Commission payment after resignation/termination

[TonyBright]

I have an employee who I hired as a commission-only Sales Director for Real Estate for 8 months, using a standard agreement.
Then, we hired him as an employee using a standard employment contract, but doesn't mention about commission.
Since then, we paid him as employee, and would just pay him extra commission after deducting the salary as necessary.
However, he resigned from company after 8 months, and we discovered his misconducts just before that. However, we never issued any termination, or dismissal and just have a meeting in person to discuss everything due to our previous relationship.
His misconducts doesn't stop there, and still happen further after his resignation, leading to a lot of loss for our company.
Due to nature of real estate, often commission divided into 2 parts, and the 2nd may take 1-2 years before eligible to receive.
And if client can't settle we usually has to refund our commissions back.
I'm wondering about 2 things:
1. Is he still entitled to the commission, since he already has the employment contract and be paid accordingly, so the sales agreement prior can be considered superseded?
2. Can we terminate him based on misconduct, even if he resigned and we didn't issue any notice?
3. In that case, can we stop paying him based on misconduct instead?

 

[Paul Cott]

I have an employee who I hired as a commission-only Sales Director for Real Estate for 8 months, using a standard agreement.
Then, we hired him as an employee using a standard employment contract, but doesn't mention about commission.
Since then, we paid him as employee, and would just pay him extra commission after deducting the salary as necessary.
However, he resigned from company after 8 months, and we discovered his misconducts just before that. However, we never issued any termination, or dismissal and just have a meeting in person to discuss everything due to our previous relationship.
His misconducts doesn't stop there, and still happen further after his resignation, leading to a lot of loss for our company.
Due to nature of real estate, often commission divided into 2 parts, and the 2nd may take 1-2 years before eligible to receive.
And if client can't settle we usually has to refund our commissions back.
I'm wondering about 2 things:
1. Is he still entitled to the commission, since he already has the employment contract and be paid accordingly, so the sales agreement prior can be considered superseded?
2. Can we terminate him based on misconduct, even if he resigned and we didn't issue any notice?
3. In that case, can we stop paying him based on misconduct instead?

Hi Tony, it is difficult to answer this definitively without seeing the contracts. But yes one (later) contract would probably override the other. If he has resigned, then that is it, the employment relationship is over. So you cant terminate his employment. You cant stop paying him his lawful statutory entitlements just because he has committed misconduct. That is my advice based on what you have written. There may be more to say if anything changes in the stated facts form what i read them as.