ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047150
Parties:
| Complainant | Respondent |
Parties | Amy Horgan | Cognito HRM Limited t/a Workcompass |
Representatives | Self-representative | Denis Coleman, COO |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00057892-001 | 25/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00057892-002 | 25/07/2023 |
Date of Adjudication Hearing: 20/03/2024
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant swore an Affirmation. Documents referred to in evidence were submitted in advance of the hearing.
Mr. David Coleman, the COO, gave evidence on Affirmation on behalf of the Respondent. Submissions were received the day before the hearing and referred to during the hearing.
Both parties were offered the opportunity to cross examine with the Complainant taking up the offer. |
Summary of Complainant’s Case:
CA-00057892-001 The Complainant gave evidence that her contract of employment stated she was entitled to four weeks’ notice, but she only received one week and one day, from 29 June 2023 to 7 July 2023. The Complainant opened her contract of employment and final payslip. It was her evidence that she was due the gross sum of €2,125. CA-00057892-002 It was the Complainant’s evidence that had she is being allowed to work the four weeks’ notice period provided for in her contract of employment she would have been entitled to the Q2 commission payment. It was her evidence that four weeks’ notice from 29 June 2023 would have brought her up to 27 July 2023, a date on which she would have originally been paid. A commission calculation was presented by the Complainant in evidence along with her payslip. |
Summary of Respondent’s Case:
CA-00057892-001 Mr Coleman accepted that the contract of employment provided for four weeks’ notice. He apologised to the Complainant stating the notice given was all that the Respondent could afford to pay. Asked if the Complainant has been paid the remaining notice period since the date she referred her complaint to the WRC. Mr Coleman confirmed she had not. CA-00057892-002 Mr Coleman did not accept the commission was due to the Complainant and relied on the On Target Commission clause in the contract of employment: “If the employment relationship is terminated either by the company through dismissal or by the employee through resignation, then special rules apply in relation to commission that might otherwise have been payable. Such commission payments are only paid if the employee is in the employment of the Company on the date when the commission payment would normally become payable. The non-payment of commission after the date of termination is an express contractual term and therefore are not sums 'properly payable' under the terms and conditions of employment and therefore are not unauthorised deductions from pay within the meaning of Section 5 of the Payment of Wages Act, 1991.” It was Mr Coleman’s evidence that the payroll was due on 31 July 2023 and even if the Complainant had worked her four weeks’ notice she would not have been in employment on 31 July 2023 and therefore, not entitled to her commission. Mr Coleman was asked by the Complainant why was Monday, 31 July 2023 the date on which payroll was run when she received her wages on either the last Thursday or Friday of the month which would have been 27 or 28 July 2023. It was Mr Coleman’s response that payroll was always the last day of the month. Asked if the contract of employment provided for the pay date or pay intervals, to which Mr Coleman referred to the Renumeration clause; “For the purposes of the National Minimum Wage Act, the pay reference period is a calendar month.”. |
Findings and Conclusions:
CA-00057892-001
On the basis the contract of employment clearly provided for a notice period of four week, a fact undisputed by the Respondent, I find the Act was contravened.
CA-00057892-002
Commission
This is a question of interpretation of the two clauses of the contract of employment; the Remuneration and On Target Commission clause.
Section 1 of the Payment of Wages Act 1991 defines"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, and
(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”
There is no dispute that the Complainant was entitled to commission payment as part of her contract of employment. There was no dispute as to the calculation presented by the Complainant.
At the beginning of the third paragraph of the On Target Commission clause which the Respondent relies upon, there is express reference to termination of employment either by the employer through dismissal or by the employee through resignation, then special rules apply to the payment of commission. The paragraph continues; “Such commission payments are only paid if the employee is in the employment of the Company on the date when the commission payment would normally become payable. The non-payment of commission after the date of termination is an express contractual term and therefore are not sums 'properly payable' under the terms and conditions of employment and therefore are not unauthorised deductions from pay within the meaning of Section 5 of the Payment of Wages Act, 1991.” (emphasis added).
Applying the doctrine of contra proferentem, the reference to “such payments” indicates a causal link between a termination by way of dismissal or resignation and the Respondent’s discretion not to discharge the commission payments. This is the only limitation on payment of commission contained in the contract of employment. Nether of these two scenarios apply to the Complainant’s situation where her employment was terminated by the Respondent due to its financial situation. Consequently, I do not accept that the Respondent had any discretion in the contract of employment or otherwise not to pay the Complainant’s contractual commission due after Q2 2023 in the sum of €1,997.89 gross.
Minimum Notice
The Complainant’s second complaint under the Payment of Wages Act 1991 relates to the minimum notice payment which has been addressed under CA-00057892-001.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00057892-001 I find the Act was contravened. I am awarding the Complainant compensation in the sum of €2,125 being the 2 weeks and 4 days’ notice she ought to have been paid together with an additional sum of €1,062.50 for compensation for the loss sustained by the Complainant by reason of the contravention for the delay in payment. CA-00057892-002 I find the Act was contravened and award the Complainant compensation of the amount of the net commission amount of €1997.89. |
Dated: 21st March 2024.
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Key Words:
Payment of wages – commission – minimum notice |