Complainant

Respondent

Parties

Karina  Marchwinska

Sherlock Recruitment Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

Tiernan Lowey, B.L. instructed by Paula Walshe ARAG Legal Protection Limited

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-00052078-001

26/07/2022

The complainant was employed as a recruitment consultant with the respondent.  She commenced employment on 24/01/2022 and was paid a salary of €27,000 and a guarantee of €3,000 commission paid on a pro rata basis for the first three months.  The complainant left the employment on 21/04/2022 and submits that she was not properly paid her commission.

The complainant worked for the respondent as a recruitment consultant.  She was issued with a contract of employment which stated that “Salary as agreed will be €27,000 per annum, with €3,000 commission guaranteed pro rata (approx. €57.69 per week) for the first three months”.  She was advised that the “on-going commission-based structure will be presented to you when you start”.

The complainant gave evidence that this structure involved two distinct payments.  The first was a weekly commission payment and this was paid when candidates were placed and paid on a weekly basis with a client.  The second was a structure whereby commission was paid when permanent candidates were placed.  The complainant submits that she placed three candidates and was not paid any commission for those when she left the employment.  She calculated that the amount due to her is €974.12.  She had placed these candidates in March, and she left the employment on 21 April.

The complainant feels that she was treated unjustly by the respondent when they refused to pay her the commission.

The respondent is a recruitment company who specialise in providing staff to the construction sector.  They also provide a limited amount training.  They supply a range of temporary workers and permanent staff. Mr Sherlock gave evidence that there are two distinct commission structures in place, and he confirmed that the complainant’s understanding of these is correct.  They pay a weekly commission for staff who are placed on a weekly basis and there is a different structure in place when permanent staff are placed.  The complainant’s role involved her placing permanent staff although she did provide cover on the temporary basis for a while.  The structure in place for permanent staff is that the consultant placing the staff gets paid a commission when the respondent gets paid.  The consultant has a role in ensuring that the payments due from the client are paid.  The complainant in this case had left before the company got paid.  When she left her role was filled by another consultant who had to follow up with the various client accounts.  Mr Sherlock gave evidence in relation to the dates when the company got paid for the placements made by the complainant.  These payments were received in May 2022 and one company made their payment on an instalment basis.

It was submitted on behalf of the respondent that there was no money properly payable to the complainant.  There was no date of contravention of the Act because if the respondent was not paid by the client there was no contravention.  The complainant in her complaint form does not provide a contravention date.

The complainant and respondent gave evidence in relation to this complaint.  I have carefully considered and evaluated the submissions and evidence adduced in reaching my determination as set out below.

In her claim the complainant submitted that the respondent made an unlawful deduction from her wages.  Section 1 of the Payment of Wages Act, 1991 defines wages as:

“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 this employment, whether payable under his contract of employment or otherwise,”

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.”

There is no dispute between the parties in relation to the actual commission structure which applied to the complainant’s employment.  There is a difference of opinion in relation to the timing of the payment.  The complainant believes that she was entitled to a commission when the employee was placed whereas the respondent outlined that the commission structure is aligned to the client payment cycle.  I accept the respondent’s evidence in relation to this.

Having carefully considered the circumstances involved in the within case I am satisfied that the complainant has failed to provide any evidence that the outstanding commission was properly payable.  In that context I find that there was no deduction from her wages and this complaint is not well founded.

Having carefully considered all of the evidence adduced and based on the findings and conclusions detailed above, I find that the complainant’s complaint under the Payment of Wages Act, 1991 to be not well founded.

Commission payment.