Employer Breach of Contract After Resignation

[isabella2008]

Good evening,

 

Please could someone advise on this. I handed in my notice on my payday in July 2014 (intentionally as my Employer has a history of not paying employees final salary after they've handed in notice). As I was on holiday at the time I handed in my notice, I requested in my notice letter if there was a possibility that my employer could release me at an earlier date as I was hoping to commence employment with my new company sooner than my notice period would end. Whilst on holiday I received confirmation from my employer accepting my resignation and informing me that I would be able to discuss an earlier leaving date when I returned from my holiday.

 

I returned to work on my planned date only to find that all my colleagues had been informed that I had left the company and was not returning, furthermore I no longer had a desk to sit at in order to conduct my daily work as they had reallocated my desk to a colleague. Having arrived at work as usual at 08:30 a.m. I was informed that my manager would be arriving at 11:30 a.m. in order to advise me on the situation. I was made to stand and wait from 08:30 a.m. until 13:15 p.m. when I eventually realised that the manager would not be coming. I was left with no choice but to arrange transportation home. Whilst waiting for the manager I was informed by my colleagues that my manager had distributed my pending sales deals between my colleagues. I received my final salary in September without pay for my notice period as well as no commission which was due to me for the month of July. I requested a complete breakdown of my final salary which my employer has not provided. I also expressed my opinion on the way in which I was treated and they told me that I chose to walk out and that whilst what I consider to be my "normal" desk was occupied by someone else there was a desk available for me to sit at. However, nobody informed me of this on the day.

 

I have been in touch with ACAS and my Employer has refused to discuss the matter with them so am now filing with Tribunal.

 

Please advise if my employer is in breach of anything here? I am happy to give further details should you require.

 

Best!

Edited September 9, 2014 by isabella2008

[mapadale]

There are quiet a few things that they could be potentially breaking, however I would advise that you see a solicitor.

[SabreSheep]

First thing. How long have you been employed by the company. Noone can help you untill you answer that question.

[isabella2008]

I was employed since March 2014

[SabreSheep]

Sadly you will not be able to take tribunal action without 2 years of service with the employer for unlawful dismissal or constructive dismissal. This may apply to an employment tribunal applicaiton for unlawful deductions of earnings as well. Someone will be around later I suspect that can give a clearer picture.

 

Without the tribunal route I wonder if you could utalise a small claims action?

[Emmzzi]

what outcome are you looking for?

[isabella2008]

I would like my basic pay for my notice period as well as the commission owed for the month of July total around £2500

[Emmzzi]

what does your contract say about commission? exact wording please.

 

you are also the one whp asked for a shorter notice period. What notice do you think you should be paid?

[isabella2008]

When i returned to work my desk was cleared out and my belongings were gone. My contract was in my drawer at work. Although, i requested a shorter notice period this was not discussed, therefore I would have been available to work a full months notice. Employer advised that this would be discussed on my return, but none of this happened.

Edited September 9, 2014 by isabella2008

[Emmzzi]

If commission is discretionary you have no case. Without a contract you're going to have a hard time proving it should be paid.

 

And my second question, please?

[isabella2008]

Please see answer to second question in revised post above. thanks

[isabella2008]

Also I have worked in car sales for 30 years, commission is not discretionary it is part of your salary package

[Emmzzi]

It may be usual for commission to be paid but without a contract what are you going to show the court? You need evidence, not custom and practice.

 

What does the employer have from you in regard to your notice? Do they have a letter saying you would like a shorter period? How exactly did you phrase that?

[isabella2008]

My resignation was worded as follows and I have attached their response.

 

28th July 2014

Dear David

Re: Letter of Resignation

Please accept this letter as my notice of resignation, effective from today the 28th July 2014.

I am grateful for the opportunities and experience I have gained at ???? however, after much consideration I have decided to accept a position with another company.

I would be grateful if I could be released from employment on the 15th August 2014 and will hopefully be able to discuss this with you on my return from holiday.

I trust that all my outstanding commission and salary will be paid accordingly.

Thank you for the opportunity to work with you and I wish the company every success in the future.

Yours sincerely

[Emmzzi]

so that looks like to me you asked to go on a certain date and they let you go on that date? I would expect the court to side with them on the notice period, on balance of probability.

 

You have more of a case for commission but I don't know about this clawback clause. Write to them and ask for the breakdown. It does look like you have messed them about a bit leaving and coming back - so expect them to take their time!

[GrahamMcLean]

If I'm reading it right you asked for 2 weeks (give or take a few days) notice. They gave you what you asked for. Did you get paid for the 2 weeks? Also regarding the commision, was this for closed sales with vehicles collected?

[steampowered]

I would think you should be getting basic pay during the notice period which was agreed in those letters. Maybe something for the loss of a chance to earn commission (if commission forms part of your contract). But it looks like this might be offset against a guarantee you gave when rejoining the company.

 

Any outstanding payment can be claimed through the Employment Tribunal or small claims track in the county courts (there is no 2 year qualifying period for unpaid wages claims). But you should write a former letter to the employer first explaining what you think are due and asking them to confirm.

 

If you do sue them, remember that they do not have to give you a reference in future.