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Contract Terminated Early for 'Poor Performance' - Now Accused of Breach of Contract

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    Contract Terminated Early for 'Poor Performance' - Now Accused of Breach of Contract

    Hi

    I hope someone can advise on the following please.

    My wife started a contract role in January this year. The term was originally for 3 months. She was extended in April for a further 6 months. While she was on leave in 2nd week of May, the client decided to release her from her contract but at the time only offered the reason as being as 'not a good fit'.

    Today the agency who originally advertised this role have now informed her she is guilty of breach of contract due to 'poor performance' and she owes them money for the remainder of the contract she was unable to fulfill.
    My wife still has one month's pay due and the agency have informed her they intend to keep it in full as settlement towards what they feel she owes them for the breach.

    I should mention that the client only once had a verbal discussion with her where they stated she was not delivering on one of her deliverables (the other deliverables she was responsible for were all in hand). This was a discussion they had shortly before she went on leave. There was no official notice to her or to her agency concerning any performance concerns.

    Hope someone has some insight or relevant legislation that would help shed light on this as this is the first time I've ever heard of an IT contractor being held in breach of contract by an agency for termination of contract.

    Many thanks

    #2
    Two wrongs don't make a right. Even if your wife is in breach of contract, the agency cannot just withold the money that they owe her - they have to pay the invoice (or they are in breach of contract) and then sue for the breach.

    If they are already late with the payment, then start chasing for the money - have a look at somewhere like payontime.co.uk and see what the process should be.

    The question that she / you need to look at is whether she breached the contract at all - I'd suggest not, because no-one has mentioned the "breach" until now. The client terminated the contract for whatever reason (which may or may not be justifed), and now it looks like the agency are trying to get some more money from you.

    Chase the debt, if necessary instruct a lawyer to write to the agency informing them of their breach and your intention to sue to recover the money owed. If they countersue then be prepared to fight or run away, though.

    Good luck.

    Comment


      #3
      As above, they can't just decide that she is in breach and keep the money she is owed as payment in lieu of damages. They don't have a leg to stand on. I would inform them if they do not pay, you will start usual debt recovery procedures against them.

      If they believe she is in breach and owes them damages then it is down to them to begin their own legal proceedings.

      Of course what you have to weigh up is how likely they are to do this and what chance you think they have of being successful. Pursuing them for non payment is likely to increase the chance of them taking action against your wife *unless* they are bluffing and don't have any evidence of this so-called "poor performance" (which is a distinct possibility).

      So, call their bluff. Pursue payment, let them take action if they must and defend it. The chances of them being successful depends entirely on your contract and any evidence they have. I guess as a starting point, you should ask them to point out which clause in their contract is your wife in breach of and what evidence do they have to back this up?

      Comment


        #4
        Originally posted by KPAB View Post

        The client only once had a verbal discussion with her where they stated she was not delivering on one of her deliverables

        and

        This was a discussion they had shortly before she went on leave.
        I obviously do not know the full facts but gut feeling, probably these are not coincidences.
        If she had stayed and sorted out said deliverable instead of taking a holiday I wonder if the outcome now would have been different.
        So now I am worried, am I being deceived, just how much sugar is really in a spoon full!

        Comment


          #5
          Your scenario isn't as rare as you think.

          I've worked on a project where two contractors where let go for poor performance. In both cases we had proof that was the cause for their removal and could go in to detail about exactly what it was.

          In the first case we recovered the money paid to them and the agency, and in the second case we didn't pay them. In this latter case we had to set up a scenario to prove they didn't perform.

          I also had a client claim I didn't deliver something so they wouldn't pay my final invoice. I had documentary proof I had, so they were threatened with legal action to pay me and the agency if they couldn't prove otherwise.

          So if the client and agency doesn't have proof that your wife didn't perform they have to pay. As civil actions are judged on the balance of probabilities so the person with documentary proof of the disputed work normally wins.
          "You’re just a bad memory who doesn’t know when to go away" JR

          Comment


            #6
            Erm. How can she be guilty of breach for poor performance when there is (probably) a clause saying she can be instantly terminated for poor performance. Surely everything is as per the contract and the clause was used as it was designed to be. No breach there at all so I no way the agent can defend that.
            That might be unhappy they've lost commission and they could sue for losses due to the actions of the contractor but certainly not from the money the contractor is owed.

            We've discussed this before and I think we worked out its considerably less than a month of contractor income. They only lose their commission, not the whole lot.
            'CUK forum personality of 2011 - Winner - Yes really!!!!

            Comment


              #7
              I can't but help think that's there's more going on at the client side and you should be able to dispute.

              Your wife got an extension and then was accused of poor performance while she was on holiday? That doesn't sound right to me.
              "I can put any old tat in my sig, put quotes around it and attribute to someone of whom I've heard, to make it sound true."
              - Voltaire/Benjamin Franklin/Anne Frank...

              Comment


                #8
                Originally posted by cojak View Post
                I can't but help think that's there's more going on at the client side and you should be able to dispute.

                Your wife got an extension and then was accused of poor performance while she was on holiday? That doesn't sound right to me.
                Especially as she had just won an extension.
                Can happen that you are stabbed in the back whilst away, worst type of bully.
                The Chunt of Chunts.

                Comment


                  #9
                  A signed timesheet is undisputable evidence that client co accepted the work. Start proceedings to recover the money and look for a new gig.
                  Public Service Posting by the BBC - Bloggs Bulls**t Corp.
                  Officially CUK certified - Thick as f**k.

                  Comment


                    #10
                    Originally posted by Fred Bloggs View Post
                    A signed timesheet is undisputable evidence that client co accepted the work. Start proceedings to recover the money and look for a new gig.
                    Not always. Agents stick have a habit of sticking in loads of get out clauses to protect themselves.

                    However the fact that the OP's wife was offered an extension is the biggest problem the agency has in fighting this.
                    "You’re just a bad memory who doesn’t know when to go away" JR

                    Comment

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