How would an employer bring a civil claim for restitution to recover an overpayment of wages from a former employee?
If an employer wishes to recover an overpayment of wages from a former employee, it can bring a claim in the civil courts for restitution. The employer should seek to agree repayment with the ex-employee first, and should begin court proceedings only where this has failed.
The employer can claim for restitution on the grounds of "unjust enrichment". It can argue that the benefit to the employee was unjust, because the overpayment was made by mistake. The ex-employee can defend such a claim by arguing that he or she has changed his or her position, as a result of the overpayment, in such a manner that it is inequitable for the employer to recover the overpayment.
Civil litigation procedure is complicated and the employer should take legal advice on bringing a civil claim for restitution. In preparation for taking legal advice on a claim, the employer should collate the documents relevant to the matter and draft a chronology of events. The legal advisers should be able to advise the employer on its chances of success in court.
The employer should be aware that if it loses the case it will be liable for the ex-employee's legal costs. Even where the claim is successful, and the individual is ordered by the court to make the repayment, the employer may have to take further enforcement proceedings to obtain the money that it is owed.