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Old 14.07.2015, 23:31
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Company refusing to pay earned commissions

I wonder if someone can point me in the right direction here - I need to understand my rights under Swiss law with regard to commission payments that fall due after leaving a company.

I recently finished working for a company as a salesperson. I left on good terms at the time - indeed the company tried to retain me.

When a sale is made, it is usually around two months before the company (and indeed the salesperson) receives income.

Now that I have left, the company is adamant that they will only pay me on any sales if they receive the income in the next 30 days. Some of my recent sales are reasonably substantial, but will not be settled within this short timeframe.

This means that the company will get out of paying me for work I've done on these sales.

This '30 day rule' has been recently invented by the company. It isn't in my contract, which refers to me as a contractor, rather than employee. It's just what they consider to be a 'reasonable' cut-off point.

There's no doubt this kind of behaviour is inequitable. But is the company in breach of any specific Swiss law by refusing to pay me for sales which I worked hard to secure for the company? What should I do next?

Thanks for any suggestions.
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Old 14.07.2015, 23:58
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Re: Company refusing to pay earned commissions

Unless the sale is made and they have received the business of such sale .....there really never was a sale right? So what does the new guy gets paid after etc etc
And the timeframe is not in your contract so good luck proving it.

Have you actually talked to the company that you left on good terms....and see if they are maybe willing to work with you? Was there no possibility of staying on an extra month or so to ensure you got this substantial commission?



And if you want legit answers and not simply speculations (which the above are) talk to a lawyer
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Old 15.07.2015, 00:09
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Re: Company refusing to pay earned commissions

Thanks for your reply Anthony.

No chance of staying on for an extra month. Once you announce to this company that you are leaving, they will not let you work with their clients. That's their prerogative.

Regarding proving the timescale - that's my point. What right do they have to impose this 30 days restriction if it isn't the basis of any legal contract? Surely companies can't just make up the rules as they go along?

When I say, 'substantial' - I mean in the sense that it will go a long way to paying my bills. Actually, the amounts are pretty insubstantial, but naturally they seem important to me.
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Old 15.07.2015, 01:03
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Re: Company refusing to pay earned commissions

From your description it appears that you are an Agent rather than an Employee (or Commissioned Agent). If you are considered to be an Agent under the Swiss Code of Obligations (OR), this section might apply to your situation:

Art. 418t
1 Unless otherwise provided by agreement or custom, the agent is
entitled to commission on orders subsequently placed by a client
acquired by him during the agency relationship only if such orders are
placed before the end of the commercial agency contract.
2 On termination of the agency relationship, all the agentís claims for
commission or reimbursement of expenses fall due.
3 A later due date may be agreed in writing for commission on transac-
tions to be performed in full or in part after the agency relationship has
ended.

https://www.admin.ch/opc/en/classifi...010000/220.pdf
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Old 15.07.2015, 10:05
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Re: Company refusing to pay earned commissions

That's great - exactly what I was looking for.

Thanks.
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Old 17.07.2015, 09:37
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Employment / contract lawyer in Switzerland

Hi,

Does anyone have a recommendation for a lawyer in Switzerland who can deal with disputes between contractors and the company they've worked for?

Is there such a thing as 'no win, no fee' in Switzerland?

What would be the cheapest way for me to take action (bearing in mind my French language skills aren't good enough for me to represent myself in court)?

Thanks for any suggestions.
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Old 17.07.2015, 10:23
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Re: Employment / contract lawyer in Switzerland

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Is there such a thing as 'no win, no fee' in Switzerland?
No.

Tom
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Old 17.07.2015, 11:25
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Re: Employment / contract lawyer in Switzerland

This link is to the website for the Swiss labor attorneys association. To find a specialized labor attorney in your canton, select on the canton.

http://www.fachanwalt-arbeitsrecht.ch/lawyers.html

BTW: a German lawyer explained once that commercial agent law is technically different from labor law. His practice dealt in German commercial agent law but not labor law. Also, he mentioned that he spent most of his time in mediation and seldom in court to work out the disputes because, unlike a divorce, the two parties need to continue get along. As a layman I don't see commercial agent and labor law as being so far apart but something to keep this in mind.
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Old 17.07.2015, 13:54
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Re: Employment / contract lawyer in Switzerland

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Hi,

Does anyone have a recommendation for a lawyer in Switzerland who can deal with disputes between contractors and the company they've worked for?
Thats a regular employee in CH.
You can be sacked at any time giving notice as stipulated in your contract, redundancy does not exist as a concept.
Best suck it up to experience, register at the RAV if you have worked for 12 months in CH or the EU in the last 24 months & send out some CV's
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Old 17.07.2015, 19:53
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Re: Employment / contract lawyer in Switzerland

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Thats a regular employee in CH.
You can be sacked at any time giving notice as stipulated in your contract, redundancy does not exist as a concept.
Best suck it up to experience, register at the RAV if you have worked for 12 months in CH or the EU in the last 24 months & send out some CV's
Thanks, but in this case it's a payment issue rather than a dismissal issue.
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Old 17.07.2015, 20:45
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Re: Employment / contract lawyer in Switzerland

Well just ask them to pay, even in bankruptcy your salary is insured for 3 months. Have they been paid ?
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Old 17.07.2015, 21:09
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Re: Company refusing to pay earned commissions

Threads merged to keep relevant replies together. OP, I know you don't want to divulge too many details and that's fine, but when asking for recommendations for lawyers it's helpful to keep the backstory.
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Old 17.07.2015, 21:12
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Re: Employment / contract lawyer in Switzerland

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Thats a regular employee in CH.
You can be sacked at any time giving notice as stipulated in your contract, redundancy does not exist as a concept.
Best suck it up to experience, register at the RAV if you have worked for 12 months in CH or the EU in the last 24 months & send out some CV's
OP is thought to be an Agent under the Swiss Code of Obligations, not an employee:

Art. 418a
1. An agent is a person who undertakes to act on a continuous basis as

an intermediary for one or more principals in facilitating or concluding
transactions on their behalf and for their account without entering into
an employment relationship with them.

https://www.admin.ch/opc/en/classifi...010000/220.pdf
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Old 18.07.2015, 16:45
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Re: Employment / contract lawyer in Switzerland

Quote:
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OP is thought to be an Agent under the Swiss Code of Obligations, not an employee:

Art. 418a
1. An agent is a person who undertakes to act on a continuous basis as

an intermediary for one or more principals in facilitating or concluding
transactions on their behalf and for their account without entering into an employment relationship with them.

https://www.admin.ch/opc/en/classifi...010000/220.pdf
Did OP have a base salary plus bonus arrangement or similar, did "employer" pay all legally necessary insurances (accident insurance and similar), did OP have a work place provided by the "employer", did "employer" have authority to order which customers OP was to contact, etc. Any "yes" would point to an ordinary work contract. Probably just employer paying AHV and 2nd pillar would be proof of an employer-employee relationship, or the contract speaking of "Lohn" (salary).

I think OP is simply not providing enough info for even a reasonable guess wether he was an independent agent or an employee.
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