NSW Resignation Payout/ Individual Contract

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Wayne Sly

Member
12 July 2021
1
0
1
I am employed in an executive position under an individual contract. I decided to retire at the age of 63 and provided formal notice to my employer as required by my employment agreement (EA). One week before I finished, my employer advised me that they had cashflow problems and could not pay me my resignation payment. At their verbal request, I submitted a new resignation letter, using accrued annual leave to finish 5 weeks later. I left the workplace on my original finish date and remained on leave until the new finish date. After this date, I was advised that my payout consisting of accrued annual leave, accrued personnel leave and a salary sacrifice to the Company over some seven months (15% of my salary) refundable on resignation with provisions for super and so forth, would be paid by seven days after my finish date. This occurred 3 days before the payout was due. At this time, the company also advised I must sign a 'settlement document' or I would not be paid. I never received this document until the final day of the payment period. The document was very unfavorable to me and I am to seek legal advice before signing. There is no reference in my EA of such a requirement and the last two executives who left have advised me they did not sign anything at the time of their termination payment. The company insists everybody signs it. I remain unpaid and will now be exposed to considerable expense to resolve this. The settlement document also states I am to bear all my legal costs.
Can the company hold back the payment of my accrued leave which is payable under my EA, confirmed in writing by the HR manager, and the salary sacrifice I made to assist the company last year. The salary sacrifice agreement stated I would receive a refund on resignation, how can they still withhold this against the settlement document I knew nothing about until a few days ago?
 

Rod

Lawyer
LawTap Verified
27 May 2014
7,223
972
2,894
Can the company hold back the payment of my accrued leave which is payable under my EA, confirmed in writing by the HR manager, and the salary sacrifice I made to assist the company last year.
No.

... how can they still withhold this against the settlement document I knew nothing about until a few days ago?
Illegally.

While you may have to pay your own legal costs, they will have to pay theirs, and possible penalties if it goes to court.