I’ve been underpaid by my employer. What can I do?

MasterChef star and celebrity chef George Calombaris’s restaurants have incorrectly paid their staff by $2.6 million. What can you do if your employer does the same? TGB Associate Sam Hooper explains your options.

The revelation celebrity chef George Calombaris’s restaurants had incorrectly paid staff to the tune of $2.6 million was a shock to many.  The “discrepancies with the payroll process determining how employees were classified and how overtime was calculated” has affected 162 staff at Calombaris’s popular establishments – The Press Club, Gazi and Hellenic Republic. Thankfully, they appear to have moved quickly to resolve the issue and get on with the job of serving up great food! Read the full story here.

However, what can an employee do if their employer doesn’t move quickly to make amends?

Often employers require employees to go above and beyond the call of duty, or work outside the constraints of their contractual arrangements. Common complaints from employees include:

1. Unreasonable additional hours;
2. Underpayment of wages;
3. Non-payment of wages;
4. Unpaid of overtime allowances; and
5. Non-payment of Superannuation

Since 1 July 2009 most Australian private workplaces have been covered by the Fair Work Act 2009.  This Act sets out what is called the ‘National Employment Standards’ (NES).  The NES sets out a “minimum standard” for all employees covered by the national workplace relations system.

For a full-time employee, under the NES an employer cannot request an employee to work more than 38 hours per week unless the additional hours are reasonable.  The test of reasonableness is where the grey area arises.

In South Australia, non-payment/underpayment claims can be made in the Industrial Relations Court of South Australia which, from July 1, 2017, will usually be handled by the South Australian Employment Tribunal.w

Monetary claims can be made pursuant to:

1. A contract of employment;
2. Under an Award of Workplace/Enterprise Agreement; or
3. Pursuant to legislation such as the Fair Work Act or the Long Service Act.

With regards to the time limits to make a monetary claim an application must be made within six years of the amount being due and payable.

Whilst you do not have to be legally represented in the Industrial Relations Court of SA, you should at least get proper legal advice before commencing any proceedings.

If you think you have unpaid entitlements the first step is to always raise these direct with your employer and always in writing (an email is fine).

The Calombaris situation appears to have arisen as a result of systems issues.  Whilst these are not uncommon it serves as a timely reminder to employees to keep an eye on their pay slips and make sure they are being paid what they are entitled to under either a contract, a Modern Award or a Workplace Agreement. Tindall Gask Bentley Lawyers are experts in Employment Law and negotiating the best possible outcomes four our client. Book an appointment today or register your details here and we’ll be in touch soon.