WA Discrepancy Relating to Overpayment - Employer Not Following Enterprise Agreement?

[ToDoOrNotToDo123098]

Update.

My employer has conceded its error and now not only does their working reasonably reconcile with mine (with assistance from a financial practitioner), but they have identified where their error sat.

Thank you for the clarification re statutory deduction requirements vs restitution etc. That made perfect sense, the way you explain it.

Although my matter is now resolved insofar as our respective (employee/employer) quantum's now reasonably reconcile, I feel some compulsion to have my matter examined properly by a legal practitioner so as to feel content in that: all that could be done, has been done, and; in light of all that has occured, receive feedback on how my matter could've been most efficiently and effectively dealt with. I am willing and probably will do so. Of particular interest is the legalities relating to the handling of the 'discretionary' bonus, which is a bonus not prescribed in any of my conditions and fell due to all my colleagues employed under the same EA. Second being whether there was available to me any redress using the Dispute Settling prescriptions in my EA for this particular matter.

Rod -
when you are wanting to keep up with the latest developments relating to employment contracts and disputes, how do you do so? Is there an easy way to rummage through decisions, determinations etc? Do you use AustLii or some other repository/repositories?

What kind of business opportunity are we speaking of, if you don't mind me asking?

Thanks for the assistance.

 

[Rod]

The difficulty in examining past actions and trying to prevent future issues is that it is not easy predicting the behaviour of unreasonable people. They tend to be unreasonable in all sort of ways most reasonable people do not anticipate.

Regarding the withholding of the bonus. This is a general protections claim because the employer took adverse action against you because you complained about the amount of the overpayment. It can be and should be factored into the overpayment amount.

re: Business opportunity. No harm asking. I'm just not saying in a public forum

And no problems, glad your matter is on the way to a resolution without adversely affecting your employment.

 

[ToDoOrNotToDo123098]

Regarding the withholding of the bonus. This is a general protections claim because the employer took adverse action against you because you complained about the amount of the overpayment. It can be and should be factored into the overpayment amount.

Hello Rod

I sought legal advice on the matter as indicated (primarily for personal closure), and the advice was that a General Protections proceeding would likely be unsuccessful in light of the facts I presented. As mentioned, the bonus in every sense is discretionary.

We then ran a hypothetical operating on the assumption that it is in fact an entitlement. We then stepped through the tests in the FWA09 General Protections provisions and sect 340 seems to be the only provision that could potentially bring redress on the assumption it is an entitlement (which we determined it isn’t).

The other possibility considered was having the matter considered under the law of contracts and heard in the magistrates court on the basis that my employment contract entitled me to the bonus, and that everyone else received it and I didn’t. I was advised there could be redress there, however, this would more than likely be expensive and time consuming taking years to resolve, with associated implications relating to mental health etc.

(Note: the above is my layman understanding of the conversation had. If there are factual errors, it is likely as a result of my misunderstanding and subsequent paraphrasing. In the end, the legal advice was that any redress would be extremely difficult to attain)

 

[Rod]

Ta for the update.

Still convinced you have a general protections claim under s 340 as you have a workplace right. Workplace right exists for you as defined in s 341(1)(c)(ii). Adverse action is the withholding of the bonus s 342(1) item 1, (b) or (d).

Discretionary nature of the bonus is a problem, but not insurmountable as all other employees received it.

Magistrates court is risky, lose and you pay costs.

But, I appreciate your relationship with the employer might be worth more than the foregone bonus.

 

[ToDoOrNotToDo123098]

That is an interesting avenue Rod.

That narrow definition leads to a very broad scope. How would one go about researching any cases that involve that particular prescription?

I am not deterred by potential repercussions as a result of litigation. Not wishing to tempt fate, but mine is a large employer and most dismissals during my career have occasioned as a result of legal infringement/s.

I may have a need to rediscuss the matter with the lawyer again. Thank you for the guidance (as opposed to advice).

 

[Rod]

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 is the classic case.
Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402
Dipa v Michael Hill Jeweller (Australia) Pty Ltd (2018) FCCA 233 (ignore discrimination paragraphs - not applicable to you)

Curious about whether your lawyer normally represents employers. I have seen a couple of lawyers with bias, seemingly unconscious bias, that infects their mode of thinking. I'm not casting any blame here, especially as I believe I probably suffer from it as well, but from a 'little guys' perspective.

 

[ToDoOrNotToDo123098]

You’re on the money. He in fact was executive management. I too considered that he’d blindsided himself intentionally or not.

Thanks a lot. I will consider my options again and will report back.