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

[psychocandy]

Of course, is there anything that could be construed as breach of contract? Just asking...

If its just client is not happy with performance then all they can do is get rid as they've done. They've signed timesheets I guess so that the end if that.

[psychocandy]

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.

I was thinking that. Not sure whats gone on here but client wants rid by the looks. Bit strange that extension had been offered but who knows what backstabbing has been going on. Either way thats the end at client.

How can this be breach though? Client has said want them gone and has invoked clause to do so. Either way they pay up until that date.

Sounds like agent is miffed that hes now going to lose money and want to keep the last months payment to offset. Which as others have said they cant do.

Another vote for telling agent to stuff it and pay up or else.

[northernladuk]

Civil cases are ruled on the balance of probabilities. so if you walk someone of site/remove them when they go on holiday after giving them an extension you better have good documentary proof of their sudden poor performance.

If it ever gets that far which it never does.

[SueEllen]

It doesn't sound right but I've seen it happen. It could be (no disrespect to the OPs wife) she got the extension through client apathy. It staggers me why clients put with crap contractors just because it's easy and they are on site. She then goes on holiday and whoever picks the work up can either complete it so she isn't required or they discover it's so bad she got to go and she's not there so it's easy.

When we get these stories of people terminated on the spot I'm always a little suspicious. I've seen quite a few contractors either walked off site or not let in and in every single case bar non there has been a pretty solid reason. I just don't think in a vast number of cases it's to save money. It's not the money of the guy who's doing the deed so surely he isn't going be making decisions to potentially breach when he doesn't have to.
Am sure it happens sometimes but I can't believe it's very often, particular in larger organisations.

Civil cases are ruled on the balance of probabilities. so if you walk someone of site/remove them when they go on holiday after giving them an extension you better have good documentary proof of their sudden poor performance.

[northernladuk]

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.

It doesn't sound right but I've seen it happen. It could be (no disrespect to the OPs wife) she got the extension through client apathy. It staggers me why clients put with crap contractors just because it's easy and they are on site. She then goes on holiday and whoever picks the work up can either complete it so she isn't required or they discover it's so bad she got to go and she's not there so it's easy.

When we get these stories of people terminated on the spot I'm always a little suspicious. I've seen quite a few contractors either walked off site or not let in and in every single case bar non there has been a pretty solid reason. I just don't think in a vast number of cases it's to save money. It's not the money of the guy who's doing the deed so surely he isn't going be making decisions to potentially breach when he doesn't have to.
Am sure it happens sometimes but I can't believe it's very often, particular in larger organisations.

[Fred Bloggs]

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.

I reckon a small claims court would look through such a clause if it was demonstrated that the client had accepted and paid for the work though.

[SueEllen]

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.

[Fred Bloggs]

A signed timesheet is undisputable evidence that client co accepted the work. Start proceedings to recover the money and look for a new gig.

[MrMarkyMark]

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.

[cojak]

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.

[northernladuk]

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.

[SueEllen]

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.

[DallasDad]

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.

[TheCyclingProgrammer]

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?

[missinggreenfields]

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.