Complainant

Respondent

Parties

Kristina  Kopanova

Voltaic Energy Systems Ltd

Representatives

  Self

 K O’Chiara

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051541-001

05/07/2022

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

CA-00051541-002

05/07/2022

The Complainant selected the Terms of Employment Information Act 1994 from the drop-down menu on the WRC Complaint form. A breach of this legislation formed part of her complaints. She also completed a text where she stated that she did not receive bonus payments as agreed with her. As this element of the complaint was clearly flagged on the complaint form and the Respondent was aware of that notification and did not dispute that the Complainant was due such payments, I am satisfied that the Respondent was aware of the complaint and on notice that it formed part of the claims to be decided. The parties were informed of my decision at the hearing. A reference number under the Payment of Wages Act 1991 has been added to the complaint numbers on the file for this Decision.

The Complainant was a full-time employee paid the minimum wage at 10.50 per hour. She was informed verbally of her terms of employment i.e., the job, the rate of pay and commissions. She received nothing in writing. She explained the arrangement for her commission: she was making contact with potential clients and encouraged them to make a booking with a Rep. If the client made a booking and the system was installed, she would receive €50 for her part in bringing in the client. In July/August 2021 she was paid for a couple of bookings and then she asked that the payments be kept back and paid to her together in one payment. This was agreed. She thought that she was owed for about 10 customers-she kept a record in a notebook in work. All of the sales were before Christmas 2021-she/they were not very successful after Christmas.

When she did not receive the commission due up to Christmas, in January she asked about it and was told that there would be no more payments. Ten payments would amount to €500 gross. Asked about her rate of tax at the time, the Complainant said she was paying tax, but this was all over the place at the time and she did not receive payslips, mentioning that she had written to the Respondent seeking her final payslip which she really needed for reasons which she explained.

Mr O Chiara on behalf of the Respondent stated that he was not a manager at the time. However, the complaints were not disputed. A written statement of terms of employment was not provided to the Complainant and while he thought the number of successful commissions might not be eleven in total, he was not disputing the complaint or the detail of the claim.

Complaint: Terms of Employment (Information) Act 1994

Written statement of terms of employment.

The following is inserted for the benefit of the Respondent who should be aware of their obligations under the legislation-and note that the following is th version in place at the time of the Complainants employment-and has since been revised. They should acquaint themselves with the revised version.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(ga) that the employee may, under section 23of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week.

(1B) Where a statement under subsection (1A)contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

(2) Each statement referred to in subsection (1)and (1A)shall be given to an employee notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraph (d)of subsection (1A)or paragraphs (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which theemployee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1)or (1A) shall be signed and dated by or on behalf of the employer.

(5) A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)or (1A) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

The Complainant did not receive her written statement of terms. Given that the absence of such a statement meant that the employer did not commit to the commission payment in writing and simply discarded the arrangement when it suited them, the maximum compensation is justified in the circumstances.

Complaint: Payment of Wages Act 1991

Here again the relevant text of the Payment of Wages Act which applied at the time is set out for the benefit of the Respondent-in this case the payment withheld is a deduction for the purposes of the Act.

PAYMENT OF WAGES ACT 1991

Regulation of certain deductions made and payments received by employers.

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) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

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

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

or

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee’s having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(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.

While the payment of commission was an unwritten agreement between the parties, it nonetheless was a contractual commitment which formed part of her wages. This complaint is not concerned with the unilateral ending of that arrangement but rather the element of the agreement which was unpaid i.e., commission accrued by the Complainant and held by the Respondent. Accepting that it was the Complainant who sought the arrangement of building up the commission in a lump sum and this might not have been the wisest thing to have done, it does indicate a degree of trust on her part which was not honoured by the Respondent. In the absence of any evidence to the contrary, the claim of €500 gross must be regarded as an accurate account of what was earned and due to the Complainant.

The decisions under both complaints are in favour of the Complainant. The amounts set out in the decision are the amounts to be paid to the Complainant.

CA-51541-001 Terms of Employment Information Act 1994, as amended

This complaint by the Complainant, Kristina Kopanova against the Respondent, Voltaic Energy Systems Ltd, is well founded. The Respondent is to pay the Complainant €1680 compensation by way of redress.

CA-51541-002 Payment of Wages Act 1991, as amended

This complaint by the Complainant, Kristina Kopanova against the Respondent, Voltaic Energy Systems Ltd, is well founded. The Respondent is to pay the Complainant €400 nett by way of redress.

Statement of Terms not provided/Commission payments withheld.