Mejia v Capital City Cafe-Bar [2026] FedCFamC2G 468

(a) failing to provide the Applicant with a Fair Work Information Statement before or as soon as practicable after her employment commenced; and

(b) failing to provide the Applicant with a Casual Employment Information Statement before or as soon as practicable after her employment commenced.

1. The Second Respondent contravened s 45 of the Fair Work Act 2009 and cl 3.3 of the Restaurant Industry Award 2020 MA000119, by being involved in the First Respondent's contravention within the meaning of s 550 of the Act, by failing to ensure that copies of the Award and the National Employment Standards were available to all employees either on a notice board conveniently located at or near the workplace or through accessible electronic means.
2. The Second Respondent contravened s 536(1) and s 536(3) of the Fair Work Act 2009, by being involved in the First Respondent's contravention within the meaning of s 550 of the Act, by:

(a) failing to give pay slips to the Applicant within one working day of paying amounts to the Applicant in relation to the performance of work; and

(b) gave pay slips to the Fair Work Ombudsman on 11 December 2024 which were known to be false and misleading_._

1. The Second Respondent contravened s 45 and s 323 of the Fair Work Act 2009, and the Restaurant Industry Award 2020 MA000119, by being involved in the First Respondent's contravention within the meaning of s 550 of the Act, by:

(a) failing to pay casual loading in accordance with cl 11.1 of the Award;

(b) engaging the Applicant to work more than 38 hours per week over the roster cycle contrary to cl 11.2 of the Award;

(c) failing to pay overtime rates in accordance with cl 11.5 of the Award; and

(d) failing to pay the Applicant amounts payable to her in relation to the performance of work in full.

1. The Second Respondent contravened s 44 and s 116B of the Fair Work Act 2009, by being involved in the First Respondent's contravention within the meaning of s 550 of the Act, by failing to make contributions to a superannuation fund for the benefit of the Applicant either at all, or in an amount sufficient so as to avoid liability to pay superannuation guarantee charge under Superannuation Guarantee Charge Act 1992 in relation to the Applicant.
2. The Second Respondent contravened s 535(1) and s 535(3) of the Fair Work Act 2009, by being involved in the First Respondent's contravention within the meaning of s 550 of the Act, by:

(a) failing to make and keep for 7 years employee records of the kind prescribed by the Fair Work Regulations 2009; and

(b) failing to make employee records available for inspection upon request as required by r 3.42 of the Fair Work Regulations 2009.

1. Pursuant to s 545(2)(b) of the Fair Work Act 2009 (Cth) the Second Respondent pay to the Applicant $50,000 compensation for hurt, distress and humiliation arising from the contravention of s 527D of the Fair Work Act 2009.
2. Pursuant to s 546 (1) of the Fair Work Act 2009 (Cth) the Second Respondent pay pecuniary penalties of:

(a) $9,390 in respect of the contravention of s 527D of the Fair Work Act 2009 declared in Declaration 1 above; and

(b) $30,610 in respect of the contraventions declared in Declarations 2-7 above.

1. Pursuant to s 546(3)(c) of the Fair Work Act 2009 (Cth) the penalties in order 2 shall be payable to the Applicant.
2. The Second Respondent is ordered to pay the amounts in Orders 1 and 2 within 60 days AND IT IS NOTED such payment terms have purportedly been agreed as between the parties.
3. The proceedings against the First Respondent are discontinued AND IT IS NOTED that the Applicant intends to lodge a proof of debt with the liquidator appointed to the First Respondent in respect of her claims for unpaid entitlements that are a subject of these proceedings.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The Applicant moves on the Further Amended Statement of Claim filed on 21 July 2025 together with the Amended Response filed on 12 August 2025 so far as it contains admissions and deemed admissions.
2. On 17 March 2026, the Court received notice that a liquidator to the First Respondent had been appointed that day. Pursuant to s 500(2) of the Corporations Act 2001, the proceedings against the First Respondent are unable to proceed.
3. At the hearing on 19 March 2025:

(a) Notwithstanding the late breaking stay as against the First Respondent, the hearing proceeded as against the Second Respondent. (Fair Work Ombudsman v Contracting Solutions Australia Pty Ltd [2013] FCA 7 applied).

(b) Notwithstanding having pleaded some denials in the Amended Response from 12 August 2025, the Second Respondent admitted:

(i) The First Respondent's contraventions; and

(ii) Accessorial liability with respect to the First Respondent's contraventions.

(c) A proposed Minute of Orders by Consent was handed up which included:

(i) Declarations to the effect of the Second Respondent's contraventions of the Fair Work Act 2009 (Cth) by way of his involvement in the First Respondent's contraventions, including sexual harassment; and

(ii) Orders to the effect that the Second Respondent pay to the Applicant:

• (A) $50,000 non-economic compensation for sexual harassment; and
• (B) $9,390 pecuniary penalty for sexual harassment; and
• (C) $30,610 pecuniary penalty for the balance of the contraventions.

1. The sole issue in this case is a determination of whether or not the compensation and pecuniary penalties for multiple contraventions of the Fair Work Act 2009 (Cth) ("the Act"), that is jointly sought by the parties, is appropriate.

1. The following material was received into evidence without objection:

(a) Affidavit of Valeria Mejia, 22 May 2025. (The Applicant)

(b) Affidavit of Julian Ramirez Soto, 22 May 2025. (The Applicant's husband)

(c) Affidavit of Giorgio Lucciano Fecci Zambra, 22 May 2025. (Other employee of the First Respondent)

(d) Affidavit of Susan Elizabeth Price, 22 May 2025. (The Applicant's lawyer).

(e) Tony Lane, Forensic Accountant's Report (Expert report, Beacon Advisory Forensic 20 May 2025).

(f) Restaurant Industry Award 2020 MA000119.

(g) ASIC Current & Historical Company Extract - Capital Cafe-Bar Pty Ltd ACN 663 242 019, 17 March 2026.

(h) Affidavit of Rajandeep Kehal, 10 June 2025 - Paragraphs 3-4, 10-13, 16, 21 and Annexures RK1 and RK2. (The Second Respondent)

(a) On behalf of the Applicant dated 12 March 2026 (being prior to the appointment of a Liquidator to the First Respondent and prior to the Second Respondent's additional admissions on the date of trial); and

(b) On behalf of the Second Respondent dated 18 March 2026 (being prior to the Second Respondent abandoning his case with respect to the contraventions not already denied and of accessorial liability).

1. The following facts matters and circumstances were established by way of admission, deemed admission or unchallenged evidence.
2. On 19 October 2022, Capital Café-Bar Pty Ltd (the First Respondent) was duly registered. Rajandeep Kehal (the Second Respondent) was one of two directors and since 3 October 2023 Mr Kehal had been the sole director. Mr Kehal managed the business owned by the company called Café Capital Grind in Canberra City.
3. The Applicant was born in Columbia and on 9 October 2022 came to Australia with her husband. She holds a Bridging Visa while awaiting the outcome of her application for a Student Visa.
4. On 6 May 2024, the Applicant started work at the café as a casual waitress. She was 23 years old. Her employment was covered by the Restaurant Industry Award MA000119 (the Award).
5. Mr Kehal's wife offered the Applicant the job, showed her around the café, explained how everything worked, explained her role, showed her the photocopied piece of paper below the register on which she was to write her hours (later a purple notebook), provided the applicant with an 'Employee tax and super details' form, told the Applicant that she managed the finances for the café and introduced the Applicant to Mr Kehal. Thereafter, Mr Kehal or his wife routinely communicated with the Applicant about her shifts.
6. Mr Kehal was the manager at the café and was always there when the Applicant was working. Mr Kehal deposed to the rosters and work hours of the employees being handwritten in a notebook below the counter and that they were paid in accordance with the rosters and hours written by them.
7. At no material time did the First Respondent provide the Applicant with a Fair Work Information Statement or a Casual Employment Information Statement. The Applicant was not given a copy of the National Employment Standards or the Award.
8. At no material time were copies of the Award and the National Employment Standards available to all employees, either on a notice board, or through electronic means.
9. The Applicant was paid weekly via a direct transfer into her bank account. The First Respondent did not provide the Applicant with pay slips.
10. The Applicant could not reconcile the amounts she was paid against the hours she knew she had worked. She had no pay slips to check. On 29 July 2024, the Applicant attempted to raise this issue with Mr Kehal. Mr Kehal avoided the issue and instead offered to help her by telling her to go shopping and that he would pay for whatever she wanted.
11. The unchallenged evidence of the Applicant about what happened later that day is:

34. Just before the end of my shift, at around 14:40pm I went into the kitchen to wash the dishes after l had finished cleaning the front of the cafe. The chef, Mr Giorgio Fecci Zambra and Raj were in the kitchen. We were the last 3 staff in the cafe.

35. While I was standing at the sink washing the dishes, Raj asked Giorgio to take the bins out. This surprised me, as I was usually responsible for taking the bins out. I heard Giorgio agree to take the bins and then leave the kitchen with the rubbish.

36. Raj then came up behind me while I was washing dishes at the sink and wrapped both of his arms me, embracing me in a hug from behind in a way which constricted my upper arms from moving. The front of his body was pressed against the back of my body, pinning me to the sink. He had his wallet open in his left hand; his right arm was wrapped around my stomach with his hand on my waist, his face was close to mine. He then waved the wallet in front of me and said "Take the money, take some." I was shocked and scared, and I said "No."

37. His face was close to mine and I felt him press closer to me; he was so close I could feel his breath. I was so scared I felt frozen. I thought that he would do something worse, like raping me if I did not take the money. I thought he was trying to force me to take the money.

38. l saw multiple $100 notes in his wallet and a $50 note. I thought I had to do something to get him away from me. I lifted my hand from the sink and grabbed the smallest note, the $50 note from his wallet, with my left hand. Using my right arm, I pushed his right arm off of me, sweeping it back behind me and forcing him to take a step back. As I did so, I stepped back from him and was leaning away from the sink and towards the back wall of the kitchen. He was now to the side of me rather than behind me.

39. He then leant forward and kissed me on the lips. I was so shocked that I stood very still with my arms by my side and didn't say anything.

40. After the kiss ended, I heard a noise I thought it was Giorgio re-entering the cafe. I turned back to the sink and started to wash the dishes again.

41. As I turned back to the sink, I saw Giorgio walking back into the kitchen. Giorgio walked past me and Raj. I recall that he had been gone around 5 minutes and did not witness the hug, or the kiss on the lips. Raj then said to Giorgio words to the effect of "You can go home now, she can finish this. "

42. I was terrified that if Giorgio left, something worse would happen to me. I said to Giorgio in Spanish, "Don't leave me. "Giorgio replied in Spanish "No, I am going to leave you never."

43. I quickly finished up the remaining tasks and left the cafe with Giorgio around ten minutes later. I recall saying words to the effect of "Bye'' to Raj as I left the cafe. I don't remember where he was standing. I was too scared to confront him about what he had done, but I knew I would never go back there.

1. The Applicant did not return to work at the café after the Incident on 29 July 2024.
2. Mr Kehal repeatedly messaged the Applicant the next day including: I'm extremely sorry I did not mean that ... Trust me will won't ever happen again so sorry ... first and last time ... trust me I sware on my kids ... I've done blunder will not happen again first and last time pls ... Pls forgive me ... So last thing I wana clarify will u tell khush or this be a secret ... I promise you I will never do this stupidity again so sorry ...
3. On 30 and 31 July, Mr Kehal's wife messaged the Applicant including: ... Hi can u please call me1 time I need to know what happened it's please dear I m happy to pay u extra but I need to know what happened ... if you don't want to come to work it's fine please let me know why ? ...
4. On 31 July, Mr Kehal repeatedly messaged the Applicant including: ... I m extremely sorry I did not mean that. Pls come back tomorrow as a solid team my apologies ... And I will make sure of that never happen again ever I don't want to loose you guys pls Me and Khushi in Sydney please help us ... We really need help as me and her in Sydney have no other staff pls help ...
5. On 1 August 2024, the Applicant was provided with the one and only pay slip that she received from the First Respondent for the period 22-28 July 2024. The pay slip understated the hours worked and overstated the hourly rate the Applicant was being paid.
6. On 9 September 2024, the Applicant's lawyer requested from the First Respondent copies of timesheets, payslips, employment contracts and any other records of hours worked including the relevant extracts from the book where the Applicant had recorded her hours. The Applicant's lawyers did not receive any documents or substantive response to the request for records.
7. On 11 December 2024, the Applicant received via the Fair Work Ombudsman copies of fortnightly pay slips from the First Respondent. Those pay slips understated the hours worked and overstated the hourly rate the Applicant was paid. Those pay slips represented accrual of contributions to a superannuation fund for the benefit of the Applicant which were never paid by the First Respondent.
8. As at 12 August 2025, the Respondents pleaded they no longer had the diary in which each employee's shifts were recorded.
9. The underpayments total $6,079.08.

1. The list of contraventions in the tables below are extracted from the tables compiled by the Applicant in their written submissions.
2. A penalty unit in July 2024 was $313.

S125 FW Act

r. 2.02 FW Regs

Failure to provide Fair Work Information Statement

Failure to provide Casual Employment Information Statement

Failure to ensure copies of Award and NES available

Failure to provide pay slips within 1 working day

Failure to pay in accordance with Award - Failure to pay correct casual loading

Failure to pay in accordance with Award - Engaging casual to work more than 38 hours/wk in roster cycle

Failure to pay in accordance with Award - Failure to pay overtime rates for hours worked in excess of 38 hours/week

Failure to make superannuation contributions to superannuation fund

Failure to make employee records available upon request

Failure to provide Fair Work Information Statement

Failure to provide Casual Employment Information Statement

Failure to ensure copies of Award and NES available

Failure to provide pay slips within one working day

Failure to pay in accordance with Award - Failure to pay correct casual loading

Failure to pay in accordance with Award - Engaging casual to work more than 38 hours/wk in roster cycle

Failure to pay in accordance with Award - Failure to pay overtime rates for hours worked in excess of 38 hours/week

Failure to make superannuation contributions to superannuation fund

Failure to make employee records available upon request

1. There is no utility in reproducing the provisions of legislation cited above in these reasons. The other relevant provisions of the Act not mentioned in the Tables above are:

(1) The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

...

(b) an order awarding compensation for loss that a person has suffered because of the contravention;

...

(4) A court may make an order under this section:

(a) on its own initiative, during proceedings before the court; or

(b) on application.

(1) The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

(2) Subject to this section, the pecuniary penalty must not be more than:

(a) if the person is an individual--the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or

(b) if the person is a body corporate--5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2).

...

(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

...

(c) a particular person.

...

(5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

Section 550 - Involvement in contravention treated in same way as actual contravention

(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a) has aided, abetted, counselled or procured the contravention; or

(b) has induced the contravention, whether by threats or promises or otherwise; or

(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d) has conspired with others to effect the contravention.

(1) For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:

(a) the contraventions are committed by the same person; and

(b) the contraventions arose out of a course of conduct by the person.

1. I adopt and follow White J's analysis of the principles in relation to s 550 accessorial liability in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] to [179], cited with approval by the Full Court in Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 at [11], which may be summarised as:

(a) In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention - actual knowledge of the 'essential matters' which go to make up the events, whether or not the person knows that those matters amount to a contravention to the Act; and

(b) In order to be 'knowingly concerned' the person must have engaged in some act or conduct which 'implicates or involves him or her' in the contravention so that there be a 'practical connection between' the person and the contravention.

1. Katzmann J of the Federal Court of Australia in Fair Work Ombudsman v Sushi Bay Pty Ltd (in liq) (No.3) [2024] FCA 869, at [11]-[21] relatively recently summarised the principles governing the approach to determining the imposition of civil penalties. Those principles are adopted and followed.

1. The facts, matters and circumstances set out above firstly, were agreed, and secondly, were established by way of admission, deemed admission or unchallenged evidence. With respect to each contravention, Counsel for the Applicant dutifully reconciled in submissions which of them were established by way of admission, deemed admission or unchallenged evidence. It is not necessary to perform that exercise in these reasons were there is in effect no challenge by the Second Respondent to findings that each of the contraventions are proved.

1. Similarly, there is in effect no challenge by the Second Respondent to findings that he is accessorily liable for the First Respondent's contraventions. Axiomatically, the Second Respondent intentionally participated in each contravention with actual knowledge of the essential matters which made up the events, and, engaged in acts or conduct which involved him in each contravention so that there was a practical connection between him and each contravention.
2. I understood Counsel for the Second Respondent's submissions on this issue, particularly with regard to the subjective factors considered below, were to the effect of identifying the factors that may provide for a lesser pecuniary penalty amount in the event the Court determined that the proposed amounts were not appropriate.
3. Accordingly, I am satisfied that the declarations (largely) in the terms as jointly sought by the parties may properly be made. Declaration 5 concerning the underpayments has been included. It was not sought in the document proffered by the parties I presume because of oversight. Those contraventions were in the Applicant's claim, in the various tables in the Applicant's submissions, and proved.
4. Lastly, the document proffered by the parties proposed Declaration 1 concerning the sexual harassment contravention be in the same accessorily liable terms as the other declarations. Consistent with the facts, it has instead been declared that the Second Respondent is the only relevant person to have contravened section 527D of the Act.

1. I have had regard to s 557 of the Act. The object and purpose of s 557 is to ensure that the contravener is not penalised twice for what is essentially the same wrongdoing. Sushi Bay at [30] citing Rocky Holdings Pty Ltd v Fair Work Ombudsman [2014] FCAFC 62; (2014) 221 FCR 153 at [18].
2. The number of times each section was contravened was not particularised. The parties are agreed as to the list of each provision of the Act that has been contravened and the maximum penalty applicable to each provision as set out in the Table referable to the Second Respondent above. Inherently, they have already grouped individual occasions of contraventions in that way.
3. The parties have proposed a penalty amount for the sexual harassment contravention and they have proposed one amount as a penalty for the balance of the contraventions. In doing so the parties have separated the sexual harassment contravention from the balance of the contraventions. It is a clear outlier in conduct, nature and character and I agree that is appropriate.
4. Excepting the sexual harassment contravention, the objective seriousness in this case is the comprehensive, if not complete, disregard for the obligations of a national system employer under the Act which manifested in all of those contraventions.
5. For the dual purpose of, firstly, ensuring the Second Respondent is not penalised twice for what is essentially the same wrongdoing, and secondly, ensuring the penalty is no greater than that which is necessary to achieve the objects, like enough contraventions have been further grouped as indicated in the far right column of the table below headed 'Indicative Penalty' which provides for an indicative percentage of the applicable maximum penalty and the applicable amount. Penalty is discussed in the next section of these reasons.

Failure to provide Fair Work Information Statement

Failure to provide Casual Employment Information Statement

Failure to ensure copies of Award and NES available

Failure to provide pay slips within one working day

Failure to pay in accordance with Award - Failure to pay correct casual loading

Failure to pay in accordance with Award - Engaging casual to work more than 38 hours/wk in roster cycle

Failure to pay in accordance with Award - Failure to pay overtime rates for hours worked in excess of 38 hours/week

Failure to make superannuation contributions to superannuation fund

Failure to make employee records available upon request

1. The proposed amounts of the penalties are sufficient to serve the objects of both specific and general deterrence and send a message that contraventions are serious matters and are unacceptable.

1. The proposed amount of the penalty for sexual harassment at $9,390 is 50 per cent of the maximum.
2. The proposed amount for the balance of the penalties is $30,610 which is 11 per cent of the theoretical maximum of $287,960.
3. Together, the proposed amount of $40,000 is 13 per cent of the theoretical maximum of $306,740.

Balance between deterrence and oppressive severity

1. I have already determined that the proposed amounts promote the public interest in compliance by way of deterrence. The Second Respondent brought no evidence with respect to his financial circumstances on which an assessment of severity could be made. I infer that there is balance on the basis that the Second Respondent agrees to the proposed penalty amount.

1. Relevant subjective features are identified below. Some of these factors weigh in favour of a heavy penalty, others pull in the opposite direction. So far as they are relevant to penalty, they must still be seen through the prism of what is necessary to achieve deterrence.[1]
2. With respect to the sexual harassment:

(a) The Applicant was a vulnerable person on a number of accounts all of which I accept were easily observed if not expressly known by Mr Kehal. The Applicant was relatively young, female, a migrant, of limited financial resources and of limited social supports.

(b) Mr Kehal was in a position of authority. Further, he sought to leverage that authority in combination with the Applicant's vulnerabilities, particularly by holding out a financial gain to the Applicant.

(c) The contravention was a single incident. There is no evidence that there was any prior inappropriate behaviour, targeting or a permissive culture. There is no evidence of previous contraventions.

(d) Mr Kehal repeatedly expressed remorse to the Applicant the day after the incident and again two days after the incident. I do not accept that those expressions of remorse are indicative of acceptance of responsibility. I find that they were motivated by Mr Kehal wanting the incident to be undisclosed, avoidance of consequences, not wanting his wife to find out and the inconvenience of suddenly being short staffed.

(e) There is no evidence as to Mr Kehal's personal circumstances. The only inference available on the evidence is that he engaged in the behaviour for personal gratification.

(f) Initially, Mr Kehal denied the allegation which required the Applicant to prepare affidavit evidence. By his Amended Response in August 2025, he predominantly admitted to the allegation. Not until the day of the hearing did he make full admissions. The Applicant was spared the experience of being cross-examined.

1. With respect to the balance of the contraventions:

(a) Mr Kehal's wife employed, inducted and partially instructed the Applicant. I do not find that Mr Kehal's culpability is diminished because of that. There is no evidence that Mr Kehal had instructed or believed that his wife was meeting the First Respondent's obligations under the legislation. Ultimately, Mr Kehal was the only director and thereby the controlling mind of the First Respondent company. The evidence is indicative of a comprehensive disregard of obligations as a national system employer.

(b) The contravention period ran from the Applicant's commencement of employment on 6 May 2024 until at least the end of her employment on 29 July 2024. Arguably, on some contraventions such as the failure to keep records, they were ongoing until the liquidator was appointed on 17 March 2026.

(c) The contravention for giving false or misleading payslips attracts a higher penalty where it is conduct that inherently was intended to avoid penalty by deception and therefore is of higher culpability. Whereas the balance of the conventions fall within the comprehensive disregard for obligations under the Act previously referred to.

(d) The First Respondent is in liquidation from which I infer that it is insolvent, no longer trading for the benefit of its shareholders, is not a financial resource for Mr Kehal and the underpayments to the Applicant and superannuation contributions are unlikely to be paid.

(e) There is no evidence of previous contraventions.

(f) There is no evidence as to Mr Kehal's personal circumstances. There is no evidence as to the First Respondent's financial circumstances other than it is now in liquidation. The only inference available is that the First Respondent's and Mr Kehal's contraventions were for financial gain.

(g) Mr Kehal initially denied the allegations which required the Applicant to marshal evidence and prepare for hearing. By his Amended Response in August 2025, he partially admitted to the allegations. On the day of the hearing he made full admissions.

1. On one view, there is less work to be done in this regard where the parties seek that the Court determine the appropriateness of sums certain. On another view, it is the ultimate issue. I am satisfied that the proposed amounts of the penalties are not inconsistent with a result otherwise arrived at by instinctive synthesis.

1. The following findings which I have already made go to application of the principle of totality:

(a) The proposed amounts of the penalties are sufficient to serve the objects of both specific and general deterrence.

(b) The Second Respondent brought no evidence with respect to his financial circumstances on which an assessment of severity could be made.

1. The total indictive penalty is ten per cent higher than the proposed total penalty. That amount is highly susceptible to being the kind of amount that could be applied under the principle of totality.
2. Further, in the circumstances of the above findings, there is no basis on which I may otherwise determine that the penalty is greater than that which is necessary to achieve the objects.

1. Having had regard to all of the factors, I am satisfied that the pecuniary penalties in the amounts jointly sought by the parties are within the permissible range and may thereby be deemed as appropriate.
2. Accordingly, the orders for pecuniary penalties in the amounts and terms as jointly sought by the parties are made.

1. It was common ground that it was open to the Court to find as appropriate an amount for the pecuniary penalties other than that jointly sought by the parties. That is where respective Counsel spent most of their time and effort in oral submissions. Whilst neither Counsel went so far as to submit that I could not make the order for compensation as jointly sought by the parties, my understanding of their submissions is that the order as sought ought to be made. In addition, I understood Counsel for the Applicant submitted that as opposed to an inter partes agreement, a court order would also serve as to characterise the loss as non-economic.
2. In my view, jurisdiction to make the order jointly sought by the parties, or indeed any order, under s 545 of the Act in the circumstances of this case does not arise unless and until I am satisfied that:

(a) The Second Respondent has contravened a civil remedy provision; and

(b) The order awarding compensation is for loss that the Applicant has suffered because of the contravention; and

(c) The Court considers the order appropriate.

1. I have already found that the Second Respondent has contravened a civil remedy provision - namely s 527D of the Act.
2. As to the loss, with reference to the Applicant's affidavit, Counsel for the Applicant submitted:

34. In this case, the relevant facts are that the conduct of the Second Respondent caused the Applicant significant distress and humiliation. She resigned from her employment, experienced trouble sleeping, ruminated on the experience, cried and felt unsafe in her home. She also attended her General Practitioner to discuss the impacts on her mental health and sought support from friends and family. While she has gone on to find new employment, she was unemployed for a period and without income as a new migrant.

1. Whereas the legal representative for the Second Respondent submitted:

24. It is accepted that an act of sexual harassment took place, and that the Applicant otherwise would have suffered a degree of hurt, humiliation and anguish connected to both the alleged spoken words and physical acts of the Second Respondent.

25. In this case, the Applicant has sustained an injury, however the level of that injury is to be measured in context that:

a) the Applicant only attended a GP consult but did not receive psychological intervention and did not otherwise appear to have returned to the GP for further consultation;

...

d) the Applicant otherwise commenced employment with a new company twenty-two days after her last shift with the First Respondent and appears to have maintained continuing employment.

1. I accept both of those submissions as available and reasonable summaries of the relatively little evidence on this issue. There is no suggestion that the proposed order awarding compensation is for anything other than non-economic loss that the Applicant suffered because of the contravention.
2. Lastly, it falls to determine whether or not the proposed order is appropriate. I have taken a two part approach to finding that the proposed order is appropriate.
3. Firstly, with respect to approach and authorities, I refer to and adopt Counsel for the Applicant's submissions as follows:

31. In respect of non-economic loss Richardson v Oracle[2] established that when determining compensation consideration needs to be given to the "general standards prevailing in the community".[3] Consequently, courts have awarded more significant awards of damages in sexual harassment cases, noting that there is a growing "acceptance and an understanding of the pernicious nature of sexual harassment."[4] In recent years, significant awards of damages of up to $175 000 have been made in cases brought under the Sex Discrimination Act 1984 (Cth) and relevant state and territory anti-discrimination legislation.[5]

32. There is yet to be a published decision for a sexual harassment dispute brought under s527D of the FW Act. The new dispute mechanism is designed to complement the anti-discrimination jurisdiction, enabling people who experience sexual harassment in connection with work an alternate pathway to initiate civil proceedings and therefore we submit that any award of damages should be in line with similar cases in the anti-discrimination jurisdiction.[6]

33. Recently in Magar v Khan [2025] FCA 874 Justice Bromwich acknowledged that "[p]rior awards of damages are not precedents, but can act as yardsticks to assist in arriving at an appropriate measure of damages."[7] Similarly, Justice Bromberg explained in the case of Ewin v Vergara (No 3) [2013] FCA 1311 "[t]he assessment of general damages in compensation for pain and suffering, for loss of amenity or enjoyment of life and for other intangibles is not a science and by its nature is not readily capable of arithmetic calculation....Each case will be determined by its own facts."[8] Sexual harassment is also not mitigated by the fact that it occurred on a single occasion. In the case of Green v Queensland, Brooker & Keating [2017] QCAT 8 the Applicant was awarded $70 000 after he was subjected to a single incident of sexual harassment.[9]

1. Secondly, there was some but not much evidence on the issue of loss relative to cases of this nature and to cases of the quantum sought. The prevailing and predominant feature of this case informing the amount for compensation is that the parties jointly submitted the sum certain as agreed between them and thereby it be considered as an appropriate amount. I reiterate and emphasis what Bromwich J has stated above that prior awards of damages are not precedents, the assessment of general damages for non-economic loss is not a science and not readily capable of arithmetic calculation, and each case is to be determined by its own facts.
2. Accordingly, I am satisfied that jurisdiction has arisen and the order for compensation in the amount and terms as jointly sought by the parties is made.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield.

[1] Fair Work Ombudsman v Sushi Bay Pty Ltd (in liq) (No.3) [2024] FCA 869, at [15].

[2] Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 312 ALR 285 (Kenny J).

[4] Hill v Hughes [2019] FCCA 1267 [234] (Vasta J).

[5] See for example Magar v Khan [2025] FCA 874;Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147; Hill v Hughes t/as Beesley and Hughes Lawyers [2019] FCCA 1267; Oliver v Bassari (Human Rights) [2022] VCAT 329; Kumari v Bever Pty Ltd Human Rights [2023] VCAT 21.

[6] Revised Explanatory Memorandum of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 [12]-[14].

[7] Magar v Khan [2025] FCA 874 [199] (Bromwich J).

[8] Ewin v Vergara (No 3) (2013) FCA 1311 [658] (Bromberg J).

[9] Green v Queensland, Brooker & Keating [2017] QCAT 8.