Case Number: ADJ-00010061. Workplace Relations Commission

• Docket Number: ADJ-00010061
• Hearing Date: 18 June 2018
• Date: 22 November 2018
• Court: Workplace Relations Commission
• Parties: a business development manager -v- a services company
• Respondent: A Services Company

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00010061

Parties:

	Complainant	Respondent
Anonymised Parties	A Business Development Manager	A Services Company

Representatives O'Malley Sexton Solicitors Peninsula Group Limited

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00013126-001	14/08/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00013126-002	14/08/2017

Date of Adjudication Hearing: 18/06/2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant lodged a claim for alleged discrimination and for non payment of commission. Initial oral and written submissions were made at the Hearing and the parties agreed to allow further written submissions after the Hearing which took a period of approximately three months to conclude. In some sections of this decision the Company name of quoted cases has been deleted to protect the identify of the parties.

Summary of Complainant’s Case:

The Complainant commenced employment on August 8th 2016 and was his employment was terminated on June 16th 2017. He was employed as a Sales Development Manager. The Complainants case under the Payment of Wages Act 1991 is that his letter of offer stated he would be paid commission of “up to 10% of the value of all new business secured” and this would be paid monthly providing the employer has received 25% of the fee from the Customer. The offer letter does not refer to Sales, Commission and Bonus Scheme rules but says “they are issued separately and are enclosed”. However, they were not included in the letter of offer and the Complainant did not receive a copy. The Complainant received five other policies but not the Sales, Commission and Bonus Scheme rules and he signed and returned all five. In June 2017 the Complainant was due commission payments of 35,592.55 Euros. The Complainant was the subject of a disciplinary process which concluded with him being dismissed in June 2017. He was never told he would lose his commission payments and was told on his dismissal that the Company were invoking the rules of the scheme which meant her did not receive this commission. The Complainant is relying on sub section 5 of the Payment of Wages Act 1991 which states that the deduction must be authorised by statue, a term of the contract of employment or a person has given their prior consent. None of these situations apply to the Complainant. The Respondent is relying on Section 5 (b) and (c) to justify the non-payment of the Complainants commission. In relation to sub section b the Respondent appears to be relying on a document which was never given to the Complainant. To date the Respondent has not produced any evidence that it was provided to the Complainant, by email or otherwise. The Complainant did not agree to the deduction and seeks payment of 35,592.55 Euros With regard to the claim under the Employment Equality Act 1998 the Complainant made a verbal submission in addition to his claim form and he advised he suffered from depression and he was discriminated against due to this condition.

Summary of Respondent’s Case:

The Respondent denies all allegations of discrimination and that the Complainant is due any payment under the Payment of Wages Act 1991. It should be noted that the Respondent made a substantial and legal submission to the Adjudicator on both claims and it is not possible to summarise all the points made by the Respondent in this summary. On June 14th 2016 the Complainant was issued with an employment offer letter stating “this offer is also conditional upon your acceptance of our Sales, Commission and Bonus Scheme rules as discussed at interview; a copy of which is attached”. The correspondence was signed by the Complainant on June 26th 2016. Under the heading Commission the contract expressly states that such payment are “Subject to the full details contained in the attached Sales, Commission and Bonus Scheme Rules”. It is accepted that the Respondent does not have a signed copy of this document on the Complainants file , nonetheless, the Complainant signed his acceptance letter of this document on to occasions i.e. the offer letter and the contract of employment. Furthermore the Respondent submits that every starter pack issued to new Business Development Managers contain a copy of these rules and it is noted that 27 of the 28 Business development Managers hired by the company signed the rules with the Complainant being the exception. The Claimant has taken a claim that he there has been an “unlawful deduction” from his wages. This claim is based on Section 5 of the Payment of Wages Act, 1991, which concerns the “regulation of certain deductions made and payments received by employers.” However, it is submitted that there has been no “deduction” from the...