ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041358
Parties:
| Complainant | Respondent |
Parties | Andrew Stanley | Nick Rijniers/bark & Birch |
Representatives |
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Complaint(s):
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-00052177-001 | 10/08/2022 |
Date of Adjudication Hearing: 29/03/2023
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Procedure:
In accordance with Section 6 of the Payment of Wages Act 1991 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.
Background:
A member of the media attended the hearing as it was a public hearing. The employer, Nick Rigniers, Bark & Birch did not attend the hearing. He was notified via letter on 27 October 2022 of the Complaint/Dispute and notification of the hearing date was sent via letter on 15 February 2023. I asked the Complainant to confirm the correct Respondent company name and he confirmed Bark & Birch. He stated it wasn’t a limited company as far as he knew when I asked for clarification and said that’s the only name, he knows it as. His contact also stated Bark & Birch were his employer. Mr Andrew Stanley, the complainant presented an email at the hearing outlining his correspondence with the Respondent, Bark & Birch looking for outstanding payments and acknowledging partial payment of 1 month salary received and €10,833.22 as the outstanding amount which is his claim. |
Summary of Complainant’s Case:
Mr Stanley confirmed he finished work on 31 December 2021. He didn’t put in a claim until 10 August 2022 which is outside the 6 months’ timeline but within the 12-month limit. He stated the reason for this was the company was corresponding with him up to April/May 2022 and when he put in his claim initially as an inspection to the WRC, so he wasn’t sure of correct route to put in claim or inspection request. Mr Stanley’s stated tax was taken out of his wages, but his tax wasn’t paid, he only found this out after he put in his claim. Mr Stanley stated he is tax/revenue registered and he is still an employee with the company on revenue, but no tax was paid to reflect his employment even though it was deducted. Mr Stanley stated he received pay slips just for base salary but what is outstanding is commission and he got no details of commission on his payslip. He is due 1 month’s salary and commission also. Mr Stanley stated he received his contract of employment. It refers to commission as he was solely on commission for first 4 months of employment and then he switched to salary and commission. Mr Stanley, Complainant stated he handed in his notice working for Bark & Birch on 31 December 2021 and worked the 30 days required up until the end of the year. At this stage he stated that was due his salary for that month (€2,941) on 1 January 2022 as well as commissions for sales from October (€10,224) and November (€4,166) totalling €17,331. The Complainant stated that up until 17 February 2022 he had received 3 payments totalling €6,500 so was still due €10,833 when the CEO, Nick Rigniers and his assistant, who he had been dealing with regarding this, both began ignoring his emails and calls and promising that he would get payment when they could pay. Mr Stanley alleged that subsequently the owner has disappeared leaving staff across the UK and US with no salaries for the final two months of their time working for Bark & Birch. He stated he had no way of getting in contact with him as he had been blocked on WhatsApp and got no response on emails. He stated this was originally put in for a WRC inspection investigation of his claim, but they asked him to resubmit it for adjudication while they carried out the investigation. |
Summary of Respondent’s Case:
I confirmed based on the WRC records the Respondent was correctly notified of the claim and the hearing. The Respondent did not attend the hearing or submit any information for the WRC to consider. |
Findings and Conclusions:
In considering my findings and conclusions I have considered his timeline for submitting the claim and also if his claim falls within the meaning of wages and then if his claim was well founded based on the evidence presented. I find in this case that the Complainant evidence presented to the commission was outlined in a credible calculated format of what he was owed and he also explained why the timeline for putting in his claim was within 12 months but outside the 6 month requirement and I find it has met the requirement of reasonable cause I am obliged to consider in that regard as he was engaging with the company and the WRC in relation to his claim within the 6 month timeframe. His evidence was credible, and this evidence was not contested as no respondent was present nor did they submit any information to the WRC for consideration.
I then considered the definition of Wages in Payment of Wages Act 1991 which states “wages”, in relation to an employee, means 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, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i) any payment in respect of expenses incurred by the employee in carrying out his employment, (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii) any payment referable to the employee's redundancy, (iv) any payment to the employee otherwise than in his capacity as an employee, (v) any payment in kind or benefit in kind.
I find that he was not paid his commission which formed part of his wages and his evidence was uncontested and therefore his claim was successful.
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Decision:
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
This claim falls under unlawful deduction as this commission formed part of his wages and the employee has not got the payment, he was due. I therefore find he is due the amount of €10,833 and in relation to additional redress I award him 4 weeks nett pay in compensation which I deem reasonable in these circumstances. |
Dated: 13th October 2023
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Key Words:
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