VIC Employment Law - Can Employer Withhold Final Pay After Resignation?

[Lovejoy]

Hello and thanks in advance for any help.

I have recently resigned from my employer, and weeks later have not received any final pay, including annual leave owed and payment in lieu of notice, as I was finished that day. All affairs were in order and no issues were sighted and the below was not mentioned at the time of finishing me up.

Two years ago I was relocated for a promotion, and my employer paid for relocation costs. I had to sign a new contact, which included a clause that if I left before 5 years I had to repay the costs.

What I would like to know under employment law is, I have been kept in the dark about my pay to date. Can they take this money out of my final pay without permission, and do I have grounds to challenge this, as 5 years seems a long time to restrict a persons movements, without penalty?

Thanks for your help.

 

[Matthew Karakoulakis]

Hi,

As a starting point, most awards, enterprise agreements or registered agreements will set out when employees must be paid. As a minimum, employees must be paid at least monthly as required by the Fairwork.

Section 323 of the Fair Work Act 2009 (Cth) requires an employer to pay an employee amounts owing to them in full in relation to the performance of work, except as provided for in section 324 of the Act.

It is not a natural consequence that an employer can lawfully deduct employee debts or other amounts owed by an employee at law. An employer can deduct amounts from an employee's pay if the employer has obtained the employee's consent or express lawful authority to do so and the deduction is a permitted deduction under the Fair Work Act 2009 (Cth). A case example is Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1196. In that case, the Federal Court held that the employer unlawfully deducted $20 million from the salaries of 40,000 employees for the cost of laptops that were used for work purposes.

In short, the terms of any applicable modern awards, enterprise agreements or contracts of employment must be considered before deducting amounts from an employee's salary. Secondly, that deduction has to be reasonable as well.