Employer says worker 'left on his own accord'
The Fair Work Commission (FWC) recently dealt with a case involving a worker who argued he was constructively dismissed by non-payment of wages of the employer.
In its defence, the employer argued that the worker was not dismissed. Although it did not deny the underpayments of the worker.
Series of non-payments
Around December 2022, the worker commenced employment with the company as a part-time cleaner which was recorded in a contract with the employer.
The case noted that the contract incorrectly recorded that the worker’s hours were 38 hours per week when, in fact, he was a permanent part-time employee whose ordinary hours were 30 hours per week.
Although on the date of the worker’s first pay slip, the employer made the payment of wages about 6 days late, it was paid in full based on the face of the payslip.
However, on the worker’s second payslip, the company failed to pay the full amount that ought to have been described on the payslip.
A similar case occurred on the worker’s third payslip wherein it did not represent an improvement for the earlier public holidays entitlements that remained unpaid nor the actual payment of the substantive work described in the payslip.
Unfortunately, the non-payment happened yet again, and the worker was assured that the payments were “transferred 100%.”
Consequently, the employer and the worker had an exchange of correspondence regarding the matter.
Yet, on 9 March 2023, the worker sent a letter of resignation stating, “As a result of your repeated and continued non-payment of wages, you are in fundamental breach of the terms of the contract of employment, and as a result, I am forced to resign and am therefore constructively dismissed.”
Meanwhile, in relation to the late payment of the first payslip, the employer argued that the company was having problems with the bank.
Moreover, with the worker’s inquiry about the public holidays, the employer said that he was not entitled to them because he had not been working for more than 3 months in the company.
The employer further noted that the worker “left on his own accord due to non-payment of wages owed to him.”
FWC’s decision
After examining the case, the Commission noted that the persistent failure to pay wages due and owing was a direct breach of the terms of the employment contract.
“Despite multiple demands for rectification in clear terms, the breaches were never cured,” the FWC noted. “[The worker] was either met with no responses at all or explanations and further promises that were never delivered upon.”
The FWC stated that the worker chose to terminate the employment contract in response to the employer’s breaches. Hence, the employment relationship ceased as the worker was forced to do so.
The Commission also rejected the employer’s jurisdictional objection that there was no “dismissal”, and the matter will be reallocated back to the Commission’s registry and parties will be informed regarding the next steps.
