Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 187_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF No: 187/10

CLAIMANT: Alan Lee

RESPONDENT: Cordiners Kitchens & Bedrooms Ltd

DECISION

The decision of the tribunal is that the respondent pay to the claimant the sum of £882.30 in respect of unpaid commission.

Constitution of Tribunal:

Chairman (sitting alone): Mr W A Palmer

Appearances:

The claimant represented himself.

The respondent was represented by Mr Sheridan of Peninsula Business Services Limited.

Evidence

1. The claimant gave evidence on his own behalf. Mrs Suzy Armstrong, who is an executive director of the respondent company, with responsibility for sales and production, gave evidence on behalf of the respondent. A number of documents were provided at the commencement of the hearing and further documents were produced during its course. I made clear to the parties that I would consider only those documents referred to during the hearing.

Submissions

2. A short submission was made by Mr Sheridan, which I have considered.

The Claim

3. The claimant’s claim was in respect of unauthorised deduction of wages. The claim consisted of two elements, namely, unpaid basic salary (including an element of sick pay) and unpaid commission of £2,628.18, in which is subsumed the £882.30 referred to at paragraphs numbered 13 and 14 below.

Withdrawal of Basic Salary Claim.

4. During the hearing the claimant withdrew his claim in respect of unpaid basic salary. The only matter, therefore, that I have to consider is the unpaid commission claim.

The relevant Statutory Provisions regarding Unauthorised Deductions from Wages

5. Article 45 of the Employment Rights (Northern Ireland) Order 1996 (“the Order of 1996”) provides, with certain exceptions, which are not relevant in this instance, that an employer, “shall not make a deduction from the wages of a worker employed by him”. Article 3 (3) (a) of the Order of 1996 provides, inter alia, that a ““worker” means an individual who has entered or works under……a contract of employment”. Article 59 (1) (a) of the Order of 1996 provides that “wages” includes any commission.

Findings

6. The standard of proof employed by me in making findings of fact is the balance of probabilities.

7. The claimant was employed by the respondent, as a design consultant, from 11 February 2009 until 10 October 2009, under a contract of employment. The relevant remuneration arrangements were that the claimant would be paid a basic salary and a commission on sales. The rates of commission were as set out in a document, which was provided to the claimant and which stated:

“Minimum sale value for commission to be paid will be £350 net.

Commission is paid net of VAT and fitting charges

Commission on sales as follows:

Full retail Value 8%

6.5% with less than 5% discount

5% with less than 12% discount

Sales secured through builders who are paid a builders commission. 2.5% on final balance.”

8. So, for example, if the claimant sold a kitchen to a purchaser, at full retail value, for £3,000 gross, VAT and fitting charges were deducted from that sum and the claimant was paid 8% commission on the balance. If he sold a kitchen and allowed the purchaser a discount of 4% his commission would be 6.5% on the net figure, that is, after VAT and fitting charges were deducted.

9. I shall refer to the commission arrangements as set out above as “the commission arrangements”.

10. The claimant averred that not long after his employment commenced he attended a sales meeting where it was stated that, because of the economic downturn, commission of 8% would be paid on all sales other than those below a net value of £350, whether or not discount had been allowed. I shall refer to this alleged new arrangement as “the alleged new commission arrangement”. In support of his assertion the claimant referred to computer generated documents of the respondent’s which showed that on dates after the new commission arrangements were introduced commission was recorded at 8%

11. Mrs Armstrong stoutly denied that there was any arrangement made that 8% commission would be paid on all sales. She said that it would be “financial suicide” to do so: to pay 8% “across the board”, she said, would make the respondent unviable, given the profit margins in the business. Mrs Armstrong explained that documents referred to by the claimant, which showed that 8% sales commission was allowed in most instances, were initial documents which always recorded commission at 8% because the computer was programmed to do so. So, initially, when a sale was made particulars, for example, the invoice charge and fitting charge, were entered into the computer, it automatically calculated commission at 8%, because it was programmed to do so. When the work papers came in (and these included the discount allowed to the customer) further information was fed into the computer. When this exercise was completed the printed output would show the actual commission to be paid in accordance with the commission arrangements.

12. I prefer Mrs Armstrong’s evidence to that of the claimant. Having observed her in the witness box, I formed the impression that her evidence was truthful. I accept, for the reasons given by Mrs Armstrong, that it would not have been viable to enter into the alleged new commission arrangements and I accept that no such arrangement was entered into. There was a matter that has caused me to entertain a degree of doubt in respect of the assertions the claimant made with regard to the favourable changes contained in the alleged new commission arrangements. The claimant in his initiating document (the ET1) claimed, “The first week of employment was taken as a lying week (and not paid until the end of week 2). I took a week off sick in my last week of employment. Neither of these weeks have (sic) been paid to me.” With regard to the sick pay claim, the claimant admitted at hearing that, although he had informed the respondent that he was ill, he had not, in fact, been ill during the week in question: he was seeking alternative employment during that week and that is the reason that he did not attend work. He was, therefore, making a claim that he knew had no foundation and was an unjustifiable one to make.

13. The claimant’s claim that he was due enhanced commission under the alleged new commission arrangements is dismissed. However, the respondent agreed at the hearing, through Mr Sheridan, that the claimant was owed commission of £882.30 net under the commission arrangements, which, by way of reminder, are the commission arrangements set out at paragraph numbered 7 above. I consider that a claim for this amount is covered in the ET1, at page 13, where the claimant states, “commissions are also due to be paid for jobs that were sold but had not been filled before I left Cordiners”. The respondent, in its response, at 5.2, paragraph 7, acknowledges that “commission payments are due to the claimant;”.

14. I find that that part of the claim, in respect of the £882.30, is well founded and so declare and I order that the respondent pay the claimant that amount.

15. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 24 and 26 March 2010, Belfast

Date decision recorded in register and issued to parties:

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