Final Pay Is Late or Short: The Demand Letter and the $100k Small-Claims Route (Every State)

Your last day was three weeks ago. The final pay either hasn’t arrived, or arrived without the annual leave, without the notice, or with a mystery “deduction” for a uniform, training or “damages”. Payroll says “it’s being processed”. Your old manager has stopped answering. Meanwhile your rent doesn’t wait.

Final pay is one of the most-recovered categories at the Fair Work Ombudsman because the rules are clear and employers know it. A short, correct demand with the calculation attached is usually all it takes. If it isn’t, the small-claims route is cheap, fast, and now goes up to $100,000.

Your rights

Under the Fair Work Act 2009 (Cth) and the National Employment Standards, your final pay must include:

• All wages to your last day, including overtime, penalties and allowances under your award or agreement (s 323 requires payment in full, in money, at least monthly).
• Accrued annual leave paid out in full, with leave loading where your award or agreement provides it (s 90).
• Notice, or pay in lieu if the employer ended your employment without giving the notice in s 117. If you resigned, the employer can’t withhold pay because you gave short notice, except where a modern award expressly allows a limited deduction.
• Redundancy pay under s 119 where the job was made redundant (and the employer isn’t an exempt small business).
• Long service leave accrued under your state’s Act (see below).
• Superannuation on the ordinary-time earnings components.

Deductions are only lawful if they are authorised in writing by you and principally for your benefit, or permitted by an award, agreement, court order or law (s 324). “Damages”, uniforms, training clawbacks and “cash shortages” generally don’t qualify. The Act doesn’t set a single final-pay deadline; most modern awards require payment within 7 days of the employment ending, and where no award applies, payment is due on your normal pay cycle at the latest.

By state

Everything above is federal and applies in every state. Long service leave is the state-law component of final pay:

• New South Wales. Long Service Leave Act 1955: 2 months after 10 years; pro-rata after 5 years if the employer ended your employment (not for serious misconduct) or you left for illness, incapacity or domestic necessity. New South Wales Industrial Relations; Local Court.
• Victoria. Long Service Leave Act 2018: paid out on termination for any reason once you have 7 years’ continuous service. Wage Inspectorate Victoria; Magistrates’ Court.
• Queensland. Industrial Relations Act 2016: 8.6667 weeks after 10 years; pro-rata after 7 years for termination by the employer (not for conduct), illness, incapacity or pressing necessity. Office of Industrial Relations; QIRC.
• Western Australia. Long Service Leave Act 1958: 8.6667 weeks after 10 years; pro-rata after 7 years unless dismissed for serious misconduct. WageLine; Industrial Magistrates Court.
• South Australia. Long Service Leave Act 1987: 13 weeks after 10 years; pro-rata after 7 years. SafeWork South Australia; South Australian Employment Tribunal.
• Tasmania. Long Service Leave Act 1976: 8.6667 weeks after 10 years; pro-rata after 7 years in prescribed circumstances. WorkSafe Tasmania; Magistrates Court.
• Australian Capital Territory. Long Service Leave Act 1976: entitlement after 7 years; pro-rata after 5 years in prescribed circumstances. WorkSafe ACT; Australian Capital Territory Magistrates Court.
• Northern Territory. Long Service Leave Act 1981: 13 weeks after 10 years; pro-rata after 7 years. NT Consumer Affairs; Local Court.

The Claim Done document asks your state first and drafts the LSL line of your entitlements schedule to that state’s Act.

What to do right now

1. Ask for the final payslip in writing. Employers must issue a payslip within one working day of paying you. If they can’t produce one, they haven’t paid you.
2. Do the reconciliation. Hours worked in the last period at the right rate, leave balance from your last payslip, notice weeks, LSL, super. Subtract what landed. Attach the working.
3. Challenge every deduction. Ask for the written authority under s 324. If there isn’t one, it’s an unlawful deduction and goes on the demand.
4. Send a dated demand with 14 days to pay. Name the FWO and the small-claims route. Employers who ignore emails respond to a document that reads like the start of a claim.
5. Lodge on day 15. A Fair Work Ombudsman request for assistance is free. The small-claims application is a form and a modest filing fee.

The $100,000 small-claims route, explained

Since 1 July 2023, the small-claims procedure under s 548 of the Fair Work Act covers underpayments up to $100,000 (it was $20,000). You file in the Federal Circuit and Family Court, the rules of evidence don’t apply, you don’t need a lawyer, and costs are generally not awarded against you if you lose. The court can order the employer to pay the entitlements plus interest, and the FWO can help you enforce a judgment. State courts (Local, Magistrates’, Industrial Magistrates) can hear the same claims and are sometimes closer to home; the federal route is the one with the $100,000 cap and no-costs rule.

Who to complain to

Fair Work Ombudsman (request for assistance or anonymous report). Federal Circuit and Family Court small claims (Form 3). ATO for unpaid super. Your state’s long service leave body (above) for LSL only. If the business has gone into liquidation, the Fair Entitlements Guarantee covers unpaid wages, leave, notice and redundancy (not super); lodge within 12 months.

Get paid what you’re owed — $49

Claim Done drafts a Final Pay and Redundancy Claim that reconciles every entitlement against the NES, your award and your state’s LSL Act, challenges any unlawful deduction, demands payment within 14 days, and sets out the FWO and $100,000 small-claims escalation.

Demand My Final Pay — $49 →

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Related guides: how to check if you are underpaid and claim back pay, when wage theft is a crime, how much redundancy pay you get and annual leave paid out when your job ends.