PWD2032

1. An appeal of an Adjudication Officer's Decision No. ADJ-00024955.

BACKGROUND:

2. The Complainant appealed the Adjudication Officer's Decision to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991 on the 21 May 2020. A Labour Court hearing took place on 16 October 2020. The following is the Determination of the Court:


DETERMINATION :

This case comes before the Court by way of an appeal by Laura Hetherington (the Appellant) against the decision of an Adjudication Officer in her complaint made under the Payment of Wages Act, 1991 (the Act) against her former employer, Goldfish Telecoms Limited (the Respondent).

The Adjudication Officer decided that the complaint was well founded in part and ordered the Respondent to pay €2,159.89 in compensation to the Appellant.

The Case

The Appellant was employed by the Respondent from 3rd September 2018 until her resignation from her employment with effect from 9th October 2019. The within complaint was made to the Workplace Relations Commission on 10th October 2019. The cognisable period for the within complaint therefore, having regard to the Act, is 11th April 2019 to 10th October 2019.

The Appellant maintains that she had an entitlement to commission payments at the date of her resignation in the amount of €6,143. She calculated that she had completed sales in the amount of €61,430 in the quarter to 30th September 2019 and was entitled to commission at the rate of 10% of those completed sales.

The Respondent submitted that the Appellant’s contract of employment specified that “All commission entitlements cease on cessation of employment”. It was submitted that on the basis of this contractual clause, the Appellant ceased to have entitlement to any commission payment when she resigned her employment.

The Respondent also submitted that certain sales remained uncompleted at the date of the Appellant’s resignation, and on that basis no commission would accrue to the Appellant in respect of those uncompleted sales. The Respondent submitted that, without prejudice to its submission that no entitlement to commission accrued after resignation, a calculation of the value of 10% of completed sales made by the Appellant in the quarter to 30th September 2019 would amount to €1,439.96 rather than the amount of €6,143 claimed by the Appellant.

The parties were agreed before the Court that regardless of the value of commission earned in the quarter to 30th September 2019, no payment of commission was properly payable to the Appellant until 25th November 2019. This date was accepted by both parties as the date upon which wages incorporating the commission earned in the quarter to 30th September 20149 fell to be paid.

The Law

The Act at Section 5 provides as follows:

• 5.(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
  • (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

    (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

    (c) in the case of a deduction, the employee has given his prior consent in writing to it.

“(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.”

• “…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…”

The Appellant has submitted that a failure prior to the date of making of her complaint to make payment to her of commission earned in the quarter to 30th September 2019 amounted to an unlawful deduction within the meaning of the Act. Notwithstanding the parties’ extensive submissions as regards the amount of commission due if any to the Appellant in respect of the quarter to 30th September, it is common case that no commission payment was due to be paid in the form of wages to the Appellant prior to 10th October 2019. It was in fact agreed that any liability to pay such commission in the form of wages to the Appellant would fall on 25th November 2019.

The Appellant, as part of the within complaint, has also claimed payment of ‘any other additional money that may be owed’. The Court has been given no basis to translate that claim to a complaint that a specified unlawful deduction has been made from the wages of the Appellant in the cognisable period.

In all of the circumstances, the Court is satisfied that the Appellant has not set out a basis to suggest, having regard to the Act at Section 5(6), that any wages properly payable to her during the cognisable period for the within complaint were not paid. The Court must therefore conclude that the amount of wages paid to the Appellant during the cognisable period amounted to the wages properly payable to her during that period. Having reached that conclusion, the Court is unable to conclude that any deduction within the meaning of the Act was made from the wages of the Appellant during the cognisable period for the within complaint.

Determination

For the reasons set out above, the Court determines that the within complaint is not well founded.

The decision of the adjudication Officer is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Kevin Foley
CR	______________________
23 November, 2020	Chairman