How to recover wages owing to you by an NZ Employer

In what situations can I take action to recover wages?

You have the right to recover any wages owed to you if:

• you have been paid below the minimum wage
• you have been paid below the wages required under your employment contract
• your employer has attempted to pay you with company products instead of money
• your employer has failed to pay you overtime rates or holiday pay required under your contract
• your employer has docked your pay for an unfair reason

First discuss the matter with your employer

Before you consider taking legal action to recover your wages, it is recommended that you first discuss the problem with your employer. You may be able to resolve the problem at that point, and this will avoid the pressure that legal action would bring to your relationship with your employer.

Taking a grievance to the Employment Relations Authority

If discussing the matter with your employer does not resolve the problem, you are entitled to take the dispute to the Employment Relations Authority to recover the money.

Once the matter has been brought to the Authority, you can pursue the unpaid wages on the basis that they are owed to you under contractual obligations that the employer has not fulfilled.

Your right to pursue the wages through the Authority is not affected by you accepting any payment at a lower rate or any express or implied agreement to the contrary.

The Authority can order the employer to pay the money owed to you by instalments, but only if the employer's financial position makes this necessary.

What if my employer has gone out of business?

If the company you worked for has gone out of business, you may need to bring liquidation (winding up) proceedings (see the related article How to recover a debt from a company and How to liquidate a company).

When a company is liquidated, employees that are owed wages (this includes holiday pay) are very high on the list of creditors to be paid. The costs of liquidating the company will be paid first, followed probably by certain payments to the Inland Revenue Department; then those owed wages will be paid out of any money recovered from liquidating the company.

Employer must keep wages and time record

Employers must keep a record for each employee, called a "wages and time record", that shows, among other things:

• the kind of work on which the employee is usually employed
• the hours between which the employee is employed on each day, and the days of the employee's employment during each pay period
• the wages paid to the employee each pay period and the method of calculation

The employer must provide you or your representative with access to this record or a copy of it if you request it.

If the employer fails to keep this record or fails to allow you access to it, the Employment Relations Authority can impose a penalty on the employer.

The New Zealand Employment website has an additional articles on wages and final pay.

Other New Zealand Employment Law resources

• The New Zealand Government website Employment is an additional useful guide.
   
• The NZ Employment Relations Authority assists you further seek assistance in resolving employment related issues. It is an independent body.
   
• The NZ Employment Court allows you to challenge a decision made by the Employment Relations Authority.
   
• The NZ Human Rights Review Tribunal assists with issues of human rights and privacy at work.
   
• The NZ Employment Relations Authority has a database of previous cases for review.
   
• The NZ Government website Employment has a free tool for creating employment agreements - help yourself.

Cautionary notes

• If the matter is likely to go to the Authority, it is advisable that you obtain legal assistance from someone who is skilled in advocacy and familiar with this area of law and the processes involved.