The applicant Ava Hann has applied for pecuniary penalties against Satnam Singh, the owner and manager of her former employer Aru Foods Pty Ltd and its restaurant business San Churros at West Lakes.
The applicant alleges five contraventions of s 45 of the Fair Work Act 2009 (FW Act) based on multiple breaches of the Restaurant Industry Award 2020 from November 2024 to March 2025. The breaches are incorrect classification at level 1 instead of level 3, contrary to cl 14; regular non-payment of all recorded time worked on a shift, contrary to cl 18 and s 323; refusing to allow meal breaks on long shifts, contrary to cl 16.2; regular deductions of 30 minutes pay for unrostered meal breaks that could not be taken, contrary to s 323; and consequential underpaid superannuation contributions, contrary to cl 22.
An additional monetary contravention of the FW Act was identified during the hearing. That is based on breach of cl 16.6 of the Award for non-payment of the 50% loading after 6 hours work with no meal break allowed. As that allegation was not raised in the present application, it is beyond the scope of these reasons and may be the subject of another application.
The respondent generally denied liability but did not dispute the allegation that he was involved in each contravention as the employer's managing decision maker.
The respondent's Answer stated the applicant had been employed at level 2, when she had in fact been paid at level 1. He admitted the applicant was employed as a Duty Manager but denied level 3 was the correct level, not by reference to any of the Award classification criteria_._ He wrongly suggested the employer had a discretion to apply the correct classification by that needing to be offered in a written contract. He did not respond to the other allegations of worked times that were not paid for, no meal breaks, and deductions of pay for rostered meal breaks that he was told could not be taken.
The former employer did not dispute or oppose the applicant's previous money claim, filed in May 2025, but nothing was paid until after a Court order was made on 23 July 2025. The underpayment was for $853.37 plus $100 of interest. The order was not fully complied with until the day before the first Directions Hearing of the penalty application on 5 September 2025, when Mr Singh appeared.
The issues for determination are whether the contraventions have been proven, and the assessment of appropriate penalties for any proven contraventions.
The statutory purpose of the civil penalty regime is to encourage compliance with the minimum National Employment Standards and to deter this and other employers, and those people knowingly involved in making the relevant decision, from contravening their obligations to employees. A penalty should impose a higher cost on contravening misconduct than the profits to be made from doing so. A civil penalty is not punitive. A civil penalty is not constrained by proportionality to the monetary value of the contraventions, but should not be crushing.
A single contravention by an individual person in the claim period attracted a maximum possible penalty of $19,800 (60 penalty units @ $330 per unit). Multiple contraventions of the same provision as a result of the same course of conduct by the same person is to be treated as a single contravention: s 557.
[2]
The applicant turned 18 years of age during the claim period, entitling her to only junior rates throughout. Her weekly hours varied between 20 and 30. She started working as a casual employee at San Churros at West Lakes for a previous owner and stayed on after the respondent's company bought the business. The business offered a primarily seated customer service, with about 20 tables available. Staff numbers varied between about 10 and 20.
Under the previous owner, pay errors arose but were all rectified. The persistent systemic underpayments started after the respondent took over the business.
The applicant was promoted by the respondent to what was described as a "Duty Manager role" at the start of the claim period in November 2024, shortly before turning 18. This meant she was the senior employee on all her shifts, responsible for supervising staff, opening and closing the store, and closing the register. Her pay rate was not changed from level 1. The pressure she was placed under meant the role was very stressful.
Rosters were published by the respondent via the Tanda app. Insufficient staff were usually rostered. During obviously busy days, she was sometimes rostered alone. On those days she would send messages asking for help from the respondent but was usually ignored.
During understaffed shifts, employees had to stay at work beyond their scheduled finish times to complete the work. The respondent would never pay the applicant or the other staff for more than 30 minutes extra, despite being consistently asked to pay for all work performed.
The applicant accurately recorded all her work times on the Tanda app, which was accessible on her phone. She kept screen shots of her accurate recorded times. The applicant noticed her payslips did not record all of her recorded worked hours, as the respondent regularly deducted work time at both the start and end of a shift. She felt her requests to the respondent for her full wages were not taken seriously.
The applicant would typically not be able to take a break from her duties. She would not log a break on the Tanda app if she could not take one. She could not take a break because either the store would be left unattended or would be left with a worker who could not operate the coffee machine. If she was rostered with a fully trained employee, the store was too busy for either of them to have a break.
Due to being short staffed, there were often unreasonably long waiting times for food orders of up to one hour, with angry complaining customers. The applicant was subjected to abuse from customers for these delays on almost each shift. Her reports to the respondent, and requests for extra staff, were not responded to.
In addition to personally speaking with the respondent, the applicant regularly messaged him to explain how she was not being paid correctly. He never rectified the deductions, did not increase staff levels and continued to program 30-minute pay deductions during long shifts despite being told meal breaks were not possible.
Some of the applicant's written requests to the respondent for level 3 wages and other missing pay were initially responded to. His text message responses between 13 November 2024 and 6 March 2025 included:[1] 'I am trying for this pay Ava You are doing great. Thank you.' 'Will get it fixed today.' 'Will check your logins Will get it fixed.' 'I will follow up Should have gone through.' 'It was supposed to be higher I will follow up Ava Sorry.' 'I will follow it up and get it fixed Very very sorry Ava.' 'It should have gone up more than a few cents, I will check today.' 'I will do it manually, I guess that is easier and done quickly.' 'Thanks for letting me know ... I will come back to you by midday on Monday.' 'Will sort out on Sunday ... Please bear with me.' 'I will personally reconcile it tonight Ava ... You are such an integral leader of our team.' 'I will get it fixed and back paid tomorrow ... Thank you for everything you do.'
No substantive written response was ever provided to the applicant.
No rectification was made prior to the Court order.
The respondent replied by email on 15 March 2025 to the applicant's provision of correct hourly rates and Award references in detailed emails of 10 and 14 March 2025. The respondent admitted he created "variances" in the time records for a range of vague "errors", but he did not respond to any of the applicant's very detailed complaints. None of the general issues mentioned by the respondent had ever been raised with the applicant.
The respondent wrote to the applicant's mother on 6 April 2025 in response to her further detailed explanation of the underpayments.[2] He then admitted 'Ava is entitled for Level 3 Duty manager rate when she is leading the shift...' There was still no rectification.
The applicant then had to pursue her entitlements through the Fair Work Ombudsman. After that process failed, she had to file contravention and penalty applications.
Emily Brenton also gave evidence.[3] She worked as a Duty Manager alongside the applicant for two years. Ms Brenton witnessed the applicant working alone in peak periods on several occasions. Ms Brenton witnessed frequent messages from the applicant to the respondent on the staff chat app requesting additional staff and complaining of not being able to have a break. Ms Brenton experienced similar issues of not being able to have a break during her employment.
Ms Brenton witnessed the respondent deducting 30 minutes of work time from the applicant's Tanda time records for shifts she had said she could not have a break on. The respondent made the same deductions to her own pays when she could not take a meal break.
Ms Brenton consistently witnessed the respondent manually altering time records submitted by the applicant, other staff and by her. He deleted from a few minutes up to an hour for each shift. Despite these errors being brought to the respondent's attention, with proof, there was never any rectification.
Ms Brenton also witnessed the respondent verbally promote the applicant to Duty Manager.
No evidence was tendered by the respondent. He was legally represented at the pre-trial directions hearings but failed to appear at trial, without any prior communication to the applicant or court.
The applicant submitted she was the subject of intentional and systematic underpayments, which are being imposed on other employees of the business. The respondent's continuing avoidance of responsibility and rectification means he is likely to continue systematically exploiting other vulnerable young workers. The respondent needs to be deterred from continuing his involvement in these decisions.
[3]
I have no hesitation in accepting the applicant's evidence. It was comprehensive, detailed and fully supported by her records and the available documents. I also accept the unchallenged evidence of Emily Brenton, which corroborates the applicant's evidence.
I find the respondent was centrally involved in intentionally and systematically cheating the applicant by having the employer not pay her for all the work she performed. That was all for his personal benefit. He did so in three ways. He deliberately refused to pay the known higher rate for the promotional supervisory position, while keeping her on the Award's lowest level 1. He regularly manually deleted times worked from the accurate electronic records and programmed a 30-time deduction on each long shift, with the knowledge the applicant had worked the time and could not have meal breaks. He then gave persistently false and evasive responses to her complaints, without ever fixing any underpayments.
I find the respondent engaged in the same conduct of deducting worked time from Ms Brenton and other employees' time records.
The respondent had a sophisticated payroll software system, that he could have used to pay staff correctly. Instead, he manually altered records of time worked to cheat the applicant. If the applicant had not kept her own records she would not have had any objective records to support her claim.
In addition to cheating the applicant out of her minimum entitlements, the respondent knowingly created very unpleasant working conditions for the applicant. In addition to the stress of working in customer service without sufficient staff and without meal breaks, the applicant was knowingly exposed to daily complaints and customer abuse resulting from insufficient staff to serve paid orders in a reasonable time.
The financial loss to the applicant was significant to her. The loss was limited by her constructive dismissal for rejecting the respondent's continuing serious misconduct.
The contraventions are aggravated by the applicant's vulnerability as a very responsible teenage employee. Her inexperience in employment, goodwill, loyalty and conscientiousness was exploited by the respondent.
Little is known about the respondent. He lives in the Northern Territory and has considerable experience operating businesses. He regularly travels between the Northern Territory and South Australia, and to India.
The respondent has not accepted any responsibility and has not shown any contrition. He has not offered any explanation or outlined any remedial action. There is no reason to suggest the pay deduction practices against other vulnerable casual employees have ceased.
The breach of cl 14 obligations to correctly classify, before and after the promotion to shift supervisor, in accordance with the objective criteria, was justified by irrelevancies. The respondent knew the applicant was sufficiently trained when he appointed her to a highly responsible role, yet he decided to keep her pay set at two levels below the correct level. Before these proceedings were commenced, the respondent acknowledged in writing that level 3 was the correct classification for the Duty Manager position, but he refused to have the employer pay the arrears. I consider the maximum penalty is called for to be an effective individual deterrent. I impose a penalty of $19,800.
The continuing half hour time and pay deductions, despite (unchallenged) statements that the meal breaks could not be taken, were very serious dishonest contraventions. These are to be treated as a single contravention. I also take into account the consequential superannuation breaches. I consider the maximum available penalty is required as a deterrent to the respondent being involved in similar insidious contraventions. I impose a penalty of $19,800.
I impose a penalty of $10,000 for the associated serious refusal to allow meal breaks by not rostering sufficient staff. That is also to be treated as a single contravention. The reduced penalty avoids overlapping elements of the contraventions
I consider the maximum penalty is most appropriate for the deemed single contravention of not paying for all work that had to be performed outside of the rostered hours. This penalty also includes consideration of the consequential superannuation breaches. A lesser penalty would not be an effective deterrent of the respondent. I impose a penalty of $19,800.
The total penalties are $69,400. I consider this total is an appropriate penalty that will serve as an effective specific and general deterrent.
In accordance with s 546(3), the penalty is to be paid to the applicant as the prosecutor of the action.