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I'm not sure what additional information you require beside my brief. I'm looking to amend their contract to deal with my questions based upon some expert advice.
Please indicate when I can get an answer please. The question is urgent
If I was to provide you with the text of the offending clauses, would you be able to suggest a form of words or changes that I should propose?
But the question is not concluded
So can we move this forward now that I have left you feedback?
I have left feedback and based on your previous reply had expected further discussion. Will you be assisting me further?
The offending wording is attached below.
In addition, the Employee shall be entitled to participate in a commission plan for VP Sales to be notified to the Employee as being applicable to the Employee from time to time and, subject to the terms of the commission plan. The Employer may in its absolute discretion determine the terms of the commission plan, the amount of commission payable and the intervals at which commission shall be paid.The Employee's entitlement under any commission plan applicable to Employee is subject to the following rules:(a) the plan may be discontinued or amended (retrospectively or otherwise) at any time by the Employer. Participation in any commission plan in any year does not oblige the Employer to extend or repeat that participation thereafter. In the event of discontinuance there will be no obligation on the Employer to provide a replacement plan;(b) if Employee is under notice of termination (whether given by the Employee or Employer), the Employee will lose his/her entitlement to receive any further commission award or payment under the scheme; and(c) any disputes concerning the scheme will be resolved by the SVP Global Sales (or acting), whose decision shall be final and binding.
I need to explicitly include the offer letter as a referral in the contract to ensure that the commission package is clear.
I also need to establish that commission under the agreed plan is regarded as an integral part of my remuneration package and therefore should be treated the same way. i.e. it cannot be discontinued or amended; that they have an obligation to provide an acceptable plan; that it is payable (accruable) during any termination period.
Any amendments have to be agreed between the parties and in the event of a disagreement the SVP Sales cannot be the sole arbiter.
I would be grateful if you could suggest a form of words, modifications or deletions to the above that I can propose to them that achieve the above.
I suggest that you ask for the entire wording of the commission plan to be included in your contract or a sentence be included that “The Employee shall be entitled to participate in a commission plan for VP Sales on the terms and conditions appearing in the Employee’s letter of offer dated >>>>>>>”.
As for the amendments which you are proposing, I am afraid the commission plan as worded in your letter of offer is discretionary and your Employer has reserved the right to amend or set its terms from time to time.
If you want it to be contractual and not discretionary, you need to ask your Employer to confirm that this will indeed be the case in which case the entire wording will need amending so that the commission plan is not discretionary but is contractual. Even if discretionary, it may be implied by the courts/tribunal as contractual depending on many factors. See here for an article dealing with bonuses, the same principles would apply to you: http://www.hrmagazine.co.uk/hro/opinion/1017259/how-employers-withhold-bonus-payments-staff
Hope this helps
I had really already understood everything contained in your answer. What I was after as I said was
"I would be grateful if you could suggest a form of words, modifications or deletions to the above that I can propose to them that achieve the above."
Can you look again at my question please.
I propose the following amendments:
"The Employee is entitled to participate in an agreed commission plan for VP Sales and the terms of the commission plan, the amount of commission payable and the intervals at which commission shall be paid shall be mutually agreed between the Employee and the Employer. Such commission plan shall form part of the Employee's remuneration package.
The aforesaid commission plan shall be subject to the following rules:(a) the plan may be discontinued or amended (retrospectively or otherwise) at any time by mutual agreement of the Employer and the Employee.
(b) any disputes arising from the commission plan will first be resolved amicably between the Employer and the Employee to the extent possible, failing which such dispute shall be determined by a mutually agreed independent mediator, whose decision shall be final and binding."
I hope this helps
Great. Thank you.
Do I need to rate your service again?
That's frustrating as I obviously don't want to pay again, but would like to increase my rating to excellent!
Thanks for your help
I'll do that!
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