Complainant

Respondent

Parties

Alan Rooney

Ur Insurances (Europe) Ltd Actual Insurances

Representatives

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-00055642-001

22/03/2023

The Complainant worked for the Respondent insurance firm as a sales person from April 2020 until the end of February 2023. When the Complainant ceased working for the Respondent in February 2023 he was not paid his February salary.

The Respondent claim that this was because he was previously overpayed commission. The Complainant disputes this and argues that the Respondent is misprepresenting their commsission structure.

The Complainant Mr Alan Rooney attended the hearing and gave evidence under affirmation

Mr Gerard Noonan and Mr Albert Noonan both attended the hearing on behalf of the Respondent and gave evidence under affirmation.

It is accepted by both parties that the Complaiant was deducted €2138.58 net from his final salary which was €2500 gross.

The Respondent operates a monthly sales target of €8,000 per month. This is a rolling target.

If a person meets the target they are paid their commission. If they don’t their deficit is added to the next month’s target. For instance if they only hit €6000 in sales one month they do not get any commission  the following month unless they exceed €10000 in sales.

Any commission paid to the Complainant was in the month where he had made the target.

In the Complaiant’s time working for the Respondent there were ups and down in his sales. The Complaiant ultimately resigned due to the stress of the role and an accumulated sales target deficit.

The Complainant argues that the Respondent is trying to confuse the commission structure and basic salary. Him not meeting targets subsequent to earlier commission payments is not the same thing as overpayment of commission. The Complainant argues what the Respondent has done is outrageous.

His final payment was run through payroll and the Respondent paid revenue his income tax. He just didn’t get paid.

The Respondent provided written submissions and both Directors gave evidence.

Mr Albert Noonan argues that there was a lack of sales on the Complainant’s part for a while.

Mr Ger Noonan outlined that if a person is not making money for the Respondent company they’re on thin ice. Previously the Complainant was being paid half commission at the Respondent’s discretion to encourage him but when he left he was carrying a deficit in his targets. As such they believed they were entitled to clawback the commissions previously paid.

A balance of €4932 was owed.  They ran the Complainant’s basic salary and payslip and paid the taxes. However they didn’t transfer the net salary. Instead they asked him how he wanted to pay this outstanding amount of €4932.

Section 6 of the payment of wages act provides that (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

The Complainant’s normal salary February was of course properly payable to him. The Respondent then made a deduction of all of these wages on the basis that they believe the Complainant had previously been overpayed commission.

Section 5 of the Act provides a number of grounds by which an employer can justify a deduction. One of which is the overpayment of wages. The Respondent appears to have attempted to rely on this ground. However their defence is not well founded.The Respondent at no time overpayed the Complainant wages.

On earlier dates and at their discretion they paid the Complainant sales commission above his normal wages for good performance during a particular month. They then clawed back those sums from the Complainant’s final salary because they later became unhappy with his overall performance. There is no suggestion that the Complainant agreed to any such scheme or that potential outcome was even put to him. There is simply no basis to assert that the Complainant owes or owed the Respondent €4932.

The complaint is well founded. I direct the Respondent to pay the Complainant €2138.58.