Non-receipt of government wage subsidy not a ground to withhold employee’s pay

Probationary employee enquires about delayed pay

A senior operator/manager had been working for 5 weeks but she had not been paid her wages despite her employment contract providing that she will be paid on a fortnightly basis. She also asked for a payslip.

She was provided with a Jobs Victoria Fund Employee Consent Form so she can apply for a wage subsidy. However, the employee claimed that she was not told by the employer that her pay was reliant on the wage subsidy being approved and paid by the government.

Employer told employee to wait for wage subsidy

The owner of the company replied that the senior operator could not be paid as the wage subsidy (during Covid) was controlled by the government. Then, the owner reminded the senior operator that she was still on her probation and had not yet achieved 3 months of employment. And also, the owner stated that the senior operator had other sources of income. The owner promised payment on 21 May 2021 but also said that if that promise was not enough for the senior operator, she should resign as there was not enough paid work for her.

Employee complained about employer’s disrespectful tone

The senior operator replied that she found the tone of the owner disrespectful as she was only enquiring about her pay. She enquired about her pay because her pay had been consistently delayed. The senior operator then said that telling her to resign after enquiring about her pay was an adverse action and constructive dismissal seeing as she had only raised an issue about her entitlements and workplace rights to be paid.

Employer was hostile and urged employee to resign

The owner of the company said that the senior operator’s probation had expired and she will not put up with the senior operator’s attitude as she had given her paid training with experts. She urged the senior operator to resign. She also said that it was her accountants that did the payroll and so she had no control.

And then the owner of the company sent an email with a very demeaning tone about the senior operator’s “explosive demands” given that they were not in “normal times” because of Covid 19. And that they will pay her what is due to her when their subsidy arrived.

Allegations against the senior operator

The owner of the company made allegations against the senior operator that the senior operator’s own company was engaged in illegal activities. The owner of the company also alleged that the senior operator exhibited aggressive and irrational conduct that required counselling.

The employer also raised that the senior operator was claiming pay for 50 hours’ work when she was a “millennial with quick reflexes” and would not have needed 50 hours to do the work she said she had done.

Further, the owner of the company stated that the senior operator’s level of life skills and maturity were insufficient to sustain their claim for general protections.

Application for general protections

The senior operator filed an application claiming that she had been forced to resign after enquiring about her entitlements. She believed that the owner of the company deliberately withheld her wages and failed to pay what is owned. She also believed that the owner of the company may have fraudulently retained the wage subsidy received from Jobs Victoria on behalf of the senior operator.

The owner of the company raised a jurisdictional objection. She claimed that the senior operator was never dismissed but had, in fact, resigned. She also said that the application under General Protections was inappropriate as it was the senior operator who had caused the owners of the company to fall ill because of the senior operator’s excessive demands.

Pay not subject to receipt of subsidy

The Fair Work Commission found that the owner of the company failed to substantiate her jurisdictional objection.

Further, the FWC denied the jurisdictional object and ruled that the receipt by the employer of a government subsidy was irrelevant to the senior operator’s contract of employment and her right to be paid her wages under her contract of employment.

There is no basis for the owner of the company’s belief and insistence that the senior operator was not entitled to remuneration because the senior operator had other work and was thus, was not entitled to a wage subsidy.

Source:

Crystelle Fakhri v MVS Business Partners Pty Ltd [2021} FWC 4965 (12 August 2021)

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC//2021/4965.html

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