Complainant

Respondent

Parties

Daniel  O'Sullivan

Cognito Hrm Limited

Representatives

  Appeared in Person

 Denis Coleman

Act

Complaint Reference No.

Date of Receipt

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

CA-00062207-001

13/03/2024

On 13 March 2024, the Complainant, a former Sales Development Representative at the Respondent Company submitted a complaint that he had been under paid on 31 July 2023.

On receipt of the complaint the WRC raised a concern that the complaint may not have fallen within the 6-month statutory timeline. On 2 April 2024, the Respondent was placed on notice of the complaint.

The Complainant was advised that an Adjudicator had power to extend this time limit to a maximum of 12 months, if the complainant could demonstrate that the failure to comply with the 6-month time limit occurred as a result of reasonable cause.

The Complainant subsequently made an application at hearing to extend that time limit on reasonable cause.

On 12 August 2024, I wrote to both Parties seeking a short chronology of events which led to the complaint.

Both Parties engaged in the claim, and both presented written submissions in support of their respective positions.

Both Parties gave evidence by affirmation at hearing.

The Complainant was employed as both a Business and   Sales Development Representative between 22 November 2021 to 7 July 2023 on a gross annual salary of €40,000 plus annual commission of €20,000.

The Complainant submitted that he was owed commission of €2,894.74, which fell for payment on 31 July 2023 and this amount remained unpaid.

The commission arose from the Quarter Two period.

Application for Reasonable Cause.

The Complainant outlined that he was successful in his role and was promoted in January 2023. He was devastated when his employment ended through financial challenges.

The Complainant was aware that external funding had been made available to the business during his employment for payroll. The CEO had informed him that these monies would not be available until January 2024 and would not delay the compulsory terminations of employment.

His departure from the business coincided with a period of uncertainty as final pay slips were delayed.

The Complainant referred to the positive relationship he had sustained with the CEO at the business as a contributory factor for his delay in submitting his complaint to the WRC.

He acknowledged that he paused his submission in deference to that relationship, the challenges faced by the business and the quiet expectation that funds would flow within 2024. He was also aware that the Respondent had recently engaged new staff and saw this as recent proof of viability.

The Complainant submitted that he was completely unaware of the 6-month statutory time limit and acknowledged that he was naïve in believing that the business would pay him what he was owed.

He asked for an extension of time on reasonable cause grounds.

Substantive case:

Direct Evidence by the Complainant:

The Complainant submitted that he had been employed in a permanent capacity as Sales Development Representative with the Respondent from November 2021. he had progressed through promotion. He submitted a copy of his contract of employment, completed by both parties on 28 October 2021.

 This contract, referred to the earlier Business Development role and remained unaltered when he assumed the Sales Development Representative (SDR) in January 2023. Pay and commission were increased at this time.

“Your commission will be paid quarterly in arrears by credit transfer. Commission is subject to change throughout the fiscal year. Your sales commission will be calculated in accordance with targets set quarterly by the sales management team. Your on-target commission earnings will be €16,000 annually.

….

Commission will be paid quarterly…. “Contract excerpt.

The commission was subject to review.

The Complainant confirmed that he had received commission in respect of each and every quarter he had been employed. Quarter 2 /2023 ran from April 11, 2023. He exhibited an email which confirmed this.

 The Complainant stated that he did not have any input in bonus preparation. The amount was verified by his boss and automatically paid. In commenting on the records relied on by the respondent, he contended that these has been visibly manipulated and wrongly reduced from his hub spot. (BDR ramping Dan Q 2, 2023)

The Complainant was given one week notice before being laid off on July 3, 2023. Efforts made to secure his commission payment for Q 2 were unsuccessful as the business was in firefighting mode at that time.

He recorded his objection to being refused commission on June 30, 2023, by email.

The Complainant followed this up in September 2023, as he not received pay slips for his final months of employment.

In March 2024, the Complainant tried to secure the commission payment as he had learned that his former boss had been rehired and was informed that the commission was not due to him. This email thread was exhibited.

This prompted the complaint before the WRC on 13 March 2023. The Complainant concluded that he had not been invited to the SCARP meeting in July 4/2023. He was not aware of the rescue plan.

He clarified that he had in fact been in attendance at a Concert on his annual leave on July 4, 2023.

During cross examination on both preliminary and substantive points

The Complainant accepted that the Respondent had not given him an undertaking that the topic of commission would be revisited.

The Complainant answered: “I thought you would do the right thing “

Mr Coleman challenged the Complainant viewpoint of 2024 company viability by asking if the complainant knew the team was much smaller? the Complainant answered that he did not know that.

When asked whether he had considered raising a grievance, the complainant responded that he did not see any point in this.

Mr Coleman asked the complainant if he was aware that he, as CEO had been unable to draw the funds referred to by the Complainant.? The Complainant answered no.

The Complainant clarified that he had not submitted the commission himself as his boss had handled that. Everyone k new not to fudge the numbers.

He confirmed that he had made prior arrangements to attend a concert on July 5, 2023.

He clarified that the commission for Q2 was a lesser figure than Q1, 2023.

He confirmed that he had taken a record of the screenshot detail of commission on leaving and kept it in reserve.

In closing the Complainant re-affirmed that he had earned his commission, and it ought to be paid to him. He remarked that he was owed notice pay and annual leave, but had not included these on his complaint form

The Respondent was represented by their Chief Revenue Officer, Denis Coleman, who introduced himself as the Founder and Chief Operating Officer of the Company, which entered a SCARP, (Small company Administrative Rescue Process) in June 2023.

The Respondent accepted that the Complainant had worked at the business for a period of nineteen and a half months to July 7, 2023.

It was the Respondent case that Company had supported the Complainant in his career progression.  The Company did not hold an outstanding liability to the complainant as outstanding holidays, notice and commission were paid.

Response to Application for Reasonable cause.

The Respondent opposed the application for an extension of time for reasonable cause. He argued that he was prejudiced by the delay as the Account containing information on commissions was purged from the computer within 6 months of the Complainants’ departure.

The Respondent submitted that he had replied to the complainant’s query regarding commission on June 29, 2023, by telling him that he had not earned commission. This was not queried or countered by way of a grievance as provided for in the staff handbook.

“Commission for Q2, it doesn’t fall due until the end of July … “

It was the Respondent case that the complainant had not sent in “a sales commission calculation for Q2/ 2023 before he left “as is required when claiming commission.

The Respondent outlined that the SCARP process placed the business in a different setting. He referred to a meeting of July 4, 203, where the SCARP process advisor met online with staff and canvassed claims for outstanding payments. The Complainant did not action a claim.

Once the SCARP process was approved in September 2023, liabilities cannot be raised retrospectively.

On March 8, 2024, 9.5 months after employment ceased, the Complainant emailed seeking commission to the value of €2,894.74. He attached a historical commission calculation which did not match the company records.

The Respondent explained why the commission was not owed and suggested that the parties converse on the phone, but this was refused by the complainant, who confirmed his intention on progressing matters before the WRC.

Complainants’ cross examination on preliminary and substantive claims:

Mr Coleman did not accept that he was Super user/administrator for the IT system would have access to the requisite information on commissions.

Mr Coleman confirmed that the complainant had been provided with means to activate a grievance through the staff handbook but chose not to. He had also offered to speak to him directly in March 2024.

The Complainant contended that this would not have helped.

I have been requested to make a decision in the claim for unpaid commission from 31 July 2023. I have explained to the complainant that he did not submit complaints for unpaid holidays and notice on his complaint form submitted on 13 March 2024. While it was possible for him to insert a claim there, he placed a zero amount in both sections.

The sole claim before me rests on a claim for unpaid commission.

This claim is contested by the Respondent.

Preliminary Issue:

In reaching my decision in this case, I have explained the process surrounding the significance of a Preliminary Issue followed by a hearing in the substantive case.

While I heard from both Parties at preliminary and substantive claim stage, I have explained that a finding for the complainant on the preliminary issue of application for extension of time through reasonable cause, would be followed by a decision also in the substantive case.

However, I also explained that were I to find for the Respondent on the preliminary issue, my work concludes at that point.

I have listened very carefully to both parties in this case, I have read and considered all paper documents. I have considered each party’s direct evidence and responses given in cross examination.

My jurisdiction in this case is set down in Section 41 (6) of the Workplace Relations Act, 2015.

41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

The Legislation is unequivocal in the statutory time limits applied to presentation of such complaints in Section 41(6) of the Act.

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

This is the Preliminary Issue that I am tasked to deal with.

Section 41(8) provides an equitable remedy in extension of time for a failure to present the complaint within the realm of Section 41(6) when it states:

8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

This complaint was received at 16.55hrs on 13 March 2023 and the date of contravention of the Payment of Wages Act is recorded as 31 July 2023.

The cognisable period for this claim is 14 September 2023 to 13 March 2023. The Complainant was not employed at the business during this time.

At first glance, the claim is manifestly outside my jurisdiction.

The Complainant, when informed of this development made application for an extension of time in accordance with Section 41(8) of Workplace Relations Act, 2015.

This application has been vetoed by the Respondent.

The test for reasonable cause was set down by the Labour Court having had regard for the practice of the Higher Courts in Carroll and Cementation Skanska DWT 0338, when it remarked:

It is the Courts view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say that it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence, there must be a causal link between the circumstances cited and the delay and the claimant should; satisfy the Court, a s a matter of probability that had those circumstances not been present he would have initiated the claim in time.

The length of the delay matters.

Whether the Respondent is prejudiced?

Whether the Complainant has a good arguable case?

I must now explore the application made by the Complainant.

The Complainant freely acknowledges that he delayed in submitting his complaint to the WRC for a number of reasons.

On one level, he acknowledged that he was given a wonderful opportunity to develop his career with this business and was grateful for this. On another level, he carries a very strong view that the company owes him the unpaid commission of €2, 894.74. For him, I understand that it is unfinished business.

The Complainant submitted that he had no idea that he was faced with a statutory time limit in making his complaint before the WRC. I acknowledge that he is a Litigant in Person and is welcome at WRC.

The Labour Court has addressed this argument in Globe Technical Services Ltd v Kristin Miller UDD 1824, when it found

“It is settled law that ignorance of one’s legal rights. as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time. “

Minister for Finance v CPSU and Or’s [2007] 18 ELR 36, High Court.

The complainant told the hearing that he had registered his dissatisfaction in not receiving his commission in an email dated 30 June 2023. I accept that he did counter the refusal to grant the commission at that time.

However, while I accept that the company was actively executing layoffs at that time, the employment continued to July 7, 2023. There was time for the complainant to have actioned a grievance.

However, the issue lay dormant in his life until March 8, 2024, when he had observed signs of commercial viability again at the business. In my opinion, it is regrettable that the parties did not engage at that point.

I appreciate that the Complainant was actively seeking and finding work during this timeline. I also fully accept that a high level of mutual respect underpinned the working relationship.

However, I was alarmed by the text relied on by the complainant when he prefaced his intention to advance the matter at the WRC, prior to receiving a response from the Company in March 2024.

Recourse to the WRC is meant to be prefaced by at least a trial of joint problem solving. I am satisfied that a robust grievance procedure was open to the complainant between June 30 and July 7, 2023.

The complainant submitted that he had raised the issue with the Respondent in September 2023. A careful review of that email records a raised concern regarding pay slips and it was silent on the commission. Pay Slips do not form part of my jurisdiction.

The Complainant has submitted that he retained records of the hub spot screenshot of the calculation of the commission by his then Manager.

I find that it was open to him to lead with this much sooner rather than retain this detail in a

“Watch and wait “approach.

The Law requires more activism and certainty.

 I accept the point made by the Respondent and accepted by the Complainant, that he did not receive an undertaking of payment of commission on release of funds in 2024. I cannot find a legitimate expectation.

I must find that the Respondent is prejudiced by the delay in furnishing the claim as the SCARP process remains active at the business and while I didn’t meet the SCARP Advisor, it is apparent that there are preset operational rules at the business, which limit Mr Coleman.

Having regard for all the circumstances, I must conclude that while the Complainant may well have explained his delay in submitting an arguable case, he has not excused the delay for me.

I must find that he acted to his own detriment by not activating a grievance in late June 2023.

 In contrast, the complainants’ taking a screenshot of the hub spot commission, as one of his final acts at the business, for it then to remain dormant until the evolution of this complaint before the WRC from March 13, 2024, places severe constraints on any discretion I may hold to extend time in accordance with Section 41(8) of the Act.

 Time has passed and I find that granting of an extension of time at this point would also prejudice the Respondent in the depth of a SCARP process.

 I find that I am unable to exercise my discretion to grant an extension of time in this case.

The claim is manifestly out of time.

I lack the jurisdiction to move to the substantive complaint.

I find for the Respondent on the Preliminary Issue.

The claim is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act requires that I make a decision in relation to the complaint in accordance with the provisions of Section 5 of the Act.

I have found that the claim is manifestly out of time, and I am unable to exercise my discretion under Section 41(8) of the Workplace Relations Act, 2015 to incorporate the date of the alleged contravention i.e. 31 July ,2023. The claim as presented is statute barred .

Therefore, I lack jurisdiction to decide on the substantive complaint.

I find the claim is not well founded as a result.

Payment of Wages, Statutory time limits