ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035752
Parties:
| Complainant | Respondent |
Parties | Shane Hearne | Somnus Gsm Limited Mattress Mick |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Martin O'carroll Poe Kiely Hogan Lanigan LLP Solicitors | Mark Walsh KENNY STEPHENSON CHAPMAN SOLICITORS |
Complaint(s):
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-00046860-001 | 27/10/2021 |
Date of Adjudication Hearing: 09/03/2023
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to 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.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would be in public, and that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
No objections to the public nature of the Hearing or Findings were raised.
Background:
The complainant commenced employment with the respondent on 5 September 2020, as a Promotor, Director and Manager of a respondent company store in Waterford. His employment ended on 7 May 2021. The complainant submitted a complaint form to the WRC, received 27 October 2021, under the Payment of Wages Act, 1991. The complainant put forward that he was owed payment of wages and commission. An initial hearing took place on 4 October 2022, but it was adjourned. Another hearing took place on 9 March 2023.
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Summary of Complainant’s Case:
In a written submission the complainant submitted that he had commenced employment with the Respondent on 4 September 2020 as a sales director. His employment ended on 30 April 2021 when he resigned from his role following a disagreement with the management/proprietors of the respondent. The complainant submitted that it was a term of his contract that he would be paid €550 net per week. It was a further term of the contract that the respondent would pay the complainant 2% of total sales of merchandise. The complainant submits that he was due payment of €25,442 but only received €10,615.84 leaving a deficit of €14,826.16 due to him. The complainant gave evidence under Affirmation at the hearing. He stated that he had only received a contract of employment near the end of his employment and was only issued with payslips in March 2021. He stated there was no documentation setting out the terms of his employment, that it was “more of a verbal agreement.” He said he had agreed to work at low wages but for a high commission rate. He stated that he had never been paid any commission. In cross examination, when it was put to him that the agreed commission was 1% of his own sales and 1% of the shop sales, the complainant disagreed stating that the verbal agreement was for a 2% commission and that he had hit his targets. When asked in cross examination as to whether he had given himself a Director’s Loan the complainant responded that had not done so. In closing the complainant stated that he had been left short in his wages and his commission and that the payments described as a Director’s Loan were carried out because of the respondent’s failure to provide payslips and a contract of employment. He is due unpaid wages and a commission payment.
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Summary of Respondent’s Case:
The respondent’s Payroll Manager gave evidence under Affirmation at the hearing. He stated that the arrangement for all managers in the store was that they would receive a 1% commission on their own sales and a 1% commission on the overall sales, net of VAT. The witness stated that for a short time there had been a problem with sorting out matters related to Revenue and the complainant’s registration with same, and because of this it was decided not to pay him and it was agreed to give him a Director’s Loan. In cross examination the witness denied that the commission was in fact 2%. The Payroll Manager stated that a contract was provided for the complainant in early March 2021. In closing the respondent stated that the issue of pay was only small amount and that the real difference lies in the manner in which the commission was paid. In essence the respondent submits that the commission only amounted to €6,500. Lastly, the respondent put forward that the complainant was managing director of this company and the issues he has raised were in fact his responsibility.
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Findings and Conclusions:
Section 5 of The Payment of Wages Act 1991 states: (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. In this case, the lack of any documentary evidence supporting the respondent’s assertion as to the makeup of the commission leaves the matter open to disagreement. As the employer the respondent should have had the exact nature of the commission included in a contract of employment and should have had the complainant agree to and sign the contract. In the absence of such a document it is one man’s word against another. Ditto with the wages paid to the complainant. Notwithstanding the above, the complainant was the Managing Director of the store, and as such had a responsibility to ensure that matters such as pay and commission be clearly laid out early on in the life of the store, in some form of a document. In the circumstances I believe it reasonable for the respondent to pay the complainant compensation to the amount of €10,000. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I direct the respondent to pay the complainant a sum of €10,000.
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Dated: 25th May 2023
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Pay, commission, contract of employment |