L Doherty Mr M Williamson v –10 Partner Energy and Carbon Management Limited — 2017

The claimant was employed from around January 2015 as Business Development Manager for Scotland under a contract that provided for three months' notice after probation and a commission scheme based on Initial Contract Value. The tribunal found that the parties later agreed to alter the commission arrangements so that commission would not be payable until the claimant had achieved sales of £50,000. It accepted that the claimant did not reach that trigger in the relevant periods, and that no commission had in fact been paid during his employment.

On the wrongful dismissal complaint, the tribunal found as a matter of fact that the claimant had claimed travel expenses for visits to Barr Construction and Scottish Salmon that had not taken place. It preferred the evidence of Mr Hickling, including the telephone transcripts, the claimant's email, and the inconsistencies in his account about who he had met. It found that the claimant had been dishonest in making those claims and that this amounted to a fundamental breach of contract, entitling the respondents to summarily dismiss him without notice.

The tribunal noted that the claimant had less than two years' service and that the contract reserved to the respondents the right not to follow the disciplinary procedure in that situation. It therefore treated the failure to offer a full disciplinary process or appeal as irrelevant to the wrongful dismissal complaint. The claimant's complaint of wrongful dismissal was dismissed.

On the section 23 ERA 1996 wages claim, the tribunal held that the contractual commission entitlement had been varied and that, even if the written contract initially provided for commission on sales between £0 and £50,000, the later agreed threshold meant no commission became payable. Although the tribunal recorded that the claimant's total Initial Contract Value over the employment was £64,732, it found he had not reached the £50,000 trigger in the periods relevant to payment. The non-payment of wages claim was therefore dismissed and no monetary award was made.