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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 61762
Experience:  Qualified Employment Solicitor
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I used to work for a company selling machinery at 5%

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I used to work for a company selling machinery at 5% commission. My payments were due when machines were paid for by customers. The company received 90% of the money from them almost 1.5 years ago. Since then they are stating they haven't received anything else and have not paid me.The machine was sold 2 years ago and should have been installed and paid within 3 months. My old company failed to deliver on time and had various problems that were nothing to do with me but are they under no obligation to pay me for the sales service I provided and fulfil their obligations to both me and the customer?I had a COT3 agreement via ACAS last year stating they would pay when they were paid (they also owed me some more money they refused to pay) and would give me monthly detailed updates on their progress. They have not provided these updates and when I asked recently they simply said they haven't been paid yet.The machine was £160,000 and I was therefore supposed to get £8,000 commission

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

How long had you worked there for?

Customer: replied 9 days ago.
3 years

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience. If they have failed to pay you as per contract, or they have breached the COT3 you would have to take this further as a breach of contract claim and it means having to go through the Small Claims Court.

 

If a party wishes to pursue another for a debt arising out of a dispute between them, they can do so by making a claim in the civil courts. As legal action should ideally be used as a last resort, there are certain steps that should be taken initially to try and resolve this matter informally and without having to involve lawyers or the courts. These can be summarised below and it is recommended the following procedure is followed to try and progress this matter further:

 

1. Reminder letter – if no informal reminders have been sent yet, one should be sent first to allow the other party to voluntarily settle this matter.

 

2. Letter before action – if informal reminders have been sent but have been ignored, the other party must be sent a formal ‘letter before action’ asking them to resolve this amicably within a specified period of time, usually 7 to 14 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to pursue them for the debt in question. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.

 

3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed a copy will be sent to the other side and they will have a limited time to defend it. Once they are aware that legal proceedings have commenced it may also force them to reconsider their position and perhaps prompt them to contact you to try and resolve this.

 

As a final tip, it is always advisable to keep copies of any correspondence sent and received as the courts would like to refer to it if it ever gets that far.

 

Does this answer your query?

Customer: replied 9 days ago.
thanks, I was more wondering whether I would actually be entitled to the commission payment. Ordinarily they would receive the money within a few months and then I would have been paid. In this case they have apparently only received 90% and it has been at this point for well over a year.

As far as I can see, in theory they may never receive the remaining 10% from the customer and don't seem to have much incentive to chase it. Is there any law that would basically say I am working there on the basis they deliver quality goods to the customers as expected as I was working there on the basis that there was mutual trust this would happen and I would therefore spend time selling machines to make them money?

Well it depends on why they have not paid the balance and also if there have been precedents set in the past where commission was paid on partial income from customers?

Customer: replied 8 days ago.
There hasn't been a precedent as this is a first instance.

Are there any reasons for them not paying you can think of other than the company going under that would mean I should not get paid?
Customer: replied 8 days ago.
As far as I have been informed they have not paid because the company provided them with a machine that had a few issues which they seem to not have resolved. My main point is there is no time limit on this as if it is stalemate the company received 90% but I have nothing. Seems a loophole that could be easily abused?

Well it all depends on the contract and any commission policies. But the rules of reasonableness, which are not written down anywhere but which exist in every employment relationship would allow you to argue that you should at least be entitled to a proportion of your commission because after all the employer has received a large proportion of what they were due from this sale. Unfortunately, until you make a claim in court or tribunal you wouldn’t know

Customer: replied 8 days ago.
Appreciate the help. Just to refer back to your point #3 about the moneyclaim, would I still go ahead with this same method to get this started as I do feel I have a case.

Would this method determine whether it was regular court as opposed to an employment tribunal

yes that is the route to take as you are too late for a tribunal now (3 month deadline)

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