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-   -   Legal Action for overpayment (https://www.englishforum.ch/employment/107095-legal-action-overpayment.html)

menace 22.02.2011 11:21

Legal Action for overpayment
 
A nameless third party, lets call him Bob, worked as a contractor in Switzerland recently. His contract was a convaluted set-up, working through an agency for an offshore consultancy whose client was based in Zurich. Due to the fact that the offshore consultancy did not have any business based in Switzerland, Bob was informed by the agency he had to use a particular payroll company, who would act as his direct employer in Switzerland and from whom he would recieve his wages.

Wages thus went Client in Zurich -> Offshore Consultancy -> Agency -> Payroll Company.

During the time of the contract, the payroll company changed their name and business address several times, as well as the contract between themseleves and Bob. Not suprisingly, Bob's wages were always late and often much less than was due to him, which meant he had to spend hours on the phone chasing them every month.

Eventually the contract ended, and Bob managed, after much effort, to get the full amount owed to him within a few hundred quid, although the amounts and dates of backlog of wages did not correspond to the agreed monthly wage.

Sometime afterwards, Bob was contacted by the Payroll Agency who claimed to have submitted a double payment by mistake, and wanted seven and a half grand back. This was of course nonsense, but they are now threatening legal action involving "swindle and fraud and a warrant" [for Bob's arrest].

Anyone got any advice of what Bob should do? He is reluctant to get involved in costly legal proceedings, but niether does he want to come down on the worng side of the law. Can he just ignore the whole thing, given that he is now back in London?

Mikers 22.02.2011 11:25

Re: Legal Action for overpayment
 
Quote:

Originally Posted by menace (Post 1112312)
A nameless third party, lets call him Bob, worked as a contractor in Switzerland recently. His contract was a convaluted set-up, working through an agency for an offshore consultancy whose client was based in Zurich. Due to the fact that the offshore consultancy did not have any business based in Switzerland, Bob was informed by the agency he had to use a particular payroll company, who would act as his direct employer in Switzerland and from whom he would recieve his wages.

Wages thus went Client in Zurich -> Offshore Consultancy -> Agency -> Payroll Company.

During the time of the contract, the payroll company changed their name and business address several times, as well as the contract between themseleves and Bob. Not suprisingly, Bob's wages were always late and often much less than was due to him, which meant he had to spend hours on the phone chasing them every month.

Eventually the contract ended, and Bob managed, after much effort, to get the full amount owed to him within a few hundred quid, although the amounts and dates of backlog of wages did not correspond to the agreed monthly wage.

Sometime afterwards, Bob was contacted by the Payroll Agency who claimed to have submitted a double payment by mistake, and wanted seven and a half grand back. This was of course nonsense, but they are now threatening legal action involving "swindle and fraud and a warrant" [for Bob's arrest].

Anyone got any advice of what Bob should do? He is reluctant to get involved in costly legal proceedings, but niether does he want to come down on the worng side of the law. Can he just ignore the whole thing, given that he is now back in London?

Depends on whether the arrangement was in the first place legal or involved tax evasion by both sides I would say. If they were doing the offshore umbrella loan with no-repayment tax avoidance measure I doubt they would pursue you because of risk to themselves.

If they were doing stuff just inside the law and they have overpaid you and can prove it then its up to them - they have to raise the necessary paperwork and costs to go after you. A few hundred you could just ignore them but at 7.5 I think they might pursue you.

22.02.2011 11:29

Re: Legal Action for overpayment
 
If he was living here, the Payroll company would probably accuse him of the debt at the Debtor's Court (Betreibungsamt or Office de Poursuites) and Bob would have the possibility of objecting and showing the evidence to a court judge.

However as he has left Switzerland I think he can safely sleep well at night, as the possibility of persuing him internationally for CHF 7'500 is nil.

To clear his conscience he might want to write to the Payroll company (With no return address!) explaining that they have made a mistake.

How did they accuse him when he doesn't live here anymore? Do you have power of attorney?

Upthehatters2008 22.02.2011 11:34

Re: Legal Action for overpayment
 
Issue an immediate counter claim. If the allegations of swindle fraud and theft are in writing, you have them by the balls. They received payment instructions from a 3rd party and send money to you, even if they overpaid you , the mistake is theirs. Seriously, counterclaim for libel and Crimen Injuria. These bullies need to be smacked down. If what you say is true, you stand to gain if you pursue them back.

Ziger 22.02.2011 11:59

Re: Legal Action for overpayment
 
Quote:

Originally Posted by menace (Post 1112312)
Sometime afterwards, Bob was contacted by the Payroll Agency who claimed to have submitted a double payment by mistake, and wanted seven and a half grand back. This was of course nonsense, but they are now threatening legal action involving "swindle and fraud and a warrant" [for Bob's arrest].

Anyone got any advice of what Bob should do? He is reluctant to get involved in costly legal proceedings, but niether does he want to come down on the worng side of the law. Can he just ignore the whole thing, given that he is now back in London?

So, if I understand correctly, they are thus far only threatening legal action, right? It is probably best to wait to see if they will actually go through before doing anything. Threatening someone with legal action is the first step in trying to resolve something without going to court. It doesn't mean that they will actually take it to court. Filing in court would mean, first of all, taking on the costs of the process and, secondly, knowing that they can prove their claims.

Quote:

Originally Posted by Ittigen (Post 1112337)
However as he has left Switzerland I think he can safely sleep well at night, as the possibility of persuing him internationally for CHF 7'500 is nil.

Not really. If they really do get a court order here in Switzerland, it is easily enforced in England. He would however have to be properly served, which means also a chance to defend himself, should it even get that far.

Quote:

Originally Posted by Ittigen (Post 1112337)
To clear his conscience he might want to write to the Payroll company (With no return address!) explaining that they have made a mistake.

This is not a bad suggestions, except that no return address part (not too hard to get around that). Send a registered letter stating that you deny all such claims and that you have all the documents (assuming you do) to prove that you were not overpaid, so any actions taken in court would have no merit.

Given how fishy the whole setup was, it sounds like they are hoping to scare him into coughing up the money and don't have any real interest in going to court. This in particular as they are not threatening him with a civil law suit but "arrest", which is criminal and a whole other ball game, as we say. Fishy, fishy, fishy.

menace 22.02.2011 12:00

Re: Legal Action for overpayment
 
Thanks folks, that was fast.

Bob reckons the set-up was quasi-legal at best, there was definite tax avoidance going on (when isn't there), and the fact they kept changing their name and address seemed a bit dodgy.

There was certainly no overpayment as Bob kept detailed records, however he wouldn't put it past them to cook up some records to claim that contracts offered via email were never verified in writing etc etc or some other way of trying it on.

They accused him as they have Bob's current address in the UK, to which the original contracts were sent to, although not all the ammended ones. There is no power of attourney, at least not yet.

The ignore and counterclaim possibilities sound intriguing to Bob. Can he inquire as to what level of expertise and experience posters have here? Also, with the counterclaim, how much is this likely to cost? He's assuming Switzerland is an expensive place to go to court.

Again, many thanks from Bob and I

mimi1981 22.02.2011 12:10

Re: Legal Action for overpayment
 
Surely the onus is on the company to prove the overpayment? They would need to show the actual transfer into Bob's bank account as I'm sure they can't claim Bob was paid in cash.

Ziger 22.02.2011 12:10

Re: Legal Action for overpayment
 
Quote:

Originally Posted by menace (Post 1112406)
There was certainly no overpayment as Bob kept detailed records, however he wouldn't put it past them to cook up some records to claim that contracts offered via email were never verified in writing etc etc or some other way of trying it on.

The ignore and counterclaim possibilities sound intriguing to Bob. Can he inquire as to what level of expertise and experience posters have here? Also, with the counterclaim, how much is this likely to cost? He's assuming Switzerland is an expensive place to go to court.

Counterclaim what? No official claims have been filed, so he would be filing his own claim, not a counterclaim. It would be a so-called negative declaratory claim and given that they have threatened legal action, it would likely not be accepted by Swiss courts.

Yes, it is expensive. Why would he want to do anything? If they file (a civil claim), they have to prove their claims. Why would Bob want to take that on himself?

Upthehatters2008 22.02.2011 12:36

Re: Legal Action for overpayment
 
Quote:

Originally Posted by Ziger (Post 1112421)
Counterclaim what? No official claims have been filed, so he would be filing his own claim, not a counterclaim. It would be a so-called negative declaratory claim and given that they have threatened legal action, it would likely not be accepted by Swiss courts.

Yes, it is expensive. Why would he want to do anything? If they file (a civil claim), they have to prove their claims. Why would Bob want to take that on himself?

They are claiming from him, you don't have to start a court process to make a claim. He has received a letter of demand from them, Bob should reciprocate.

There exists no contract between Bob and the Payroll company. They have no claim. They have made odious accusations and are now exposed to claims for Crimen Injuria and possibly libel. Depending on Bob's standing in life, these could easily exceed the claim against him by a factor or two.

Bob has done nothing wrong unless he has claimed falsely. Even then, that is a matter between Bob and the Offshore agency.

Bob should wait for legal proceedings and then see a Solicitor. Bob should also consider
Pre-emptive claims for CI etc, perhaps Bob should pay for am initial consultation with a legal firm to put his mind at rest.

Bob has nothing to worry about.

Carlos R 22.02.2011 12:51

Re: Legal Action for overpayment
 
Quote:

Originally Posted by mimi1981 (Post 1112419)
Quote:

Originally Posted by menace (Post 1112406)
There was certainly no overpayment as Bob kept detailed records, however he wouldn't put it past them to cook up some records to claim that contracts offered via email were never verified in writing etc etc or some other way of trying it on.

Surely the onus is on the company to prove the overpayment? They would need to show the actual transfer into Bob's bank account as I'm sure they can't claim Bob was paid in cash.

What she said.

22.02.2011 12:58

Re: Legal Action for overpayment
 
I am persuing an ex lodger for 2 months rental in the Swiss debtor's court for CHF 1'000

So far I have paid CHF 170 in fees, which are added to the debt.

Ziger 22.02.2011 13:31

Re: Legal Action for overpayment
 
Quote:

Originally Posted by Upthehatters2008 (Post 1112462)
They are claiming from him, you don't have to start a court process to make a claim. He has received a letter of demand from them, Bob should reciprocate.

I agree, hence the suggestion for a registered letter.

Quote:

Originally Posted by Upthehatters2008 (Post 1112462)
There exists no contract between Bob and the Payroll company. They have no claim.

According to the OP, there was a contract.

Quote:

Originally Posted by Upthehatters2008 (Post 1112462)
They have made odious accusations and are now exposed to claims for Crimen Injuria and possibly libel. Depending on Bob's standing in life, these could easily exceed the claim against him by a factor or two.

Bob should wait for legal proceedings and then see a Solicitor. Bob should also consider
Pre-emptive claims for CI etc, perhaps Bob should pay for am initial consultation with a legal firm to put his mind at rest.

Pre-emptive claims for what? Prevent them from filing a lawsuit - they have every right to. Prevent them from sending him more letters. Possible, but expensive. For any kind of civil claim based on an infringement of personality (as they call it here) he would have to prove that he has suffered some kind of harm, which, considering that he is back in London and has been fully paid, would be hard to prove to a Swiss judge. This is not the US. Any kind of legal proceedings, whether criminal or civil, that Bob initiates could prove to be very costly.

Quote:

Originally Posted by Upthehatters2008 (Post 1112462)
Bob has nothing to worry about.

Which is why he shouldn't do anything other than writing a clear letter back to them until actual legal proceedings have been initiated.

nickatbasel 22.02.2011 13:48

Re: Legal Action for overpayment
 
I would advise Bob to take professional legal advice and to take anything the armchair lawyers on here type with a pinch of salt.

I can recommend Gabrielle Grether (http://www.gmacg.com) - she speaks v. good English and advises many freelancers - including expats.

Cheers,
Nick

Upthehatters2008 22.02.2011 13:48

Re: Legal Action for overpayment
 
Quote:

Originally Posted by Ziger (Post 1112549)
I agree, hence the suggestion for a registered letter.


According to the OP, there was a contract.



Pre-emptive claims for what? Prevent them from filing a lawsuit - they have every right to. Prevent them from sending him more letters. Possible, but expensive. For any kind of civil claim based on an infringement of personality (as they call it here) he would have to prove that he has suffered some kind of harm, which, considering that he is back in London and has been fully paid, would be hard to prove to a Swiss judge. This is not the US. Any kind of legal proceedings, whether criminal or civil, that Bob initiates could prove to be very costly.


Which is why he shouldn't do anything other than writing a clear letter back to them until actual legal proceedings have been initiated.


1) Crimen Injuria / Defamation of Character or whatever the Swiss Roman equivalent is. No loss or harm has to be proved, Bob merely has to show he has been hurt by these false accusations. Given the severity and voracity of their initial letter, I would add shock to the hurt. They are accountable for the reckless letter and Bob has the right to remedy through the courts. They have no defense for their actions and if I were a Judge, I would consider them very grave accusations.
Given that the accusations are entirely false , the case is easy to prove. They will not defend it and will be advised by their own legal reps to withdraw or settle.
The amount of damages is irrelevant to the futility of defending such an action, they will end up paying much more in costs for both parties. The mere threat of an action against them will make them see the light, either by their own thought or proper legal advice.

2) They have a right, as does everyone, but they have no grounds.
3) True for every action, but if Bob is to be believed, they have no case and will lose. The loser pays the costs.
4) Claiming for (1) will make them realise both the gravitas of their accusations and the serious intent of Bob to defend. If they are trying it on, this will make them think twice more than a standard letter of denial. Strike first, strike hard.

adrianlondon 22.02.2011 13:52

Re: Legal Action for overpayment
 
I would do nothing, ignore all demands for money, and wait to see if any official legal action is started.

I always take the lazy approach and, so far, it's paid off. Think this logically ... a dodgy-looking tax-avoiding-looking company who can't keep any of their records in order is asking you for money. You don't give them any. What are they gonna do?

gata 22.02.2011 14:38

Re: Legal Action for overpayment
 
Quote:

Originally Posted by adrianlondon (Post 1112585)
I would do nothing, ignore all demands for money, and wait to see if any official legal action is started.

I always take the lazy approach and, so far, it's paid off. Think this logically ... a dodgy-looking tax-avoiding-looking company who can't keep any of their records in order is asking you for money. You don't give them any. What are they gonna do?

Sue him?



Sorry couldnt resist :P


Edit: I agree with adrian actually. If they are dodgy they wouldnt want to draw attention to themselves by going on court. So they are just trying to scare Bob into giving them money. And who guarantees that that will be the end of it?

mirfield 22.02.2011 14:42

Re: Legal Action for overpayment
 
Quote:

Originally Posted by adrianlondon (Post 1112585)
What are they gonna do?

Sell the debt to an even dodgier company?

adrianlondon 22.02.2011 14:50

Re: Legal Action for overpayment
 
Quote:

Originally Posted by mirfield (Post 1112666)
Sell the debt to an even dodgier company?

Well, unless it gets to "We Break Legs Ltd" you ignore that, too.

AbFab 22.02.2011 15:36

Re: Legal Action for overpayment
 
Quote:

Originally Posted by adrianlondon (Post 1112585)
I would do nothing, ignore all demands for money, and wait to see if any official legal action is started.

I always take the lazy approach and, so far, it's paid off. Think this logically ... a dodgy-looking tax-avoiding-looking company who can't keep any of their records in order is asking you for money. You don't give them any. What are they gonna do?

I reckon that's the way to play - or rather not play it.

The payroll company are at this stage "threatening legal action involving "swindle and fraud and a warrant" [for Bob's arrest]."

Let them try. This requires time, effort, money and documentary evidence. Sounds like they have little or none of any of these. If they really do proceed, then seek legal advice...

araqyl 22.02.2011 16:36

Re: Legal Action for overpayment
 
I'm still wondering how an overpayment on their part, due to their lack of organisation and irregular payment of what should be a simple monthly salary, could in any way involve "swindle & fraud" on Bob's part - looks like they're trying to wave a big stick around, in hopes of scaring Bob into paying. It's entirely possible they've got no idea if he owes money or not, from the sound of their level of organisation.


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