Accepting employment comes with the ordinary expectation that as an employee, you will get paid. In entering into any form of work, be it as an at-will employee, or a contractor, one of the main issues to contend with is the amount, form and frequency of the payment of wages for your time. Usually, employers and employees are able to come to a mutually agreed-upon wage and the manner for its payment. However, there can arise circumstances where an employer does not make proper payment of wages to an employee. And, while it is rare, as an employee it is important to know what to do under these circumstances.

The majority of employers are well aware of the state and federal laws that govern payment of wages to employees. The Fair Work Ombudsmen Act required employers to pay employees accordingly;

  1. In line with the federal minimum wage
  2. In a manner that is consistent and timely, such as weekly, biweekly, semimonthly or monthly
  3. Paydays need to be defined; for example, weekly on Thursday

In addition, wages can be paid in a few acceptable forms;

  1. Cash
  2. Check, money order or postal order payable to the employee
  3. Electronic transfer

However, it is possible that your employer could miss or reduce a wage payment or a superannuation contribution. These reasons this could include;

  • The possibility that an overpayment was made for which the employer is now trying to take credit
  • Mutually agreed upon deduction that the employee didn’t realize was starting during the particular pay period in question
  • The employer is in the process of bankruptcy

If monies are missing from your paycheck, or you do not receive a paycheck, there are steps you can take to remedy the situation. Initially, it is recommended that you approach your employer and ask about the missing wages or superannuation payments. It is possible for an employer, or their payroll company to make a mistake. So, before jumping to any untoward conclusions it is always best to make a reasonable enquiry as to why your wages have been altered or not paid as expected.

If the employer does not give a satisfactory explanation or offer to cure the missing wages, you then will have to consider how to take action to recoup your loss. First, you will want to consider putting your demand for the missing wages in writing. A simple email with the date of the pay period from which the wages are missing and the number of monies you remain entitled to, should suffice. Include in your demand letter a request to be paid by a particular date and allow time for the employer to cure the error. 

In the event that your employer does not respond or cure the mistake in wages paid, you will need to consider taking the issue to the next level. At this juncture, you can file a claim with Fair Work Ombudsmen. This process has a couple of simple steps that you can easily complete.

  1. Go to the Fair Work Ombudsmen website and complete the Work Place Complaint form. Be prepared to supply information from your pay stub and your employment on this form
  2. Be responsive to the investigator who will contact you to discuss your claim. Be sure to have the pertinent information available to share with the investigator
  3. Prepare to attend a voluntary resolution session with your employer present. This will allow for both you and your employer to participate in a mediation process that might cure the unfortunate circumstances

In the event that you and your employer do not reach an agreement via mediation, further action can be taken by the Fair Work Ombudsmen or you can file a claim with the court. A court case will initially be filed in Federal Circuit Court. To begin this process, you must do the following; 

  • Be sure your claim is for unpaid wages or entitlement
  • Determine the value of your claim; if it is $20,000.00 or less you may use a small claims procedure
  • If it is for $20,000.00 or more, you will have to use the regular court procedure

For New South Wales it might also be possible to start your claim in a more local venue such as the Chief Industrial Magistrate’s Court or the Local Court. 

If the employer is in the process of declaring bankruptcy, you can still make a claim for your unpaid wages. In these circumstances, you can make your claim under either the General Employee Entitlements and Redundancy Scheme (GEERS) or Fair Entitlements Guarantee (FEG). However, it is important to remember that you might not recoup all of the wages you are entitled to. 

While it is a very unfortunate circumstance that causes wages not to be properly paid, it does happen. The best way to begin handling a situation such as this is to go to your employer and attempt to solve the problem directly with them. This can result in a fast resolution of what might have been a simple error. However, in the instance that the problem is larger than a simple error, and there is a genuine dispute, there are other avenues available to employees for recovering lost or unpaid wages.

If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.