Complainant

Respondent

Parties

Alan  Ganley

Pat The Baker Unlimited Company

Representatives

IBEC

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-00055235-001

22/02/2023

The Complainant commenced working for the Respondent on the 1 April 2001. He was in employment at the date of the hearing though suspended for the previous two months. As his suspension was unrelated to the complaint before me, I heard no details regarding same.

This complaint related to unpaid monthly commission which the Complainant calculated was due to him from his return to work in November 2018 to filing the complaint in February 2023.   The Complainant calculated that the amount due to him was €6,440.00.

The Complainant was absent from the workplace for three years prior to November 2018 due to a wrist injury incurred in a road traffic accident.

The Complainant's case was that prior to his accident he received commission of €20 per day/€100 per week plus separate commission known as a ‘monthly commission’ of €10 per day/€200 per month based on a 5 day/4 week month.

Follow his accident he returned to work on a part-time basis in accordance with medical advice.

His evidence was that when he returned to work in October 2018, he was told that his terms and conditions would remain the same as they had been prior to the accident.  Regrettably his experience was that his terms and conditions regarding his pay did not remain the same. He queried this on multiple occasions with a variety of managers, to no avail.

The Complainant's representative submitted a very detailed submission which ran to 48 pages. In the submission she exhibited payslips for the pre-accident and post-accident periods. She submitted a commission statement which identified the various monthly pay periods since November 2018, payslip date, days worked during the pay period, commission due, commission paid, balance due. 

She submitted that the Complainant was only fully paid on 1 occasion and partly paid his monthly commission on 16 occasions since his return to work in 2018. 

The Complainant relied in particular on two payslips. The first payslip was dated 7 November 2015. This predated his accident on 6 December 2015.  The payslip described a number of payments made to the Complainant namely:

time/half

double

weekly commission

mileage

salary

The second payslip was dated 17 November 2018. This payslip related to 3 days worked on his return to work.  This payslip described

mileage

weekly commission

commission

salary.

The Complainant submitted that his monthly commission payment (described as commission) was calculated correctly at €30. The Complainant submitted that after this pay period, the monthly commission payments became sporadic. This was disputed under cross examination and the Respondent's witness explained that only one day was worked on this pay period, and that the reference to €30 was not 3 days at €10 per day.

The Complainant explained that in 2019 he spent over four months pursuing wages that were incorrectly withheld and querying his monthly commission payment. His pay was resolved, however his monthly commission was not.

He explained that since his accident he suffered PTSD and severe depression. Because of this he was unable to take affirmative action regarding the outstanding commission.

In November 2022, he lodged a formal pay claim with the Respondent’s payroll department regarding his monthly commission. He followed up again in mid-December 2022 and in January 2023.

He calculated €6,440 as his monthly commission outstanding over a period of four years.

In direct evidence he confirmed that the monthly commission of €10 per day was agreed with a manager in the Respondents boardroom in 2018. He could not remember the name of the manager.

He explained that when he raised his grievance, the response from the Respondent was silence. When he asked for a representative to attend a grievance meeting, he was told that only a colleague who worked for the Respondent could attend a workplace meeting. He explained that the works committee was not functioning correctly and that there was no representative to call upon.

He said he felt he was singled out for unfair treatment. His colleagues received their monthly commission payment, but he did not.

Under cross examination the Complainant did accept that a separate complaint in relation to pay was rectified internally.  He clarified his complaint regarding the monthly commission was still outstanding.

The Complainant's representative took the Complainant through the breakdown of pay listed in his payslip 17 November 2018 showing the payment of the 3 days amounting to a €30.00 monthly commission for one pay period on his return from sick leave. She submitted that if the payslip was incorrect and the Complainant was not due this payment, the Respondent would have corrected the error. She submitted it was ridiculous that the Respondent was now saying that the Complainant was not entitled to this monthly commission. She pointed out that the Respondent could not identify what this payment on the payslip was and the only answer that could be was that that it was the monthly commission correctly due to the Complainant.

The area sales manager gave evidence under oath. He explained he was responsible for distribution of the Respondent’s product for his designated area and manager for the employees who drove the Respondent's vans.

He explained how the Complainant was a relief driver and supported a route driver. A route driver was responsible for a particular route and only worked on a designated route. If the route driver was on leave (e.g. holidays or days off) the relief driver is responsible for that route in his absence.

The area sales manager explained that he had 8+ relief drivers in his region. He gave evidence on how relief drivers are entitled to a monthly commission of €10 per day, if they qualify for same. The qualification requires competency to cover 1 – 5 routes without the need for follow-up, that the relief driver is reliable, trustworthy, punctual, long serving and able to follow direction.

The area sales manager explained that of the 8 relief drivers in his region, only 4 relief drivers receive the monthly commission of €10 per day. He explained that the awarding of the commission is at management discretion based on feedback from retailers and the route driver the relief driver is replacing.

His evidence was that the Complainant did not qualify for this commission.

Under cross examination the area sales manager agreed that he was the area sales manager for only six weeks before the hearing date. It was put to him that the Complainant did not know who he was and it was queried how he was in a position to assess competency for this commission.

Under cross examination the area manager explained that the commission allocation was assessed following leadership and management meetings.

The Respondent relied on an email that was sent by the Complainant to the Respondent 13 September 2019. This set out "I would appreciate clarity of what commission I am due to be paid". This was raised in the context of inconsistencies surrounding the payment of monthly commission. The Respondent submitted that the Complainant was not aware of what he was due to be paid at that time. It submitted that he was asking for clarification of how this commission was calculated.

It submitted that the cognisable period that I could deal with in relation to this claim was the 23 August 2022 to the 22 February 2023 the date the Complainant lodged his complaint with the WRC.  It submitted that for this period, the Complainant was properly paid what he was due. It submitted that there was no entitlement for retrospective payment to be made and the Complainant had not set out a reasonable cause to extend the time limit by a further 6 months.

In summing up, the Respondents representative submitted that no evidence was presented that established that the Complainant was entitled to a €10.00 per day commission. He submitted that all pay issues the Complainant had with the Respondent in 2019 were rectified.

This is a complaint pursuant to the Payment of Wages Act.

My power under the Payment of Wages Act is to make an order in relation to complaints preceding the date on which the complaint was made.  The complaint was made on the 22 February 2023.

Section 1 of the Payment of Wages Act 1991 (the Act) defines wages as follows:

‘“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.

Section 5(6) of the Act provides:

“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.”

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that —

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

(2) (a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.

(b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment.

The Payment of Wages Act prohibits the making of deductions from an employee’s wages that are properly payable to him unless required or authorised by the Act or the employee has consented to the deduction.

It is for the Complainant to show in the first instance that wages were properly payable to him and not paid by the Respondent.  The importance of establishing what was “properly payable” was emphasised by Finnegan P. in Dunnes Stores (Cornelscourt) Ltd v Lacey [2007] 1 I.R. 478 and in Balans v Tesco Ireland Ltd [2020] E.L.R. 125 and the subsequent decision of the Labour Court (PWD 14/2021) on remittal.

In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217), the Employment Appeals Tribunal took the word “payable” to mean “properly payable”, consequently it was not simply a matter of what may have been paid from the outset but all sums to which an employee is properly entitled.

I was not provided with any contract of employment/terms of employment that outlined the payment of the monthly commission or how it was awarded.

The Respondent accepted that a monthly commission was paid to certain colleagues of the Complainant but submitted that the Complainant was not due the commission payment.

I reviewed the payslips submitted by the Complainant relating to pay periods prior to the Complainant's accident in December 2015 (6 payslips in total dated 29 August 2015, 26 September 2015, 24 October 2015, 21 November 2015, 19 December 2015, 16 January 2016) and noted two references to commission on these payslips, namely 'weekly commission' and a general reference to 'commission'. 

I reviewed the payslip submitted by the Complainant dated 17th November 2018 which related to mileage: 1 = €5.08, weekly commission: €20, commission €30, salary €72.42.

The Complainant's evidence was that he returned to work in October 2018 on a part-time basis and that the commission of €30 paid in the payslip 17 November 2018 related to 3 days worked.

Upon careful perusal of the documents relied upon by the Complainant, I accept that the Complainant received a monthly commission prior to the date of his accident in December 2015.

The Respondent was not in a position to explain what the €30 payment to the Complainant in his payslip 17 November 2018 related to.

The Respondent did not show how the entitlement to the monthly commission was removed from the Complainant on his return from long-term sick leave. I accept that the granting of the monthly commission was performance related. However, the evidence presented to me was that the Complainant was in receipt of this monthly commission pre 16 December 2015 and received 1 payment of this commission post 17 November 2018.

Based on the evidence presented to me, I find that the payment of a monthly commission of €10 per day was properly payable to the Complainant.

As regards the cognisable period, I find that the period over which I have jurisdiction is 23 August 2022 to 22 February 2023. The Complainant was aware of the issue he had with the payment of this monthly commission in 2019 but only lodged his complaint with the WRC on the 22 February 2023.

Using the Complainant's calculations, the cognisable period encompassed pay periods 37, 41, 45, 49 of 2022 and pay periods 1 and 5 of 2023. The Complainant's calculations set out that the total of monthly commissioned outstanding for these periods amounted to €910.

This complaint is well founded and I award the Complainant the sum of €910.

Section 1 of the Payment of Wages Act 1991

Section 5 of the Payment of Wages Act 1991

Wages properly payable