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VIC Termination of Employment - Unfair Dismissal or Redundancy?

Discussion in 'Employment Law Forum' started by Shane Besanko, 27 March 2015.

  1. Shane Besanko

    Shane Besanko Member

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    I was employed by my boss (under several different company names) but continuously by the same boss for almost 12 years. I came back from my honeymoon on 16/03/15 and was told he had to let me go as my job now only had 2 to 3 hours work a day according to my boss, but in actual fact we are still doing about the same number of shipments now as 12 months ago and it wasn't an issue then so why now. He said he would absorb my duties as he worked nearly 24/7 and could do the work from home. There was only the 2 of us employed under Victory Metals Australia Pty Ltd but he has a number of associated companies one being Victory Corporate Serviced Offices which employs around 10 employees, he also has Victory Constructions which employs 3 people and Victory Pertoleum which employs 1 I think. I am not sure how he has the companies set up and he may not be Director but he is certainly the boss and overseas all companies and has them all listed on his business card. So in total I am almost certain he employs more than 15 people so my question is am I entitled to be paid 12 weeks redundancy pay for being made redundant.

    There was no issue regarding performance and no warning of this sacking coming. I did begin a unfair dismissal claim against him and he is now threatening not to pay me the wages and long service leave he owes me. He was due to pay me at the end of March and the money is badly needed by me.
    Your urgent advice would be appreciated as I need to make a decision ASAP.
    Thanks
     
  2. Rod

    Rod Well-Known Member

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    How much long service leave is he claiming he owes to you?
     
  3. Shane Besanko

    Shane Besanko Member

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    We have agreed on the long service leave being 10.3 weeks but my question is can he withhold my 5 weeks notice and superannuation payment until he is ready to pay it to me or is he obliged by law to pay it to me on the next pay period after i was let go. Where do I stand legally as far as when he HAS to pay me that money?
     
  4. Ivy

    Ivy Well-Known Member

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    No, your employer cannot withhold your notice period. If he wants to pay you in lieu of notice, then that pay needs to come through at the normal time of your pay (not be delayed). He also owes you long service leave as per what is set out in your award or enterprise agreement and if he is threatening to withhold if you take action for unfair dismissal, then you can sue him for that as well.

    Have a read of our blog post on redundancy and let me know if you have any further questions: Redundancy: A Quick Guide for Employees - LawAnswers.com.au Blog
     
  5. Shane Besanko

    Shane Besanko Member

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    Thanks for your reply. My payment is due to come through on 31/03 so what happens if he does not pay me my entitlements. Does it then become a court matter which is what I am trying to avoid as I cat really afford to pay a solicitor or lawyer.
     
  6. Ivy

    Ivy Well-Known Member

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    Hi Shane,
    If you're trying to resolve an unfair dismissal/ redundancy dispute, it doesn't go straight to court. You can call the Fair Work Commission and at the first instance they will arrange an independent conciliation (where you can negotiate with your employer). If that doesn't resolve the matter, it goes to arbitration before a Fair Work Commission member who makes a final decision.

    Have a read of the unfair dismissal blog: Unfair Dismissal and the Fair Work Commission - LawAnswers.com.au Blog
     
  7. Shane Besanko

    Shane Besanko Member

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    Hi Ivy,
    Thanks for your reply but my question really is how do I ensure I get the money owed to me (ie salary, notice and long service leave) on 31/03 and what legal recourse do I have to force him to pay me or can he drag it out?
     
  8. Rod

    Rod Well-Known Member

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    You cannot force him to pay on the due date.

    All you can do is take action after the due date.

    As the matter is about pay and entitlements, the Fair Work Ombudsman is who you need to talk with.
     

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