Complainant

Respondent

Parties

Daniel  Cullen

Barry M Whelan Recruitment Ltd t/a Excel Recruitment

Representatives

Self-Represented

Peter Gilfedder IBEC

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-00070046-001

18/03/2025

The issue in contention concerned an alleged Bonus/Commission non-payment for the months of November and December 2024. The Complainant was employed as a Recruitment Consultant with a Recruitment / Placement Company. The employment began on the 13th  of March 2022 and ended by resignation on the 30th January 2025. The rate of pay was stated by the Complainant to have been €2,500 per month for an alleged 60-hour week.

The Complainant, for Career progression reasons, resigned from the Respondent Company, effective from the 31st January 2025. His expectation was that he would be paid his “earned” Commission for the months of November and December 2024 in the February Respondent payroll.

This was refused by the Respondent in clear breach of the Employee Handbook and the Contract of Employment. The Complainant resolutely disputed that he had ever actually signed the Handbook.

It also a very unfair action as previous ex-employees (named examples quoted) had been paid their Commission after their exits. As regards to any Client Payment issues, (possibly delaying the bonus,) he was very confident that the major Client involved, a prominent Company, had paid their invoices in full. The Complainant referenced an e mail exchange (4th March 2025) with a senior colleague – the CEO, where, to any “reasonable” reading, the Respondent had agreed to pay.

In Oral testimony he refuted any suggestions that he had broken a post Exit Restraint of Competition clause and in particular had not canvassed Respondent Staff to resign to join him in his new Employer. It was alleged that certain personal issues had arisen regarding a Senior Staff member, and this had completely influenced the non-payment.

The Respondent was represented by Mr Gilfedder of IBEC supported by Respondent Managers. A detailed written submission was also submitted.

In essence the Respondent case was that the Commission Scheme was completely discretionary for the Company. Relevant extracts from the Respondent Handbook were submitted in evidence. A signed copy from the Complainant was included.

Mr Gilfedder also raised the Legal Argument, in reference to Section 5 of the Payment of Wages Act, 1991, that the Commission did not meet the definition of “properly payable” wages in the Act.

The Complainant left the employment of the Respondent on the 31st January 2025. The standard Commission pay date was in the February 2025 payroll. It was commonly accepted and well understood by all employees that Commission was only paid to staff actually on the payroll as employees.  Staff who had resigned/left were not eligible for any payment. The Respondent disputed the “reasonable” view of the e mail of the e mail of the 4th March 2025. Quite clearly there was no interpretation of any promised payment.

Mr Gilfedder cited case law (Adj /PWD2321 Tifco v Jancikic and PWD2528 -Musgrave Wholesale v Mikolajczyk) in support of this point.

The Respondent contested the four names of former staff cited by the Complainant as not applicable either through special circumstances in one case or simply not having been paid.

Furthermore, the Respondent cited example of what they felt were breaches of the non-compete cause for ex-employees, by the Complainant. In summary the Complainant had left the Employment before the Commission pay date and was accordingly ineligible.

The case is without merit.

3:1 Legal Positon

The relevant Legal situation is provided by Sections 5(1) and Section 5(6) of the Payment of Wages Act 1991. Section 5(6) established the principle of “Properly Payable” wages. In this case the Commission was outside of the definition of “Properly Payable” wages after the ending of the employment.

The clear evidence presented was that the Complainant had left the Employment by the time the Commission was due to be paid. It was clearly evidenced that the Commission was a Discretionary Payment by the Employer. Well understood Custom and Practice was that it was not paid to employees who had left the employment.  The Legal Precedents (Adj /PWD2321 Tifco v Jancikic and PWD2528 -Musgrave Wholesale v Mikolajczyk) quoted by the Respondent clearly support this point.

Accordingly, and having considered the Oral Testimony & Written Submissions and having regard to the Legal Precedents the Complaint has to be seen as Not Properly founded. It has to be dismissed.

Payment of Wages, Commission payments after leaving employment.