Complainant

Respondent

Parties

Robert  Evans

HL Commodity Foods Ltd

Representatives

  Self Represented

 Sweeney McGann LLP

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-00044837-002

29/06/2021

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

CA-00044837-005

29/06/2021

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

CA-00044837-006

29/06/2021

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

CA-00044837-008

29/06/2021

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

CA-00044837-009

29/06/2021

I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

Mr Robert Evans gave his evidence on affirmation.

The Managing Director, Mr Peter Grogan, appeared on behalf with the Respondent represented by Ms Ita Flanagan, Solicitor. Mr Grogan swore an affirmation.

Submissions and documents referred to in evidence were received and exchanged between the parties. The Complainant was requested to provide evidence of payment of commission which he did so post hearing. Both sides were given a full opportunity to set out their case and cross examine each other of which they both availed of.

 The Complaint Form was received by the Workplace Relations Commission on 29 June 2021.

It was the Complainant’s evidence that he commenced work on 27 May 2013 with the Respondent as a Business Development Director and earned a salary of £70,000 plus commission. The commission was based on sales made in the UK.

CA-00044837-002

It was the Complainant’s evidence that he was forced to take a temporary pay reduction of 30% in April 2020 due to impact of Covid19. In October 2020 emails were presented in evidence between the Complainant and the Chairman, Mr Harry Lawlor and Mr Grogan, of the company around the restoration of his pay. It was the Complainant’s evidence that two new business managers were engaged around this time and his salary reduction was funding their positions.

CA-00044837-005

It was the Complainant’s evidence that he is owed €6,251 which was deducted on 22 March 2021. Emails from March 2021 were presented in evidence where he says it was agreed to pay the sum directly into his pension upon his termination of his contract of employment but has not been received to date.

CA-00044837-006

It was the Complainant’s submission that the evidence given under CA-00044837-002 applies to this complaint also.

CA-00044837-008

It was the Complainant’s evidence that the sum of €11,600 was deducted from his salary on 6 June 2019 with one weeks’ notice as a result of a customer owing the Respondent money but failing to pay.

CA-00044837-009

It was the Complainant’s evidence that the Respondent should have paid him the sum of €17,400 on 22 March 2021 for commission he ought to receive following the placing of an order by an international client. It was the Complainant’s evidence that he only sought an update on his commission in January or February 2021 as he “banked” his commission for staged payments.

Preliminary Objection

It was submitted that the Complainant’s claim is out of time and therefore, the Workplace Relations Commission has no jurisdiction to decide on the complaints.

CA-00044837-002

It was submitted on behalf of the Respondent that where the unlawful deduction was said to have happened in April 2020 and continued until October 2020 in the sum of £2,000 per month and from November 2020 – February 2021 it was reduced to £1,000 per month. The Complainant lodged his complaint form on the 29 June 2021. The Respondent submitted that the Complainant’s loss (if any) is limited to the period from December 2020-February 2021.

Mr Grogan gave evidence that due to Covid19 restrictions there was a reduction in business. A Survival and Recovery Team initiated and implemented a plan to reduce costs and each member of the senior management team agreed a reduction to their salaries. The Complainant was a member of this Team and agreed to reduce his salary.

CA-00044837-005

The Respondent gave evidence that commission never formed part of his contract and therefore was discretionary. It was submitted by Mr Grogan that there were issues with the Complainant’s performance and for this reason the commission was not paid.

CA-00044837-006

It was submitted by the Respondent that this complaint relates to April 2020, and he resigned on 12 March 2021 therefore, the Respondent submitted that the Complainant’s loss (if any) is limited to the period from December 2020- February 2021.

It was submitted in evidence by Mr Grogan that there was a telephone call between the Complainant and Mr Lawlor around the salary reduction.

CA-00044837-008

The Respondent submitted that the allegation of unlawful deduction from his wages in related to 2019 and therefore was statute barred.  

CA-00044837-009

Evidence was given around the relationship history with the international client and the commission structure by Mr Grogan. It was his evidence that commission was aimed at all new business, but this client’s order did not come though the Complainant but other team member.

It was submitted by the Respondent that commission is paid by the Respondent company on a discretionary basis and does not form part of the Complainant’s contract of employment. Consequently, any entitlement to commission is not a statutory entitlement and therefore, outside the jurisdiction of the Workplace Relations Commission but instead a matter for the civil courts.  

Preliminary Objection

The Complainant has four complainant pursuant to the Payment of Wages Act 1991 which provides that complaints must be referred to the Workplace Relation Commission within six month beginning on the date of contravention as per Section 6 (4) of the Act:-

“(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

There is a provision for an extension of time for a further six month period however, the Complainant did not make any application around time or provide an explanation why he delayed in submitting the complaints to the Workplace Relations Commission.

CA-00044837-002

The Complainant gave evidence that the period his salary was reduced ran from April 2020 to October 2020 at a reduction of £2,000 per month and from November 2020 to February 2021 at a reduction of £1,000 per month. The Complainant resigned from his position with the Respondent on 12 March 2021.  On his Complaint Form to the WRC he notes the 25 April 2020 as being the date in which the payment was deducted. The Complaint Form was received by the WRC on 29 June 2021.

Therefore, I am bound by the legislation to only consider the six-month period prior to 29 June 2021, which is 30 December 2020 to 29 June 2021. In terms of the period in which the Complainant was an employee of the Respondent, I can only consider the period from 30 December 2020 to the date his employment ended on 12 March 2021. It is noted that no evidence was presented on when or if there was a notice period.

The email from the Complainant to the Respondent dated 27 October 2020 he raises his concerns about the ongoing difficulties with the wage reduction and requests that it be lifted. It was his evidence that he did not receive a response. There was reference to a phone call between a party who did not give evidence and the Complainant. Despite the Respondent submission that there was an agreement during this phone call I cannot take it into consideration where evidence was not given at the hearing. It was accepted by the Respondent that nothing was reduced to writing regarding the pay reductions.

In the absence of contradictory evidence from the Respondent, I find the complaint for the period from 30 December 2020 to 12 March 2021 well founded.

CA-00044837-005

The Complainant claimed that the sum of €6,251 was unlawfully deducted from his wages. The Respondent gave evidence that commission never formed part of his contract and therefore was discretionary. There was no documentary evidence that there were issues with the Complainant’s performance presented by the Respondent.

The Complainant himself presented an email in his evidence from the Respondent of 11 March 2021 noting the commission payment is to be paid directly into his pension. There are no figures referred to in the email although it is noted the Complainant does request a figure.

Having reviewed the contract of employment there is no clause referring to payment of commission however, an uncontested and undated letter of offer was presented by the Complainant at the hearing which proports to set out the commission structure. A document entitled “Rob Commission Report December 2020 F2.xlsx” which was attached to an email from the Respondent dated 29 January 2021. The report notes a figure of £5,389 as being due on 31 December 2020 to the Complainant.

The pay slips from 2020 and 2021 presented by the Complainant, upon request post hearing, detail a salary and the deduction for pension of £147. There is no reference to expenses or commission in these pay slips. The Complainant further provided a breakdown of his pension contributions made by the employer for 2019, 2020 and 2021

Wages are defined under Section 1 of the Payment of Wages Act 1991 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 his employment, whether payable under his contract of employment or otherwise,”

“Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.”

Based on the email from the Respondent to the Complainant and the absence of any contradictory evidence from the Respondent, I find the complaint is well founded for non-payment of commission which was in connection with his employment regardless of whether it is in his contract or not, falls within the definition of wages under the 1991 Act.

CA-00044837-006

It was Respondent’s evidence relied on a telephone call between the Complainant and Mr Lawlor.  However, Mr Lawlor was not present at the hearing to give evidence. Mr Grogan confirmed in his evidence that there was nothing in writing as regards the variation of the contract at the time in April 2020. Taking particular note of the email from the Complainant on 27 October 2020 wherein he states, “If you remember, I did ask for this in writing..” There was no response presented by the Respondent to this email at the hearing and it was Mr Grogan’s evidence under cross examination that this was not put in writing. Therefore, I find the complaint is well founded however, I am cognizant that the first time the Complainant raised an issue, as in evidence before me, was not until October 2020 some 6 months after the reduction was made.

CA-00044837-008

The Complainant gave evidence commission was due from 6 June 2019. The Complainant resigned from his position with the Respondent on 12 March 2021.  The Complaint Form was received by the WRC on 29 June 2021.

The complaint was made outside of the six-month period provided for in the legislation and while there was no application for an extension of time, it was outside the maximum period allowed for where a reasonable cause exists for the delay. Consequently, the complaint is not well founded.

CA-00044837-009

The Complainant estimated he was due commission in the region of £15,000 t0 £20,000 as a result of an order made in 2018 following an introduction made in 2013. It was not until December 2020 did the Complainant make enquiries with the Respondent as to the commission amount. It is noted that the undated letter of offer presented by the Complainant stipulates that commissions “are normally paid 3 months in arrears of account for adjustments, returns etc.” It was the Complainant’s own evidence under cross examination that the commission “was paid and banked on an ad hoc basis” with this “usually happening annually”. I find it highly unusual that an employee would not follow up on such a significant payment at the time it was due to be paid, i.e. 3 months in arrears and wait until 2 years after it is claimed to have been due.

Either way, as per the letter of offer, if this commission was to be paid it would have been transferred 3 months in arrears which would have been sometime in 2018 or early 2019 at the latest.  Considering the time periods provided for in the legislation outlined above I find that this complaint is out of time and therefore, outside my jurisdiction. The complaint is not well founded.

CA-00044837-002

I find the complaint is well founded and award the Complainant the Euro equalitvant of the net wages of the salary deduction GBP£1,000 per month for the period from 30 December 2020 – 12 March 2021.  For the avoidance of doubt the total figure is to be calculated on a pro rata basis from 30 December 2020 – 12 March 2021.

CA-00044837-005

I find the complaint is well founded and award the Complainant the Euro equalitvant of the net wages of the commission sum identified in the email of 29 January 2021 of GBP£5,389.  

CA-00044837-006

I find the complaint is well founded. However, in accordance with Section 7 (2) (d) of the 1994 Act I do not find it is just and equitable to award any compensation where the Complainant was a member of the decision-making team in April 2020 and was on full notice as to the reason for the salary reductions due to the Covid19 pandemic.

CA-00044837-008

The complaint is not well founded.

CA-00044837-009

The complaint is not well founded.

Payment of Wages- Terms of Employment.