Employer took advantage of me and kept my £10,000 commission!

[obiter dictum]

It is no use using

 

Kent Management Services Ltd v Butterfield 1992

 

That has now been repealed by future precedent, not to mention the recent ruling in the CJEU that commission payments are to be paid when taking annual leave as part of the WTD

 

Does your contract have a clause that bonus payments are not guaranteed or discretionary??

 

How long were you employed for, were you still on probation??

 

Were you made redundant or leave and forfeit any bonus payments?

Edited October 16, 2015 by obiter dictum

[ericsbrother]

What happened between this time and april 2011, did you get a confirmation of the position and then get paid commission the same as the other sales people or was there another arrangement? What happened after April will be telling as far as entitlement to anything for worl done in the preceding 2 months as both sides can establish either contractual obligation or proof of job change.

It appears as though you worked at a branch of a larger chain so have you got as far up the tree as you cabn with this before suing? Does the CEO of the company know about the full story and have they responded to say that the end of the process has been reached. If not, get a signed for letter off to them and give them a short time to respond (7 days will do) and then decide what to do next.

[ericsbrother]

Another question to ask is who DID get the commission if you didnt and suggest that any claim by that person to the entitlement is spurious at best.

[Emmzzi]

An employer cannot choose to NOT pay you unless it is going into administration or cannot afford to do so. If everyone around you is getting paid, then you must also be paid.

 

 

The case of Kent Management Services Ltd v Butterfield 1992 dealt with an employee's claim for unpaid commission. When Mr Butterfield's employment came to an end, he received only £1,227 of a £2,494 bonus which he was entitled to. The contract of employment stated that commission and bonus payments were discretionary and ex gratia.

 

The Judge decided that it was in the reasonable contemplation of both parties that the commission was payable, and there was no suggestion on the documentation, nor in front of the tribunal that there were any special circumstances for non payment. As such, the full amount was payable.

 

Whilst discretionary schemes can be varied and altered or even abolished, whilst they are in existence, the general rule is that if the commission or bonus is earned and expected by the employee, it must be paid.

 

 

------------- Unless there is a good reason why an employer cannot pay the full amount, then it is payable. This will not protect an employer.

 

 

Could you actually answer the question? Do you HAVE your contract and if you do what does it SAY?

[cleanslateguy]

March is essentially that the company made a calculation error, then that would be an easier claim.

 

 

Presumably you would have been receiving at least the minimum wage. The burden of proof would be to prove contractual entitlement to receive commission on top of that, & what the agreed terms of commission were. Evidence of general practice in the motor industry is helpful but not conclusive.

 

I have a template of what the commission scheme was for 2010 including that period

The salary was below minimum wage and one signs for this. At £10,000 per annum.

I have sent a Letter Before Action letter. the next step is moneyclaim is that correct? I have never claimed for money via courts.... is there always a hearing? Is all evidence presented online? Do I Have to scan the world?

[cleanslateguy]

Another question to ask is who DID get the commission if you didnt and suggest that any claim by that person to the entitlement is spurious at best.

 

One aspect of this,... is that if the money was paid to the dealer principle by himself, then you have wage theft correct? But one has to have some evidence of where the money was paid to.

[cleanslateguy]

 

Does your contract have a clause that bonus payments are not guaranteed or discretionary??

 

How long were you employed for, were you still on probation??

 

Were you made redundant or leave and forfeit any bonus payments?

1. Not made redundant

2. Everyone is on probation in every company even when being paid commission.

3. If you retail a vehicle, there is money there to pay for everything as you are receiving commission due to making profit that would not have been made had the executive not been there to deal with the clients and serve them/sell.

4. Employed from Jan 2010 - April 2011

5. The Scheme is discretionary.... not the payments themselves. It is a discretionary commission scheme which means they choose who will be on the scheme and who is entitled to be on there. The letter states that you WILL benefit from the discretionary COMMISSION scheme. This does not mean that one may or may not be paid dependant on how the Managers/CEO feels at the time of paying people at the end of the month.

[Emmzzi]

so you don't have a copy of your contract?

 

because that is pretty much the first thing the court will ask for.

[obiter dictum]

My own opinion on this will be you are flogging a dead horse and you will probably be £500 out of pocket by the end in court fees etc

 

Especially if you cannot even reference the terms in your own contract of employment

[cleanslateguy]

so you don't have a copy of your contract?

 

because that is pretty much the first thing the court will ask for.

 

Hello. Of course I have a copy of the contract. There would be little point in me even coming here making a thread if I didn't

I have everything I need to prove that I was entitled to commission just like everybody else. I have a letter dated 1st of April declaring my change of position formally and that I WILL benefit from the commission scheme as per the employee handbook which I also have and the scheme which I also have details about what percentage of what is entitled to of a sale that is made.

 

 

What I require some advice on is process and order. Money claim etc. Have you ever done this yourself Emmzzi?

[Emmzzi]

Yes. And been to many ET. The whole shebang. And I know nothing irritates the judge like evasiveness.

 

please, as requested, type in the exact clause in your contract relating to commission.

[cleanslateguy]

The Letter states:

 

 

12th April 2010

I am delighted to confirm your change in role from Trainee Sales Executive to Sales Executive as from 1st April 2010.

Your new Salary will be £11,000 per annum and you will benefit from a non-contractual bonus/commission scheme. The company reserves the right to alter bonus schemes periodically.

All other terms and conditions of your employment will remain unchanged.

I would be grateful if you could sign and return to ADMINISTRATION at BRANCH, one copy of this letter as acceptance of change.

DEALER PRINCIPLE

 

 

Contract:

 

 

IN the handbook it states that NON-CONTRACTUAL COMMISSION AND INCEMTIVE BONUS SCHEME OPERATE IN SOME DEPARTMENTS. ANY SCHEMES ARE COMPLETETLY DISCRETIONARY (Discretionary in terms not in whether you get paid or not. All must be paid for work done) AND WILL BE SUBJECT TO TERMS AND CONDITIONS AS THE COMPANY SEES APPROPRIATE (which means they can change the scheme parameters if they wish to do so)

 

 

THESE ARE INDIVIDUALLY NOTIFIED TO YOU BY YOUR LINE MANAGER AND MAY VARY FROM TIME TO TIME. COMMISSION PAYMENTS ARE MADE ONE MONTH IN ARREARS.

[Emmzzi]

So your key phrase is "non contractual."

 

I suggest you gamble the small fee at small claims using money claim online but due to the uncertainty of your entitlement do not engage in any higher court with greater fees. Because your chances of success and less that 50% IMHO.

[obiter dictum]

So your key phrase is "non contractual."

 

I suggest you gamble the small fee at small claims using money claim online but due to the uncertainty of your entitlement do not engage in any higher court with greater fees. Because your chances of success and less that 50% IMHO.

 

I totally agree

 

That non contractual caveat is so ambiguous

 

You have not even listed under what terms a bonus will NOT be paid

 

We are constantly double guessing

[steampowered]

I have a template of what the commission scheme was for 2010 including that period

The salary was below minimum wage and one signs for this. At £10,000 per annum.

I have sent a Letter Before Action letter. the next step is moneyclaim is that correct? I have never claimed for money via courts.... is there always a hearing? Is all evidence presented online? Do I Have to scan the world?

Yes, the next step is moneyclaimonline. As previously advised it would be much less risky for you if you keep the claim less than £10,000. If you claim more than £10,000, you will be liable for the employer's legal costs if your claim is not successful for any reason.

 

In practice, there is always a hearing. The general process is that both sides are required to exchange all evidence they have which is relevant to the case a certain time before the hearing. You then go to the hearing, at a county court, and the judge will make a decision.

 

I personally think this sounds like a winnable claim PROVIDED that (1) you have a letter which states you will benefit from the commission scheme, (2) you have a copy of the commission scheme, (3) you complied with the terms of the commission scheme and qualified for a bonus under it, and (4) you can prove that you sold cars in accordance with the scheme giving rise to a certain amount of commission. You need to prove all of points 1-4.

 

On the other hand I think your claim for commission under an 'oral agreement' made 5-6 years ago sounds totally hopeless and you shouldn't even bother making it. I would claim from the date of the letter and forget about the rest.

 

The employer will no doubt try to say that the scheme is discretionary and therefore they were not obliged to pay a bonus. Although the law on this is a bit murky and can be argued different ways in different cases, I personally agree think the employer would be unlikely to succeed on that argument. Over the past five years there have been lots of cases in which an employer has tried to argue that a bonus scheme was labelled 'discretionary' or 'non-contractual' and therefore they didn't have to pay it. You will have to do your own research, but it does seem to me that the employee has won in almost every case. A good example of a case about whether a bonus scheme stated to be 'discretionary' was contractually binding is this one: http://www.bailii.org/uk/cases/UKEAT/2009/0248_08_2301.html. Certainly I do not think it will be convincing for an employer to say, in the context of used car sales with a commission scheme providing for commission to be paid according to a fixed formula which is mentioned in an employment contract, that the intention was for commission to be withheld or paid at will.

[ericsbrother]

agree with above, the wording is clear that the non-contractual bit means the amount paid and the targets can be moved according to company needs but it will be paid to all relevant staff and your employment contract moved you into that category of staff. This means that you were entitled to be treated the same as the other sales people when calculating bonuses.

Have you found out if someone else claimed your bonus entitlement? Get to the bottom of that and you may well find out why the company is resisting paying you as they see it as paying twice. Someone may well be getting twitchy.