ADJ-00035695

Complainant

Respondent

Parties

Conor  O'Sullivan

Linked P2P Limited t/a Linked Finance

Representatives

  Self

 Niall O’Grady

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-00046875-001

22/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00046875-002

22/10/2021

The complainant was employed as a partnership manager by the respondent from 09 March 2020 to 16 July 2021.  On 16 June 2021 he gave the respondent one months’ notice of his intention to resign.  The complainant claims he has not been paid for holidays outstanding at the date of termination and was not paid the correct amount of commission and team bonus due to him.  The complainant submitted his complaints to the Workplace Relations Commission on 22 October 2021.

The respondent rejects the complaints and asserts that the complainant was paid an amount in excess of his correct entitlement on his departure from the company.

The complainant presented two complaints concerning pay.  One about payment for holidays due at the date of termination and the underpayment of commission and team bonus.  The second complaint refers to not receiving the appropriate payment in lieu of notice.

Holiday pay

The complainant gave notice of his resignation to the respondent on 16 June 2021.  The notice period contained in his contract of employment was one month.  Based on his experience of other employees and industry practice he expected he would be on garden leave to 16 July 2021 and would be paid his basic salary for that month.  He then expected payment for 10.83 days annual leave outstanding at his date of termination.  He did not request annual leave or discuss annual leave with the CEO.  He did discuss finishing up early so that no conflict would occur, and he might have an ongoing relationship with the company.  He was paid his basic salary to 16 July 2021 but was not paid for his outstanding holidays.  His claim is for 10.83 days’ pay for holidays due to him at the date of termination.

Commission

The complainant claims he is due commission based on loans that he originated.  He referred to documents provided to him on appointment, explaining the commission scheme.  The complainant contends that loans originated by him completed in June 2021 and in the weeks shortly afterwards should have entitled him to a commission payment of €1,144.50. 

Some of the loans originated by the complainant could not be completed before his exit as the company did not have the funds it had committed to lend out.  The complainant contends that the delay is attributable to the respondent, and he should not be at a loss because of the respondent’s funding issue.  The loans were completed after a few weeks delay.

The complainant also claims he was due to be paid a €500 team bonus for the month of July 2021.  This bonus is paid if the team achieves its target and is paid to all members of the team, even when on annual leave.  The complainant acknowledges his employment terminated on 16 July 2021, but he claims the bonus should not be pro-rated as staff on holidays are paid the full monthly team bonus. 

The respondent rejects the complaints and asserts that the complainant was paid an amount in excess of his correct entitlement on his departure from the company.

In June 2021 the complainant gave one months’ notice of his intention to resign and proceeded to commence working out his notice period.  The respondent contends that in such circumstances it is its responsibility to pay the employee their normal pay during the notice period and on completion of the notice period to pay any outstanding balance of annual leave accrued to the date of departure.

In conversation with the Chief Executive in June the complainant sought to leave the business before the date his notice was due to end.  The Chief Executive agreed to accept a shorter notice period, as requested by the complainant, and he finished working with the company on 25 June 2021.  The respondent does not accept that the complainant is due payment for any part of the notice period that was truncated at his own request and was never worked by him.  The complainant was due payment for 9.9 days annual leave accrued to 25 June 2021; this was paid in full in the July payroll.  In addition, the respondent made an ex-gratia payment of 5.1 days in the July payroll.

The respondent does not operate a garden leave policy and there is no reference to garden leave in the complainant’s contract of employment.

Commission

The complainant was paid the correct sales commission, as calculated under the established sales commission policy.  The policy sets out that sales commission for staff leaving the company is paid based on deals that are funded.  This commission was paid to the complainant in September 2021, following a review of the of the lending cases in which he had been involved.  Following the complainant’s departure other staff had been involved in moving and completing the lending opportunities to funded and completed transactions.

The respondent seeks to have these complaints rejected.

CA-00046875-001

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The complainant claims that his employer has not paid him or has paid him less than the amount due to him.  The complaint relates to alleged non-payment for annual leave accrued at the date of termination of employment and payment of less commission and team bonus than the complainant claims he was entitled to be paid.

Section 5 (1) and (6) of the Act provides 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.

(2) …

(3) …

(4) …

(5) …

(6) Where—

(a) 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) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, 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 the wages of the employee on the occasion.

The question to be decided is what wages were properly payable, if any, to the complainant at the date of termination of employment in respect of accrued annual leave, commission, and team bonus.

Complainant’s Evidence

The complainant stated that his contract of employment with the respondent required him to give one months’ notice of resignation.  He provided a copy of his employment contract confirming the notice period required.  On 16 June 2021 the complainant sent an e-mail to the Chief Executive informing him of his resignation, copy provided.  On 18 June 2021 the complainant sent another e-mail to the Chief Executive asking if he had had a chance to reflect on his notice period as he felt he had a conflict in being involved in account meetings during his notice period.  He stated he was very keen to part on good terms and ensure there was no conflict of interest.  Subsequently, he met with the Chief Executive, and it was agreed that he would finish work on 25 June 2021. 

The complainant stated that, based on past practice, he understood that he would be on garden leave from 25 June to 16 July 2021.  Several other employees had left the company during his period of employment, and they went on garden during their notice period.  There was no discussion about annual leave, and he did not request annual leave.  The complainant stated he understood that he would be paid for his annual leave accrued to his date of termination, 16 July 2021, in his final payroll at the end of July 2021.

The complainant stated that when he was recruited the agreement on commission payments were to be based on loan origination.  He referred to an e-mail dated 03 February 2020 to support this statement.  He stated he was entitled to a commission payment of €1,144.50 and the team bonus of €500 for the month of July.  Some of the loans originated by the complainant did not complete before he left as the respondent did not have funds in place at that time.  These loans did complete later.  He stated that he should not be at a loss because the respondent did not have the funds in place at the time the loans were originated.  He stated the team bonus was paid each month, including holiday periods.  He acknowledged he had been paid €266 in commission

Chief Executive’s Evidence

The Chief Executive stated that the company was a small business, and it does not operate a policy of garden leave.  He stated the complainant’s contract of employment does not contain a reference to garden leave.

The complainant’s contract required one months’ notice of termination.  During the notice period the complainant suggested he should finish up early.  This suggestion was interpreted as a holiday request by the Chief Executive but there was no specific request for leave.  The Chief Executive stated that the conversation about finishing up early was initiated by the complainant and he assumed the complainant was going on annual leave until his date of termination, 16 July 2021.

The Chief Executive stated that commission is paid on funded loans.  The commission is paid on deals that are 100% completed.  Although the complainant initiated the loan process on the loans listed, he was not employed at the time the loans were completed so no commission was payable to him.

Concerning the team bonus, the Chief Executive stated that the complainant was not working for the respondent in the month of July so, no team bonus was due to him.

Finding

Annual Leave

I have carefully considered the documents and oral presentations.  The conflict between the parties, concerning payment for annual leave, arises mainly from a lack of specific details in the conversations that took place between the complainant and the Chief Executive between 16 and 25 June 2021.  The complainant had an expectation, based on the experience of other former employees, that he would be on ‘garden leave’ for some of his notice period.  The Chief Executive, who joined the respondent in January 2021, was not aware of any practice of employees being sent on ‘garden leave’ during their notice period.  However, it was accepted that the complainant did not request annual leave, did not submit a request for leave using the normal request process and there was no discussion about annual leave between the parties.

The law concerning the allocation of annual leave is contained section 20 of the Organisation of Working Time Act, 1997, which provides as follows:

Times and pay for annual leave.

20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

    (i) the need for the employee to reconcile work and any family responsibilities,

   (ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted—

   (i) within the leave year to which it relates,

   (ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or …

 The legislation is clear that the time when annual leave is granted to an employee is determined by the employer but subject to the employer having consulted the employee not later than 1 month before the day on which the annual leave is due to commence.  I am satisfied that the respondent did not consult the complainant about the allocation of annual leave as, based on the evidence, there was no discussion about annual leave at all between the parties.  In those circumstances I am satisfied that the complainant was entitled to be paid for the annual leave he had accrued to the date of termination.  Based on the evidence presented I am satisfied that the complainant’s employment with the respondent ended on 16 July 2021 as he was maintained on the payroll until that date.

Commission / Bonus

This part of the claim of underpayment relates to commission and a monthly team bonus.  The complainant claims he was entitled to commission based on loan origination and the respondent claims commission was only paid on funded loans.  The document presented to me, dated 03 February 2020, does refer to ‘loan origination’.  However, in response to a question from me it seems the practice was not to pay the commission at the time the loans originated.  The Chief Executive acknowledged that there was a period where funds were not in place for the loans arranged but this was not unusual.  I am satisfied that part of the commission claimed was properly payable to the complainant at the date of termination.  There is a conflict between the documentation and the practice and in those circumstances, I consider it reasonable that the complainant should receive half of the commission he has claimed is due to him.

A team bonus can only apply when one is a member of the team.  The complainant was an employee up to 16 July 2021, but he was not a member of the team during the month of July 2021.  I am satisfied that the July monthly team bonus was not properly payable to the complainant.  I find this part of the complaint is not well founded.

Conclusion

I am satisfied that the respondent did not consult the complainant about the allocation of annual leave as, based on the evidence, there was no discussion about annual leave at all between the parties.  In those circumstances I am satisfied that the complainant was entitled to be paid for the annual leave he had accrued to the date of termination.  I find that the complaint is well founded, and I direct the respondent to pay to the complainant €2,579 gross in respect of annual leave accrued to the date of termination, 16 July 2021.

I am satisfied that part of the commission claimed was properly payable to the complainant at the date of termination.  There is a conflict between the documentation and the practice and in those circumstances, I consider it reasonable that the complainant should receive half of the commission he has claimed, less the €266 already paid.  I find the complaint is in part well founded and I direct the respondent to pay to the complainant €439.25 gross in respect of commission.

I am satisfied that the monthly team bonus for July 2021 was not properly payable to the complainant.  I find this part of the complaint is not well founded. 

CA-00046875-002

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The complainant claimed he did not receive the appropriate payment in lieu of notice of termination of his employment. 

The complainant gave the respondent one months’ notice on 16 June 2021 that he was resigning.  His employment terminated on 16 July 2021, and he was on payroll and paid his salary to that date.  I find this complaint is not well founded.

CA-00046875-001

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

I find the complaint is in part well founded based on the following:

I am satisfied that the respondent did not consult the complainant about the allocation of annual leave as, based on the evidence, there was no discussion about annual leave at all between the parties.  In those circumstances I am satisfied that the complainant was entitled to be paid for the annual leave he had accrued to the date of termination.  I find that the complaint is well founded, and I direct the respondent to pay to the complainant €2,579 gross in respect of annual leave accrued to the date of termination, 16 July 2021.

I am satisfied that part of the commission claimed was properly payable to the complainant at the date of termination.  There is a conflict between the documentation and the practice and in those circumstances, I consider it reasonable that the complainant should receive half of the commission he has claimed, less the €266 already paid.  I find the complaint is in part well founded and I direct the respondent to pay to the complainant €439.25 gross in respect of commission.

I am satisfied that the monthly team bonus for July 2021 was not properly payable to the complainant.  I find this part of the complaint is not well founded. 

I direct the respondent to pay the complainant a total of €3,018.25 gross, being €2,579 for accrued annual leave, and €439.25 for commission to date of termination, 16 July 2021.

CA-00046875-002

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The complainant claimed he did not receive the appropriate payment in lieu of notice of termination of his employment. 

The complainant gave the respondent one months’ notice on 16 June 2021 that he was resigning.  His employment terminated on 16 July 2021, and he was on payroll and paid his salary to that date.  I find this complaint is not well founded.

Payment of Wages

Payment for annual leave

Payment for commission

Payment for bonus