Ex-employer won't pay out entitlements or unpaid wages

Lglasshalfempty on 03/06/2020 - 21:21
Last edited 04/06/2020 - 11:47

Okay, here's a good one for you all. Interested if anyone has any other ideas about how to sort this problem out. Yes, I understand this isn't expert legal advice and I probably shouldn't listen to a word any of you say..

Finally left an ex-employer last year after issues with super going unpaid, wages being delayed or skipped and it becoming clear that the owners was asleep at the wheel. Company was in big trouble. I had been there long enough to accumulate (unused) LSL and also had over a month of annual leave accrued. I left honouring all contract terms and giving appropriate notice.

After receiving my notice the company stopped paying my wages (but promised they would be paid in full prior to me leaving). This didn't happen, nor did they pay out any unused entitlements at the end of my period of employment.

A small portion of the money owed was eventually paid to me several months later, but tens of thousands of dollars remain outstanding. A few months after this, the company seemingly closed. The physical premises were abandoned and any remaining employees lost their jobs (and any money they were owed).

Assuming the company was now closed, I applied to the FEG for my outstanding entitlements. Turns out the company is technically still trading and as it has not closed I can't make a claim against what I'm owed.

The nature of the company means that it has no assets and therefore a liquidator is unlikely to be appointed. Whatever's happening with other creditors doesn't seem to be enough to force the company into liquidation, nor do the ATO or FWO seem to have interest in compelling the company to close.

How do I get out from under this and come away with some or all of the money I'm owed? Is it even possible?

Education & Work

Comments

  • Donaldhump on 03/06/2020 - 21:27
    +7

    See a lawyer and take them to court, no win no fee arrangement,

    • DemocracyManifest on 03/06/2020 - 21:41

      I second this, you've contacted ATO and FWO. Going to a industrial relations tribunal would be appropriate. Give Shine Lawyers a go.

  • MilkDrinker on 03/06/2020 - 21:29

    Here is what you do

    Create a new account at Ozbargain
    Post question on the forums
    Leave and never return
    ????
    PROFIT!

    MilkDrinker on 03/06/2020 - 21:29 (Collapsed - Offtopic. Show)
    • glasshalfempty on 03/06/2020 - 21:31

      Nah, still here. Long time lurker, first time poster.

      • MilkDrinker on 03/06/2020 - 21:33
        -6

        Fair enough, next time ask a question from an account over an hour old.

        • glasshalfempty on 03/06/2020 - 21:37
          +7

          Next time it probably will be, right?

        • pegaxs on 03/06/2020 - 21:38
          +4

          Why? Who died and made you the OzBargain forum police? I’m sure you were a new member at some stage of your OzBargain career…

          How about, instead of being a pleb, you pull your head in and actually offer to help instead of shitposting pointless replies?

          And telling other users what to do is a big call coming from someone who has posted 2 deals in their 7 year membership here.

          • MilkDrinker on 03/06/2020 - 21:53
            -1

            @pegaxs: You are right, I sincerly apologize. Im sure @glasshalfempty will become a wonderful member of the ozbargain community despite my hateful conduct towards them.

            I'm sure your advice should you choose to give it will be helpful towards them.

            And while I only posted 2 deals and have a paltry 700 comments to your generous 7800 it still seems better than 0. But I agree, I erred towards harsh treatment as you say.

  • [Deactivated] on 03/06/2020 - 21:32

    Youre missing a lot of details, seems messy, seek professional legal advice to unravel

    • glasshalfempty on 03/06/2020 - 21:35

      You're right, it is. They've pretty much cleaned me out, no win no fee is pretty much my only option there though.

      • [Deactivated] on 03/06/2020 - 21:56
        +3

        Highly doubt 'no win no fee' lawyer would take this nightmare, be prepared to pay if you want resolution

  • ssquid on 03/06/2020 - 21:32
    +10

    Better call Saul.

  • gmail92 on 03/06/2020 - 21:46

    Engage FWO, ask for support and you have tried to negotiate with your employer. They can pursue and issue enforceable undertakings to ensure remediation occurs and is legally enforceable in court.

    • glasshalfempty on 03/06/2020 - 21:52

      Have been working with FWO for over a year, although I've received a small portion back before the business closed it stalled after the premises closed.

      Before COVID-19 they were pushing me towards making a small claims court case against the owner. This stalled as case officers got pulled off of cases to assist with COVID-19 fallout. Have since looked into this and not sure how I can get documents served on the owner without knowing their whereabouts.

      • kyle on 03/06/2020 - 22:06
        +1

        ASIC search

  • iratepirate on 03/06/2020 - 23:10

    If debt is less than $25000 in QLD go to Small claims(I assume you have proof of the debt?), if/when they don't pay get a writ of execution against the debtor's property (you can force them to sell their property) or ask for a garnishee order against the debtor's wages or bank account.

  • SlavOz on 04/06/2020 - 00:45
    -2

    Tens of thousands of dollars outstanding? How long did you work for free? You should've asked these questions and stopped working as soon as they missed a pay cycle. You got scammed.

    • ssquid on 04/06/2020 - 05:30

      I had been there long enough to accumulate (unused) LSL and also had over a year of annual leave accrued.

      Accruing leave isn't working for free.

      • k-rokfm on 04/06/2020 - 09:42

        Keen to know how OP had accrued a year worth of annual leave

    • glasshalfempty on 04/06/2020 - 08:50

      I was advised by the FWO not to do this as by doing so I would be giving the company grounds to terminate my contract and affect my status as a creditor. At the time they obviously thought it could and would be resolved fairly swiftly which didn't turn out to be the case. You're right though, I got turned over by these guys. Which is a shame because it was a great job and a great place to work for a long time before that.

  • Hardlyworkin on 04/06/2020 - 07:52

    Unless ATO or FWO are owed a debt then they won't apply to have them wound up. Your best chance is that a secured creditor applies to wind them up and then FEG. If the company has no assets, your only likely scenario where you see a dime is through FEG. I'm sorry you've found yourself in this crap situation, you could try legal advice and otherwise keep an eye out on ASIC alerts to see if there is a change in the business.

    • glasshalfempty on 04/06/2020 - 08:53

      Cheers, that's pretty much the conclusion I reached too. Biggest issue with this is that the FEG has a time limit of a year to lodge a claim, so either myself or a creditor has to apply to close that business before that time limit expires or I can't access it. That is my biggest concern right now.

  • brad1-8tsi on 04/06/2020 - 09:47

    When you say you had over a year of annual leave accrued, do you mean you had 20+ days or 260+days?

    • glasshalfempty on 04/06/2020 - 11:41

      It was badly phrased, about 5 weeks.

  • brendanm on 04/06/2020 - 10:25

    Probably shouldn't have left it as long as you did. I would have been onto fair work the second they stopped paying wages.

    Sadly for you now, looks like a lawyer is the only way, short of going around and threatening the owners with a kneecapping.

    • glasshalfempty on 04/06/2020 - 11:44

      I was onto the FWO and the ATO about 6 months before this all happened, as soon as a few other things started happening (e.g. wage payments being delayed a day or two). The FWO mean well but they are focussed on achieving amicable mediated outcomes without resorting to legal action. As I've learnt, someone who knows what they're doing can string them along for a very long time..

      • brendanm on 04/06/2020 - 13:14

        That's pretty disappointing then. Hopefully you get made right, looks like it'll be a long process.

  • mbck on 04/06/2020 - 10:50

    Can't the director be held responsible?

    • glasshalfempty on 04/06/2020 - 11:46

      I would assume so, and this may be my only recourse. The office of industrial relations have pointed out that if they have little in the way of assets assets, or have been smart in how they manage their assets, they may have nothing they own that a creditor can recover this debt from.

      • brad1-8tsi on 09/06/2020 - 08:48

        It's not hard to manage your assets well. I know of a large US based multi-national that is worth billions. They have about 100 people in AU. Their Australian assets comprise 1 Mercedes people mover.

    • kmwa on 04/06/2020 - 14:12
      +1

      Unpaid super is a national disgrace.
      The ATO says "If you've completed all of the steps above and still believe your employer isn't paying enough (or any) super – or isn't paying to your chosen fund, you can report your employer using our online tool (https://www.ato.gov.au/Individuals/Super/Growing-your-super/…)… We'll work with employers who engage with us to address their debt. For those that don't engage, we'll take stronger action. This can include director penalty notices, or garnishee notices."

  • berliner123456 on 07/06/2020 - 14:04

    I found this website (https://www.lawaccess.nsw.gov.au/Pages/representing/lawassis…) that may help to find the practical solution.

    What if my entitlements are not paid?
    If your employer has not paid some or all of your wages or entitlements, there are steps you can take to try and recover the money that you are owed.
    1. Talk to your employer
    2. Contact the Fair Work Ombudsman
    3. Start a court case
    4. Make a claim under the GEERS or FEG (https://www.ag.gov.au/industrial-relations/general-employee-… or https://www.ag.gov.au/industrial-relations/fair-entitlements…)

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