Working with previous employer who has possible breached .. agreement conditions

cduuffo13

Hi All, I have a couple of issues I'm hoping to clarify about working under a set of particular agreements related to pay,

Its a tricky one, but cut the long story short. I took my previous employee to court under unfair dismissal, I then withdraw my claim as an agreement was met for £9,000 this was never paid by the employer.

I then re-opened the claim and was then offered by the employer. a guaranteed 12 month contract with a higher rate of £9.50 an hour a VERY EASY high commission bonus structure. to which I agreed as it had a very easy potential of earning £31,000.

I took this offer, and the first Month I earned £400 commission, the 2nd month I earned £800 commission but then they closed the department down and moved me to a position which is a lot harder.

the past 4 Months I have earned about £200 in commission. I feel like I am NEVER going to get back the money which was owed to me and that I am just "working" as in nothing had gone on in the past with the employer. I also feel like the boss wants me to get "whats owed to me", by me making him money and him paying me a cut from this . I.E Calling existing customer's getting them back in to buy something else.

Because of the dramatic change of position and dramatic wage drop. I feel like they have breached the agreements .

Can anybody advise on this ?

thanks

sangie595

cduuffo13 wrote: »

Hi All, I have a couple of issues I'm hoping to clarify about working under a set of particular agreements related to pay,

Its a tricky one, but cut the long story short. I took my previous employee to court under unfair dismissal, I then withdraw my claim as an agreement was met for £9,000 this was never paid by the employer.

I then re-opened the claim and was then offered by the employer. a guaranteed 12 month contract with a higher rate of £9.50 an hour a VERY EASY high commission bonus structure. to which I agreed as it had a very easy potential of earning £31,000.

I took this offer, and the first Month I earned £400 commission, the 2nd month I earned £800 commission but then they closed the department down and moved me to a position which is a lot harder.

the past 4 Months I have earned about £200 in commission. I feel like I am NEVER going to get back the money which was owed to me and that I am just "working" as in nothing had gone on in the past with the employer. I also feel like the boss wants me to get "whats owed to me", by me making him money and him paying me a cut from this . I.E Calling existing customer's getting them back in to buy something else.

Because of the dramatic change of position and dramatic wage drop. I feel like they have breached the agreements .

Can anybody advise on this ?

thanks

This is a wildly unusual situation, and I can't see there being any precedent for advice. But it seems to me that you accepted a settlement that was a one year contract earning £9.50 per hour plus commission. But unless the agreement included a figure that you would get (which it couldn't have because commission isn't a guaranteed payment) then the agreement, when you boil it down, was to pay you £9.50 per hour for a year. And that is all. You still have the ability to earn commission, so that hasn't been removed; and I am not seeing how you suddenly earning less commission is breaching the agreement. And I think the fact that you have agreed to this situation for four months (because you have worked on this structure for four months) further reinforces that the employer / former employer hasn't breached an agreement - if they did you should have done something about it before now.

If I am honest, I think you agreed to a completely stupid thing. If the employer didn't pay up the money they agreed (I assume there was a COT3?) then you should have made a claim to the court for the money and left it at that. Having agreed to this instead of the money leaves you entirely vulnerable - all the respondent has to do is employ you at £9.50 an hour for a year in a job in which commission can be made, and they have fulfilled their part of the bargain.

As far as I can see, you either stick out the year or you get another job and leave, but if you do then there is no further claim against the employer - they did their part. I seriously hope that you didn't have a professional advisor who told you to agree to this, because it would have been some seriously misplaced advice. And surely, did ACAS not have any comments on this?

bod1467

£9.50 per hour. Assume a 35 hour week and 48 paid weeks in the year (I'm assuming 4 weeks holiday unpaid for a contract position).

This gives a gross of £15,960. Assume 35% deductions for tax, NI etc. then take home is £10,374 ... and this is before commission.

Were you assuming you'd make the £9k+ in commission?

Guest101

bod1467 wrote: »

£9.50 per hour. Assume a 35 hour week and 48 paid weeks in the year (I'm assuming 4 weeks holiday unpaid for a contract position).

This gives a gross of £15,960. Assume 35% deductions for tax, NI etc. then take home is £10,374 ... and this is before commission.

Were you assuming you'd make the £9k+ in commission?

35% is a massive deduction! It's going to be closer to 15%


and why would a contract position not have A/L?

agrinnall

Guest101 wrote: »

and why would a contract position not have A/L?

Because contract positions generally don't have paid A/L, as the contractor is not an employee. I certainly never had any paid holidays in the 11 years I was a contractor, and never expected any.

Guest101

agrinnall wrote: »

Because contract positions generally don't have paid A/L, as the contractor is not an employee. I certainly never had any paid holidays in the 11 years I was a contractor, and never expected any.

The OP is not a contracter though, they're employed on a fixed term contract and most definitely have the same rights to paid annual leave.

cduuffo13

I apologise and try and go into more detail to clarify a few things.

Prior to my unfair dismissal, I was on £7.50 p.h and would get about £150 commission per month - My last year P60 totalled to £16,800

I Agreed to be on a 12 Month fixed contract and at the rate of £9.50 in a role under ECO basically giving away boiler's for £100 and i would receive £40 for each £100 obtained from a customer for people who were on benefits. - Note that I agreed this because I knew how easy it was 2 years ago i started on the same job with no commission and smashed the contributions of about 400 customer's.

I still receive full A/L which is fine. so going from past experience I was expecting to receive between 15-20 x £40 per month averaging about £7500 just from commission + my addition £2.00 per hour = £4,160 based on a 40 Hour week - in addition to my normal £7.00 a rate .

I agreed on the basis of the above. of course i bared in the Tax / N.I - but I would of been on approx £32,000-ish

Now obvcourse I am still receiving the additional £2.00 per hour but much lower commission, and this is because I have moved department's as I had no choice because Boilers ECO have closed. - This alone In my eyes is breach of contract?

We did not have a COT3, I represented myself due to the financial situation, which is hard but at least I've gained something from it,

Its worth noting, that their are 2 companies involved here - Company A the one i was unfairly dismissed from, which is a very small marketing company with no assets. but now I am employed with with company B which is the installer bigger company. Both have different CEO's. - Both have same location , same room and all colleagues work together.

sangie595

cduuffo13 wrote: »

I apologise and try and go into more detail to clarify a few things.

Prior to my unfair dismissal, I was on £7.50 p.h and would get about £150 commission per month - My last year P60 totalled to £16,800

I Agreed to be on a 12 Month fixed contract and at the rate of £9.50 in a role under ECO basically giving away boiler's for £100 and i would receive £40 for each £100 obtained from a customer for people who were on benefits. - Note that I agreed this because I knew how easy it was 2 years ago i started on the same job with no commission and smashed the contributions of about 400 customer's.

I still receive full A/L which is fine. so going from past experience I was expecting to receive between 15-20 x £40 per month averaging about £7500 just from commission + my addition £2.00 per hour = £4,160 based on a 40 Hour week - in addition to my normal £7.00 a rate .

I agreed on the basis of the above. of course i bared in the Tax / N.I - but I would of been on approx £32,000-ish

Now obvcourse I am still receiving the additional £2.00 per hour but much lower commission, and this is because I have moved department's as I had no choice because Boilers ECO have closed. - This alone In my eyes is breach of contract?

We did not have a COT3, I represented myself due to the financial situation, which is hard but at least I've gained something from it,

Its worth noting, that their are 2 companies involved here - Company A the one i was unfairly dismissed from, which is a very small marketing company with no assets. but now I am employed with with company B which is the installer bigger company. Both have different CEO's.

Hmm. Well it certainly isn't a breach of contract. It might have been a frustration, since the employer had no choice - it was closed outside of their control. But you have continued for four months, so I think there is a claim that you accepted the change. But I think the key issue is that I see no promise of earning a certain amount of commission. What got assumed would happen isn't the same as it happening, as you have now found out.

I am unclear. Why was ACAS not involved in the agreement? Their involvement is compulsory for all tribunal claim, and didn't cost anything, so your financial situation isn't relevant. But anyway, you have, as far as I can see, got what you were offered, it simply isn't what you thought it was. I don't see you have any avenues to complain. Sorry.

cduuffo13

sangie595 wrote: »

Hmm. Well it certainly isn't a breach of contract. It might have been a frustration, since the employer had no choice - it was closed outside of their control. But you have continued for four months, so I think there is a claim that you accepted the change. But I think the key issue is that I see no promise of earning a certain amount of commission. What got assumed would happen isn't the same as it happening, as you have now found out.

I am unclear. Why was ACAS not involved in the agreement? Their involvement is compulsory for all tribunal claim, and didn't cost anything, so your financial situation isn't relevant. But anyway, you have, as far as I can see, got what you were offered, it simply isn't what you thought it was. I don't see you have any avenues to complain. Sorry.

The previous department closed due to bad management - it was just me and him , he failed to set up agreements and failed to sign contracts with the funders for ECO which had left the boiler department fighting for owed money's and he was sacked, we then stopped all install's while an Ariel manager as an attempt into recuperating what was owed. which did not work and then was closed. (this process took 2 1/2 month's). during this time I was doing compliance work - and had raised the issue about not receiving commission as agreed with the new Ariel manager.

Only for 2 1/2 week's I have been working under the new department. and "on going talks about commission" problems..

If I remember the court case had not been fully withdrawn, as it was re-opened because they did not pay me what was agree'd and i wrote to the courts who issued out a warning to the employer and I was then paid £480 in cash.

The letter was a request for comment's explaining the claimants claim has been withdrawn but not formally dismissed RULE 51 : Judge xxx does not consider dismissal to be within the interest of justice..

I then wrote back to the court's explaining I had received a sum of money and wish not to withdraw the claim but to place it on hold. if anything else was to happen I can possibly persue ? .

Its all a bit of a mess if am honest. (ACAS) was involved to the point of the £9,000 agreement . and my conciliator wrote out the agreement which they then did not sign.

cduuffo13

Whether or not if I am thinking about this the right way,

I look at it like this : - I went in to the agreement under the ECO department because this was the department i could make my money.

Due to poor management, the position of my 12 month contract under the ECO department failed, which is related to the company's control.

The manager was then sacked, and an Arial manager was left do deal with the mess the department was left in.

2 month's it took for them to realise the boiler department was not going to work and i was then moved to Windows to which their is slim potential of earning money.

They have offered me a position that was not fulfilled?

Guest101

cduuffo13 wrote: »

Whether or not if I am thinking about this the right way,

I look at it like this : - I went in to the agreement under the ECO department because this was the department i could make my money.

Due to poor management, the position of my 12 month contract under the ECO department failed, which is related to the company's control.

The manager was then sacked, and an Arial manager was left do deal with the mess the department was left in.

2 month's it took for them to realise the boiler department was not going to work and i was then moved to Windows to which their is slim potential of earning money.

They have offered me a position that was not fulfilled?

Ultimately they can just dismiss you. The company you worked for, who owe you £9k may cease to exist ( if not already )