Accountant driven to quit after 10 weeks of wage shortfalls

Leyla Yilmaz, Fair Work commissioner, ruled this was a case of forced resignation constituting unfair dismissal, as The Fruit Hustle, an entity under The Trustee for LN Family Trust, “abandoned its duty under common law to pay the employee for work performed”.

“[The accountant] had no reason to resign after 9 years’ employment except for the action of her employer not paying wages,” the commissioner found.

The accountant alleged that, upon her resignation, The Fruit Hustle threatened not to pay her any outstanding wages.

In January, following her resignation, Lon Nguyen put the shop into external administration and re-registered the business as Your Food Connect Pty Ltd. His wife was appointed director. 

“Payment of wages is a fundamental term of the contract of employment and failure to pay wages exhibits an intention to not be bound by the contract,” the commissioner said.

“Had the employer not failed to pay wages, the applicant would not have resigned.

“Had the Respondent not breached its contractual obligations, the employment relationship would have continued,” Yilmaz found.

In her decision, Yilmaz said Nguyen failed to respond to correspondence from the commission. 

“The telephone calls to the respondent were not returned. Emails to the respondent's business became undeliverable, further emails were then delivered to the respondent's director, Nguyen’s personal account.”

In requesting the commission’s general manager refer the matter to the Fair Work Ombudsman, Yilmaz said she was “not confident the respondent will comply with this order of compensation”. 

Nguyen was ordered to pay her $48,698 in lost-wage compensation.