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

cleanslateguy · October 16, 2015

Hi everyone. I have read a lot of your posts and want to thank you all in advance for the contributions made on this forum. It is incredibly helpful and am grateful for what I have read already:

I worked for a company in Jan 2010 - April 2011 selling vehicles. I was a trainee for Jan, Feb and March 2010 not supposed to sell cars. My shady Dealer Principle asked me to sell in March and verbally told me I would be paid in front of everybody also there. Along the way he even used my good performance to motivate the rest of the team. This was my first job ever full time under contract & handbook in a proper place.

In March 2010 I outsold the team (I needed the money for my father's treatment and he KNEW this!) and when it came to March 30th he told me that there was no commission sheet for me and that I wouldn't be paid. I was so angry because I had worked 7 days a week to do the best I could. Should have been about £4900 in commission for 23 cars sold.

In April 2010 I had a letter this time saying I WILL benefit from commission in writing, but it was not paid to me again. There was a complaint from a customer so the Dealer Principle said to me again that I would not be paid for the whole of April (around £4700). It is in writing in a letter! He demoted me to trainee for 3 months.

In May 2010 (21st) he changed his mind and had me start selling again back to Sales Executive. I sold 9 vehicles earning £1489. This was paid to me in the June payrun. I got a letter stating the change back to Sales Executive but as of June 1st despite this payment of MAY commission being paid to me in June 2010 (on time).

I wrote to them as I now know I can claim money back even at this time... and they have said in a letter that after completing an INVESTIGATION... I can only ASSUME that the payment of £1489 is for April and it was paid late in June's payrun (no payment has ever been late). And that because I was a trainee, I was not entitled to be paid for March 2010 at all.

I have evidence of what I sold, who I sold it to, the letters stating I will be paid, my bank accounts, my payslips showing I did not get paid, First letter, second letter even showing the breakdown exactly of who, what and how much sold for.

Do I go straight to a Letter Before Action?

The last letter says "I confirm receipt of your letter dated 7 October 2015, written in response to my investigation findings. As Per my letter of 24 September 2015, it is my findings that no commission is due to you". He has basically given me a corporate hands over his ears. He didn;'t even acknowledge any of the evidence I gave in my previous letter at all and is closing the door shut despite it being a very clear case.

obiter dictum · October 16, 2015

If the cause of action as to unlawful deduction of wages (Commission payments) is 2010

You have a zero chance of redress now

You have three months with an employment tribunal

Even with a civil claim through the county court will be almost impossible to prove after nearly six years

On the balance of probability i would leave well alone but that is just my own opinion and the choice is yours

BankFodder · October 16, 2015

I assume that you not working there anymore.

Set out very carefully exactly what you think you are owed to you – including dates et cetera et cetera, – you know better than me about this.

Write them a clear letter laying it all out tell them exactly what has happened and tell them that if you don't have the money within 14 days that will you will sue them in the Small Claims Court.

Only make this threat if you're prepared to go ahead with it.

Use your 14 days studying information on this forum and elsewhere about how to start up a small claim. Open up a free account with MoneyClaim and to start working out your draft claim form.

It doesn't need to be very fancy and in fact I think in your case it can be quite short.

It would simply be:

The claimant was an employee of the defendant car company employed selling cars.

The claimant seeks the payment of £XXX under the contract which should have been paid by way of commission and which has been withheld.

The claimant also seeks interest pursuant to section 69 of the County Courts act 1984

neil6534 · October 16, 2015

you could try opening a case up with acas, but may have a problem seeking a resolution via a tribunal as they suggest that you would need to have done this within 3 months of the employment eding

https://www.gov.uk/employment-tribunals/when-you-can-claim

BankFodder · October 16, 2015

I've just seen the post above. Also I have just realised that you are likely to be claiming over £10,000 – especially if interest is added.

Firstly, I disagree. I think that it is worth trying.

Secondly, it is in your best interest to keep it within the small claims limit of less than £10,000 so maybe lose some of the money from somewhere and bring it comfortably within £10,000 – including interest

neil6534 · October 16, 2015

i didn't say don't try....infact I agree its worth trying the officical channels.....backin 1996 i worked for an i.t distribution company as a commissioned based internal sales rep - i did well and had forcast an end of year bonus of around £6500 only to be told at 9months that all of my big accounts were being given to the external reps, i argued my case with them and gave them a letter stating i would take them to acas regarding this and yp and behold they caved in and i got my bonus, so exhaust their complaints procedure first, tell them what you are going to do and take it from there

I've just seen the post above. Also I have just realised that you are likely to be claiming over £10,000 – especially if interest is added.

Firstly, I disagree. I think that it is worth trying.

Secondly, it is in your best interest to keep it within the small claims limit of less than £10,000 so maybe lose some of the money from somewhere and bring it comfortably within £10,000 – including interest

SabreSheep · October 16, 2015

If the cause of action as to unlawful deduction of wages (Commission payments) is 2010

You have a zero chance of redress now

You have three months with an employment tribunal

Even with a civil claim through the county court will be almost impossible to prove after nearly six years

On the balance of probability i would leave well alone but that is just my own opinion and the choice is yours

Last time I checked we had not reached 2016 yet.

Just to confirm, 6 years after 2010 would be 2016

AND that is the normal deadline to START proceedings.

Secondly

6 years is not the be all and end all, there are ways to defeat the statute of limitations 6 year rule and House of Lords rulings to back it.

cleanslateguy · October 16, 2015

Law states that I have 6 years to Claim... I am not at six years yet. This was my first letter: I have omitted names and company etc.

Dear Head of HR,

I am writing to you as I have been underpaid for work that I have done whilst being employed at DEALERSHIP in 2010-2011.

I was employed as Trainee Sales Executive in January 2010 with a role of shadowing other sales executives until the end of March 2010. However, my role was interrupted when in the beginning of March 2010, I was asked to sell vehicles earlier. As you are aware, in this industry, we are only paid for the work that we do. Whilst having the ability to sell, I asked if I was going to be paid for the work I did and cars I sold like the other sales executives on the pay plan. DEALER PRINCIPLE in front of others told me I would be paid. Other sales executives also gave me a lot of support as did my line managers MANAGER and MANAGER who knew I was going to be paid and was now selling cars rather than simply being a trainee.

A trainee does not sell vehicles and it is without dispute that the vehicles were sold by me as my names are on the order forms and I handed over the vehicles. I do not have a dispute with salaries meeting, or not meeting national minimum wage. Simply that I would not have done the work if I was not going to be paid. I worked many of my days off also as we needed the money to pay for my late father’s medical treatment and DEALER PRINCIPLE knew this very well. Agreement for the commission was oral on more than one occasion. I was urged to continue selling and selling more than my colleagues also at meetings, in private and in the board room where Sales Executive’s totals are tallied.

DEALER PRINCIPLE and I had a meeting on the 1st of April 2010, where he then told me I was not going to be paid against what he had said and in front of others. This made me incredibly upset but I did not challenge at the time as I needed my job to be able to afford to live. I wasn’t going to jeopardize my job in the short term as I knew I could do very well the next month and could challenge this later on.

In April 2010, I was top salesman and once again I was not paid for the very hard work I did. For the £60,000 or so I had made the company in these two months, not a penny was paid to me for my work. You state that in the month of June 2010 I was paid for April. In this instance you are mistaken.

In May 2010, I was, after two and a half weeks told to sell again by DEALER PRINCIPLE as he wanted to increase volume in May and knew I was a significant team member contributing to sales and profit. In May 2010 I sold vehicles to the following:

CUSTOMER(22nd),CUSTOMER(24th), CUSTOMER(24th), CUSTOMER(25th), CUSTOMER(26th), CUSTOMER(26th), CUSTOMER(27th), CUSTOMER(28th) and CUSTOMER(28th). I had sold 9 vehicles in May 2010 which were paid to me in the June 2010 pay run. DEALER PRINCIPLE did not operate in the most conventional manner and would often override decisions he had made, as he had the authority to do so, being Dealer Principle at the time.

I have still not been paid for work carried out in March or April 2010.

My probation was extended on April 30th 2010, but that does not nullify April’s terms to be paid for the month of April. Retrospective pay cannot be withheld as there is no reason why the company cannot pay the earned commission. The vehicles were sold and delivered and the money was made by PLC.

To summarize, I am seeking to be paid for the following:

March 2010 Commission.
April 2010 Commission.

I have earned my commission. I am expecting my commission. I am entitled to my commission.

I below will provide proof for you that I have not been paid for the vehicles that I sold in March and April 2010.

Here are the breakdowns for the months of March 2010 and April 2010 with the respective amounts totalled below where you will see commission amounts and basics and the month of deposit into my bank account which is always one month in arrears. Never two months in arrears or the same month paid for which you claim was the basis of payment for April 2010. I will also show you that I was paid for May’s vehicles at the end of June 2010 which differs to your claim of being paid for April’s vehicles in June 2010, 2 months in arrears. You will then see why the amounts pale in comparison.

March 2010 – Target set of 15

Commission structure:

For over 20 vehicles sold, 12% of total profit

Payment of 12% of 90% of the Finance Commission earned

For every Paint Protection sold above 10 - £50 each accumulative

For every GAP insurance sold above 10 - £50 each accumulative

For every Warranty sold above 10 - £50 each accumulative

For every Demonstrator sold - £150 bonus

CUSTOMER – Vauxhall Zafira HY56x – GAP – WARRANTY - PAINT Finance – USED –
03/03/2010
CUSTOMER- Ford Galaxy EO09x – PAINT – WARRANTY - CASH – USED
05/03/2010
CUSTOMER – Ford Focus ND57x – GAP – CASH – USED –
09/03/2010
CUSTOMER – Ford Fiesta LD10x – PAINT – NEW – FINANCE
09/03/2010
CUSTOMER – Volkswagen Polo LV02x – GAP – PAINT – WARRANTY – CASH – USED
13/03/2010
CUSTOMER – Ford Focus LG10x – GAP – PAINT – NEW – CASH
13/03/2010
CUSTOMER – Ford Fiesta LG10x – NEW – CASH
15/03/2010
CUSTOMER – Ford KA VN07x – GAP – PAINT – WARRATY – FINANCE – USED
16/03/2010
CUSTOMER– Ford S-Max EO58x – GAP – PAINT – WARRANTY – FINANCE – USED
19/03/2010
CUSTOMER– Ford Mondeo – LD10x – GAP - PAINT – NEW – CASH
19/03/2010
CUSTOMER– Ford Focus LG10x – PAINT – NEW – CASH
20/03/2010
CUSTOMER– Vauxhall Vectra – NL57x – GAP – WARRANTY – PAINT – Used – FINANCE
20/03/2010
CUSTOMER– Ford Fiesta LD10x – New – Finance
22/03/2010
CUSTOMER – Vauxhall Astra NL57x – GAP – WARRANTY – PAINT – FINANCE
23/03/2010
CUSTOMER – Ford Focus BG57 – DEMO – WARRANTY – PAINT – FINANCE
24/03/2010
CUSTOMER– Ford Focus AG58x – DEMO – WARRANTY – FINANCE – USED
26/03/2010
CUSTOMER– Ford Kuga – LB58x – GAP – WARRANTY – PAINT – FINANCE – USED
27/03/2010
CUSTOMER– Ford Focus ET08x – DEMO – CASH - WARRANTY
28/03/2010
CUSTOMER – Ford C-Max LD09x – DEMO – CASH
28/03/2010
CUSTOMER– Ford Fiesta LG10x – PAINT – GAP – CASH – USED
28/03/2010
CUSTOMER– Ford Fusion EJ5x – CASH – USED
29/03/2010
CUSTOMER – Ford Fiesta LG0x – DEMO - Cash – USED
30/03/2010
CUSTOMER – Ford S-Max x – CASH – USED
30/03/2010

TOTALS:

GAP: 12 X £50 = £600

PAINT PROTECTION: 14 X £50 = £700

WARRANTY: 10 X £50 = £500

DEMO BONUS X 5 = £750

CHASSIS = £2040

FINANCE = £838.56

TOTAL FOR MARCH 2010 - £5428.56

Divided per vehicle £236.02p

April 2010 – Target set of 15

Commission structure:

For over 20 vehicles sold, 12% of total profit

Payment of 12% of 90% of the Finance Commission earned

For every Paint protection sold above 10 - £50 each accumulative

For every GAP insurance sold above 10 - £50 each accumulative

For every Warranty sold above 10 - £50 each accumulative

CUSTOMER – Ford Focus AJ58 – CASH – USED
02/04/2010
CUSTOMER – Ford Fiesta LG07– CASH – USED
05/04/2010
CUSTOMER– Ford C-MAX LC10 – GAP – PAINT – NEW - FINANCE
05/04/2010
CUSTOMER– Ford Focus ND58 – GAP – PAINT – USED – FINANCE
06/04/2010
CUSTOMER – Citroen C1 EN03 – GAP – PAINT – WARRANTY – USED – FINANCE
07/04/2010
CUSTOMER – Ford Fiesta NG08 – PAINT – USED – CASH
07/04/2010
CUSTOMER – Ford Fiesta OY58 – CASH – USED
07/04/2010
CUSTOMER – Ford Fiesta – GAP – PAINT – WARRANTY – FINANCE – USED
10/04/2010
CUSTOMER – Ford C-Max – GAP – NEW – FINANCE
10/04/2010
CUSTOMER – Peugeot 206 KU06 – Cash – USED
12/04/2010
CUSTOMER– Ford Fiesta LG10 – GAP – PAINT – NEW – CASH
14/04/2010
CUSTOMER – Vauxhall Zafira – GAP – PAINT – WARRANTY – FINANCE
14/04/2010
CUSTOMER– Ford Fiesta LG10 – GAP – PAINT – NEW – CASH
15/04/2010
CUSTOMER- Ford Focus NC08 – CASH – USED
15/04/2010
CUSTOMER – FORD STREET KA KD53 – WARRANTY – USED – CASH
17/04/2010
CUSTOMER – Ford Focus NC08 – GAP – PAINT – USED – CASH
18/04/2010
CUSTOMER – Ford Fiesta MF09 – GAP – PAINT – CASH – USED
21/04/2010
CUSTOMER– Ford Focus EK07 – WARRANTY – CASH – USED
23/04/2010
CUSTOMER – Vauxhall Meriva WV05 – GAP – WARRANTY – USED – FINANCE
24/04/2010
CUSTOMER – Ford KA LG09 – CASH – USED
25/04/2010
CUSTOMER – Ford C-MAX EY05 – WARRANTY – CASH – USED
2604/2010
CUSTOMER – CHEVROLET KALOS AK56 – GAP – WARRANTY – USED – CASH
28/04/2010

TOTALS:

GAP: 12 X £50 = £600

PAINT PROTECTION: 10 X £50 = £500

WARRANTY: 8 X £25 = £200

CHASSIS PROFIT = £2020

FINANCE INCOME = £750

TOTAL FOR APRIL 2010 - £4070

Divided per vehicle £185.02p

May 2010 – Target set of 6 – From 20/05/2010

Commission structure:

For up to 15 vehicles sold, 10% of total profit

Payment of 10% of 90% of the Finance Commission earned

For every Diamond brite sold below 10 - £25 each accumulative

For every GAP insurance sold below 10 - £25 each accumulative

For every Warranty sold below 10 - £25 each accumulative

CUSTOMER – Ford Mondeo NC08 – USED – FINANCE
22/05/2010
CUSTOMER – Fiat Punto LV05 – GAP – FINANCE – USED
24/05/2010
CUSTOMER – Volkswagen Polo EK53 – GAP – WARRANTY – PAINT – FINANCE – USED
24/05/2010
CUSTOMER – Ford Kuga LC10 – CASH – USED
25/05/2010
CUSTOMER – FORD KA RK08 - WARRANTY
26/05/2010
CUSTOMER – FORD GALAXY FG56 – GAP – WARRANTY – PAINT – FINANCE – USED
26/05/2010
CUSTOMER – VOLVO S60 BP54 – GAP – PAINT – WARRANTY – FINANCE – USED
27/05/2010
CUSTOMER – FORD S-SMAX EJ59 – GAP – WARRANTY – FINANCE – USED
28/05/2010
CUSTOMER– Nissan Qashqai LC57 – GAP - WARRANTY – USED - CASH
28/05/2010

TOTALS:

GAP: 6 X £25 = £150

PAINT PROTECTION: 3 X £25 = £75

WARRANTY: 6 X £25 = £150

CHASSIS PROFIT = £625

FINANCE INCOME = £489

TOTAL FOR MAY 2010 - £1489

Divided per vehicle £165.44p

As you can see above, the totals for the respective months will be very clear now as to why I have NOT been paid for the work that I completed for PLC.

The revised totals are now as follows now that I have had the opportunity to sum them up in detail:

TOTAL for MARCH and APRIL 2010: £9498.56

To Summarize….

In the month of March, I would not have worked for 7 days a week, sold vehicles under the supervision of MANAGER, SALES MANAGER, DEALER PRINCIPLE and BUSINESS MANAGER if they did not know that I would be paid for the work I did. Had I not been told verbally by DEALER PRINCIPLE on more than one occasion that I would be paid commission the same as the rest of the sales executives at the time, I would not have sold vehicles either.

Not only did I sell the vehicles, I also delivered cars to customer’s houses off site in the evenings in my own time, made appointments without assistance, had my own desk, and suffered a lot of stress when my own dealer principle went back on his word. Not being paid for what one does also constitutes part of bullying in the work place. Deceit? Taking advantage of someone unfairly for ones own benefit? Where would one begin? I cannot even begin to tell you how betrayed and angered I felt at the time. The only reason I did not pursue at the time is due to not knowing I was legally entitled to money I had earned and that one cannot pay commission for no reason and not have an explanation either.

In the month of April I had to work even harder to recover what I needed to earn for my father’s cancer treatment in USA since he was terminal and DEALER PRINCIPLE knew this. Part of the reason why he said I can begin selling cars and start being a sales executive. I don’t think you can imagine the anguish when after a second month of working 7 days a week, to be told that you will not be paid.

After all I have done for PLC and the amount of vehicles sold and money earned for the shareholders and senior management, I cannot believe that I am being treated this way.

I now have witness statements from colleagues to confirm that DEALER PRINCIPLE told me that I would be paid for the cars I sold, about his character, amongst other information that will be necessary for this case.

I will accept half of the sum to end this quickly of£6000 paid into my bank account or cheque no later than 30th September 2015. That I believe is a VERY fair compromise that will avoid heavy costs when it comes to court which I am prepared to spend on as you will have to be the one to reimburse me.

Should I not be paid by this date, I will commence formal litigation. I will also send a copy of this letter to CEO and AREA MANAGER

Yours Sincerely

ME

obiter dictum · October 16, 2015

The reason why i say think abut proceeding with this clause in his original contract of employment terms

"I was a trainee for Jan, Feb and March 2010 not supposed to sell cars".

A trainee does not sell vehicles

If the employer pulls out his contract of employment with those express or implied terms then any claim will be history

Edited October 16, 2015 by obiter dictum

cleanslateguy · October 16, 2015

FACTS:

I no longer work for the company in question

6 Years is the maximum time to COMMENCE procedings and demand payment be made in writing. As long as the first letter was written and delivered at their offices with proof by 28th Feb 2016, I am in the clear but I am here at 5 and a half years.

Obiter Dictum - We are within time - All is well my friend. Let's go do this. You on board or what?

Bank Fodder - I have written a letter, received one back, I have broken down the payments in the next letter, and received one back saying the same response of "NO MONEY IS DUE TO YOU.. GO AWAY! Thank you for your response. You said write a letter.... letters saying you will take them to court ... do you mean stating further action or a formal LETTER BEFORE ACTION? I have tried to mediate and provide all proof but still... same dismissive response... here is the last letter I wrote:

Thank you for taking the time to respond to my letter of concern. After reading your letter, I can see that you have reviewed my paper contracts with PLC. You are correct, in June 2010, I was paid the sum of £1489. That I am not disputing. What I am disputing is your assumption that this was accumulated during the working month of April 2010.

As you are aware, during the month of May 2010, my position in the company reverted back to Trainee. On the 20th May, DEALER PRINCIPLE verbally informed me that my position as Sales Executive was going to been reinstated as of 21st May 2010 despite my signed contracted dated 1st June 2010. As you can see from my sales history, from the 21st May – 1st June 2010, I sold 9 vehicles earning a commission amount of £1489. In light of this, this clearly verifies two points:

1. The conversation DEALER PRINCIPLE had with me on the 20th May reinstating my position was genuine and honoured through payment in June’s payrun (as I have outlined below)

2. With this information alongside your findings, I therefore have not been paid my commission accumulated during the sales month of April 2010 as you have not been able to find any other paymets made to me during this period.

May 2010 – Target set of 6 – From 20/05/2010

Commission structure:

For up to 15 vehicles sold, 10% of total profit

Payment of 10% of 90% of Finance Commission earned

For every Paint protection sold below 10 - £25 each

For every GAP insurance sold below 10 - £25 each

For every Warranty sold below 10 - £25 each

MAYS LIST WAS INCLUDED HERE!

TOTALS:

GAP: 6 X £25 = £150

PAINT PROTECTION: 3 X £25 = £75

WARRANTY: 6 X £25 = £150

CHASSIS PROFIT = £625

FINANCE INCOME = £489

TOTAL FOR MAY 2010 - £1489

In my commission scheme, one is paid £50 per GAP unit sold. If the above had been confused for April 2010’s performance of 23 cars sold, that would be equivalent to being paid £64 per vehicle sold. One is paid £50 only for selling a GAP product and if a PAINT PROTECTION also, £100 without being paid for the chassis profit or finance profit also.

In the month of April I sold 23 cars which would equal around £4000. For the breakdown of cars I sold, please refer to my previous letter.

I appreciate this oversight may have occurred due to my position being moved back and forth within the company and implore you to review your findings.

Yours Sincerely. ME

obiter dictum · October 16, 2015

Do you still have your original contract of employment or employee hand book??

cleanslateguy · October 16, 2015

The reason why i say think abut proceeding with this is in his original contract of employment terms

"I was a trainee for Jan, Feb and March 2010 not supposed to sell cars".

If the employer pulls out his contract of employment with those express or implied terms then any claim will be history

A verbal agreement was made to pay me like everyone else and in front of others. I have witness statements to that effect from 3 colleagues. Also in April 2010 payment is a small payment of COMM which has to be signed off by the DEALER PRINCIPLE... They have paid me but not enough. Also you mention any CLAIM would be history.... well. April 2010 is in writing. how can this be history? It is current and outstanding. If you admit liability even a small part like theyh ave by paying me anything, they have admitted full liability and just not paid me enough.

obiter dictum · October 16, 2015

Do you have your original contract of employment or employee hand book

Forget on who said this and that, it means squat in reality

What are the express terms in your contract

I can go futher and ask were you given notification of any change in those alleged contractual terms by the employer, Did you sign and accept?? if not what you are stating is hearsay

You cannot even rely on custom and practice either as you have no previous evidence

I am not being a hard A^&e

This is what will be thrown back at you. It will be down to you to prove your case, not the garage to defend an allegation

cleanslateguy · October 16, 2015

Do you have your original contract of employment or employee hand book

Forget on who said this and that, it means squat in reality

What are the express terms in your contract

I can go futher and ask were you given notification of any change in those alleged contractual terms by the employer, Did you sign and accept?? if not what you are stating is hearsay

You cannot even rely on custom and practice either as you have no previous evidence

I am not being a hard A^&e

This is what will be thrown back at you. It will be down to you to prove your case, not the garage to defend an allegation

In my contract it states I will be paid for April 2010 commission which amounts to over £4000. £0 was paid. It is in writing.

I signed to state the change to sales executive in April 1st 2010. My employer signed.

I have my payslip for April 2010 and bank account statement which shows only my basic was paid.

I have April's order forms which states I sold the vehicles in question.

There is no more solid proof than that.

obiter dictum · October 16, 2015

I am sorry but i need clarity

You state a "I was a trainee for Jan, Feb and March 2010 not supposed to sell cars".

A trainee does not sell vehicles

Now you are saying it is in your contract

"I will be paid for April 2010 commission"

How long were you officially on a Trainee contract, when was it changed to a full salesman??

Do you still have your contract of employment or employee hand book in your possession at this time??

That is the only thing that matters

steampowered · October 16, 2015

You are going to find it very difficult to prove the existence of an oral agreement reached in March 2010. Even if your ex-colleagues are prepared to attend court, they will struggle to convince a judge that they can remember a conversation about sales commission which happened nearly six years ago.

You may still raise a claim for orally agreed commission, but you must accept that this claim is unlikely to be successful and should be prepared to settle that claim for a fraction of the total amount.

I think you will need to rely on the April 2010 letter to have a reasonable chance. What does the letter actually say?

cleanslateguy · October 16, 2015

You are going to find it very difficult to prove the existence of an oral agreement reached in March 2010. Even if your ex-colleagues are prepared to attend court, they will struggle to convince a judge that they can remember a conversation about sales commission which happened nearly six years ago.

You may still raise a claim for orally agreed commission, but you must accept that this claim is unlikely to be successful and should be prepared to settle that claim for a fraction of the total amount.

I think you will need to rely on the April 2010 letter to have a reasonable chance. What does the letter actually say?

There is a payment in my wages of April 2010 titled COMM for £500... there is a payment.. an underpayment .... that's been signed off and therefore acceptance of commission to be paid.. it was just incorrect

obiter dictum · October 16, 2015

"I have my payslip for April 2010 and bank account statement which shows only my basic was paid".

£500.-- commission?????

Emmzzi · October 16, 2015

Why has it taken you so many years to raise this?

cleanslateguy · October 16, 2015

For April is the month I am mainly going for because that is fully written with all proof.

I have just written this letter:

LETTER BEFORE ACTION

Dear DUDE,

Thank you for replying to my second letter of concern regarding my unpaid commission.

I still feel that there has been an oversight on your part of monies owed to me as I have clearly shown you in both my previous letters. Having taken reasonable steps to mediate with yourselves outside of the court system, is there anything else that can be done to resolve this for example arranging a meeting with payroll to go through each month in turn to marry up vehicles sold and payments made to me?

If you are unwilling to take the time to resolve this outside of the court system, I shall be left with no choice but to take legal action through the Small Claims Court.

I can be contacted on TEL to arrange a meeting at your convenience as soon as possible.

I look forward to hearing from you soon to resolve these matters.

Yours sincerely

ME

cleanslateguy · October 16, 2015

Why has it taken you so many years to raise this?

I did not know I could claim.

Also I was busy working trying to stay alive between you and I so I never thought back to it until I saw cases of unpaid commission being paid back.

cleanslateguy · October 16, 2015

You may still raise a claim for orally agreed commission, but you must accept that this claim is unlikely to be successful and should be prepared to settle that claim for a fraction of the total amount.

I think you will need to rely on the April 2010 letter to have a reasonable chance. What does the letter actually say?

Steampowered - Thank you for posting. You are correct in that April will be easy, March difficult. However I have been paid a small amount for March but unpderpaid for the commission. You either get paid or don't get paid. If the company made an error for April, then this is the gateway to March payment as the judge may see it and think.... hmmm,, if a company is wrong about one thing, what else are they wrong about? If I had nothing to back up my complete claim for April, then March would be all but lost completely....

In the motor industry, if you sell something full stop, you are paid for it. You have made money for the company. It even states that a trainee does not sell. I was demoted by the Dealer Principle and taken off shop floor, hence why I have no orders for May 1st to May 21st. And I have order forms to prove all sales. They are in my name.

Emmzzi · October 16, 2015

Do you have the original contract

Does the word "discretionary" appear on it?

cleanslateguy · October 16, 2015

Do you have the original contract

Does the word "discretionary" appear on it?

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.

steampowered · October 16, 2015

Steampowered - Thank you for posting. You are correct in that April will be easy, March difficult. However I have been paid a small amount for March but unpderpaid for the commission. You either get paid or don't get paid. If the company made an error for April, then this is the gateway to March payment as the judge may see it and think.... hmmm,, if a company is wrong about one thing, what else are they wrong about? If I had nothing to back up my complete claim for April, then March would be all but lost completely....

Fair enough, if what you are claiming for March is essentially that the company made a calculation error, then that would be an easier claim.

In the motor industry, if you sell something full stop, you are paid for it. You have made money for the company. It even states that a trainee does not sell. I was demoted by the Dealer Principle and taken off shop floor, hence why I have no orders for May 1st to May 21st. And I have order forms to prove all sales. They are in my name.

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

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