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QLD Unfair Dismissal and Underpaid by Employer - Can I Sue?

Discussion in 'Employment Law Forum' started by Cole90, 30 June 2015.

  1. Cole90

    Cole90 Member

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    Hi, I worked as a subcontractor, cattle work, for an individual for 2 months. One afternoon I fell off my horse and hurt my back. I went straight to bed with ice and pain killers. In the morning I felt like I couldn't get out of bed, let alone fit enough to go to work and sent my partner, we all worked together, to tell the boss I couldn't work. Which lead to an aggressive outburst ending with a "pack your s!*%, f#*! Off and get out!".

    My partner worked that day and the next day we packed up and left. We handed in our invoices and nothing was said or discussed about changes in pay or deductions. However, when my pay came in I fell $270 short, going from $200 a day to $150. Although my partner got the correct pay. To top it off my personal car was used by my former boss to do a work related run into town. We had verbally agreed on $200 extra on my daily pay to accommodate the 500km trip. This money is yet to come into my bank account although it is all clearly written on the invoice, leaving me $470 out of pocket.

    I'm going to ring him and discuss why I was unpaid and not compensated for my car. Due to his aggressive behaviour, I feel I should record the conversation. I am going to do this right and tell him at the beginning that I am recording the conversation. I was wondering if the conversation went sour, could I sue for unfair dismissal? Or is there a way I can lawfully come to an agreement under employment law where I get paid what I am owed?

    Thanks.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Cole90,

    You say that you were a "subcontractor" but then state the boss was your "employer". What exactly is your relationship with the boss?

    Was there an employment contract or service contract signed? You do have a right to sue for unpaid money owing, but whether this is unfair dismissal or an action under contract law will depend on your relationship with your boss. Were you in an employment relationship (e.g. set hours and days you needed to go in and work, little freedom as to where and how you performed your work)?

    If you haven't already done so, contact the Fair Work Ombudsman and enquire as to your rights. Also read "Unfair dismissal and the Fair Work Commission".
     
  3. Cole90

    Cole90 Member

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    Thanks for replying. I feel a little confused as to the relationship, I got paid direct into an ABN where he took the GST out but not the tax. I worked what days I was told, had days off that I was told and a clear description of the work I was performing. Always working with a small crew off 9 under this one guy. I assumed as I had an ABN I was a subcontractor?

    I will have a look at your suggested sights. The unfair dismissal claim is more just a way I can be sure he pays me what is owed, I'm only interested in getting that.

    Thanks again
     
  4. Cole90

    Cole90 Member

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    I filled out a provided form that asked for name, address, contacts, ABN, bank details and a wage that was discussed with and agreed upon. That was the contract as that was the only thing I signed.
     
  5. Ivy

    Ivy Well-Known Member

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    Hi Cole90,

    Firstly, the definition of a contractor versus an employee is hazy. It is determined by looking at the whole of the relationship between the hirer and worker. Just because you had to have an ABN doesn't necessarily mean you were a contractor.

    However, whether you were a contractor or employee, you still can't apply for unfair dismissal. Firstly an unfair dismissal claim needs to be made within 21 days of the dismissal and secondly, you need to have been employed for at least 12 months for a small business (it sounds as though you were working for a small business of less than 15 employees).

    Your best bet is to sue under contract law for the outstanding amount owed. You can start by sending a letter of demand and seeking some legal advice from your local legal aid centre.
     
    Sarah J likes this.
  6. Cole90

    Cole90 Member

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    Thanks Ivy,

    Great advice, I'm going to send a letter and see how I go.

    Thanks everyone

    anks
     

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