Q.
Can I still claim for my commission due on cases I have closed after I have left my agency?
A.
This is a very common question asked by RENs and Agents who got angry with their firm after leaving the job. What do you think?
First, this matter is referring to payment of profit, fee-share on the professional fee of the Firm with a REN who is an assistant BUT not a registered estate agent.
Hence, we need to refer to the Act and Rules. Under Rules 91(2), it says:-
Notwithstanding paragraph (1), a registered estate agent may pay a commission to a member of his staff who is under his control or supervision in the aggregate not exceeding forty percent (40%) of the professional fee in a particular transaction.
Following the above Rule 91(2), the termination of the employment disallows the payment of the commission as the REN has left the firm and no more under the supervision.
This means, the firm can pay profit share in the form of commission when the REN is a member of the firm, but not after the REN has left the firm.
Secondly, there should be a contract for service or contract of service by the REN and the Firm. Base on this contract, the rights of the employee – the REN to claim for the commission should be expressly spelled out to avoid confusion.
However, this being in contradiction to Rule 91(2) as above, it would be unlikely agreed by the Firm. Hence, to extend the claim of commission way after the REN has ceased employment may be illegal in the contract of engagement.
This can invalidate the employment contract. Thus, still an offence to pay a REN who has ceased to practice as REN after he or she has left the Firm.
The “Must be employed on payout date’ clause is how the above argument of not allowing for a valid claim. You may read more on this subject below. Nevertheless, the reasons for not paying the professional fee in one total sum usually are:
- developer has not received the progress payment from the bank in the various stages of construction.
- developer depends on the agency to continue work to follow-up with purchaser for more supports.
- developer requires the agency to handle vacant possession.
Thus, not paying claims from REN who has left the firm can be due to the above jobs being done by other RENs in replacement of the REN who has left.
Further reading from DeepSeek
In many jurisdictions, a resignation does not automatically forfeit commissions that have already been earned. Here is the breakdown of how this is typically decided:
- If the commission was “earned” before you left: If the plan defines the commission as earned upon signing the contract or closing the deal (regardless of when payment is made), you generally have a strong claim. Employers cannot forfeit what is considered already earned wages simply because you resigned .
- If the commission is “contingent” on future events: If the plan explicitly states a commission is earned only upon collection of payment from the client, and that collection happens after your departure, the employer may argue it is not yet due. You might still challenge this if the “must be employed on payout date” clause is seen as an unfair penalty on your already-completed work .
- Review the “Procuring Cause” standard: Even if the contract is strict, courts or labor tribunals might still award you a portion of the commission if you were the primary reason the sale happened. This is especially true if the work was substantially completed before you left .
About Commission is contingent to future event.
Amidst, the “must be employed on payout date” clause is the most common reason employers deny commission after resignation, but it is not always legally enforceable. Whether it applies to you depends on how your jurisdiction views the nature of commission.
Here is a more detailed breakdown of how this clause works and when it might fail:
- The Key Distinction: Earned vs. Payable
The entire dispute hinges on whether your commission was earned before you left, or merely payable later.
· If commission is earned upon closing the deal: The employer cannot later take it away simply because you resigned. In many legal systems, commission is treated as “wages” for work already performed. Forfeiting earned wages due to resignation is often seen as an unlawful penalty or unjust enrichment for the employer.
· If commission is earned only upon satisfying all conditions (e.g., payment from client + employment on payout date): The employer has a stronger contractual argument. However, even here, courts may still strike down the “employed on payout date” requirement if it is deemed unreasonable or punitive relative to the work you actually did.
- When the Clause Is Likely Enforceable
The clause tends to hold up when:
· The commission plan is clearly written, you acknowledged it in writing, and it explicitly states that forfeiture upon resignation applies to all unpaid commissions—even for deals you closed.
· The commission is truly forward-looking, such as residuals, renewals, or trailing commissions that require ongoing service or support after your departure.
· You left very soon after closing the deal, and the employer can show that significant work (e.g., collections, delivery, client onboarding) was still required, which they had to complete without you.
- When the Clause Is Likely Unenforceable
Courts or labor tribunals often reject the clause in these scenarios:
· You completed all substantive work before leaving, and the only remaining step was the passage of time or the client’s automatic payment.
· The clause is used to penalize resignation rather than protect a legitimate business interest. For example, if you closed a deal in January, left in February, and the commission was scheduled to pay out in March—denying payment looks like a penalty, not a genuine condition.
· The employer’s policy was unilaterally changed after you closed the deal. The terms in effect at the time you earned the commission generally govern.
· The employer has a past practice of paying departing employees their earned commissions, even if the written policy says otherwise. Consistent past practice can override a strict reading of the contract.
- Pro-Rating as a Middle Ground
Even if the full commission is denied, many legal systems allow you to claim a pro-rated portion based on the work you completed before departure. For example:
· If the commission was 5% of a deal, and you finished 80% of the work required to earn it before leaving, you might claim 4% (80% of 5%).
· The employer keeps the remaining 1% to compensate for the work they or their remaining staff performed after you left.
This pro-rating approach is common in jurisdictions that view commission as partially earned wage, even if the contract says “must be employed on payout date.”
- Practical Steps to Challenge the Clause
If you believe the clause is being applied unfairly:
· Request the written commission plan and any amendments during your employment. Look for the effective date of the “employed on payout date” rule.
· Document your completion of work before your last day. Emails, signed contracts, client communications, and task lists help prove you did the heavy lifting.
· Check local labor law or precedent cases. Some jurisdictions explicitly prohibit forfeiture of earned commissions upon resignation, regardless of what the contract says. Others allow the clause but narrowly interpret it.
· Calculate what is reasonable. Even if the full commission is disputed, consider offering or demanding a pro-rated amount based on your contribution. This is often how disputes settle before going to a tribunal.
Bottom Line
The “must be employed on payout date” clause is not an automatic loss for you. If you closed the deal and substantially performed before leaving, many legal systems will still award you a portion—sometimes all—of the subsequent commission. The employer’s strongest defense is that the commission required ongoing work or that you accepted the clause in a clear, binding agreement.
