that the employee continue to be paid and receive their other contractual rights during a notice period. The complainant was summarily dismissed. Elsewhere, the complainant has obtained redress for pay and for notice pay. This encapsulates all his entitlements and I, therefore, find that there was no contravention of section 5. CA-00035316-007 This is a complaint pursuant to the Minimum Notice & Terms of Employment Act regarding the requirement in section 6 of the employee to give notice to terminate their employment. This is a complaint that an employer can refer to the Workplace Relations Commission, and while a direction can be issued, it is generally held that compensation cannot be awarded for such a contravention. Given that this complaint was referred by the complainant employee and not by the respondent employer, and because the respondent ended the complainant’s employment, there is clearly no contravention of section 6. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00035316-001 I decide that the complaint pursuant to the Payment of Wages Act is well-founded and the respondent shall pay to the complainant €6,797. CA-00035316-002 I decide that the complaint pursuant to the Terms of Employment (Information) Act in respect of section 3 is well-founded and the respondent shall pay to the complainant redress of €2,500. CA-00035316-003 I decide that the complaint pursuant to the Terms of Employment (Information) Act in respect of section 3(1A) is well-founded and the respondent shall pay to the complainant redress of €750. CA-00035316-005 I decide that there was a contravention of the Minimum Notice & Terms of Employment Act in respect of section 4 and the respondent shall pay to the complainant €576. CA-00035316-006 I decide that there was no contravention of the Minimum Notice & Terms of Employment Act in respect of section 5. CA-00035316-007 I decide that there was no contravention of the Minimum Notice & Terms of Employment Act in respect of section 6. |
Dated: 22nd September 2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Payment of Wages Act / Terms of Employment (Information) Act / Minimum Notice & Terms of Employment Act |