Complainant

Respondent

Anonymised Parties

A Recruiter

A Recruitment Company

Representatives

  Self Represented

 Sean Costello Solicitors

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-00047812-001

22/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047812-003

22/12/2021

The Complainant was employed as a Recruiter and alleged she was not paid what was properly payable to her in wages and commission and that she never received a contract of employment within two months of commencing employment in breach of the Terms of Employment (Information) Act 1994.. .

The Complainant was employed from May to December 2001 as a Recruiter.

Terms of Employment (Information) Act 1994.

The Complainant alleged she did not receive a written statement of terms of employment within 2 months of commencing work.  Under Section 7, an Adjudication Officer may order the employer to pay the employee compensation of 4 weeks’ remuneration. Claim: €2,000 (equivalent to 1 month’s pay).

 Payment of Wages Act 1991

The Complainant handed in her resignation on the 15th of December 2021. On this day, the other employees received their wages, but the Complainant didn’t. She alleged her wages were unlawfully withheld and she was advised this would continue until she signed a waiver, waiving her legal rights, with threats that payment would not be made otherwise.

The Complainant  submitted that the employer's actions in withholding wages and attempting to compel her to sign a waiver under threat of non-payment constituted economic duress. She stated she further received an email from the respondent that because she didn’t reply, they are entering her into the waiver without her consent anyway. This not only breaches the Payment of Wages Act 1991 but also undermines the voluntary nature of contract formation, rendering the waiver voidable. Furthermore, such conduct is further evidence of the intolerable working conditions that led to her constructive dismissal.

Outstanding Wages and Commission

In addition to the above statutory breaches, the following calculates the payments that remain outstanding:

•                Salary: €1,000

•                Resourcer Commission: €1,200

•                Notice Pay (10 days): €645

•                Holiday Pay (9 days): €600

•                Total due: €3,445

•                Amount paid by respondent: €3,200

Balance still due: €245 (From Salary, Notice Period, Holiday Pay and Resourcer Commission prior to Promotion)

 Further Commission (Junior Recruiter Commission) Owed: €2,727.90

 Claim / Total remaining Unpaid Wages/Commission Owed: €2,972.90

The emails/submissions from the respondents’ states that they would pay her the full months wage in leu of working out her salary and notice period. If they were held to this, it would increase what was due to be paid by €355 to €600 in unpaid wages, which would make the total remaining unpaid wages plus commission owed = €3327.90

(Salary+ Notice Period) 2000 + (Holiday Pay) 600 + (Resourcer Commission) 1200 = 3800

Paid 3200

Remaining = 600 

+ (Junior Recruiter Commission) 2727.90

= €3327.90 outstanding

The Complainant submitted details of placements she made but it is inappropriate to name the Companies involved.  It involved;

Total Made for Company = €7255.20

Total Commission due for Complainant = €858.30

 Total Commission due = €2727.90

The Complainant, in her submission,  also sought redress under the Employment (Miscellaneous Provisions) Act 2018.

Our opening submission with regard to the above sequence of events is to state that clearly the Complainant is seeking to now retrospectively create a claim for commission on the basis that she has absolutely no factual basis for same.  We will deal with each of her points raised in her submissions as follows: -

 The complaint made to the WRC was pursuant to Section 7 of the Terms of Employment (information Act) 1994 and not under the Employment (Miscellaneous Provisions) Act 2018.  No Submissions were sought by the Adjudicator from the Complainant in respect of this matter considering that she has had 4 years and 2 hearing dates in which to provide her submissions. 

  Evidence was given on behalf of the Respondent in relation to what occurred. It was accepted by our client that there was a delay in providing written contractual terms and the reasons for same were set out but ultimately they were provided to the Complainant. 

The only comment we wish to make in respect of her submission is that she states she commenced new employment on the 12th of January and calculates this as a 1 month loss of salary when she was paid a full salary for December by her employer.  We would comment that the credibility of the Complainant must be taken into account when considering all of these matters.  

Issues under the payment of Wages Act, Sections 3, 4 and Section entitled “Summary of Claims.   

The first comment we wish to make in relation to the Complainant submission as set out at Sections, 3,4, 5 and 6 of her submission is that it is entirely self-contradictory and incorrect on its face.  

The first part of her submission appears to suggest that her wages were withheld. No wages were withheld and this is factually incorrect. The Complainant was paid monthly by the employer, she ended her employment on the 15th of December 2025.  She was paid her full wages for the month of December and full details with regard to payment of wages are clearly set out in the Respondents submissions, a full history of her payments including a detailed breakdown with regard to what she was paid in December and the basis of same. This is further clearly referenced in the exchanges between Mr P and the Complainant as set out in attachments provided to the submissions, these emails are contemporaneous and reflect the argument being made by the Complainant at that time.   

What is significant is the extraordinary variance of figures and calculations that the Complainant has provided throughout this case.  She appears to accept at Section 4 that the resource or commission figure is €1200.00. She accepts that she was paid an amount of €3,200 but believes she is entitled to a further €245.00. She then adds a further figure that she appears to have calculated out of thin air of €2,727.90 commission fees.  

In the Complainants submission she comes up with a different theory that the Respondent ought to pay her a full month’s wages in lieu of working out her salary and notice period and that thereafter she would be short of €600 holiday pay. The basis of her calculation of holiday pay owed is not set out. In addition these figures are being presented for the very first time and do not appear in any of her previous submissions nor are they the figures she raised orally at her hearing. 

 Returning to the figure that the Complainant describes as “further commission (commission owed €2,727.90), this figure appears again in the Complainants own equally confusing summary.  The figure of €2,727.90 is referred to in the middle of page 5 but with no breakdown as to where it has arisen from. On reviewing placements she appears to have calculated the commission she was owed for October, November and December and totals those commissions at a total of €2,727.90.   What stands out to our client is that the placements she refers to are specifically referred to by our client in the exchange of emails supplied. Herefore we are unclear as to what the Claimant is stating here. She accepts that she was paid €1,200 commission but yet claims a further commission is owed for the same placement references. Equally the figures appear arbitrary and there is no basis or breakdown for same.  

The figure therefore of commissions for the months of October, November and December are both double counted by the Plaintiff and also the figure itself is based on an arbitrary payment figure she seems to have simply come up with. In addition there is no consideration by the Complainant of the threshold provided in her contract.  The calculation of that figure is entirely spurious on the Complainant’s part and there is absolutely no evidence upon which to ground same. The actual evidence about Commission figures is contained in the Respondent’s submissions, that evidence is written and contemporaneous with the matters in issue. 

We submit at this stage that the Complainant has not set out any basis for a claim pursuant to the Payment of Wages Act and she has provided a number of different calculations from which she has attempted to create a claim four years later.   

Accordingly we submit the claim pursuant to the Payment of Wages Act should be dismissed. 

As a final general submission we would again ask, when reviewing the entire matter, to consider the actions of the Complainant in this claim arising from issues such as the surreptitious recording of people to the evolving claim with regard to payment of wages, to the actions of the Complainant in intentionally refusing to provide a copy of her submissions to the Solicitors on behalf of the Respondent.  

This case was initially submitted to the WRC in December 2021 and assigned to an Adjudicator and a Hearing was scheduled in October 2022  The Adjudicator appointed to hear the complaints was appointed a District Court Judge and thereafter ceased to have session of the case. The case remained in abeyance for some time and was assigned to the current Adjudicator in 2025.

The Complainant gave personal details of an underlying medical condition to the Hearing and requested that the Decision be anonymised. The Adjudicator has considered this and agreed that special circumstances exist to justify the anonymisation of this complaint.

There are two complaints for consideration. The complaint under the Employment (Miscellaneous Provisions) Act 2018  was not properly before me and I have no jurisdiction to deal with that complaint.

With regard to the provision of a contract the Complainant started work on May 26th 2021 and the Respondent stated they provided a contract around mid July 2021 but the email evidence refers to a contract being provided in September 2021. The contract provided to the Hearing was neither dated or signed. I conclude from the submissions that no contract was supplied to the Complainant within two months of her start date as required by the Terms of Employment (Information) Act 1994 and I find the Respondent is in breach of that Act and award the Complainant 2000 Euros compensation for breach of that Act.

The Submissions of the Parties varied significantly regarding what wages/holiday pay or commission was due to the Complainant. The Respondent argued that all wages and commission was paid to the Complainant and the Complainant set out what she felt she was not paid. The Respondent denied the Complainant was due any commission on temporary placements. Having considered the varying evidence of the parties it is impossible for the Adjudicator, based on the information provided, to  factually determine this case. It is the responsibility of a Complainant to show clearly and verify their entitlement to what they say that they were not paid. However,  I accept this can be difficult when some of the information the Complainant seeks to prove was not in fact paid and the basis for the alleged payment due is not contained in a document or is disputed between the parties. The lack of a clear agreed commission agreement did not assist this situation. The Complainant did her best to show what was due in wages and commission but this was not accepted and was disputed by the Respondent.

This dispute has been long running and contentious and having considered the whole situation I conclude that the Complainant is unlikely to be due wages or holiday pay but conclude that she may have been due some commission, but the amount (if any) is in serious dispute between the Parties. Given the information before me, I decide that a compromise payment of 1,000 Euros is just and fair in all the circumstances for redress under the Payment of Wages Act 1991( in breach of the Complainants Employment rights) and I urge the parties to accept this amount as a compromise to the dispute and bring a conclusion to this contentious dispute.

The above amounts to be paid within 30 days on the basis both Parties accept the Decision. I propose it is the Complainants role to advise the Respondents Representative within that time frame if she is willing to accept this Decision (or not) and of course it is the Respondents right to decide if they accept the Decision, irrespective of the Complainants choice.

I award the Complainant 1,000 Euros under the Payment of Wages Act 1991. CA-00047812-001

I award the Complainant 2,000 Euros under the Terms of Employment (information) Act 1994. CA-00047812-003

Payment of Wages