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Overpayment by an Ex-Employer

Discussion in 'The Pub' started by MV, May 6, 2013.

  1. Hi all, I'm new around here, sorry if this is in the wrong forum ;)

    Anyway, without going into too many specifics, someone who may or may not be my wife recently quit her job & upon leaving was told that she had been overpaid for the past 14 months & they wouldn't be paying her the money owed, which was not insubstantial :mad:

    Anyway, we talked with them & they agreed to pay what was owed so we could survive & we would start repaying it.

    I've been doing some research & there are certain instances where we aren't obligated to pay it back, namely if the money was used in good faith or if her position changed detrimentally (which it did)

    Any thoughts from the legal types & any recommendations for a good lawyer?
  2. Can you elaborate a bit, did she have an employment contract, were the terms of employment including salary agreed upon?
  3. Also worth considering if hiring a lawyer will cost more than paying it back. I doubt it would be the frivolous type of case where costs get paid by the other.
  4. She was on an AWA, but they calculated her yearly salary wrong I think.

    ie yearly salary was X based upon X hours gives X per hour, but I think they used 40 hours p/w instead of 38.

    it's about 5K, I hope lawyers don't cost that much!
  5. First thing is probably to get all your facts together and check with the Fair work Ombudsman for an opinion. 5K doesn't go very far with lawyers fees, that would be the last resort IMHO.
  6. Goes without saying that you wouldn't take action while they are still putting money in your account...
  7. If this woman who may, or may not, be your wife left her job she's currently unemployed?
    Can't you get some decent advice from legal aid without forking out? That figure wouldn't go far with a lawyer.
  8. Hmmm. PITA. My thoughts would be that you'd be required to pay back. Fair work ombudsman could probably help but I wouldn't go legal, it might cost you more.

    I'd approach this with a strongly worded letter including (remove as appropriate);
    - salary was received in good faith, consistent with (payslips, award, contract etc)
    - no previous knowledge of overpayment
    - costs of living were determined on basis of salary received, excess funds not available to be repaid
    - tax returns prepared on basis of salary received and amendments of x years @ $x would be incurred due to the error. These costs should be reasonably met by the employer in reduction of claim.
    - salary was consistent with extra responsibilities assumed and not unreasonable
    - on the above basis I am willing to repay $x (20-30% of amt claimed) over 6months

    Best case - they have better things to spend their time on and walk away.
    Middle ground - they agree to reduce the amount owing.
    Worst case - they refuse to move. You're in no worse position. Consider paid advice outside a motorcycle forum :D.
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  9. How did either party not notice for 14 months?
  10. 1st call is usually free with a lawyer...or ones I have dealt with.
    Just call a few and they will give you the oil on what they think. Don't just ring one..

    If she was a Gov or worse GOC worker then they will start a paper trial that will wash up 5G in no time and still want the money back.
    Shultz Toomey & Obrien have taken on GOC's and won....
  11. Thanks for all the info everybody, obviously there's not too much I can elaborate on here, but Fair Work have said not their department & Legal Aid can see us sometime in June. :banghead:

    She was for a few months, now temping.

    Thanks James, that might be a good road to go down, I'll try & draft something up.

    We just assumed it was her correct salary, CEO signed off on it as part of a pay rise/promotion & didn't check until she left I guess...
  12. Got it in writing? She might be able to argue that she would never haver agreed to work for less than the described amount if she had not been misinformed, and they have had her labour.
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