“But,“But, my employer didn’t pay me on payday!” you explain to your landlord as he demands your rent for this month. You may have found yourselves in this predicament, and who do we all blame? Our bosses, the whole company we are working in, or whoever we can pin the blame on.
It is a common problem most employees encounter, apart from unpaid wages and final pay/termination pay. We understand that it’s frustrating, but moments like this require you to stay calm and explore your options.
What Employers Should Know About the Law
Unpaid wages are a significant concern for many employees. So, they must learn to understand their rights are crucial when their employer fails to pay them on time. Employees must receive pay and enjoy good working conditions under the Fair Work Act 2009.
Despite these protections, some employers still fall short, resulting in unpaid wages and financial stress for employees. Whether due to oversight, financial difficulties, or other reasons, late payments can disrupt your life and create uncertainty.
Employers are legally required to pay employees in a timely manner, and failing to do so can have serious consequences. The Fair Work Ombudsman and the Australian Taxation Office oversee compliance with federal labor laws. Yes, this includes the payment of wages and superannuation contributions. As employers. you must provide employees with a clear pay statement that details gross wages and total hours worked.
In addition, employers are responsible for making the correct superannuation contribution—currently set at 10% of an employee’s wages—on time. If an employer does not pay employees as required, they may face penalties, fines, or even court action.
Prompt and accurate payment of wages is not just good business practice—it’s a legal obligation.
When and How Should Your Employer Pay You?
“My employer didn’t pay me on payday, so I should charge head-on at their office, right?” No, that’s tactless, and no one should handle a situation like that with heightened emotions.
As an employee, you must first understand your rights under the Fair Work Act. The 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 can choose whether to pay employees weekly, fortnightly or monthly. Federal and state laws require employers to establish regular paydays. Depending on an employee’s nature of work or employer, this can be weekly, biweekly, semimonthly, or monthly.
The employee’s contract of employment provides all relevant information regarding payment, including information on the pay period. Employees can expect to receive their paycheck on the next payday after the pay period during which hours were worked, in accordance with company policy and state law. Wages can be paid in the following:
- Cash
- Check or postal orders payable to the employee. Paychecks must be provided in a timely manner according to the established payday schedule.
- Money orders; or
- Electronic transfers to a bank account
Employers should not pay their employees “in-kind” (for example, with goods such as food).
There are also limited situations when an employer can deduct 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 timely salary payment. If your employer regularly pays you late, you can take steps to enforce your legal right. So, check your pay slips and your employment contract and contact your employer. Your employment agreement should clearly outline your entitlement to wages and the timing of payments.
Ideally, you should try to resolve this dispute with your employer. You can use any internal complaint procedures with the human resources department or grievance procedures available. If there is a difference in interpretation of the agreement or a dispute about the amount owed, the employer must still pay all undisputed wages.
What if this does not work? Then consider lodging a formal complaint to the Fair Work Ombudsman (FWO) stating that “my employer didn’t pay me on payday.”
Only then can you file a case in the Federal Circuit Court with a lawyer if legal matters escalate. Employees may need to file claims to recover unpaid wages if other steps do not resolve the issue.
Reasons for Non-Payment
There are a variety of reasons why employers might not pay wages on time. Sometimes, it’s a simple error in the payroll department or a mistake in processing hours worked. In other cases, employers may intentionally withhold wages, which is wage theft and is a serious violation of employment law.
Financial difficulties, such as insufficient funds, can also lead to delayed or partial payments. Regardless of the reason, employers should pay their employees on time.
State Labor Laws
In addition to federal laws, state labor laws play a key role in regulating how and when employees must be paid. Some states require employers to pay employees weekly, while others allow for bi-weekly or monthly payments. State laws may also set specific rules for final pay when employment ends. This includes the payment of accrued vacation time and superannuation contributions.
If you are owed wages, it’s important to check with your state’s labour department to understand the specific requirements that apply to you. Programs like the Fair Entitlements Guarantee and the General Employee Entitlements and Redundancy Scheme offer additional protections for employees who are owed wages due to insolvency or redundancy.
Knowing your rights under both state and federal law can help ensure you receive the fair entitlements you deserve.
So, How Can You Bring It up to Your Boss?
First thing to do when you raise a concern of “my employer didn’t pay me on payday” is to talk to your employer. It may not be as easy as it sounds, but this is the simplest approach to your issue. Ask them why you didn’t receive your salary on time. Identify the appropriate person on who is responsible for handling workplace complaints and address your concern directly to them.
Did your employer withheld wages because there were issues or an error in the payroll department? Were they on vacation leave and forgot about preparing the salary payment for everyone? What if they announced a late salary payment in your email and you forgot to check it?
These are just some common instances, but it’s better if you ask your employer why they didn’t pay you or if they forgot to do so. Now, if they did forget to pay you, you can inform your employer of the written terms of employment in your contract. Then you can state how often you are supposed to be paid (for example, weekly or monthly).
Was your employer beating around the bush and making unreasonable excuses? Then, you should consider making a formal complaint with the FWO about this breach of contract. Be sure to document all communications with your employer regarding your unpaid wages, as this documentation will be important if you need to file a claim.
Filing a Complaint
If you are owed unpaid wages and cannot resolve the issue directly with your employer, you may need to file a formal complaint. The Fair Work Ombudsman and state labor departments are available to help employees recover owed wages. To file a complaint, you’ll need to provide details such as your name, address, employment information, the amount of wages owed, and the dates of non-payment.
Don’t forget to include supporting documents like pay stubs, bank statements, and your employment contract can strengthen your claim. The process can be complex, so it’s often helpful to seek advice from a lawyer or union representative to ensure your rights are protected.
In some cases, you may need to take your claim to the Federal Circuit Court, which has the authority to order payment of owed wages and may award additional compensation, such as penalties and interest. Taking action through the proper channels can help you recover what you are entitled to and hold employers accountable for their obligations.
My Employer Didn’t Pay Me on Payday, and I Have Proof!
Now that you have solid proof of your employer’s failure to follow salary protocols, you can reach out to the FWO. If talking to your employer does not resolve the issue, you should collect documentation to support your claim for unpaid wages. Be sure to gather additional information such as pay stubs, direct deposit records, and work hours, as these can help support your claim and speed up the process.
Most workplace problems can be solved without the FWO getting involved, but sometimes this is no longer possible. When filing a complaint or claim for unpaid wages, you may need to complete and submit a specific form to the FWO as part of the formal process.
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 delayed payments. Another government agency that can also help with salary issues is the Australian Taxation Office (ATO) if you have unpaid superannuation or underpayments.
What is Constructive Dismissal?
My employer didn’t pay me on payday…again! Anyone who receives late pay consistently can make anyone go crook. It’s like such employers purposely breach their contracts and are unafraid of the consequences.
But there are consequences for such devious employers. Employers who experience this have the option to resign and claim constructive dismissal. Constructive dismissal generally involves a situation where the employee leaves or quits their job, not because they wanted to, but because of the employer’s conduct.
Though the conditions for constructive dismissal can go far beyond consistent late salary payments. The resignation could also include bad working conditions or unreasonable changes in terms of employment.
However, before you file for a constructive dismissal case, you should first consider getting legal advice because proving constructive dismissal can be quite difficult. Let’s study a case below about constructive dismissal.
Read: Understanding Unfair Dismissal NSW – JB Solicitors
What if My Company Were Going Bankrupt?
Perhaps your employer suddenly declares bankruptcy. This is a serious matter and may also endanger the salaries of your co-workers. In these circumstances, you can make a claim under the General Employee Entitlements and Redundancy Scheme (GEERS) or known today as the Fair Entitlements Guarantee (FEG).
The FEG can help you recover various unpaid entitlements, which include:
- Up to 13 weeks of unpaid wages, capped at the FEG maximum weekly wage.
- Unpaid annual leave and long service leave.
- Up to four weeks of pay for each full year of service.
- A maximum of five weeks’ pay.
My Employer Didn’t Pay Me on Payday: Case Study
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 like our topic, “My employer didn’t pay me on payday.” We need to highlight this case since 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 wages were often paid late and that she was not paid 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 resignation letter confirmed that the resignation was due to the late payments, lack of superannuation payments and being “no longer 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.
So, What Did the Court Do?
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 employer’s conduct could have been dealt with 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 it could be found that the employee had no choice but to resign.
My Employer Didn’t Pay Me on Payday: Second Case Study
Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (2018)
In a more recent decision, 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 paid late, 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 differs on a case-by-case basis. It would depend on the circumstances of each case.
Taking Matters to the Court
“My employer didn’t pay me on payday”, you reply to your lawyer after they ask what your legal matter is. Lawyers can help you resolve your issue if your employer doesn’t comply with your salary inquiry. It’s a no-brainer that they can help with a lot of legal matters, especially employment law matters.
If your employer refuses to pay, you can file a court case, such as a small claims court case, to recover unpaid wages. Employees can represent themselves in small claims court for claims of unpaid wages up to $20,000.
Yes, not all employment disputes should be taken to court. Sometimes, you can talk it out with your employer if they can own up to their mistakes or can resolve disputes professionally. Sadly, not all employers are like this. There will always be abusive and selfish employers. What can we do with them?
If you decide to pursue legal action, be aware that court cases may involve certain fees, such as filing fees or bank fees related to late wage payments. Additionally, waiting time penalties may apply if your employer misses payment deadlines, potentially costing them up to a maximum of 30 days of pay.
My Employer Didn’t Pay Me on Payday, So Should I Seek 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 and it is frustrating. Sometimes, this issue leads to more consequences.
This article merely provides general advice on the steps you can take to address this employment issue, but there are more specific things that need to be done should the matter involve the FWO or the Courts. So, it’s best to seek legal advice from us.
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. Late payments are always stressful, especially if you have bills and responsibilities piling up.
So let us help you gain back what you deserve. Contact us today.
