QLD Monies owed for moving costs

Discussion in 'Employment Law Forum' started by gauche, 25 February 2019.

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  1. gauche

    gauche Member

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    TLDR (but please do):
    • moved interstate for a job on my own dime, but with an agreement in writing that I would be reimbursed for a percentage thereof
    • pestered employer for payment the entire time I was employed with them
    • employer only made a single, token payment
    • was made redundant just before Christmas 2018
    • employer refused to acknowledge that they still owed me for moving costs
    • employer is a small business

    Hi,

    I'm here somewhat out of desperation.

    I moved my family and I from SA to QLD for a full-time job (I had already been working for over two years for the company in question, but as a contractor). The role required that I move.

    I had agreed in writing that I would be reimbursed some percentage of my moving costs through the fringe benefit tax scheme. However, this never happened. The employer instead have me a single, small, token payment when I pestered them for reimbursement. Thereafter, nothing.

    I was made redundant just before Christmas (on the 11th, with my final day being conveniently on the 31st so that I was not employed for more than a year). When I questioned the remaining monies owed, I was told it was no longer relevant because "that was an agreement with an employee and you will no longer be an employee".

    I sought legal help, but that was a huge mistake. I sunk another few thousand into James McConvil & Associates, only for their argument to be dismissed with embarrassing speed when brought before the Fair Workers Commission. Basically, the argument hinged on unfair dismissal, but the employer is a small business, so the rules didn't apply. My original complaint - that I was owed monies from moving costs - was lost and was not relevant to the FWC.

    I decided to do this on my own, if at all. I rang the Fair Workers Ombudsman and they suggested perhaps section 325 of the Fair Work Act might be relevant:

    325 Unreasonable requirements to spend or pay amount

    (1) An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee’s money or the whole or any part of an amount payable to the employee in relation to the performance of work, if:

    (a) the requirement is unreasonable in the circumstances; and

    (b) for a payment—the payment is directly or indirectly for the benefit of the employer or a party related to the employer.

    Note: This subsection is a civil remedy provision (see Part 4‑1).

    (1A) An employer (the prospective employer) must not directly or indirectly require another person (the prospective employee) to spend, or pay to the prospective employer or any other person, an amount of the prospective employee’s money if:

    (a) the requirement is in connection with employment or potential employment of the prospective employee by the prospective employer; and

    (b) the requirement is unreasonable in the circumstances; and

    (c) the payment is directly or indirectly for the benefit of the prospective employer or a party related to the prospective employer.

    Note: This subsection is a civil remedy provision (see Part 4‑1).

    (2) The regulations may prescribe circumstances in which a requirement referred to in subsection (1) or (1A) is or is not reasonable​

    Reading this, I can't help but think I shouldn't have incurred any costs for moving. It says right there in 1A(a) that I shouldn't have had to pay monies in connection with employment. I moved to QLD for the job, fullstop.

    Am I reading this wrong?

    I'd appreciate any help provided here.

    Thanks
     
  2. Rod

    Rod Lawyer
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    You may have a cause of action against the ex-employer, and it is not just dependant on the Fair Work Act.

    Question is how much is it worth fighting for?

    How much do you think you are owed?

    To know if s.325 applies a lawyer will need more detail. I'd not rule it out, but it is not all that promising either.

    If you ask at another lawyer, ask to see if they believe you have a cause of action outside of the Fair Work Act. Keep looking if they say "no".
     
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  3. gauche

    gauche Member

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    Thanks Rod.

    > Question is how much is it worth fighting for?

    This is what I'm struggling with. I've already sunk ~3K into a lawyer that got me absolutely nowhere, so I'm determined to do this sans legal representation, or not at all.

    > How much do you think you are owed?

    If they owe for for all moving costs, it's probably around 20K. If partial, it's probably closer to 8K.

    Do you have any opinion on whether I could pursue this through small claims court on my own? i.e. would it be a relatively straightforward process of filling out a form and providing evidence (which I have plenty of)?

    Thanks
     
  4. Rod

    Rod Lawyer
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    No. I have no idea how capable you are. Not being rude, just saying I can't tell. Plus Qld has an Industrial Court as well as a Magistrates Court. Vic doesn't have a separate Industrial Court and I have no idea if it is more or less formal than a Magistrates Court.

    You probably won't get everything perfect or presented like a lawyer but if you are organised and know how to structure a claim you may be OK. You likely have at least two different causes of action, maybe 3 (breach of FWA, breach of contract and an equitable claim) You can plead one after the other in the order that best suits you. This is the trickier part and where you may benefit from assistance. Though if you lose, the other side's legal costs are higher because they have had to defend against 3 lines of attack. This needs thought and consideration and where the judgment of an experienced lawyer is useful.

    And no, it is not just a matter of filling in a form.

    Do not be afraid to ask lawyers questions and maybe even hint at alternative courses of action and see how the lawyer responds.

    I did a claim myself once in the Vic Magistrates Court for some equipment (~$2K over 10 yrs ago) before studying law and while it was OK, I had no idea what I was doing and just pleased and lucky the other side was also unrepresented. I had a claim, other side counter-claimed, each won their side and result was about equal. My examination of the witness was very poor and not something I'd planned on having to do. Such is life.
     
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