Ian Armstrong

 Bankhawk Limited

Employer’s reliance on the employee’s refusal to sign an NDA was rejected by WRC as an invalid reason to withhold payment of commission due.

The Complainant began employment with the Respondent in 2017 as Business Development Lead, later taking on broader commercial responsibilities. He had a contract of employment and agreed to changes in 2022 (e.g. reducing commission). He claimed outstanding commission of €117,680 by autumn 2023, following large client payments. The CEO agreed to pay €60,000 that year and the remainder in 2024. The Complainant received €60,000 in October. In January 2024, he was informed of potential redundancy and raised concerns about the remaining commission. Despite verbal promises and multiple follow-ups, no further payments were made. A redundancy notice followed in February, alongside a proposed settlement agreement requiring him to waive WRC rights. He refused. In March, a further agreement was reached to pay redundancy and commission over four months, but no payments were made. In April, he received around €9,000 for redundancy but nothing further. He rejected pressure to sign an enhanced NDA. He submitted that holiday pay had been under-calculated and claimed €6,400 commission for final sales. At hearing, he disputed claims he agreed to 0% commission, provided evidence of entitlement, and argued the Respondent's shifting explanations were inconsistent.

The Respondent submitted that the Complainant was contractually bound by a confidentiality and non-compete NDA, which he later refused to acknowledge, thereby repudiating his contract. The Respondent argued that outstanding commission claims were invalid as the Complainant failed to submit them within the six-month statutory period and refused to sign a settlement agreement and NDA, despite legal advice being offered at the company’s expense. The Respondent maintained that the Complainant had misrepresented his entitlements, leading to an alleged overpayment. They claimed he made no new sales in 2023 and became difficult to manage. The company held that a 2022 agreement clarified commission rates and finalised entitlements; asserting that the €60,000 payment made in 2023 was a goodwill gesture to assist with a property purchase. Regarding holiday pay, the Respondent contended that the Complainant had taken his full entitlement and that sporadic commission payments should not affect annual leave calculations.

The Adjudicator considered both the timeliness and substance of the Complainant’s claims. It was found that the complaint regarding outstanding commission was submitted within time and the same applied to the annual leave claim, as the final payment was received on 11 April 2024. On the substantive issues, they accepted that a lower commission rate had been agreed in 2022. Further, the Complainant had been paid €60,000 but the remaining €57,680 was never paid. The Respondent's shifting positions were found not credible. The Respondent’s reliance on the Complainant’s refusal to sign an NDA was rejected as an invalid reason to withhold payment. However, the claim for payment in lieu of outstanding annual leave was not upheld, as evidence was lacking, and carryover of leave had not been agreed in writing. Total award: €64,080.

• Employers should ensure that all commission agreements, contractual amendments, and payment deferrals are clearly documented and mutually acknowledged in writing. Relying on unsigned NDAs or shifting interpretations of agreements can undermine credibility and may not justify withholding wages.  
  
  
• Proper record-keeping, particularly around employee entitlements like annual leave, is essential to defend against claims. Employers must avoid using unpaid wages as leverage to secure settlement agreements or post-termination obligations, as this may be viewed as coercive. Transparency, consistent documentation, and adherence to statutory obligations are critical in maintaining fair employment practices and avoiding costly, adverse findings before the WRC.

The full case can be found here:
https://www.workplacerelations.ie/en/cases/2025/march/adj-00051878.html