MISS A SHAH v TRAVEL SYNDICATE LTD [1999] UKEAT 381_99_1407

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 381_99_1407

Case No Appeal No. EAT/381/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS A SHAHAPPELLANT

TRAVEL SYNDICATE LTDRESPONDENT

Before

His Honour Judge D Peter Clark Mr D J Hodgkins Cb Ms B Switzer

Date 14 July 1999

[1]APPEARANCES For the Appellant IN PERSON JUDGE CLARK: This is an appeal by Miss Shah against the decision of a Chairman, Mr John Warren, sitting alone at the London South Employment Tribunal on 12 January 1999, dismissing her complaint of unlawful deductions from her wages by the Respondent employer, Travel Syndicate Ltd, in respect of a further bonus payment to which she claimed to be entitled. That decision was promulgated with extended reasons on 21 January 1999. The Chairman found that she commenced employment with the Respondent on 1 July 1997. The Respondent was then a relatively new company engaged in the selling travel tickets to corporate clients. The directors of the company were Mr and Mrs Taylor. Both the Appellant and a colleague, Mr Chevis, who joined the Respondent at the same time as the Appellant, had previously worked with Mr Taylor, the Principal of the Respondent Company.

[2]The employment was offered to her in a letter dated 4 June 1997. She was to hold the post of Senior Business Consultant. Her remuneration terms were set out in that letter as follows:

"Basic Salary - £24,000 Bonus - (See below) Bonus Structure – Joint Target for Steve Chevis and Aruna Shah Actual Commission % Commission Between $75,001 - $100,000 10 % From £100,000 – Above 15%"

Mr Chevis left the employment at the end of October 1997.

[3]Despite a number of reminders by the Appellant to Mr Taylor about sorting out a contract of employment, nothing was done until a review meeting held in July 1998. At that meeting, the Respondent calculated a bonus payment for the Appellant in the sum of £1,447 based on commission during the year ending 30 June 1998. The Appellant was asked to check that calculation and she came back with two further items omitted from the Respondent's calculation. As a result, her bonus was increased to £1,674 and that payment was made into her bank account with her July 1998 salary.

[4]At that stage, so the Chairman found, the Appellant raised no queries as to the basis of the calculation. The review document also set out a new bonus structure for 1 July 1998 to 30 June 1999 (correcting a typographical error). That was a single target for Ms Shah alone, providing that she must generate actual commission of £30,000 after which, in steps of £10,000, she was to receive a payment of 5% for the first £10,000 then 7%, then 10% for anything above £60,000.

[5]On 28 August 1998, the Appellant was dismissed on one month's notice, which she was not required to work out. On 1 September she was sent a form P45 together with £2,000 being one month's gross pay in lieu of notice. On 14 September she wrote to the Respondent claiming further commission for the year 1997 – 1998 of £3,076. An issue also arose over holiday pay which was in due course dealt with by the Chairman and that matter does not concern us in this appeal.

[6]The Respondent declined to pay any further commission and the Appellant commenced these proceedings by an Originating Application presented to the Tribunal on 5 October 1998. The Chairman found the relevant contractual term to be as set out in the Appellant's original appointment letter. That is, that when commission of £75,000 had been generated by the Appellant and Mr Chevis, that would trigger a 10% bonus to be shared between them on any figure over £75,000 rising to 15% if and insofar as the total figure exceeded £100,000. That term was never varied during the year ending 30 June 1998.

[7]In the circumstances the Chairman found that the Appellant was not entitled to any bonus for the year 1997 - 98 in excess of the sum paid by the Respondent, that is £1,674. Accordingly, the claim for unlawful deductions based on bonus entitlement failed.

[8]Miss Shah appears on her own behalf in this appeal today. She submits that the proper approach was to halve the target jointly set for herself and Mr Chevis and to award her half of the commission due on those targets. Thus, looking at the letter of appointment, her target should be treated as a minimum of £37,500 in commission whereafter she would receive 10% commission up to commission earned at £50,000 and above that at the rate of 15%.

[9]The question for us is whether the Chairman below erred in law. Our jurisdiction is limited to correcting errors of law only. In our judgment, it cannot be said that the Chairman was wrong to conclude that he was not entitled to rewrite the contract so as to trigger the commission payment at an earlier stage than the figure of £75,000 provided for in the original letter of appointment. It seems to us that it is not permissible for the Court to rewrite the terms of contract, however sensible or reasonable such a rewritten term might be. It is clear that the parties did not reach any agreement as to any new arrangements for commission after Mr Chevis left and before the end of the bonus year, that is 30 June 1998. Nor does it seem, on all the evidence, was the Chairman able to imply a term that the contract was varied in the way contended for by the Appellant. In these circumstances, with very little enthusiasm, we feel obliged to dismiss this appeal.