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NSW Am I Entitled to Full Amount of Compensation?

Discussion in 'Employment Law Forum' started by hopeislost, 12 July 2016.

  1. hopeislost

    hopeislost Active Member

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    I have been working the last year as a sole trader for a startup incorporated in the USA. I've quit and am about to leave.

    In my employment contract, I have been receiving compensation for my services but have deferred full compensation as part of the contract (because they're a startup and were low on cash). Now that I am leaving, am I owed the full amount of compensation that was deferred when I leave? If not, who is to decide what and when the amount should be, etc.?

    Here's the excerpt: "In the event of such termination, Consultant shall be paid for any portion of the Services that have been performed prior to the termination."

    That's all it says in the contract.

    Thank you in advance for any help!
     
  2. Rod

    Rod Well-Known Member

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    What does the contract say about choice of jurisdiction, is it USA or Australia? And where were you located when you did the work? You may not be covered by Australian employment law.

    Is the contract an employment contract, or a commercial supply contract (eg did you invoice for your services)?
     
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  3. hopeislost

    hopeislost Active Member

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    Thank you for the reply, Rod!

    Here's all the info I can pull, hopefully it helps:

    - the company is a Delaware corporate
    - the governing law is with the laws of the state of California
    - the contract is a consulting agreement and I'm a consultant who is providing consulting services
    - my relationship with the company is that of an independent contractor and not that of an employee.
    (yes , I invoiced for my services, but I was invoicing for about half of what the full monthly compensation was because they were paying based on a base amount or a percentage, whichever was higher.)
     
  4. Rod

    Rod Well-Known Member

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    USA law applies. Can't help you. Maybe try a US site as well for advice. Not sure how many here know US law.
     
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  5. hopeislost

    hopeislost Active Member

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    Ah, I see. Thanks for the help, Rod!
     
  6. Serge Gorval

    Serge Gorval Well-Known Member

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    Not correct.

    You can't "contract out" of paying employee entitlements under AUS legislation whether your and employee or contractor.

    2 things to consider:

    1. are you engaged as an employee or contractor?
    2. what is approx amount owed - small claim upto 20k - general claim >20k?
     
  7. Serge Gorval

    Serge Gorval Well-Known Member

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    With respect to 1 above, I understand that it may say you're a contractor, however, in your day to day were you performing the services that a typical employee would be performing.
     
  8. hopeislost

    hopeislost Active Member

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    1. On my contract I'm an 'Independent Contractor', but I did do 'employee' work from time to time.
    2. About double the small claim, so greater than.

    The contract itself says it's under California state law. Not sure what that changes but being pointed in any direction right now would greatly help. Thanks!
     
  9. Rod

    Rod Well-Known Member

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    Trouble here Serge is that the OP invoiced for services under a USA contract. Can't be 100% certain without reading the contract and understanding the OPs circumstances however based on the information provided this appears to be a commercial contract (OP invoiced customer, deferred payments, variable payment amounts, consultancy) not an employment contract.

    I agree you cannot contract out of employee entitlements however employment doesn't seem to apply here, though admittedly we do not have all the facts.

    BTW, where were you located while doing the work, Aus or USA?
     
  10. hopeislost

    hopeislost Active Member

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    Aus.

    Is there anything else I can provide to help the situation?
     

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