ADJUDICATION OFFICER DECISION & RECOMMENDATION
Adjudication Reference: ADJ-00031824
Parties:
| Complainant | Respondent |
Anonymised Parties | A kitchen design consultant | A kitchen supplier |
Representatives | Self-represented | Self-represented |
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-00042374-001 | 08/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00042374-002 | 08/02/2021 |
Date of Adjudication Hearing: 08/07/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 8th February 2021, the complainant referred complaints to the Workplace Relations Commission pursuant to the Payment of Wages Act and the Industrial Relations Act. The complaints were scheduled for adjudication on the 8th July 2021 and took place remotely. The complainant and two witnesses attended for the respondent. The respondent clarified the name of the company, and this is the name cited in the issued decision. In the circumstances, I have anonymized the decision and recommendation.
In accordance with section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Complainant’s Case:
The complainant outlined that he started working for the respondent in July 2020 on an initial three-month contract and continued beyond the three months as it got busy. He was paid €576 per week. On the 11th December 2020 there was a situation where a paid-for kitchen was being delivered and the respondent wanted to extract more money. The complainant refused and the owner became aggressive and said that the complainant would go if he would not do it. There were various other issues regarding how customers were treated. The owner said that he had to side with him or the customer and that if the complainant did not like it, there was the door. The complainant outlined that he was owed commission on €100,000 worth of sales. He had received an email attaching the terms of his employment. The complainant outlined that his commission was 2% and he was owed €900. The complainant said that the work environment was very hostile, and the owner kept saying that if the complainant did not like it, there was the door. The complainant said that he had been paid his back week of about €500 and all other wages were paid. He had not been paid notice pay. The complainant outlined that he had worked extremely hard and had come in early every day to get through the work. He had been designing kitchens. The owner would fit the kitchens, but he was not a fitter, so the work was not up to standard. After the ending of his employment, the complainant said that he took some time off because of stress and then started a business course in March 2021. In reply to the respondent, the complainant said that his personal life did not come into this at all. The complainant had a great record of designing and delivering kitchens, but you must have good fitters. He brought in two fitters who left shortly afterwards. The respondent had received most of the monies from clients by the 11th December as there was only the fitting left to do. The complainant sought his commission in January, but this was not paid. While he had not specified an amount in the email, he later calculated this as being €900. |
Summary of Respondent’s Case:
The respondent confirmed the employer’s legal name. This was stated in the letterhead of the email. The pay slips are issued by the accountant’s office. The respondent confirmed that the commission was 2% of all sales exclusive of VAT once the bill was paid in full by the customer. The complainant was potentially entitled to an additional 1% but weekly sales were never sufficient for this to materialize. The respondent accepted that commission was due to the complainant. €236.06 commission was paid on the 19th October and €302.04 paid on the 23rd November and €423.12 on the 7th December as well as some diesel expenses. The respondent said that the complainant was ‘okay’ at selling but became stressed with customer follow-up. Customers would change what they ordered on delivery and one customer the complainant dealt with still owed €3,500. The respondent outlined that no one sacked the complainant and he had dismissed himself. Both sides became very heated, and the complainant walked out. There were jobs that did not get finished until 20 December and some into 2021. The complainant never asked for the commissions and there are jobs that the customers did not pay in full. There were no commissions due on the 11th December as the projects were not completed. The respondent had to step in on 80% of sales in order to get money in. The respondent accepted that €590.05 was due in commission to the complainant for work that finished in 2021. The respondent outlined that the complainant had kept asking him whether he was firing him and saying that the owner was a bully. The owner said that they were so busy and if the complainant did not like it he knew where the door was. The owner said that he did not tell the complainant to go, and he left by his own volition. He said that there were three jobs that they still had not been paid for. The owner said that the fitters were contractors and worked on two jobs, leaving one half done and the other was delayed. They left but not because of the owner but because it did not suit them. The owner could not recall any email from the complainant in January. He had to take pressure off the complainant by dealing with customers. There was a 4 to 6 week process for kitchens and he was paid any wages due. There are commissions due to him. The witness said that the complainant and the owner had got into a verbal conflict and raised issues. The respondent had not sacked the complainant, who had said that he was leaving and not staying there. |
Findings and Conclusions:
CA-00042374-001 This is a complaint pursuant to the Payment of Wages Act. I find that the complainant is owed the €900 in unpaid commission. This was earned in accordance with his contract of employment. I also award one week’s pay as wages due for notice pay. The Payment of Wages Act provides for awards of ‘compensation’ and ‘further protection’ for employees who have not been paid their wages due. I award €500 in addition to reflect the loss incurred by the complainant, meriting recognition in the award of compensation. Taken together, I award redress of €1,946. CA-00042374-002 Having listened to the parties’ evidence, I prefer the complainant’s account of the events surrounding the ending of his employment. There was challenging behaviour in the workplace. The complainant did not resign but was dismissed by the respondent, without any process. The complainant was treated unfairly, and I recommend redress of €1,000 for the losses mentioned in evidence by the complainant. |
Decision and recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00042374-001 I decide that the complaint pursuant to the Payment of Wages Act is well-founded and the respondent shall pay to the complainant compensation of €1,946. CA-00042374-002 I recommend that the respondent pay €1,000 to the complainant for unfair treatment in the manner the complainant’s employment came to an end. |
Dated: 4th January 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Payment of Wages Act / Industrial Relations Act |