Employer Hasn't Paid after Quitting

Llovestorm catcher on 05/01/2017 - 16:35
Last edited 05/01/2017 - 17:30

Dear all,

What happens is my wife's ex-employer (sole trader/a small catering business) still hasn't paid 2-week wage ($1k) after she quit her job. We have brought the issue to Fairwork Victoria who has since got in contact with the ex-employer and asked for payment. The ex-employer admitted that she owed my wife 2-week wage and said to Fairwork that she would paid my wife TWICE (in writing between Fairwork and the employer) but failed to do so on both occasions.

Now the ex-employer has moved her business to somewhere else and Fairwork gave up on this case and advised us to take the matter to court under 'Small Claims'.

Is it worth to pursue this in court (considering the cost of going to court)? And what if she still hasn't paid after the court orders her to do so.

I hope someone will help to point us in the right direction.

Thank you all

Cheers

Edited: Since she has moved her business to the new address, what if we don't know her exact address and can't find her (which also means we can't serve her the court paper)? The only things we know are that she has moved to that street, her ABN, business and trading names, her name.

Education & Work

Comments

  • Baysew on 05/01/2017 - 16:54

    Has the employer failed to pay super as well?

    • lovestorm catcher on 05/01/2017 - 17:20

      Yeah, she has failed to pay super as well.

      • Adz81 on 05/01/2017 - 17:29
        +3

        The ATO gets really interested in employers that don't pay super.

        They took one of my previous employees to court for not paying my super and I wasn't even aware of it.

        • lovestorm catcher on 05/01/2017 - 17:31

          Oh wow. Then we must include this in our Letter of Demand as suggested by the fellow Ozbargainers here.

        • Adz81 on 05/01/2017 - 17:34

          @lovestorm catcher: Nah, not really… letter of demand for all wages and associated entitlements due, she wouldn't be paying the super to you anyhow, I'd only chase the wages owed. Let the ATO do their thing when they spot that she hasn't paid it (or ring your superfund after your next statement concerned that they've missed one of the payments).

        • lovestorm catcher on 05/01/2017 - 17:36

          @Adz81: Ok. So we will keep super and the wages separate then. Thanks @Adz81.

      • Baysew on 05/01/2017 - 17:32
        +1

        ATO Unpaid Super

        • lovestorm catcher on 05/01/2017 - 17:34

          Thanks Baysew. We will follow this up. You are a great help.

  • Cheap Charlie on 05/01/2017 - 16:54
    +1

    Is it worth to pursue this in court (considering the cost of going to court)?

    Most defiantly.
    My understanding is the small claims court process is such that legal representation is not required and the investment is predominately your time.
    Further reading here

    Part of the process is issuing the third party with a letter of demand (Essentially a pay up or see you in court letter).
    You may find the employer pays up at this point rather than investing their time attending court in what seems a no win case for them.

    There is stacks of reading out there on the subject.

    • lovestorm catcher on 05/01/2017 - 17:35

      Thanks Charlie. Now we will have to hunt her down as we don't exactly where her new business address is (just know the street and suburb).

      • toristo on 05/01/2017 - 19:16

        Do you know what her car looks like? Might be easy to walk the street and spot the car, then you've got the address.
        You could then work to serve the papers.

        I'd avoid a "friendly door knock" as she may claim harrassment - serve the papers as a surprise. If Fair Work has insisted on payment and she's indicated she's paid, that's a case I'd be happy to take to Small Claims with confidence I'd win.

  • dazweeja on 05/01/2017 - 16:57

    My understanding of the law is the next step is a Letter of Demand. There's sample ones here:

    http://www.lawaccess.nsw.gov.au/Pages/representing/lawassist…

    • lovestorm catcher on 05/01/2017 - 17:26

      We only know the approximate area that the ex-employer has moved to. We will need to search the area for her business. If, in the case that we don't know where the new address is (but do know her ABN, her name, and business name), we can't serve her this letter then?

  • justhooked on 05/01/2017 - 17:04

    Don't forget to chase up super as well , you can go to the tax department for this , Ive just started going through it at the moment will be interesting

    • lovestorm catcher on 05/01/2017 - 17:21

      Thank you. Do we just ring ATO up and tell them about this?

      • justhooked on 05/01/2017 - 18:28

        You can put in a claim online . Also check they have put previous payments in don't just trust what they have put on payslips . Get a print out from your super fund , my previous employer detailed it on the wage slips but didn't deposit the money . They own me for 6 months but found out others haven't been paid for two years

        • Adz81 on 05/01/2017 - 18:39

          This. That's exactly what one of my previous employers was doing.

        • justhooked on 05/01/2017 - 19:38

          @Adz81: did you get you super, did you go via the ATO
          How long did it take …thanks

        • Adz81 on 05/01/2017 - 22:47
          +2

          @justhooked: honestly?
          I have no idea… I'd left the place of work (on good terms, onwards and upwards and all that jazz). It was maybe 18 months later, I got a letter from the ATO telling me they were taking my former employer to court for unpaid super.

  • minniethemoocher on 05/01/2017 - 18:52
    +1

    If the owner is a sole trader then they are liable personally. I would take it to small claims. I do t know what state you are in but the fees are generally less than $100 so definitely worth it in my opinion.

  • [Deactivated] on 05/01/2017 - 22:36

    Super and payment are separate, but if the payment hasn't been made then it may not be recorded, then super and wages will match - unless of course super hasn't been paid for quite some time.

    Also you can do a search for company details - costs around $35 (from memory), and that will provide the registered company address. Links on Asics website - after you search for the company or business name. www.asic.gov.au

  • sky blu on 06/01/2017 - 17:44
    -2

    Bikies

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