Returning Non-Recoverable Draw

[clipse88]

Hello

I am leaving my employer after 6 months. The reasons are many, but basically, the role was not what they said it was, and there have been some pretty major personnel changes and a change of direction by the company.

I was paid a non-recoverable draw upon joining. (over 2 months, within 3 months of joining). I do intend to refund it to them, but out of interest, looking at the wording, I have 2 queries:

1/ Technically the way it is worded, as I am reading it, would not require me to pay back anything (under Repayment) as the outstanding draw balance is £0 - i.e. it has all been paid out.

2/ Even if this is not the case (I owe them the money), I am only expected to pay back the draw minus taxes and deductions (Authorized deductions), as the first point clearly states the total amount is £X minus authorized deductions. This is a point where we seem to differ, as currently they are asking for the entire amount back (which I have paid tax on).

Any advice on whether either of these apply would be welcome.

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You are eligible for a non-recoverable draw provided by <EMPLOYER>. By signing below, you agree to accept the terms of the draw as explained in this Agreement. If you do not sign the Agreement, you will not be paid a draw.

1. Draw : The draw will be paid on the following terms and conditions.

• The total amount of the draw will be £XXXXX.xx (less standard withholding and authorized deductions).
• The draw will be paid in equal payments of £XXXXX.xx, per month for 2 months. The draw amount is part of your
  variable pay and together with your base pay comprises your On Target Earnings.
• The term of the draw is 2 months, beyond which outstanding draw balances are forgiven and no further
  settlement of earned commission will occur subject to Section 2 (Repayment) below.
• Subject to Section 2 (Repayment) below, the draw is non-recoverable after the term of the draw has expired. This
  means that, if you remain <EMPLOYER> employee through the term of the draw, you may keep the draw, even if during the term of the draw you do not earn commissions. If you do earn commissions during the term of the draw, they will be used to reduce the outstanding draw balance.
  
  2. Repayment: If within 1 year of your start date you elect to leave <EMPLOYER>, then you must refund to <EMPLOYER> the outstanding draw balance as of the date your employment terminates. If during the draw period you are terminated for cause as a result of wrongful acts or omissions, then you must refund to<EMPLOYER> the outstanding draw balance as of the date your employment terminates. In such circumstances, you agree and authorize <EMPLOYER>, by your signature below, to deduct the outstanding draw balance from final payments of base salary, unused vacation, commissions, bonus, expense reimbursements or other sums that might be paid to you at termination of employment. If the total outstanding draw balance cannot be recovered through a deduction from your final payments, you agree to enter into a payment plan with <EMPLOYER> to repay the remaining amount. For clarity, in the unexpected circumstance that you are exited from <EMPLOYER> without cause, you will not be expected to re-pay any outstanding draw amounts.

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Thanks!

[LegalUtopia]

From the contract " If within 1 year of your start date you elect to leave <EMPLOYER>, then you must refund to <EMPLOYER> the outstanding draw balance as of the date your employment terminates." and they not honoring the contract, then you must give evidence that the draw has been paid off in full and that you have no outstanding 'draw' balances. However if you do owe £X amount or any amount to the employer that should be a separate matter to the draw.

Please note this is a Forum and we cannot solicit legal advice.