Complainant

Respondent

Parties

Catriona  Kelly

McGovern Estates Derrick Mcgovern T/A Mcgovern Estates

Representatives

  The claimant represented herself

 The respondent represented himself

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-00061218-001

18/01/2024

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

CA-00061218-002

18/01/2024

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

CA-00061218-003

18/01/2024

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

CA-00061218-004

18/01/2024

The claimant worked with the respondent for over 17.5 years  - she commenced employment as a P/A and over the years progressed to the position of Manager of the Residential Lettings Dept.She commenced employment in 2006 and resigned on the 31st.October 2023.In  January 2023 the claimant’s young daughter became seriously ill and  the claimant- the  had to take time off to care for her. She returned to work on a 10hours per week basis   and was in receipt of €30 per hour. The claimant asserted that during this time  and in addition to her administrative work she let 5 properties from start to finish .She submitted the respondent was refusing to pay her commission for this work amounting approx.to €2,500 .She submitted that the respondent was in breach of the Payment of Wages Act 1991 for failing to pay this commission. She submitted the respondent was in breach of the Terms of Employment (Information) Act 1994 for failing to furnish with a written statement of her terms of employment and failing to notify her in writing of a change to her terms of employment.

The respondent denied any breach of the Payment of Wages Act 1991 and asserted that he had met his obligations in full with respect to the claimant’s pay. The respondent asserted that there had been no breach of the Terms of Employment (Information)Act 1994 and submitted a copy of her original contract which he asserted was signed by the claimant.

Payment of Wages Act 1991

In her complaint  form  , the claimant submitted as follows :

She advised that she had worked for the respondent for 17.5 years but had become a carer for her daughter who became seriously ill in January 2023 and was off work for a few months  .In March 2023 she returned to work for 10 hours a week and continued in receipt of a Carer’s  allowance.She was in receipt of €30 per hour which was the rate paid  to  a temporary worker in  2022  who had no qualifications .The claimant asserted that the verbal agreement with the respondent was that she would work on administrative tasks for 10 hours per week at home or in the office and Mr.McG- the respondent -  would look after all the lettings from start to finish including all viewings. The claimant asserted that as the months moved on she ended up working up to 30 hours per week and only being paid for 10 hours so she handed in her notice – she believed she was being taken advantage of. The claimant asserted that the respondent was refusing to pay her for commission she earned during that period  amounting to €2,500 in respect of  the  properties she had handled during that time from start to finish. The claimant said she was not seeking recoupment for the additional hours worked during this period. The claimant said when she sought payment the employer said that as her phone was in contract , that he was owed for this and this was why she was not paid commission. The claimant said she removed her number when she left the position and had been paying her own mobile bill since the beginning of October and consequently had no responsibility for his bill.

The claimant submitted copies of emails between her and the respondent regarding her unpaid commissions. In  the correspondence the claimant advised the respondent of the properties at issue and asserted that she had let all of the properties from start to finish and that in one case the letting arrangements spanned a number of years .In a further email the claimant asserted that the respondent had advised her that he would look after all the lettings when she returned to work  – she advanced that this did not happen and she ended up having to look after all the lettings and accommodating a late night viewing in her own time.

The claimant  submitted that the respondent was unhappy about her parental leave and contacted her on several occasions while she was off work with work related queries .She  submitted that it had been agreed with the respondent that the claimant would work from home  “ in a supporting capacity only (administrative / support work)”.The claimant submitted that the respondent began demanding that she resume more aspects of her full time role which was outside the scope of the agreement on reduced hours.

The claimant submitted that the €30 per hour was requested by her on the basis that it was for the “ agreed administrative work she was to perform ( similar to what he had previously paid to a temp without a property license ,€30 per hour ) and he agreed to handle all the lettings and commercial business that was required during this temporary period. This transpired not to be the case and she was eventually required to do all the lettings and commercial business (essentially full time work , which was not sustainable on  10hrs.per week).This was why she was looking for the commissions during that period to be paid.

In  her direct evidence the claimant asserted that the 10hrs was insufficient for her to complete her work when the respondent was not doing commercials or rentals. She asserted that the tenants would confirm her version of events with respect to the hours she was putting in. With respect to claiming for commission , the claimant said that  she would apply via email on a monthly basis and a separate transaction would be credited to her account. The claimant said her understanding with the respondent was that she could submit her commission claim on her resumption of full time work. She asserted that the employer assured her “ of course you will get our commission”.

The claimant asserted that the €30 per hour rate was what was being paid  to a temporary replacement who had no licence to  let  properties. The claimant said that in referencing her mobile phone in his submissions ,  the respondent  was admitting that she was due commission.

Terms of Employment (information )Act 1994

 The claimant submitted that her terms of employment were never formally furnished to her in writing or otherwise. A letter concerning mileage was issued in 2011 and a further letter was issued regarding a salary change in 2018.She had no recollection of signing a contract and submitted the respondent did not sign the document – a copy of which was submitted into evidence. The claimant said she started in 2006 in Reception/Admin and was licensed a few years later to take on the position of Letting and Commercial Manager. The claimant said she had no recollection of ever receiving the document submitted by the respondent .She said she was not disputing her signature but she never received the document or got a copy of same. She asserted that both parties were entitled to be given a copy .

Payment of Wages Act 1991

The respondent submitted that no further monies were due to the claimant. He asserted that the record of email threads between the parties set out the terms of the agreement – 10 hours per week @ €30 per hour. The respondent submitted that the claimant’s basic pay amounted to €38,000 p.a. and with commission amounted to approx. €60,000 p.a. The respondent advanced that he agreed to a rate of €30 per hour which when annualised equated to €62,400 which was intended to incorporate all commissions. He submitted that this was more than fair .He asserted that he would never have paid this rate and commission separately  -  he said apart from the fact that the claimant was only permitted to earn a maximum additional amount of €350 per week as a carer. The respondent submitted that this arrangement enabled the claimant to continue in her carer role and work an extra 10hrs per week to supplement her carers income at a level that he felt was more than generous.

The respondent submitted that this amount was commensurate with what the claimant was earning when she was working full time including submissions. The respondent denied that he had at any time agreed that commissions would be paid separately and that the matter was only mentioned to him  a number of months after she had resigned. The respondent disputed the claimant’s assertion that her phone was in contract and that was why he was not paying her the commissions. He asserted that the claimant was given a new phone and cancelled it without informing him – he asserted the cancellation cost was over €900 .He further asserted that  he worked on one of the properties referred to by the claimant after she left. He said he could  easily have sought the return of the phone but did not as a gratuitous gesture. The respondent disputed that claimant’s assertions regarding late payments , his unhappiness about parental leave and the allegation of referring clients to the claimant while she was in hospital.

The respondent said he did not demand anything from the claimant and she was left to her own devised during this period,

In his direct evidence the respondent said that he was a reasonable employer and continues to be so. He said the figure of €30 per hour was a total package  .He worked on one of the properties referred to by the claimant after she left. The respondent said no commission arose if a file was incomplete. He  said when he facilitated the 10hr. per week arrangement there was no mention of commission – he asserted that  this was confirmed by the emails exchanged between the parties which he submitted into evidence. He said the temporary worker referenced by the claimant had been outstanding. He asserted that whatever was in writing was what was agreed between the parties. The respondent said that commission was identified separately on the claimant’s pay slip. The respondent said that any commission that would have been due was offset by the phone cancellation cost of €920.

Terms of Employment (Information) Act 1994

The respondent said the claimant commenced employment as a P/A Office Manager.He could not recall if he gave the claimant a copy of the contract submitted into evidence – he said that if he did not give her a copy she should have requested it and would have known where to find it. The respondent said when she started she got a contract which she signed. He said the claimant could have asked him for the document – she was his personal assistant. The respondent said he could not remember handing the claimant a copy – he was a sole trader.

I Have reviewed the evidence presented at the hearing and noted the respective positions of the parties.

Terms of Employment (Information) Act 1994

The claimant denied being furnished with a written statement of her terms of employment.

The respondent could not remember  giving the statement  to her. I note that the document submitted into evidence  appears to have been signed by both parties  on the 8th.March 2005 – a year before the claimant commenced employment. I further note that  the letter to the claimant from the respondent  dated the 11th.April 2011 states “I wish to discuss your roles  and responsibilities , agree them and then put same in writing”.Based on these inconsistencies and given that I  found the evidence of the claimant to be more compelling than that of the respondent  ,on the balance of probabilities , I am upholding the complaint of a breach of Section 3 .

The matter of a breach of Section 5 does not arise in circumstances where a statement was not furnished by the respondent .Accordingly , I am not upholding this element of the complaint.

Payment of Wages Act 1991.

Section 5(1) of the Act states:

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 virtue of any statute or instrument made under statute,

(b)    the deduction (or payment) is required or is authorised to be made by virtue of a term of the employee’s contract of employment including 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.

Section 5(6) of the Act states:

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 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 deductions as aforesaid) are paid to the employee,

then, except as 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 by the employer from the wages of the employee.

I note that the documentary evidence furnished by the parties makes no reference to the payment of commission in the context of their discussions regarding the claimant’s resumption of work on a 10 hour per week basis. A  letter to the claimant dated the 11th.April 2011 set out the claimant’s salary , commission and benefits .I am satisfied based on the evidence of both parties that the commission payments became an implied term of the claimant’s contract of employment. On the basis of the evidence of both parties  there were separate arrangement from salary for claiming and paying the commission.The parties were entirely polarised on the matter of whether there was an agreement on the payment of Commission during this reduced hours arrangment.The respondent asserts that there was nothing in writing about commission while the claimant asserts that there was a verbal agreement on  payment of commission.

I note that the respondent did not dispute the lettings set out  by the claimant with the exception of one letting which he asserts he completed himself.I further note that when questioned about the €30.00 per hour rate for the temporary admin recruit  who was not qualified to do lettings and was confined to admin work , the respondent replied she was an” outstanding worker”. In the respondent’s submission dated the 4th.April the  respondent states  that commissions were “ only mentioned to me a number of months after she voluntarily resigned from the business”.The paper trail submitted by the claimant references “commissions” in an email from the claimant to the respondent dated the 8th.November 2023 – 9 days after she had resigned. I am also having regard to the claimant’s contention regarding  statements from the respondent about  phone charges being offset against commission- that it could be inferred from this that the parties had an agreement all be it verbal on the payment of commission during this period. Taking all of the evidence  into account , including the documentary evidence  and submissions made  by both parties , I find the claimant’s version of events to be more credible than that of the respondent. I accept her contention  - on the balance of probabilities - that the respondent had agreed to pay her commission during this reduced hours arrangement.

Consequently I find the non payment of Commission constitutes an illegal deduction under the Act and accordingly I am upholding the complaint.

Illegal Deduction