“My employer didn’t pay me on payday” is a common problem most employees encounter, apart from unpaid wages and final pay or termination pay. Regularly getting paid late can be frustrating, and it makes the employee wonder if they would get paid at all.
Employees have certain entitlements such as the right to get payment, and to enjoy good working conditions under the Fair Work Act 2009. State laws also provide rules for paying wages, an award and entitlement, and even superannuation contribution. This article discusses remedies when an employer didn’t pay you on payday.
Payment of Wages and Frequency of Pay
As an employee, you must first understand your rights under the law before you can raise the issue “my employer didn’t pay me on payday”. The Fair Work Act requires employers to pay employees accordingly:
- In line with the federal minimum wage (provided here),
- In a consistent and timely manner, such as weekly, bi-weekly, semi-monthly or monthly, or
- In defined paydays: for example, weekly on Wednesdays.
Generally, employers are allowed to choose whether to pay employees weekly, fortnightly or monthly. The employee’s contract of employment provides all relevant information regarding payment including information on the pay period or when they will be paid.
Employers can pay wages in cash, check or postal orders payable to the employee, a money order, or electronic transfers in a bank account nominated by the employee.
Additionally, employees must receive payment in the form of money for their work. Employers cannot pay “in-kind” (for example, with goods such as food). There are also limited situations when an employer can make a deduction from an employee’s pay or require an employee to pay money (for example, an overpayment).
Your Legal Rights as Employees
Under your contract of employment, you have a legal right to receive payment on time. If your employer is regularly late in paying your wages, you can take steps to enforce your legal right to receive payment on time. So, check your pay slips and your employment contract and contact your employer.
Ideally, you should try to resolve this dispute with your employer by using any internal complaint with the human resources department or grievances procedures available. If this does not work, consider lodging a formal complaint to the Fair Work Ombudsman (FWO) stating “my employer didn’t pay me on payday.”
Talk to Your Employer
First thing to do when you raise a concern of “my employer didn’t pay me on payday” is talk to your employer to resolve the problem. Maybe your employer withheld wages because of issues or a simple error in the payroll department. So you should start by asking your employer to pay you on payday and to pay any wages that they owe you.
Also inform your employer of the written terms of employment in your contract and state how often you must receive payment (for example, weekly or monthly). If your employer fails to give a satisfactory explanation or fails to cure the delayed payments, that is when you should consider making a formal complaint with the FWO.
Make a Formal Complaint with the Fair Work Ombudsman
If your employer didn’t pay you on payday after you took the necessary measures of informing them about your concern, you may have to take your complaint “my employer didn’t pay me on payday” further.
Employees can resolve most workplace problems without the involvement of the FWO, but sometimes this is no longer possible. The FWO can help if your employer does not respond to your attempts to contact them, or they are being unfair or unreasonable, or they refuse to address the issue of delayed payments.
Start a Court Case
Take the action further if your employer still doesn’t address your concern that “my employee didn’t pay me on payday.” If your employer refuses to comply, then hire a lawyer and take court action.
Additionally, if your employer consistently pays you late, you have the option to resign and claim constructive dismissal because your employer has breached the terms of your contract.
Constructive dismissal generally involves a situation where the employee has to leave or quit their job not because they wanted to, but because of the employer’s conduct.
The resignation could be the result of bad working conditions such as delayed payments or changes in the terms of employment which leaves the employee with no other choice but to quit.
However, before you file for a constructive dismissal case, you should first consider getting legal advice because proving constructive dismissal can be quite difficult.
Case Law on Constructive Dismissal
Kylie Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera (Fingal Glen) (2013)
This case involved an employee who raised a concern that “my employer didn’t pay me on payday.” This is a significant constructive dismissal case that the Fair Work Commission (FWC) dealt with. In this case, the employee worked for the employer as a receptionist for approximately a year.
The employee gave evidence that her employer often paid her wages late, and that her employer did not pay her superannuation during her employment. She also gave evidence of the steps she had taken to address the issue including making a complaint to the senior management.
The Court’s Findings
The resignation letter confirmed that the resignation was due to the late payments and lack of superannuation payments. It also confirmed that it was due to “no longer being able to deal with the stress of my basic entitlements being neglected.”
The Court found that a failure on the part of an employer to pay the employee can amount to termination at the initiative of the employer, or for that matter, can be described as a course of conduct engaged in by the employer that forced an employee to resign.
However, in this case, the Court held that constructive dismissal could not be claimed. This is because the late payments were up to four days and did not amount to a failure to pay at all.
Further, the Court said that the employee could have dealt with the employer’s conduct in other ways, such as reporting the matter to the Fair Work Ombudsman. Since the employee had other remedies available, the Court said the employer’s behaviour fell short of leaving the employee with no choice but to resign.
The Court stated that the employee’s decision to resign was “perfectly reasonable”, but the employer’s non-compliance was not of such a magnitude that the court could find that the employee had no choice but to resign.
Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (2018)
In a more recent case study, the Fair Work Commission found that a resignation was a constructive dismissal. In this case, the employee had no choice but to resign because he was consistently receiving late payments, and he could not trust the revised payment date that his employer set out.
The employee had reported his concern over late wages to upper management multiple times without resolution, and he had raised the matter with the Fair Work Ombudsman.
Based on the case laws provided, we can see that the outcome of constructive dismissal cases differ on a case-to-case basis. It would depend on the circumstances of each case.
Seeking Legal Advice
Many employees raise concerns like “my employer didn’t pay me on payday” various times. When your employer doesn’t pay you on time, it can be very frustrating. Sometimes, this issue leads to further consequences. Perhaps your employer suddenly declares bankruptcy (but know that in these circumstances, you can make a claim under the General Employee Entitlements and Redundancy Scheme (GEERS) or the Fair Entitlements Guarantee (FEG).
This article provides general advice on the steps you can take to address this employment issue. However, there are more specific things that you need to do should the matter involve the FWO or the Courts. Hence, we advise you to seek legal advice on “my employer didn’t pay me on payday.”
JB Solicitors has a leading team of expert lawyers in Employment Law. We offer legal advice to best address your situation and legal representation should the matter escalate to the Courts. We ensure that we address and resolve all our clients’ legal issues.
Do you have more queries on “my employer didn’t pay me on payday”? Contact us today.