VIC Selling Investment Properties - Sales Commission Eligibility?

[Philjof]

Hi
I previously worked for a Company as a contractor selling investment properties and received a weekly retainer which was offset by sales commissions.
Commissions were generally paid to the company on the following basis : 50% of the commission paid after the purchaser (client) lodged a 10% deposit on the property; 50% of the commission paid on settlement of the property.

I left the Company in May 2014 at which time the amount owed to the Company due to the weekly retainer exceeded the amount due from commissions and the Directors undertook to honour the sales commission payments as and when properties settled and the amount due to me exceeded the amount I owed at that time.

Between May 14 and now, a number of developments in which there were multiple sales have settled and I am in discussions with the Company to sort out the commission due to me.

For various reasons, ranging from unfavourable financial circumstances to the Directors actually advising clients to withdraw from certain purchases in order to purchase other properties (which are more financially favourable to the company) on the basis that the company will onsell the original properties to other clients; certain sales that I made did not proceed to settlement. In all cases where this occurred the company onsold the properties and incurred no loss.

My view is that in these cases where a client did not proceed to settlement, I would not be entitled to claim the second portion of the sales commission. The Directors are adopting the stance that even though the client paid the deposit originally and the company was paid 50% of the sales commission by the Developer and no loss was incurred - that I am not entitled to any sales commission on the sale at all and in fact are claiming back sales commissions paid previously as well.

I am trying to establish whether legally I am entitled to the first 50% payment on the basis that I performed my function and the client paid the deposit and the company was paid 50% of the sales commission from the developer relating to the sale I made.

 

[Michael T]

Hi @Philjof
It depends on the wording of your contract - whether the 50% payment on deposit is yours regardless of whether the buyer settles or not.

 

[Philjof]

Hi @Philjof
It depends on the wording of your contract - whether the 50% payment on deposit is yours regardless of whether the buyer settles or not.

When I started with the company I started in a different role so there is nothing in writing with regard to this role at all.

 

[Michael T]

So do have anything in writing? (Email counts)

 

[Philjof]

So do have anything in writing? (Email counts)

Absolutely nothing.
The only document there is, is an agreement with a developer who paid the full commission when the deposit had been paid. In the agreement there is provision that in the event a sale is not settled; 50% of the commission (ie the second portion) would need to be refunded by the Company to the Developer.
My claim that I should still be entitled to the first half of my commission is consistent with that principle.

 

[Rod]

If your ex-employer is not co-operating your only option is to go to court basing your case on the way commissions were paid while you were working there. Your case is unlikely to be covered by the Fair Work Act so you'll probably have to hire a lawyer and use common/contract law if you want your money.