| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 106 |
| Hearing date | 10 Mar 2011 |
| Determination date | 21 March 2011 |
| Member | R Arthur |
| Representation | P James ; S Coppard (in person) |
| Location | Auckland |
| Parties | Computer Concepts Ltd v Coppard |
| Summary | RECOVERY OF MONIES – Applicant sought recovery of commission payments made to respondent in advance - Respondent employed on base annual salary with further commission arrangement – Respondent’s weekly pay calculated on basis commission target would be reached, so in effect applicant paid commission in advance – Commission entitlement based on achieving specific target – If target not met, commission paid in advance to be recovered from commission due following year – Parties recognised level of sales being achieved would not reach margin target and respondent’s payment arrangement renegotiated – Variation to agreement recorded in writing and signed by parties with applicant agreeing not to attempt to recover any excess commission paid unless respondent terminated employment – Respondent resigned – Respondent not required to work out notice period – Applicant withheld pay in lieu of notice and credited it against amount owed in overpaid commission - Applicant sought to recover rest of overpaid commission – Respondent claimed amount claimed inaccurate and unsubstantiated, ability to achieve targets required for commission affected by having to perform functions beyond job description, applicant being “morally unfair” because had never experienced any demands for repayments of such commission in 10 years of selling IT, and terms of employment regarding commission “vague and subject to interpretation” - Respondent claimed applicant treated him poorly at time of wife’s death and fuel card wrongly cancelled before end of employment - Authority found from evidence respondent paid commission in advance of entitlement and applicant entitled to recover overpaid amount - Found terms of respondent’s employment clear - Found applicant acted within terms of employment agreement by withholding wages it would otherwise have paid in lieu of notice – Accepted applicant’s submission was no evidence supporting respondent’s contention of industry or market practice not to recover overpaid commission - Authority did not accept applicant should be denied repayment of overpaid commission because of respondent’s allegations of failure to provide him with sufficient resources to do sales job and reach desired targets - Found respondent’s allegations of bullying and poor treatment around time of wife’s death made only after commission dispute arose – Found respondent specifically thanked applicant for support during difficult time in resignation letter – Found applicant had not raised personal grievance in relation to matter - Found applicant had breached terms of employment by cancelling respondent’s fuel card before employment ceased – Amount respondent required to spend on fuel to be deducted from amount owed to applicant - Found applicant had incorrectly calculated amount of commission owing – Amount to be adjusted downwards – Respondent to pay applicant $27,530 in overpaid commission - Interest awarded from date of determination - Business Development Manager |
| Result | Application granted ; Recovery of monies ($27,530.33)(commission payments) ; Interest (4.64%) ; Costs reserved |
| Main Category | Recovery of Monies |
| Statutes | ERA s174;ERA Second Schedule cl11 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Auckland_106.pdf [pdf 28 KB] |