ADJUDICATION OFFICER DECISION/RECOMMENDATION
A Sales Manager
A Metal Fabricator
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
This dispute refers to the non-payment of commission to a sales representative following his termination of employment, and where the Respondent failed to provide him with his written terms of employment.
Summary of Complainant’s Case:
The Complainant was employed as a Sales Representative from 1st December 2017 to the 29th March 2018. The Complainant submitted that he was unfairly dismissed following a difficult experience with a client; that upon his termination of employment he did not receive his commission that was due to him; and that the Respondent failed to provide him with his Terms and Conditions of Employment in writing. The Complainant was seeking compensation for the unfair dismissal and for payment of his commission.
The Complainant submitted that following an altercation with a client on the 28th March 2018 he was accused of being a liar with the client and that he was so upset with what he experienced that he felt there was no option but to resign his position. He maintained that on the following day he spoke to the Respondent about the situation but as there was an absence of any policy or procedure to progress his complaint he decided to resign. He was seeking compensation for the fact that since his resignation he has not been able to find any subsequent employment.
In addition, the Complainant maintained he was not paid his commission. The Complainant submitted information that he believed support his claim that he was due commission for sales to a number of Clients which amounted to circa €7,700 commission based on his sales. At the Hearing there was a dispute between the parties regarding the amount of commission which would have been due.
The Complainant also maintained that he did not receive his Terms and Conditions of Employment in writing within thirteen weeks of commencing Employment.
Summary of Respondent’s Case:
The Respondent has submitted that the Complainant left of his own accord on the 29th March 2018 following an altercation he had with a client. The Respondent acknowledged a difficult conversation had taken place between the Complainant and a client and where the Complainant had approached the Managing Director of the Respondent to have the matter resolved. The Respondent agreed to meet with the Complainant the following day.
The Respondent advised that the Complainant went and met another client the following morning on the 29th March 2018 and subsequently met with the Managing Director. At this meeting he handed in his notice and said he was resigning. The Respondent maintained that it had sought to progress matters with the Complainant with a view to discussing the issue with the client and to come back to the Complainant with a proposal on how the issues could be resolved. However, the Respondent advised that the Complainant had told him that he had thought about it the day previously and drafted his letter of resignation with his wife that evening and had attended work on 29th May 2018 with the intention to resign.
The Respondent therefore maintained it did not dismiss the Complainant nor did it behaved unreasonably with trying to have the matter resolved. The Respondent further acknowledged that the Complainant was a good employee and there was a good relationship between the Complainant, the Respondent, and other members of staff. The Respondent maintained it was surprised with the decision of the Complainant to resign and afforded the Complainant several days to consider matters, however the Complainant was still insistent in resigning his position.
The Respondent acknowledged that it failed to provide the Complainant with his written Terms and Conditions of Employment in accordance with the Terms of Employment (Information) Act, 1994.
The Respondent submitted that the Complainant had agreed a seven percent commission on the margin of sales and that the Complainant would have been informed of this by email upon taking up employment, and where he agreed to the terms. The Respondent provided a list of clients with a breakdown of the margins per client and which the Respondent acknowledged were the sales completed by the Complainant. The Respondent also argued that some of the sales which were in place had not been concluded prior to the Complainant’s departure. This meant that his replacement had to complete these sales at a cost to the organisation. Accordingly, this impacted the margins and the Respondent contended under these circumstances the Complainant had no entitlement for a commission for those sales.
Conclusions and Recommendations:
Section 13 (3)(a)(i) of the Industrial Relations Acts, 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.
Having heard the evidence presented by the parties I conclude that the Complainant was not unfairly dismissed, and in any event as he has less than 12 months service does not have protection under the Unfair Dismissals legislation.
I am satisfied that the Complainant had a difficult experience with a client on 28th March 2018 where he was accused of being a liar, and as a consequence he genuinely felt this had a significant impact on his reputation. He considered matters later that day and decided in light of what was said to him by the client that he wished to resign his position. Notwithstanding the Complainant acknowledged at the hearing that the Managing Director offered to look into the matter to speak to the client and to come back with a process of how matters could be resolved. The Complainant confirmed that he had decided he was resigning in any event and left his employment without providing the Managing Director with an opportunity to resolve matters. On that basis I am satisfied that the Complainant did not exhaust all matters with his employer before deciding he wished to resign. I therefore do not recommend the Complainant has a legitimate complaint of being unfairly treated by his Employer with regards to the termination of his Contract of Employment.
The Complainant in taking up the offer of employment confirmed he was satisfied with a seven percent commission on the margin of sales. He would have received notification of commission on those terms by way of an email before his appointment. Having considered the sales figures that were presented at the Hearing I am satisfied that the Complainant was due circa €975 in commission, and where the Respondent failed to make these payments.
In accordance with the Terms of Employment (Information) Act 1994 I find that the Respondent failed to provide the Complainant with his written notification of his Terms and Conditions of Employment and as such is in breach of Section 3 of the aforementioned Act.
Accordingly, having considered all the issues, I recommend the following:
That the Respondent pays the Complainant a sum of €975 by way of compensation for not paying the commission due; and
That the Respondent pay the Complainant one weeks’ salary by way of compensation amounting to €730 for its failure to provide the Complainant with his Terms and Conditions of Employment in writing.