Help with Unfair Work Situation

Lsuchan on 11/01/2018 - 00:06
Last edited 11/01/2018 - 00:07

Hello,

I am writing this post on behalf of my sister in law about a work situation that she is facing.

She has been working for a cafe in Surry Hills for about one month and a half. Although her official title is a Junior Accountant, her collective responsibilities include:
- Payroll
- Accounts Payables
- Accounts Receivables

Her expected working hours are 9 AM - 4 PM, Monday to Thursday, with one meal included.

The situation is this:
1. Due to a mistake on her part which she readily admits, the cash money used to pay other employees for last week's salary was not enough and she had to cover that with her own out of pocket expense for $260 to pay an employee's salary.
2. Furthermore, a further $240 of petty cash was also out of balance, which brings the total of out of balance to $500.
3. Due to the above mistakes, she was given her one week notice. Her last day is on Thursday 11th January 2018.
4. Her employer refused to pay her salary (from 8th January to 11th January) although she has continued to perform her responsibility to her last day) They cited that the $500 which was out of balance will be taken out of her pay.

In my opinion, this was a very unusual and unfair reason to not pay her salary and to assign responsibility / blame to someone who is still new on the job and still in learning process.

We believe we need to take this case up to the Fair Work Ombudsman, but before we do, we'd like to hear your opinions. Is Fair Work Ombudsman the right place to go? If yes, how should we raise it? It is the first time we have had to deal with this.

Can we claim on unfair dismissal also? Since it is unreasonable to fire her given the amount of work that she had to do and expect complete perfection every time?

How likely is it for her to receive back the $500 which has been docked from her pay?

Thanks for your advice.

Ps: Apologies if it wasn't super clear, I tried my best to explain the situation.

Education & Work

Comments

  • [Deactivated] on 11/01/2018 - 00:10
    +2

    She should have double checked with the employee before doing it.

    • suchan on 11/01/2018 - 10:19
      +1

      Thx for replying. the employee K is supposed to be paid by cash, so there's no way K would've received it at all

  • airzone on 11/01/2018 - 00:19
    +17

    This is illegal, and should be reported to Fairwork NSW.

    https://www.fairwork.gov.au/pay/deducting-pay-and-overpaymen…

    BTW, since she is likely on probation still, there's probably not much that can be done about the dismissal, but they still need to pay salary and notice period in full

    • suchan on 11/01/2018 - 07:40
      +1

      Thanks for your reply. We shall proceed with reporting this to Fairwork. I will post updates here with progress.

  • Slippery Fish on 11/01/2018 - 00:29
    +4

    1. She failed at her duty's, seems atleast worth a warning, though they likely had her on 3 month trial which would make dismissal a option.

    2. You can't withhold a employees money for errors breakages ect ect, that's very illigal. I would tell them I'm going to see fairwork unless my money is paid by the end of business, then if not give em hell.

    Your sister in law doesn't want to work for an employer like that, she will be much happier elsewhere.

    Also not a lawyer just my opinions.

    • suchan on 11/01/2018 - 07:46

      Thanks for replying.

      That's a very valid point that no prior warning has been given. By this point she is no longer interested in continuing to work there.

      The link provided by @airzone was very useful, it agrees with your point

  • bobbified on 11/01/2018 - 02:04
    +2

    Name and shame!

    She should get paid for the time she's worked!

    Being the accountant, she'll probably know about any dodgey practices within the cafe. I'm sure with a bit of "negotiation", the owner may suddenly understand that the knowledge is worth more than $500.

    • chumlee on 11/01/2018 - 07:47

      Name & Shame when we only heard one side of the story and second hand info at that???

      • bobbified on 11/01/2018 - 08:16

        Would you like to be the one that convinces the café owner to come here and share their side of the story?

        Not getting paid for work isn't really a matter of opinion - it's pretty black and white.

        Even if an employee makes a mistake and the café loses money, the owner is not allowed to deduct it out of her pay.

        • chumlee on 11/01/2018 - 08:18
          -3

          Again you take the word of OP. Be more open minded

        • bobbified on 11/01/2018 - 08:27

          @chumlee:

          I am very open-minded.

          Having money deducted from employees' pay for staff errors shouldn't happen, but seems to be pretty common practice amongst cafes. I can't speak for other industries.

          I've had a number of student friends who have mentioned that they've been told that that is a rule at the place they work.

          Some employees either just don't know that it's not right or don't want to raise it for fear of losing their jobs.

          If this owner is deducting the pay from the accountant for a mistake, then there's a good chance that the policy is also in place for front-end staff who operate the till.

        • suchan on 11/01/2018 - 10:28
          +1

          @bobbified:
          Hello, thanks for your comment.
          I am not sure I am comfortable yet with disclosing the name of the cafe. Not sure if there is any kind of legalities around doing that which will impact the case we submitted to Ombudsman?

          You are spot on however on the comment that the policy is in place for front-end staff to foot the bill when there's a difference.

    • suchan on 11/01/2018 - 10:33

      Regarding dodgy practice, the cafe has been plagued with mice and cockroach problems since the start of monorail construction (so at least six months?)

      Is it worth mentioning this to Fairwork or should this be under separate case?

      • bobbified on 11/01/2018 - 11:05

        I don't think it's worth bringing the mice and cockroach issue up at this stage since it'll probably just make her look like a disgruntled employee.

        I'd only use that as a last resort bargaining chip to try and get the owner to come to the party, but not reported it yet.

        Once it's reported, the owner will put up as much resistance as he can to avoid paying and your friend will have nothing left up her sleeve.

        • suchan on 11/01/2018 - 18:28

          Thanks for the input.

          I agree that it doesn't look like it's worth mentioning this in our report.

          We'll just take it as a note-to-self: not going to visit that cafe anymore, not due to this case, but due to their sanitation issue.

  • JIMB0 on 11/01/2018 - 06:48
    +3

    She needs to collect some evidence on her last day while she is still there.

    • suchan on 11/01/2018 - 07:52

      Thanks for replying. Unfortunately she has just been told not to come to the shop / office anymore. That was the first thing we had in mind :)

      • airzone on 11/01/2018 - 08:21
        +2

        They still need to pay her. Unless she is terminated for gross negligence (a term defined by fairwork, and doesn't apply in this case), she is entitled to 1 week notice to be either paid out, or worked for salary.

  • Presence on 11/01/2018 - 07:19

    Has the out of balance money been fixed? Has she been reimbursed? Your post is very confusing.

    • suchan on 11/01/2018 - 07:57

      Thanks for the your reply.
      And apologies for it being confusing, i will try to answer any questions in the forum to clarify things.

      To answer you questions :
      1. No, the out of balance money hasn't been fixed.
      2. She hasn't been reimbursed yet. And probably won't ever be, unless Ombudsman steps in.

  • [Deactivated] on 11/01/2018 - 09:00

    Natural justice - why did she make the mistake and was she given an opportunity to respond?

    • suchan on 11/01/2018 - 18:26

      The mistake was unintentional and at worst, just being careless. Though from what she told me regarding the workload she was given, and having multiple stores to be handled, both in Barangaroo and in Surry Hills, is it any wonder that mistakes are bound to happen?

      Not sure what you meant by "opportunity to respond", if you mean apologising, she has done that. She didn't deny making a mistake.

  • dasher86 on 11/01/2018 - 09:41
    +3

    She should be entitled to the entire $500 regardless whether the cafe is able to recover the monies.
    Though she readily admits that it was her mistake - it's not only her mistake.
    She was working for on and behalf of the cafe.
    The cafe needs to take responsibility here and understand that their lack of internal policies / procedures allowed this to happen.

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