VIC Unpaid Wages - Separation of Shareholder of Private Company?

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miguel

Well-Known Member
30 May 2018
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Hello,

The ex-wife and myself had a business. She was director, I was a shareholder. We separated mid-November. Her solicitor sent my solicitor a request for an undertaking that I continue to operate the business, which I did. Come the next April, I left the company.

It's complicated due to her either denying or threatening to deny access to the kids, I didn't want to do things to trigger her. I asked her for a ESC but she refused. Now all the family court stuff is done, I want my wages. I rang Fairwork Ombudsman who said due to me being a private shareholder of the company I need to sue privately. Unfortunately my solicitor didn't know that. I now want to do that. The dollar amount is 20-30k, any advice on which court to sue in. Or any other opinions?

P.S. I understand that up until the separation, it was a family business. I know I can't claim for that time, just after we separated.

She took an FVIO out on me in mid December too preventing us from being in the same place.
 

Rod

Lawyer
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27 May 2014
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I'll post back here in a few days time.

Your situation is not straightforward and someone needs to sit down with you to work out whether you can use the Fair Work Act or you have to use a common law action against the company.

What part of Vic are you from?

In the meantime get your paperwork organised:
The undertaking
Employment contract if any.
Any correspondence/agreements about the amount to be paid for work
Family law settlement
Anything else you think is relevant

 

Tim W

Lawyer
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28 April 2014
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If you claim to be owed wages, then you must be an employee as well as a shareholder?
 

miguel

Well-Known Member
30 May 2018
87
8
314
If you claim to be owed wages, then you must be an employee as well as a shareholder?
Correct.

Edit: erm... Inititally it was mum/dad. I was the manager chief food maker, she was a cook/kitchen hand. I've had a legal opinion stating due to her solicitor contacting mine requesting an undertaking that I continue to operate the business and that I accepted that undertaking that is a valid employment contract. Then a IVO kicked in preventing further communication, except for discussing time with the kids.
 
Last edited:

miguel

Well-Known Member
30 May 2018
87
8
314
I'll post back here in a few days time.

Your situation is not straightforward and someone needs to sit down with you to work out whether you can use the Fair Work Act or you have to use a common law action against the company.

What part of Vic are you from?

In the meantime get your paperwork organised:
The undertaking
Employment contract if any.
Any correspondence/agreements about the amount to be paid for work
Family law settlement
Anything else you think is relevant

Mornington Peninsula - Frankston
 

Tim W

Lawyer
LawTap Verified
28 April 2014
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Sydney
If you've already got a lawyer, then be guided by their advice.
Most of here who are lawyers are reluctant to second guess the work of another lawyer,
without having access to all the back story/ files/ facts etc.

You may find that you need a separate lawyer to handle the business aspects,
as distinct from the Family Law aspects.

As an employee, you do indeed have a duty to avoid doing anything that will damage the business.

Are you the majority shareholder?
Are you the senior employee (eg Manager, CEO, etc)?
 

miguel

Well-Known Member
30 May 2018
87
8
314
If you've already got a lawyer, then be guided by their advice.
Most of here who are lawyers are reluctant to second guess the work of another lawyer,
without having access to all the back story/ files/ facts etc.

You may find that you need a separate lawyer to handle the business aspects,
as distinct from the Family Law aspects.

As an employee, you do indeed have a duty to avoid doing anything that will damage the business.

Are you the majority shareholder?
Are you the senior employee (eg Manager, CEO, etc)?
Don't have a lawyer now. The lawyer who gave the above advise told me it would cost x$ to oust her as director due to dereliction of duty and given the extent of dereliction would be %100 and that it would cost x$. I took a family member along to the next appointment as a witness, the lawyer backed down on the %100, gave a different x$ to achieve it so I said good bye to him. Then the denial of access kicked in and it was a matter of handling that before handling this. It gets messy, my lawyers for the property settlement said it was a different concern that the property settlement and should be handled differently. I didn't have the money to handle it back then and was told the amount outstanding would likely equal the amount recovered .... would it be worth it? Well it's worth it if I can do it self represented.
 

miguel

Well-Known Member
30 May 2018
87
8
314
I didn't indemnify her from any claim on the business during the property settlement so I could later take this action. My lawyers said they weren't employment lawyers but they said I couldn't indemnify anyway as directors have responsibilities for wages/superannuation for life anyway.
 

miguel

Well-Known Member
30 May 2018
87
8
314
If you've already got a lawyer, then be guided by their advice.
Most of here who are lawyers are reluctant to second guess the work of another lawyer,
without having access to all the back story/ files/ facts etc.

You may find that you need a separate lawyer to handle the business aspects,
as distinct from the Family Law aspects.

As an employee, you do indeed have a duty to avoid doing anything that will damage the business.

Are you the majority shareholder?
Are you the senior employee (eg Manager, CEO, etc)?
Sorry I didn't answer this before, %50 shareholder, manager.
 

Rod

Lawyer
LawTap Verified
27 May 2014
6,508
905
2,894