I have not received my final pay and my employer is claiming that there's serious misconduct 'discovered' and withholding pay until the investigation is over, likely trying to use private use to deduct the amount owing...The final payment is more than the threshold for small claim court so what should I do? approach the police and find out more about the investigation? proceed with letter of demand anyway? I am a little curious about going to the police because I thought it would be harder to provide evidence vs civil claim?
VIC can employer withhold pay by using crime investigation/serious misconduct as an excuse?
- Thread starter Badmodafuggah
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"can employer legally withhold pay by using crime investigation/serious misconduct as an excuse?"
NO.
Proceed with the letter of demand asap. Include all your entitlements that have not been paid.
Do not approach police and do not talk to police unless you have rock solid evidence you did not do what you are accused of doing. If you do not have this solid evidence, give name and address to police when asked then nothing else till you have spoken with a lawyer. Police are not your friend in this situation.
NO.
Proceed with the letter of demand asap. Include all your entitlements that have not been paid.
Do not approach police and do not talk to police unless you have rock solid evidence you did not do what you are accused of doing. If you do not have this solid evidence, give name and address to police when asked then nothing else till you have spoken with a lawyer. Police are not your friend in this situation.
Suzi
Well-Known Member
I agree with Rod. Good advice. Also make sure that you do not run out of time for an Unfair Dismissal Claim (if you are eligible). You only have 21 days from the date of termination. Sounds like you may possibly have a General Protections claim with the Fair Work Tribunal, however, the 21 day time limit still applies if there is a dismissal aspect to the dispute.
About unfair dismissal/ constructive dismissal/ general protection, while the probability of getting compensation is better than average given the evidence, the legal fees involved are substantial and the employer may not be able to pay. So while I would like to see justice, it is not affordable, I may win the battle and lose the war... so I would rather focus on getting the final payment and support my family.
Even taking on the claim for unpaid wages, it is likely to exceed $10k in legal fees looking at the cost agreement. I am assuming that the letter of demand will not be effective given the tendency of my ex-employer not to comply with policy and procedure (work safety regulations, unpaid traffic infringements for years, and being de-registered for misappropriating funds, etc). I am also told that each party bears its own legal cost under FWA. The fee is a large chunk out of what is owed to me for what most would consider a less complex claim. I will have less for my family at this difficult time.
I have approached FWC and they are kind enough to extend their help selectively as it is now providing only consultative service. However, the employer mentioned the investigation and possible serious misconduct, and FWC backed away (understand that they are resource-constrained and expected this to be simple)... a departure from the earlier advice that paying wages and workplace investigation are two separate matters. Unfortunately, a legal counsel also echoed something similar, the law is the law but its application is different in reality?
I am not sure how one can contravene a workplace law by using workplace investigation involving the police? Also, I struggle to understand how the police would even be convinced to start an investigation with such misrepresentation, don't they need solid evidence to bring before a judge? My ex-employer often intimidate others with a "team of lawyers" and perhaps it is now "police". I am convinced not to approach the police even though I have not done anything wrong as whatever I said can be used against me and it should be handled by legal professionals. But FWC agent told me that maybe the matter has been escalated and so I should co-operate fully... of course, he has good intention but he is not a legal professional.
Also, my ex-employer has been accessing my private laptops left at the workplace as I have not been allowed to retrieve my personal items until the 'investigation' is over. There is no indication when the investigation will be over and it is more than 3 weeks now. Online security tracking reveals where the laptop has been taken to, when it's being accessed, even though the security lockdown should have kicked in. Isn't this against the law? It is just highly disturbing and annoying, not that there is anything to hide, but it feels like a stranger standing in your backyard every day and night. I have documented the tracking info in case it is useful evidence.
Even taking on the claim for unpaid wages, it is likely to exceed $10k in legal fees looking at the cost agreement. I am assuming that the letter of demand will not be effective given the tendency of my ex-employer not to comply with policy and procedure (work safety regulations, unpaid traffic infringements for years, and being de-registered for misappropriating funds, etc). I am also told that each party bears its own legal cost under FWA. The fee is a large chunk out of what is owed to me for what most would consider a less complex claim. I will have less for my family at this difficult time.
I have approached FWC and they are kind enough to extend their help selectively as it is now providing only consultative service. However, the employer mentioned the investigation and possible serious misconduct, and FWC backed away (understand that they are resource-constrained and expected this to be simple)... a departure from the earlier advice that paying wages and workplace investigation are two separate matters. Unfortunately, a legal counsel also echoed something similar, the law is the law but its application is different in reality?
I am not sure how one can contravene a workplace law by using workplace investigation involving the police? Also, I struggle to understand how the police would even be convinced to start an investigation with such misrepresentation, don't they need solid evidence to bring before a judge? My ex-employer often intimidate others with a "team of lawyers" and perhaps it is now "police". I am convinced not to approach the police even though I have not done anything wrong as whatever I said can be used against me and it should be handled by legal professionals. But FWC agent told me that maybe the matter has been escalated and so I should co-operate fully... of course, he has good intention but he is not a legal professional.
Also, my ex-employer has been accessing my private laptops left at the workplace as I have not been allowed to retrieve my personal items until the 'investigation' is over. There is no indication when the investigation will be over and it is more than 3 weeks now. Online security tracking reveals where the laptop has been taken to, when it's being accessed, even though the security lockdown should have kicked in. Isn't this against the law? It is just highly disturbing and annoying, not that there is anything to hide, but it feels like a stranger standing in your backyard every day and night. I have documented the tracking info in case it is useful evidence.
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