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TO withholding commission - legal or not?

 Poster: A snowHead
Poster: A snowHead
Hello,

I shant be naming anyone for obvious reasons but the situation is that we get commission based on sale target rates hit. We managed to hit one that should have got us 210GBP. Now.. if you lose a lift pass or don't collect payment, you pay for it. Obviously. However, in the last two weeks (I was only selling for one of those) we lost 5 lift passes on each week. Incurring a loss of around ~2000. As there are six people who get commission due to admin work, manager, or reps, this is a loss of around ~333 each. The remaining 123 will be taken from other commission apparently...

Are they legally able to take this? The paragraph on liability in the contract only has two clauses, both of which are in reference to you (singular) not you (group). My question... if I take this to small claims, they would have to prove that I, personally, was liable for the loss of monies. Correct? So surely this would be a fairly easy case to win?

Furthermore, they've not emailed any of us yet, or given us any proof. The pay is expected to be in a couple weeks but the manager has already informed us what's happened. This is particularly annoying as we each grossed a significant amount of money for the company.

Had I kept a timelog of the hours I worked I would have fought an even bigger battle about minimum wage but alas I didn't... The lift pass they got for me was free, so they couldn't really use that in the renumeration package I would've thought.. but that's a different matter altogether!

So, what's the next move? I was going to email head office with the manager and all other reps, admin cc'd asking what the end commission was, and take it from there.
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Timmaah, TO employment deal:

1) They may bend you over and roger you up the bottom any time they please.
2) Errrrr ........... that's it.

Best of luck with the legal thing. The more people who argue the toss the better.
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Totally depends on your contract of employment. When it comes to commission, all kinds of things are possible, and depending on what you have signed depends on whether you have a case.

Do I think you will win? For that kind of money, the company is unlikely to let it run to a court case, frankly, and if you really got crappy about it they'd probably back off.

I would suggest that you either suck it up, and live with the longer term benefit of going back to work for them etc, or quit. As it is, you either have an organisation that tells the management they aren't happy and works together, or you have a few people shouting loudly that will probably not work.

Final question - if you did actually lose 5 lift passes, total cost £2K, do you think the business can afford to lose that kind of money off the bottom line? How the hell does a person lose 5 lift passes? Unless you can identify one individual responsible, who as a result is going to get shafted, then you all have to collectively take it on the chin. If I was a manager and you'd just lost £2K cash effectively, I'd be looking to make very sure that never ever happened again. TOs are relatively small businesses, and that kind of hit to their cashflow is not going to do them much good at the end of a fairly difficult season.
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Monium, this business can afford to lose that money. How a person loses 5 lift passes is beyond me, we sign slips that account us for all the lift passes we bought and then need to give the lift pass deposit money back. Nobody was down a lift pass - not sure about the last week as I wasn't involved in that week at all. So this must have stemmed from someone buying staff lift passes and not putting it on the system - my guess anyway.

Does the company not need to prove it was our (singular or group) fault before taking money, rather than the employee proving it did no wrong doing? What happened to innocent before proven guilty, etc.?

Just for clarification, I'm not aiming to go to court.. I just want to get the money I'm owed.
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not sure i completely understand the facts here but if you share the benefit from sales made as a group, surely the flipside of the coin is that you all suffer losses (unless it is really obvious that one person was at fault)?
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Solution - find your colleague who seems to be flush with cash from the "lost" lift passes and extract your cash from him/her.
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Is it a UK based TO operating in France, employing people in the UK and then sending them to work in France on UK contracts ?

If so, I'd suggest that you "recommend" discussing the issue with the French authorities to check what the legal position re comissions sales in France is so that you are all clued up. Word it nicely but most uk companies will run a mile if you suggest the french authorities in any way as the uk staff thing is a very grey area.

Make it clear that you have no "trying to get even" mentality and it's just that you want to be paid what was agreed re comission. They'll hopefully then give you the comission and get you to sign something confirming that it is full and final setlement for anything owed.

Doubt you'll get a job for next yr with the same TO though if you do this . . .

Good luck!
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fatbob, realistically there's only one or two capable of doing that but they have no need to do so I highly doubt it's 'foul play'.

Snow and Sunshine, was based in Austria, and am not planning on going back with the same TO so that's not an issue. It seems that a nicely worded email once the pay (well lack of it) comes through asking what's happened, and then that I feel more money is owed seems to be the best course of action.
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Timmaah wrote:
Monium, this business can afford to lose that money......


Wow, that's some business then. My rule of thumb is that you have to make in extra sales 10 x loss suffered to recoup the loss. If I ran the business, I'd want the money back.
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I've probably missed the point here rolling eyes but don't lift companies generally replace lost passes for free (or a small admin charge)? Why is your employer out of pocket?
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Sorry but I'm lost with this one

Timmaah wrote:

I shant be naming anyone for obvious reasons but the situation is that we get commission based on sale target rates hit. We managed to hit one that should have got us 210GBP. Now.. if you lose a lift pass or don't collect payment, you pay for it. Obviously. However, in the last two weeks (I was only selling for one of those) we lost 5 lift passes on each week. Incurring a loss of around ~2000. As there are six people who get commission due to admin work, manager, or reps, this is a loss of around ~333 each. The remaining 123 will be taken from other commission apparently...


You earned £210.00 in commision
You have to repay the TO £333.00 as someone lost a few lift passes

Imagin if it was the other way around.
If the TO underpaid you one week by £10 - would you want it back?
Puzzled Puzzled Puzzled
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errrm 5 lift passes costing £2000 which is £400 each.... now either it's a very very very expensive resort or the "lost" lift passes were for longer than a week..

If it is accepted that the 5 lift passes were "lost" and not simply "wrongly accounted" for as you suggest did the TO have to buy replacements? (as someone else has mentioned lift companies usually cancel and re-issue for a fee and stop the old ones..... also don't forget that in all probability the TO would have only made £200 in commission from the lift company so as opposed to £200 income they're now looking at £1800 cost....

If all of this is true then surely you can understand why they might seek to recoup their loss (as for the "they can afford it"..... I know non ski related industries who have sacked people for theft of £15... it's not so much the value but the principle.

SOmeone else has mentioned collective benefit and collective punishment which is fair if true.

As for what should you do? - Nicely worded emails to directors etc etc might get you a result but I wouldn't necessarily hold your breath

On a side note; it is a shame that every year at this time of year we hear stories of staff feeling they've not been well treated by their employers at the end of season.. whether it be with bonus, pay, termination etc etc and it taints your season experience.... to my mind focus on the 20 weeks you had in resort (assuming you enjoyed your season that is) and not the bitter taste this instance has left and move on.
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If the TO underpaid me by 10% of course I would want it back. To re-iterate my issues:

1) Commission is being taken away from me for other people's negligence.
2) The money that was lost by other people's negligence is far less than the money that we have earned the company over the course of five months. We're talking six figures.
3) The company has yet (in their fairness it's early, and I just came on here for advice) to give me any information on the lost passes, what passes they were, and so forth. This makes it impossible for me to try, with the others, to resolve in the U.K. The manager tried to resolve it in resort but was unable to get any info from the lift pass office. However, I get the feeling they won't even bother to let me know properly until I bring the matter up with them.
4) The company, in my eyes, is legally not allowed to take the commission away from me unless it makes it evident that I am to blame. As our contract only stipulates liability in the singular and not plural.

and a separate issue that has been resolved

5) The company attempted to deduct €200 from my commission for a ski school voucher which I apparently hadn't received payment for. I only found out about this through a third-party. Nobody from the company alerted me that I may have to pay for it. It took me two minutes to find that I had received payment for it and the people in head office just hadn't bothered to look properly. It's this type of mentality, let's try to reclaim as much commission as possible, that is disappointing to witness.
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 You know it makes sense.
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marcellus wrote:
errrm 5 lift passes costing £2000 which is £400 each.... now either it's a very very very expensive resort or the "lost" lift passes were for longer than a week..

If it is accepted that the 5 lift passes were "lost" and not simply "wrongly accounted" for as you suggest did the TO have to buy replacements? (as someone else has mentioned lift companies usually cancel and re-issue for a fee and stop the old ones..... also don't forget that in all probability the TO would have only made £200 in commission from the lift company so as opposed to £200 income they're now looking at £1800 cost....

If all of this is true then surely you can understand why they might seek to recoup their loss (as for the "they can afford it"..... I know non ski related industries who have sacked people for theft of £15... it's not so much the value but the principle.

SOmeone else has mentioned collective benefit and collective punishment which is fair if true.

As for what should you do? - Nicely worded emails to directors etc etc might get you a result but I wouldn't necessarily hold your breath

On a side note; it is a shame that every year at this time of year we hear stories of staff feeling they've not been well treated by their employers at the end of season.. whether it be with bonus, pay, termination etc etc and it taints your season experience.... to my mind focus on the 20 weeks you had in resort (assuming you enjoyed your season that is) and not the bitter taste this instance has left and move on.


It was 5 lift passes each week, so thats 10 lift passes in total. The TO would not have had to buy replacements. The "loss" refers to the unaccountable payment for them. Either the CC details were simply never entered into our system or the person who bought staff passes for that week (we had influx of staff in last two weeks) did not put those passes on the system as staff passes.

Whilst I understand they may want to seek to recoup their loss, I feel that they should go about it in the correct manner rather than punish all the staff in order to get the money back. This is if it's even "lost" it could just be another admin mistake on their end again.

I loved my season.
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Timmaah wrote:

It was 5 lift passes each week, so thats 10 lift passes in total. The TO would not have had to buy replacements. The "loss" refers to the unaccountable payment for them. Either the CC details were simply never entered into our system or the person who bought staff passes for that week (we had influx of staff in last two weeks) did not put those passes on the system as staff passes.

Whilst I understand they may want to seek to recoup their loss, I feel that they should go about it in the correct manner rather than punish all the staff in order to get the money back. This is if it's even "lost" it could just be another admin mistake on their end again.

I loved my season.


Aaah - that makes it much clearer - I must admit I couldn't get my head round it at all.

What does the contract say about payment of commission - singular or plural?
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 Poster: A snowHead
Poster: A snowHead
Despite what other posts might intimate, Employment Law in the UK is heavly weighted on the side of the employee.

The main effect of Employment Rights Act 1996 Part II (ERA 1996 s.13 to ERA 1996 s.27) is to make it unlawful for an employer to make any deduction from the wages of a worker employed by him unless the worker has agreed in writing to the deduction being made or it is required by law (eg deductions for PAYE and national insurance).

If an employer reduces or fails to pay wages without agreement in writing this amounts to an unlawful deduction from wages even if the employee owes money to the employer. In other words, the employer is not entitled to take the law into his own hands. Thus if, for example, an employee does not return property belonging to the employer after being dismissed, perhaps a computer or some safety clothing, the employer is not entitled to deduct the value from the final wages payment due unless the employee has agreed in writing that this can be done.

"Wages" includes any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise (ERA 1996 s.27 and see notes at Deductions from wages etc/meaning of ''wages''
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Timmaah I cannot comment on your contractual obligations (although I suspect that Lizzard is probably not too far from the truth) or to the joint/personal liability for losses as I don't know (or wish to know) the details of your contract.

But on reading this thread I was struck by your idea that because you sold lots of passes on which the company made a margin you should be able to be given some leeway on non accounted for "losses" or that "the company can afford it" (presumably because in your eyes it is a major TO with a high turnover). This is certainly not the right way to go about putting your argument.

Any salesman faces the same situation - you sell your employers goods and you get a percentage of the sales profit. You sign a contract to agree what that percentage is. It might even include some incentives to pay you more the more you sell. Your employer will also make a profit on all of your sales (usually a far higher percentage than you). That doesn't entitle you to take home the odd pound or two of petty cash because you think your employer is flush. Shocked


Last edited by Obviously A snowHead isn't a real person on Wed 4-05-11 13:33; edited 1 time in total
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I'm not really sure if I'm allowed to post exact parts of the contract up.. but holidayloverxx, the contract essentially says that information regarding sales commission will be communicated on the training course.

Tiger2, I'll just re-quote myself:

me wrote:
1) Commission is being taken away from me for other people's negligence.


I would not have an issue with this if I was to blame for the "lost" passes.
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Timmaah, I was only thinking if the contract said commission paid to "you" singular then it would be difficult for them to argue there was a group liability when liability says "you" singular.

Do you get paid commission on your own sales only or is it lumped together as a group?

Mr Marmot gives good advice - were you under a UK contract?
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Mr Marmot wrote:
.... Thus if, for example, an employee does not return property belonging to the employer after being dismissed, perhaps a computer or some safety clothing, the employer is not entitled to deduct the value from the final wages payment due unless the employee has agreed in writing that this can be done......


But presumably a charge of theft can be brought against the employee.
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I was under a UK contract but the contract dictates that I authorise them to deduct any wages or commission due to "Losses suffered by the Company as a result of your behaviour, negligence or breach of Company rules".

I had a quick read on that law and it seems that its void if there's a clause in the contract (like the one above) that allows them to deduct the wages. However, the clause in the contract refers to "your" in singular.

Commission was paid evenly amongst the reps, admin and manager. I have individual sales figures but that's how the TO operates.
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Timmaah, so, you accepted commission paid evenly so it is reasonable to accept liability evenly. You said "Commission is being taken away from me for other people's negligence. " - you could equally say that "Commission is being paid to me for other people's efforts"

If I were in your shoes I'd be pursuing to see if it can be proved to be an administrative error then no-one loses out
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Timmaah,
You’re not going to like this and some people will shout at me for it, oh well wink

Ask yourself, what could you gain and what could you lose. Weigh these two up and see what in “your” best interest. Pro and cons, always.

But, of course, this being the interweby, lots of people may advise you to “stick up for your rights”, “don’t let them get away with it”, “do the right thing”, etc, etc, ad infinitum.

My advice is to simple move on and forget it, these things have a habit of getting out of hand and you, as someone who is obviously, anxious about the returning of just over a hundred pounds, could, very quickly find yourself in a situation that you didn’t want to be.
Lawyers working for a p1$$ed off company can be extremely malicious sometimes. Not saying it’s going to happen in this case, but hey, is it worth the risk. Just move on.

Up to you of course, but I fully agree with holidayloverxx. Why not write them a letter, explain your side of things and see what happens, if nothing does then let it be.


******************

There will now follow lots of pages of advice to you from people with nothing to lose if it all goes pear shapped.
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Right of offset seems a contracual term, commission paid for group performance therefore offset treated the same. Seems a reasonable way to deal with it but not the only way, assuming some one is at fault and it is not just an admin thing. Maybe it is an administrative thing and it wil be sorted, and I think the company should identify who lost the passes though or how the loss happened etc. Those that have lost the passes (in what ever way) should man up and take the hit themselves.

is it worth burning your bridges for £200 ?
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Sounds depressingly TUI to me, particularly the rubbish admin part.

I can't see that you have a huge amount to lose by pursuing it, whatever Wayne thinks about the likelihood of disgruntled lawyers coming after you with baseball bats. Granted you're unlikely to get a job with them again, but really, why would you want to?
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A few hundred pounds at the end of a season for some could be the difference between paying their rent next month or being out in the street.
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Hells Bells, this is very true.
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Hells Bells wrote:
A few hundred pounds at the end of a season for some could be the difference between paying their rent next month or being out in the street.

Very true, but in this case we're talking about £123.00
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Wayne, I thought it was 333? plus the 123?
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Hells Bells,
You may be right ?

As far as I can see it like this (but may be wrong)
Timmaah wrote:
I shant be naming anyone for obvious reasons but the situation is that we get commission based on sale target rates hit. We managed to hit one that should have got us 210GBP. Now.. if you lose a lift pass or don't collect payment, you pay for it. Obviously. However, in the last two weeks (I was only selling for one of those) we lost 5 lift passes on each week. Incurring a loss of around ~2000. As there are six people who get commission due to admin work, manager, or reps, this is a loss of around ~333 each. The remaining 123 will be taken from other commission apparently....


Earned £210.00 in commission
Has to repay £333.00
Total owed £123.00
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 Poster: A snowHead
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Hells Bells,
They're owed £210 in commission, but the loss of the passes means they "owe" £333...Hence the company is trying to deduce £123 from the wages..
That's my understanding anyway..
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achilles wrote:
Mr Marmot wrote:
.... Thus if, for example, an employee does not return property belonging to the employer after being dismissed, perhaps a computer or some safety clothing, the employer is not entitled to deduct the value from the final wages payment due unless the employee has agreed in writing that this can be done......


But presumably a charge of theft can be brought against the employee.


achilles Even if an employee acted in a manner that might be considered as theft against his employer, this does not give the employer the right to deduct the value of the 'stolen' goods from the employee. Obviously the employer can try to get the Police to investigate the 'theft' with all the rigamarole and lack of interest by the Police that will involve, or to take the matter before the Courts himself with all the cost and burden of proving his claims that will involve.

Whilst I am not saying that theft has any part in the case of the OP, Employment Law is heavily weighted on the side of the employee and it seems that the OP can use that law to support his claim, unless his Contract of Employment specifically mentioned the type of deduction his employer has made.
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Timmaah, it's obviously not possible to advise you properly in the absence of seeing the exact wording of your contract, but my gut feeling is that it is worth giving this a whirl. However, I would not make litigious noises from the off, but rather initiate the discussion in a low-key way (but in writing) by outlining what you've heard they're intending to do, by explaining that you had no part whatsoever in the loss that occurred - since you pride yourself on your carefulness, eye for detail and determination to do your job properly - and by pointing out that you do not understand why the action of an unknown third party should have any bearing on your own contract of employment with them. Depending on what they say next, you can decide whether or not to have a proper go at them; again, my gut feeling is that you have a reasonable case but that doesn't mean that it would necessarily be sensible to pursue it in the courts.
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Hells Bells wrote:
Wayne, I thought it was 333? plus the 123?


OK, thanks.
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seems to me you have a much stronger case to fight the deduction from wages than the fact you may be getting 0 commission
doesn't mean you shouldn't have a go in the manner suggested by Hurtle though
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Mr Marmot gives good advice. Ignore whether or not it's fair, or group commissions or anything else.

1. How is your commission calculated - is it
a) gross (£210), or
b) net of all other expenses of the commission-generating activity.

If the latter, then it seems to me that commission less losses = nil. If the former, then your commission is £210.

2. It appears very unlikely indeed that your contract (assuming it to be under English law) allows them to deduct what appears to be negative commission from your wages.

3. It seems they may be entitled to reduce your commission to nil on account of other failures within the activity.*

4. If you have been negligent it is perfectly possible for them to try to recover the additional costs through the courts if you refuse to refund them the £333. Obviously for them to succeed they would have to convince the courts of this.

_________________________________________

* i.e. does your contract say "if you sell 100 lift passes you get £210" or does it say "We have a lift pass selling business. If the business manages to make a profit of £1,000 then you get £210, but if it makes a loss [as it has owing to the failure to collect money] you get nil."
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For clarification, the remaining 123 pounds would be taken out of other commission (I imagine) such as ski tuition and ski hire sales commission. My contract states nothing specific about sales commission whatsoever, it just says that further details will be given during training.

Commission (for lift passes) is worked out for the target market we sell to, if we sell x% we get x, if we sell y% we get y etc.

I'm just debating on who I should email, if I should try to find the CEO's email or email my region manager or payroll?

I would post the bit about liability but I'm not really sure if I'm allowed to, contract states all documents from company are confidential but it does say that losses incurred by the company due to negligence will be deducted from our wages, commission, etc. It mentions "your negligence" in singular though, never any mention of group negligence.
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Timmaah, I think in these circumstances "your negligence" would be construed quite restrictively against your employer
i wouldn't be inclined to go straight to the CEO - that works for customers, but not so much for employees IMV; maybe give the person actually making this decision the chance to put it right before elevating it
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Timmaah, maybe try speaking to some one to get your point over and maybe sort it ? radical I know but .....
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Timmaah, Contract of employment is one thing do you have a commision plan issued by the employer, is this what you refer to in your comment
Quote:

it just says that further details will be given during training.

In my last company sales staff where paid commision but the employment contract only indicated that they would be eligible for commision and this would be covered under a different plan and document, the employee signed his or her agreemant to the commision plan, it was also included in the plan that this benefit could be withdrawn at anytime at the companies discretion, it also included a claw back clause to recover any over payments.

I think the best approach as many have said earlier is to softly softly and also try and establish if it is an administitive error.

Good luck
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