Case Number: ADJ-00029152. Workplace Relations Commission

• Docket Number: ADJ-00029152
• Hearing Date: 12 March 2021
• Date: 01 April 2021
• Court: Workplace Relations Commission
• Respondent: A Computer Technology Company

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00029152

Parties:

	Complainant	Respondent
Anonymised Parties	A Sales Representative	A Computer Technology Company

Representatives Not represented Lewis Silkin Ireland

Complaints:

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-00038869-001	23/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00038869-002	23/07/2020

Date of Adjudication Hearing: 12/03/2021

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Procedure:

These complaints were submitted to the WRC on July 27th 2020 and, in accordance with section 41 of the Workplace Relations Act 2015, they were assigned to me by the Director General. Due to the closure of the WRC as a result of the COVID 19 pandemic, a hearing was delayed until March 12th 2021. On that date, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. At the hearing, I gave the parties an opportunity to be heard and to present evidence relevant to the complaints.

The complainant represented himself and the respondent was represented by Ms Audrey Whyte, Solicitor, of Lewis Silkin Ireland. Two of the company’s human resources (HR) business partners attended the hearing, one of whom gave evidence in support of the respondent’s position.

Background:

In September 2015, the complainant commenced employment with the respondent as a sales representative. His annual salary was €45,000 and he had the potential to earn a further €45,000 in commission, subject to the achievement of certain targets. He was on long-term sick leave for 12 months from February 2019. In December that year, his use of his company credit card was suspended because of an unpaid bill of €15,273.73, most of which he incurred when he was absent. On May 19th 2020, the complainant was given notice of redundancy and his employment was terminated on June 26th 2020. His final payslip included a redundancy payment of €25,434.46; however, the amount outstanding from his credit card bill was deducted. On his e-complaint form, the complainant claimed that his employer unlawfully deducted €15,273.73 from his wages, and, secondly, that he was paid €15,273.73 less than the amount due to him at the termination of his employment. At the opening of the hearing, he said that he is seeking one award of €15,273.73 in compensation, but that he wishes to have two complaints adjudicated on.

Summary of Complainant’s Case:

CA-00038869-001: My Employer has Made an Illegal Deduction from my Wages In his submission to the WRC, the complainant said that he discovered a deduction from his redundancy payment only when he got his payslip on June 25th 2020, the day before he received the payment. He said he was not informed about the deduction seven days in advance, he didn’t agree to it and it was not mentioned in his redundancy separation agreement of May 19th 2020. A copy of this document was submitted in evidence. The complainant said that the clause in his contract concerning deductions from wages makes no mention of a deduction for an outstanding credit card bill. Referring to the separation agreement, the complainant said that this provided that, at the termination of his employment on June 26th 2020, he was to be paid €25,434.46 gross, “subject to normal tax deductions.” I understand from the documents submitted by the respondent that this comprised a statutory redundancy payment of €6,396 and an “ex gratia” payment of €19,038.46. His final payslip also shows that, on June 25th 2020, he received the following sums: €3,461.53: Wages €5,341.20: Accrued holidays €3,461.54: Commission for the period of garden leave from June 1st to 26th 2020 €25,434.46: Redundancy CA-00038869-002: My Employer has Paid Me Less than the Amount Due to Me Regarding this second complaint, the complainant submitted the same information that he presented under the heading of his first complaint, CA-00038869-001, in relation to an illegal deduction from his wages.

Preliminary Issues:

At the opening of her submission on behalf of the respondent, Ms Whyte raised two preliminary issues for consideration. These were reiterated in a further submission of March 25th, in response to the complainant’s correspondence of March 10th and 12th, which had not been issued to the respondent in advance of the hearing. The first concerns the fact that the complainant signed a severance agreement which included confirmation that he waived his rights to bring a claim against the respondent. In the weeks prior to his departure from the company, the complainant had a query about a commission payment of around €37,000 that he claims he was not paid in respect of work carried out in 2016. On May 19th 2020, he received a copy of the severance agreement that he was required to sign on receipt of his redundancy payment. On that day, he sent an email to the HR business partner asking about his 2016 commission: “In relation to the outstanding commissions, is this also pursuant to the absolvements (sic) if the signature is sent through for the ex gratia payments? As in, if a signature is sent by June 2nd for the ex gratia payment, does that mean I will be legalling waivering (sic) my entitlement request for the €37k+ commissions owed in line with the severance package?” The HR business partner replied the following day and advised the complainant that, ...