On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-981-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Gilroy and Chambers.
Defendant Chrysler Plymouth*fn1 appeals from the judgment in the amount of $4,357.21 entered against it and in favor of its former employee, plaintiff Jeffrey W. Norton. The judgment compensates plaintiff for commissions earned during his last month of employment with defendant. Defendant contends that, because plaintiff did not complete his last month of employment, he is not entitled to any commissions for that month under the Pay Plan governing plaintiff's employment. We affirm, concluding that the trial judge's findings and conclusions are supported by the record.
Plaintiff, working as defendant's service manager, was terminated from this position on September 20, 2007. He filed a wage collection claim, pursuant to N.J.S.A. 34:11-57 to -67, with the New Jersey Department of Labor and Workforce Development, Division of Wage and Hour Compliance (the Department), contending that defendant owed him commissions for the month of September and certain adjustments in commissions for the months of June, July and August 2007. On November 19, 2007, the Department entered a default judgment against defendant in the sum of $5,822.81. As permitted by N.J.S.A. 34:11-63, defendant appealed to the Superior Court, which conducted a de novo review. See Marr v. ABM Carpet Service, Inc., 286 N.J. Super. 500, 504-05 (Law Div. 1995) (concluding that under N.J.S.A. 34:11-63, the judiciary must conduct a de novo review of appeals from the Department on wage disputes).
The trial proofs established that the parties signed a written document on June 19, 2006, entitled "Pay Plan" that provided in full:
Commission: 4.5% of Service Gross Profit Employee MUST work the full month to be entitled to the bonus for that month.
Plaintiff testified that when working for defendant, he received each month a 4.5 percent commission on the service gross profits earned in that month. He called this a "commission bonus." The amount was denoted on his earning statement as a "bonus." He maintained that he was entitled to the 4.5 percent commission for the days he worked in September 2007. He also testified that on occasion he received bonuses that were separate and apart from his 4.5 percent commissions. He argued that the phrase in the Pay Plan reading "[e]mployee MUST work the full month to be entitled to the bonus for that month" referred to these bonuses and not the 4.5 percent commission.
Joseph Costanza, defendant's General Manager and plaintiff's supervisor, testified at trial. He acknowledged that plaintiff's Pay Plan was already in place when he joined defendant. However, he testified that defendant used the terms commissions and bonus interchangeably and that the reference to commissions and bonus on the Pay Plan meant the same thing. As a result, defendant maintained that plaintiff was not entitled to any 4.5 percent commissions for the month of September.
The trial judge resolved this dispute in favor of plaintiff. He noted that the Pay Plan used two different words, "commission" and "bonus," and he assumed "that the person who prepared [the pay plan] had a reason for using two different words." The judge found that both witnesses were credible and acknowledged that "there is obviously some confusion on [the] parts of both parties as to what is 'commission' and what is 'bonus.'"
The trial judge awarded plaintiff commissions of 4.5 percent for the days plaintiff worked in September. The service gross profit figures for September 2007 were not introduced into evidence; plaintiff explained that since he was no longer in defendant's employ, he did not receive those figures. However, plaintiff's earnings statement set forth his year-to-date payments for the 4.5 percent commission on gross service profits. As a result, the judge calculated plaintiff's damages for the days he worked in September using those figures. The judge did not award plaintiff any additional commissions for the months of June, July and August, and plaintiff has not cross-appealed on that issue.
On appeal, defendant contends that the Pay Plan clearly and unambiguously provides that plaintiff must work the full month in order to receive his 4.5 percent commission, and that the court must enforce the contract as written. This argument rests on the language in the Pay Plan that provides: "Employees MUST work the full month to be entitled to the bonus for that month." Defendant contends that the reference to "bonus" in this sentence is synonyamous with the 4.5 percent commission referenced earlier in the Pay Plan. Defendant maintains that the trial judge wrote a better contract for plaintiff than the parties made. Defendant also argues that since the record contains no ...