Siudek v Aziz [2025] FedCFamC2G 1524

1. In support of his application, the applicant relies on the following Affidavit evidence:

(a) Affidavit made by him on 17 January 2025 (first Siudek Affidavit). Paragraph [16] of the first Siudek Affidavit was objected to by the respondent and not formally pressed;

(b) Affidavit made by him on 25 April 2024 (second Siudek Affidavit). The respondent also objected to [5] of the second Siudek Affidavit on the basis of relevance. The paragraph was allowed subject to the question of relevance. Objection was also taken in respect of [23] of the second Siudek Affidavit, together with the entirety of Exhibit "A", which is a USB containing what is said to be a "covert recording" made by the applicant of part of a telephone conversation between himself, the respondent and the respondent's daughter on 15 April 2023, which is referred to in that paragraph, and [50(d)] of the same Affidavit, in respect of which evidence is given, apparently, from the same recording. The objection was taken on the basis that the recording was allegedly made contrary to s 7(1) of the Surveillance Devices Act 2007 (NSW) (SD Act). For reasons which were given at hearing, the Court was not persuaded that there was any matter arising under s 138(3) of the Evidence Act 1995 (NSW) (Evidence Act) to warrant the exercise of its discretion to admit evidence which was found to have been obtained in contravention of the SD Act. The desirability of its admission did not outweigh the undesirability of admitting evidence which the Court was satisfied, had been obtained illegally, even when regard is had to the matters in ss 138(3). Accordingly, the corresponding paragraphs of the second Siudek Affidavit ([23] and [50(d)]) were rejected. The Court did not have regard to the audio recording (the USB containing which was not in any event put before it);

(c) Affidavit of Ms Wisnieswka made on 17 January 2024 (first Wisnieswka Affidavit), with the exception of [4] to [15] and [19], and noting that [21] to [26], [29] and [30] were allowed subject to the question of relevance;

(d) Affidavit of Ms Wisnieswka made on 25 April 2024 (second Wisnieswka Affidavit) was also read subject to relevance; and

(e) Affidavit of Joanna Bateman made on 24 April 2024. Paragraphs [6], [7], [9], [14] and [22] to [25] were not pressed by the applicant. Ms Bateman was not required for cross examination. The remainder of Ms Bateman's Affidavit was read, again subject to relevance.

1. The respondent relies on the following Affidavit evidence:

(a) Affidavit made by him on 18 March 2024 (first Aziz Affidavit);

(b) Affidavit made by him on 26 July 2024 (second Aziz Affidavit);

(c) Affidavit made by Zouzu Olivia Aziz on 18 March 2024 (Ms Aziz's Affidavit); and

(d) Affidavit made by John Christopher McAllister on 5 April 2024.

1. The evidence and demeanour of the witnesses is discussed below, as it relevantly arises.
2. Mr Siudek was forthright in the giving of his evidence which was generally consistent. His responses were candid, and were relevantly corroborated, in a plausible and consistent way, by Ms Wisniewksa (who was herself a forthright and believable witness). Mr Siudek was not diverted from his evidence during cross-examination. For the reasons which follow in respect of the witnesses for the respondent, where there is a direct dispute between Mr Siudek and those witnesses, Mr Siudek's account is preferred.
3. Ms Bateman's evidence was not the subject of challenge and to the extent it is relevant to any of the issues which remain in dispute, it can be accepted.
4. Mr Aziz's evidence was ultimately difficult to accept in many respects. He was frequently combative and gave evidence which was internally inconsistent and shifted in ways which gave the impression that he was adjusting his evidence to suit. The applicant submits that the respondent was evasive and self-serving in his evidence. I accept this to be an apposite characterisation. Mr Aziz sought to abrogate responsibility frequently, including in respect of his conduct as an employer to his daughter (Ms Aziz) and to his accountant (Mr Moussa). He also did so in respect of these proceedings by seeking to shift responsibility to Ms Aziz and to his solicitor for the preparation of his Affidavit evidence. Overall, Mr Aziz was not a particularly credible witness.
5. The same can next be said for Ms Aziz, who was an even more combative witness than her father. Ms Aziz's evidence, particularly during cross-examination had the quality of being both obstructive in her answers and imprecise. She commonly used the pronoun "we" to refer to matters she undertook by herself, but also used it to refer to conduct undertaken by the respondent alone. This blurring of boundaries between the actions of individuals also reflects the manner in which it appears that the respondent and Ms Aziz undertake their business activities. For example, emails sent to the applicant in relation to initial employment documentation were said by Ms Aziz to have been sent "from the family email"[7] being a particular Hotmail address. The respondent gave evidence that "That's my family email. Not the business email" and, said that payroll matters were to have been handled by Mr Moussa but also sheeted home responsibility to Ms Aziz throughout his cross-examination.[8]
6. Mr McCallister is a customer of Wang Pizza who was present in the pizzeria on 15 April 2023, during which the applicant and respondent had their final conversation before the applicant's employment was terminated. He gave evidence for the respondent, and says he did so without incentive, which I accept. However, ultimately, his evidence will be given limited weight having regard to a number of concessions made during cross-examination, which gave an overall impression that Mr McCallister recollections were less than stark, and not especially reliable.

1. Toward the conclusion of the final day of the hearing, Counsel for the respondent suggested that it might be necessary in circumstances to issue a certificate pursuant to s 128 of the Evidence Act (s 128 certificate) because the respondent had given evidence of other employment practices (not relating to the applicant) which could constitute a contravention of a certain provision of the Act, and potentially in respect of the Award.
2. After the hearing, I reviewed the evidence given and was ultimately satisfied that the exception in s 128(6)(b) of the Evidence Act was satisfied and, accordingly, issued the certificate in Chambers on 13 August 2024.

1. The background to these proceedings is derived from the written submissions of the parties, the Affidavit evidence and a joint aide memoire provided by the parties to the Court on 30 July 2024 (aide memoire). The following sets out the background to the issue which remains in dispute between the parties in relation to the alleged contraventions of the Act outlined at [4] above, as well as salient contextual matters which explain the Court's acceptance of the concessions and are relevant to consider in respect of penalty and compensation.
2. The respondent operates a pizza shop in the town of Wallerawang NSW, called 'Wang Pizza and Diner' (Wang Pizza). The respondent had bought Wang Pizza from Ms Bateman as a going concern. the respondent is assisted by his wife and his daughter in the day-to-day running and operation of Wang Pizza. The respondent is originally from Egypt and moved to Australia in or about 1996. The respondent's first language is Arabic, and he claims has a limited grasp on the English language[9]. He was assisted by an interpreter in the Arabic language r to give his evidence. As noted earlier the respondent said during cross-examination that his first Affidavit had been prepared for him by his daughter.[10]
3. The applicant and his partner (Ms Wisnieswka) worked casually for the respondent at Wang Pizza between 10 March 2023 to 16 April 2023 (being a period of 5 weeks which coincided with the opening of that business under the respondent's management). They had each previously worked for Ms Bateman.
4. The contract of employment between the applicant and the respondent was based upon an oral agreement between the parties.
5. The Award applied to the applicant, who was classified as 'Fast-Food Employee Level 1', prescribed minimum rates of pay, casual loading, shift penalties and overtime rates.
6. Having worked in or operated multiple food-based businesses since his arrival in Australia, under cross-examination the respondent accepted:[11]

(a) familiarity with the Award, having been subject to it himself previously, albeit at level 5 because of his chef skills;

(b) specifically knowing about the Award prior to opening Wang Pizza and, therefore, prior to his employment of the applicant;

(c) knowing, as at March 2023, that he had an obligation as an employer to:

(i) provide payslips; and

(ii) pay Award rates; and

(d) that he (now) takes full responsibility for the Wang Pizza business.

1. It was common ground between each of the respondent and Ms Aziz that they experienced difficulties in the initial weeks of them assuming and establishing operation of Wang Pizza. Much was said by each of them about being in a rush to have the business open, which occurred 10 days later than they had planned, and that the respondent was sick during this period and was hospitalised during this time. The respondent gave evidence that he left Ms Aziz, and his accountant to deal with payroll and other employment matters because at this time, that he had:

no idea for what the payment was going on. Because we need to [set] up the business.

I have to go back to and my daughter or my ..... because seriously, in this time, I'm focused on the kitchen. I sleep three days in the mattress to [set] up the business

1. Upon receiving various information from the applicant, Ms Aziz then "set up" the payroll system, albeit it was not operational for the applicant's first week of work. Ms Aziz gave evidence that the rate of pay was not the Award rate, knowledge of which she says she did not have at that time. Rather, she said the rate was "a collaborative decision made from both the employee and my father. That was what I was told from my father."[12] Ms Aziz then said "we paid"[13] the applicant cash in hand for the first week which, in another example of the blurring referred to in the preceding paragraph, it transpired to mean that the respondent had paid the applicant and had simply told Ms Aziz he had done so. As with many responses given by her, Ms Aziz had no direct knowledge and was presenting hearsay as being first-hand experience. She was also quick to sheet home responsibility to Mr Moussa in turn. Further, despite an assertion during cross-examination that Ms Aziz had sent an email to the applicant requesting superannuation and tax details, no such document was produced following a call for production during the hearing.
2. There was evidence given by the respondent in relation to payments made by him to the applicant prior to the business opening. The respondent seemed to consider these to be acts of generosity on his part in paying the applicant for his time, and not an employment obligation.[14] This was later explained as being an understanding on the part of the respondent that what was "normal" was that when the applicant started he had one training week (despite having worked in the business previously under its former owner) and that "we have to pay in cash because the business is not open yet. And when the business is starting to open, that's when I send him the message to set it up"[15] (with "it" being a reference to payroll with taxation details).
3. Overall, Ms Aziz's evidence served primarily to reinforce the haphazard systems and practices the respondent had in place for the opening and operation of Wang Pizza. As with her father, Ms Aziz was adamant that the subjective, personal difficulties which were experienced by them in the delayed (and then ultimately urgent) opening of that business (including that the respondent abrogated his employment responsibilities because he was focused on the kitchen responsibilities), justified the failures of the respondent to comply with his obligations as the applicant's employer. This belief is mistaken.
4. The respondent now admits that:

(a) during the early weeks of operation of Wang Pizza, he did not have proper payroll systems in place, despite his more recent acknowledgement that it was his responsibility to do so;[16]

(b) the applicant was entitled to the sum of $5,234.66, being the totality of his wage entitlements under the Award during his employment;[17]

(c) he therefore underpaid the applicant $1,476.77;[18] and

(d) during the applicant's employment by the respondent, the applicant made various complaints and inquiries about his pay to the respondent (except on 12 April 2023 which the respondent denies - see [29] to [35] below) and that, in so doing, it is conceded that the applicant was exerci[19]ng his workplace rights.19

1. The respondent also accepts he failed to provide the applicant a payslip on 21 March 2023 for the preceding pay cycle.

1. The complaints referred to at [26(d)] above were said to have taken place on each of:

(a) 5 April 2023;

(b) 12 April 2023;

(c) 14 April 2023; and

(d) 15 April 2023.

1. As mentioned above at [4], it is the content of the conversation which took place on 12 April 2023 which remains in dispute between the parties. Consequently, so does whether (during the conversation which allegedly took place on 12 April 2023) the respondent breached s 345 of the Act. The applicant says that he made a complaint, pursuant to s 341(1)(c)(ii) of the Act to the respondent, regarding his wages not having been paid in the amounts prescribed by the Award still not being paid (12 April 2023 complaint). The particulars to this claim alleged that the 12 April 2023 complaint was a:

...verbal conversation between the Applicant, the Respondent and Malgorzata Wisniewska at the Business on 12 April 2023 where the Applicant said words to the effect: "Hey Atif, we still haven't received any new payslips or payment of underpaid wages which we discussed last week."

1. The applicant alleges, and the respondent continues to deny, that he made false or misleading representations about minimum rates of pay under cl 11.2 of the Award. The applicant says that, during the conversation in which the 12 April 2023 complaint took place, the respondent represented to him that he was not entitled to the Level 1 minimum rate or weekend penalties under the Award because of his experience and qualifications (first representation). This claim is particularised in the applicant's form 2 in the following way:

verbal conversation between the Applicant, the Respondent and Malgorzata Wisniewska at the Business on 12 April 2023 where the Respondent said words to the effect: "You are both being paid enough already. What you are asking for are chef's wages and you have no experience or qualifications. I won't be paying you $29.23 during the week and $35.07 on weekends."

1. For the applicant it is contended that it was not put to him "in any significant way" during his cross-examination that his account was not correct but that, nonetheless, he maintained that the respondent said the words attributed to him at [30] above, was not cooperative and did shout at him during the conversation. The applicant accepted the respondent was not physically aggressive during the conversation. The applicant relies on Ms Wisniewska's corroboration of this account, which is largely consistent.
2. In contrast, the respondent denied telling the applicant that he was being paid enough, but did concede that he telephoned Mr Moussa during the conversation. The applicant says that there would have been no need to call the accountant unless there was a dispute about what the applicant was asserting.
3. The respondent concedes that, while there were inconsistencies in his evidence at hearing in relation to other matters, that in respect of the first representation that his evidence was consistent with the fact that he admitted he did not know the applicable award rates at that time and so therefore was not in a position to comment on whether what was being sought was too high or too low. The respondent submitted that it was not necessarily the case that simply because he admitted to having called Mr Moussa during the conversation that there was a dispute about what the applicant was requesting. The respondent invites the Court to draw an inference that he called Mr Moussa to clarify the entitlements because (in his words at the hearing) "How would I know?"[20] In these circumstances, the respondent says his version should be preferred to that of the applicant and Ms Wisniewska.
4. In cross-examination the respondent conceded that he referred to the applicant expecting "chef's wages".[21] This occurred after his rhetorical response in cross-examination when he responded with "How would I know?"[22] Having regard to the observations made at [11] above about the respondent's generally shifting approach and combative demeanour during cross-examination, I am not satisfied that this response is a genuine disavowal of the representation, nor a genuine statement that the respondent was unaware of the amount the applicant ought to have been paid. I have had regard to the respondent's earlier evidence about his knowledge of pay rates from when he himse[23] was a chef23 and his acknowledgement while being cross-examined in respect of this alleged incident that he did make comments about the applicant expecting chef's wages. It is therefore open to infer, and I do, that the respondent considered the amount that the applicant was being paid to be (more than) enough, having regard to their respective levels of experience with he being level 5 un[24]r the Award24 and the applicant b[25]ng level 1.25 I reject the respondent's later explanation that he did not understand what Counsel for the applicant was t[26]king about,26 given that by that juncture in cross-examination he had accepted (and repeated) by that he made the statement in question. I also reject his explanation that he and the applicant were discussing a missing pay slip during th[27]discussion.27
5. Overall, I am satisfied that the first representation was made on 12 April 2023 in the terms the applicant alleges and that, accordingly, the respondent did contravene s 345 of the Act as detailed at [4] above.
6. While I am not satisfied that the respondent deliberately sought to mislead the applicant, I am satisfied that in making each of the misrepresentations he did so recklessly. The respondent appears to have taken the view that the disorganised start to the Wang Pizza business, justified his conduct towards the applicant as an employer. He also seemed to think that any discrepancies in pay would eventually be rectified by his accountant. In responding to the applicant's complaints, the respondent did not seek to inform himself either in advance, or upon the making of the various complaints, about the correct state of the law, his own obligations or the applicant's rights, and instead chose either denials and/or misstatements. The respondent says that the misrepresentations which he now concedes, were made recklessly and not deliberate. While I am satisfied that the respondent did not engage deliberately to mislead, overall I am also satisfied that he did not take reasonable steps to inform himself of his obligations as an employer and this reckless disregard of those obligations resulted in the contravening conduct. The evidence from all the witnesses, but in particular the respondent and his daughter, indicates that the respondent took the view that his personal and business circumstances amply justified this recklessness and that his employees should think so too.

1. Thereafter, the parties agree that the respondent dismissed the applicant from his employment by text message sent on 16 April 2023. Following the hearing, the respondent conceded that his evidence at hearing constituted an admission, namely that what was said by the applicant about his employment was a contributory reason for the dismissal. The respondent accepts that this admission at hearing has the resultant impact that he has failed to discharge his burden under s 361 of the Act.
2. As such, the reasons for the dismissal are also no longer dispute between the parties. The respondent says he dismissed the applicant because of the applicant's behaviour during the conversation on 15 April 2023. The applicant contends that he was dismissed because he had made complaints and inquiries about his workplace rights and entitlements. There were varying accounts between the parties as to the nature of the interaction including whether either or both of the applicant and respondent raised their voices, whether there was aggression and who the aggressor was. I am satisfied that there was a verbal altercation between the applicant and the respondent. When asked at hearing whether it was because the applicant had embarrassed him in front of the customers or because of the complaints the applicant made in relation to underpayments during the same discussion that he had terminated the applicant's employment, the respondent conceded that it was for "both"[28] reasons. Given the (predominantly conceded) misrepresentations, the fact that there was a verbal altercation at all, in circumstances where the applicant was making a complaints/inquiries about his workplace rights and entitlements (see [36] above) is relevant as aggravating factor to the dismissal contravention.
3. The respondent concedes that his evidence at hearing constituted an admission, namely that "what was said" in the complaint/inquiry about workplace rights and entitlements was an actuating reason for the dismissal. The respondent accepts that this admission at hearing has the resultant impact that he has failed to discharge his burden under s 361 of the Act. I accept the concession, which is properly made on the evidence, and am satisfied that the respondent was the relevant decision-maker for the purposes of these proceedings.
4. Before turning to the question of penalty, it is prudent to record in the interests of completeness, that the Court is satisfied that each of the contraventions alleged by the applicant is now made out including those which the respondent conceded and that which he disputed, namely contravention of s 345 of the Act set out at [4] above.

1. Having resolved the respondent's liability in relation to the contraventions, the applicant seeks orders pursuant to s 546 of the Act imposing pecuniary penalties on the respondent for his contraventions of the Act, and an order pursuant to s 546(3) that any penalties imposed be paid to him within 28 days. The question which remains for determination by the Court in terms of penalty is whether any penalty/ies should be imposed and, if so, the quantum of them.
2. Section 546(2) of the Act provides that the pecuniary penalty the Court may impose, in circumstances where the person is an individual, is no more than the maximum number of penalty units referred to in the relevant item in column 4 in the table in s 539(2).
3. The parties agree that:

(a) from the period of 1 July 2022 and 1 July 2023, a penalty unit had the value of $275; and

(b) the maximum penalty for an individual in respect of the contraventions the subject of these proceedings is 60 penalty units, which equates to $16,500 per contravention.

1. The applicant considers the appropriate penalty for the 10 contraventions of the Act by the respondent should be 60% of the maximum penalties, being $99,900. The applicant submitted that the penalties should be assessed at the "higher end of the scale" because of the deliberateness of the respondent's conduct. The respondent submits that the appropriate penalty for the admitted contraventions of the Act should be 10% of the maximum amount, with an additional totality discount. The applicant however said that there is no submission as to why the totality principle is appropriate in this case.

1. The principles for determining penalties are well settled.
2. In Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 (Pattinson), the High Court described the purpose of a civil penalty as being "primarily, if not solely, the promotion of the public interest in compliance with the provisions of the [FW] Act by the deterrence of further contraventions of the Act": see Pattinson at [9] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ.
3. In determining what is reasonably necessary to achieve specific and general deterrence, regard may be had to the non-exhaustive list of the factors identified in Trade Practices Commission v CSR Ltd [1990] FCA 521: see Pattison at [18]; Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5; (2023) 407 ALR 302 at [50] per Rares, Stewart and Abraham JJ. Those factors include:

(a) the nature and extent of the contravening conduct;

(b) the amount of loss or damage caused;

(c) the circumstances in which the conduct took place;

(d) the size of the contravening company;

(e) the degree of power it has, as evidenced by its market share and ease of entry into the market;

(f) the deliberateness of the contravention and the period over which it extended;

(g) whether the contravention arose out of the conduct of senior management or at a lower level;

(h) whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and

(i) whether the company has shown a disposition to co-operate with the authorities responsible for enforcement of the Act in relation to contravention.

1. It should be noted however, that the abovementioned factors, do not form a "rigid catalogue of matters for attention": see Pattinson at [19]. The Court has a broad discretion to assess the appropriate penalty, adopting an approach of "instinctive synthesis": see Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 (Merringtons[29]) at [27] to [28] per Gray J and [55] and [78] per Graham J.
2. In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 per [36], Bromwich J set out the following five steps to be taken in the assessment of penalty:

(a) identify each separate contravention, noting that each breach of an obligation under the Act, including each breach of a term of a modern award, is a separate contravention;

(b) apply s 557 of the Act to determine whether two or more, or any group of two or more contraventions, should be treated as a single contravention or single contraventions;

(c) consider the application of the common law one transaction principle; that is, consider whether there should be further adjustment to ensure that, to the extent of any overlap between the groups of separate aggregated contravention there is no double penalty;

(d) assess the appropriate penalty for each final individual group of contraventions, taken in isolation, and with reference to factors relevant to the assessment of penalties to ensure the penalties are an appropriate response to the conduct that led to the contraventions; and

(e) consider the overall penalties arrived at and apply the "totality principle", to ensure that the penalties are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary.

Identification of contraventions and aggregation

1. There is no dispute between the parties as to the contraventions (other than in respect the contravention constituted by the first representation, which is now resolved) and the grouping which they contend would be appropriate. Their respective positions can be summarised thusly:

Section 45 - Minimum rate of pay contravention

Section 45 - Weekend penalty rate contravention

Section 45 - Public holiday penalty rate contravention

Section 45 - Overtime contravention

Section 45 - Superannuation contravention

Section 340 - Dismissal adverse action contravention

Section 345 - Misrepresentation about classification contravention

Section 345 - Misrepresentation about public holidays contravention

Common law course of conduct, view as one contravention

Section 345 - Misrepresentation about overtime contravention

Common law course of conduct, view as one contravention

1. The applicant seeks an order pursuant to s 546(3)(c) of the Act that any penalties imposed be paid to him (within 28 days). The respondent says that if the Court takes the view that it is appropriate to impose penalty/ies, this should be paid to the Commonwealth, pursuant to s 546(3)(a) of the Act.

Nature, extent, circumstances and deliberateness of the contravening conduct

1. In relation to the respondent's contraventions of s 45 of the Act, the applicant says that the respondent's conduct can only be considered deliberate in circumstances where the respondent was aware prior to employing the applicant that the Award applied to the applicant's employment and where he failed to take responsibility for, or correct the issues when they were raised (on multiple occasions) by the applicant. The applicant submitted that the respondent responded in a way that was "combative and aggressive" when the contraventions were raised by him, and that he accused the applicant of lying on the second and third occasions that the specific issue regarding the missing payslips and underpayments were raised.
2. The applicant submitted that the respondent deliberately continued not to pay the applicant overtime and public holiday payments, despite being provided with information from the Fair Work Ombudsman (FWO) by the applicant in respect thereof, that he benefitted financially from the underpayment of entitlements to the applicant, and that he continues to blame the applicant for his failure to rectify the underpayments because he "asked to be paid in cash" (CB 182 at [58], CB 174 at [13], CB 178 at [27]).
3. The applicant says that s 45 contraventions are serious as they involve fundamental minimum entitlements, and that the failure to provide payslips is "much more than a technical breach"[30] because payslips enable employees to understand whether their minimum entitlements were complied with, citing Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258 at [67].
4. In relation to the s 345 contraventions, the applicant says that the misrepresentations were made by the respondent in response to the applicant having raised his entitlement to workplace rights, and to stop the applicant from properly understanding whether his basic protections were being breached and from potentially pursuing his legal entitlements. Further, the applicant submitted that the representations were made knowingly and recklessly, in circumstances where the applicant had provided the respondent with relevant material from the FWO.
5. The applicant says that the s 340 breach in the context of the other contraventions represents deliberate conduct to dismiss an employee for asking to be paid his minimum entitlements.
6. The respondent acknowledges that the contraventions are in respect of fundamental workplace entitlements, however, says that they occurred over a "very short period of only 5 weeks"[31]. The respondent says the brevity of the period is factor which goes to both general and specific deterrence. The respondent further says that the contravening conduct occurred with respect to a casual employee, and in a small family business in the first weeks of the business' operation, and that the total underpayment (including superannuation), which amounted to $1,980.83, has since been fully rectified. In relation to the deliberateness of this contravention the respondent says his conduct was not deliberate, but rather stemmed from a fundamental lack of knowledge of workplace laws in the opening weeks of the business. In this respect, the respondent relies on the fact he is a migrant, and that English is not his first language.
7. The applicant says the respondent did not lack an understanding of his legal obligations.
8. As noted above, I am satisfied that respondent's reaction to each of the complaints which have been found to have been made, was to make the misrepresentations he is alleged to have made and then to have terminated the applicant's employment.
9. I am also not persuaded by the submissions made for the respondent to the effect that his actions are somewhat mitigated because of his lack of English language skills. The evidence demonstrates that the respondent has extensive experience in the food service industry and was himself a chef covered by a modern award. The applicant contends there is no evidence that the respondent's language skills had any bearing on his knowledge of the Award or the industrial relations system. I accept that observation. Rather than being a question of his subjective grasp of language, the evidence of the respondent (who apparently spoke English to his wife and daughter) relies on other personal circumstances attending the time in and around the opening of Wang Pizza as being explanations for his failure to comply with his obligations. As noted at [25] above, this is not an acceptable explanation.
10. I am satisfied that the contraventions, other than the dismissed contraventions, other than the dismissed contraventions, were reckless. I am satisfied that the dismissal contravention was deliberate.

Nature and extent of loss and compliance with minimum standards

1. The applicant says that the veracity and aggression with which the respondent sought to defend his contravening conduct and thereafter, significantly aggravated the loss suffered by the applicant, and that this weighs in favour of assessing penalty at the higher range.
2. The respondent says that the loss caused by the contraventions is minimal, and that the underpayment has been rectified. Given the applicant was a casual employee, the respondent says he could have had no expectation of ongoing employment and, in fact, he was able to find alternate employment shortly after his dismissal. These submissions went to compensation as well.
3. The applicant disputes the respondent's position that the loss was minimal, and says that his loss was exacerbated by the fact he was unable to apply to Centrelink for the period of his unemployment (being 9 weeks) due to the respondent's refusal to provide a separation certificate.
4. The position of the respondent in seeking to minimise the extent of loss and compliance with minimum standards is consistent with his subjective view of the primacy of his circumstances over the impacts to his employee, as discussed at [59] above. That the losses may be small in the view of the respondent is not the relevant measure.

1. The applicant was entitled to the sum of $5,234.66, being the totality of his wage entitlements under the Award during his employment. The respondent underpaid the applicant $1,476.77. The respondent subsequently made two payments to the applicant to partially rectify the underpayment on 24 April 2023 and on 3 July 2023. The respondent was issued a Compliance Notice by the FWO on 28 September 2023 with respect to the underpayment. The underpayment was wholly rectified by the respondent by 10 November 2023. On 17 November 2023, the FWO wrote to the respondent acknowledging that he had rectified the underpayment.
2. The applicant was also owed $503.61 in superannuation which was not paid within the requisite timeframe. The respondent later paid the amount owing of superannuation of $503.61 in or about April 2024 such that this underpayment has also now been wholly rectified.
3. The applicant submitted that there had been multiple attempts by him (including via the FWO and his legal representatives) to correct the underpayment and non-payment of superannuation issues.
4. The applicant says that it is open to the Court to infer that the respondent's "eleventh hour" contrition and admissions were "self-serving" and made only because of the imminent hearing, and that prior to 26 July 2024, the respondent took no responsibility for the contraventions and failed to promptly rectify the issues until enforcement action had been taken by the relevant regulatory bodies.
5. The applicant says the absence of corrective action by the respondent tends to weigh in favour of a higher penalty.
6. The respondent submitted that there was not "eleventh hour" rectification as the underpayment was rectified by 10 November 2023 and the superannuation in April 2024.
7. I agree that the corrective action was relatively late, and perhaps motivated by the imminent hearing. However, as this Court observed in Molina v Galloway [2022] FedCFamC2G 904 at [67], some regard must be had to the corrective action because if corrective action were to have no impact on penalty there would be a correlative disincentive to ever rectify conduct. Accordingly, the corrective action is a relevant factor in reducing penalty.

1. The respondent submitted his financial position is not strong and relies on a draft tax return for the financial year ending 30 June 2024.[32] To the extent that the respondent seeks to advance an argument that the penalties should be determined by reference his financial position, the applicant relies on the observations of Heerey J in Jordan v Mornington Inn Pty Ltd [2007] FCA 1384 where at [99] his Honour said the following:

As to the respondent's own financial position, however, in considering the size of a penalty, capacity to pay is of less relevance than the objective of general deterrence: Leahy (No 2) at [9]. In any event, to the extent that financial hardship might mitigate what would otherwise be an appropriate penalty, such an argument would need to be based on evidence.

1. The evidence produced by the respondent is limited, despite a fulsome opportunity to prepare it. The respondent says he was not cross-examined about his financial position at hearing. However, the purpose of cross-examination is not to enable a party to better their evidence where they have otherwise elected to advance none. I accept the submissions of the applicant that the draft tax return document is proffered without evidence of its provenance, including by whom it was prepared. Nor has any evidence been presented of the applicant's assets and liabilities, profits and loss, or income in the past or presently, which might otherwise be expected if he seeks to contend that his financial position is itself a mitigating factor to the imposition of penalty. In the absence of evidence to support the respondent's submission it is a bare, one to which very little weight can be attributed in respect of penalty.

1. The respondent has acknowledged he did not have the proper systems in place when the contraventions occurred and has deposed that, in future, he would seek legal advice to ensure that future employment relationships comply with the law.[33] The applicant says that the fact the respondent has failed to have proper systems in place when contraventions have occurred, and has continued to act in the same manner (e.g. payment of less than minimum wages to casuals), would support a higher penalty. Other than this statement of intention, there is no material before the Court to demonstrate that any tangible improvements have been made to the respondent's business practices or systems.

1. In respect of general deterrence, the applicant says that the respondent's conduct, in particular the fact he ignored information from the FWO about his employee's legal entitlements and dismissed the applicant's demands as being illegitimate, ought to be disincentivised. The applicant says this is especially important in the context of the hospitality industry, where the risk of future similar contravention is high.
2. The respondent submitted that this result would be oppressive and unjustified in the circumstances in which the contraventions occurred, including that it was during the opening weeks of the business, the respondent admitted he did not have proper systems or understanding of employee entitlements, there was minimal loss caused, and his financial circumstances are "poor". The respondent has urged the Court to ensure that penalty does not exceed what is reasonably necessary to achieve the goals of specific and general deterrence.
3. So much can be accepted as the appropriate approach to the amount of penalty.

1. The applicant submitted that there is a particular need to deter the respondent from engaging in the same conduct in the future because he is a sole trader, operating a business in the hospitality industry, has shown a disregard for his obligations under the Act and that he is highly likely to continue to have responsibilities for employing and overseeing employee entitlements in the future in circumstances where he continues to operate his business. The applicant says there is no evidence before the Court that any risk of future contravention by the respondent has already been reduced.
2. The respondent submitted that there is no evidence before the Court that he has previously contravened the Act or engaged in conduct of a similar kind, and that he has demonstrated a disposition to cooperate with the FWO. In particular, the respondent highlighted in his written closing submissions that he has demonstrated a disposition to cooperate with the regulator by complying with the FWO compliance notice within 6 weeks of its issue.
3. While general deterrence is not an irrelevant factor, the present case is one which speaks more significantly to specific deterrence. The evidence of the respondent, and his demeanour while giving that evidence demonstrate that the respondent is of the view that he can act with impunity provided he has subjective, personal justifications for so doing.
4. I am satisfied that there is a strong need to specifically deter the respondent from this view and from conduct undertaken in accordance with it.

1. I have reviewed the positions of the parties in respect of the aggregation of contraventions, and agree that the contraventions should be treated individually. Each party respectively contends that the amount of penalty they consider to be appropriate applies to each of the contraventions (albeit they are significantly apart in terms of what they each contend would be appropriate quantum). I bear in mind that the purpose of any penalty is not punitive but largely, if not solely, to be directed to deterrence, what will be an appropriate penalty is a fact driven exercise to be determined on a case-by-case basis.
2. The Court is considering what, if any, penalty is necessary and apposite in order to deter future contraventions "of a like kind" by the respondent and by others to achieve specific and general deterrence: see Pattinson (supra) at [9] to [10].
3. Having regard to all the factors assessed at [52] to [82] above, I am of the view that the following penalties should be imposed on the respondent. In terms of the quantum of that penalty, I am satisfied that taking into account all the aforementioned consideration, the appropriate penalty is $35% of the total maximum penalty, namely $5,775 per contravention, for a total of $57,750.00.
4. The applicant says that no adjustment should be made based on the "totality principle" when viewing the respondent's conduct as a whole, whereas the respondent says that adjustment should be made. While each is directed at avoiding duplication "course of conduct" and "totality" are distinct considerations: see Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27; (2014) 97 ACSR 412 at [197] to [198] and Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at [45] to [48]. In Australian Building and Construction Commissioner v Rielly (No 3) [2022] FedCFamC2G 1, Judge Driver said the following at [56] (footnotes omitted):

Where multiple penalties are to be imposed upon a particular wrongdoer, the totality principle requires the Court to make a "final check" of the penalties to be imposed on a wrongdoer, considered as a whole. It will not necessarily result in a reduction. However, in cases where the Court believes that the cumulative total of the penalties to be imposed would be too low or too high, the Court should alter the final penalties to ensure that they are "just and appropriate". As noted, the totality principle is quite separate from the course of conduct principle and is applied at a different stage of analysis. The application of the totality principle does not authorise a court to impose a single penalty for multiple offences.

1. There is no dispute between the parties in respect of course of conduct, nor is there any dispute that the totality principle should be applied as a final check. The extant dispute is only as to their preferred outcomes.
2. I am satisfied that the totality principle applies to check if the quantum of penalty assessed at this point adequately reflects the nature and seriousness of the conduct involved. I am not so satisfied. Rather, I am the view that there should be a further adjustment having regard to the fact that (notwithstanding the contraventions stand individually) overall the total quantum arrived at is still, in my view, somewhat oppressive in all the circumstances. In my view the appropriate adjustment is a further reduction of $7,750, resulting in an overall penalty for all contraventions of $50,000 in total.
3. The parties are also at odds in their respective positions as to by whom the penalties should be paid. No substantive submissions were made by the parties to underpin their respective positions. I have had regard to the recent, helpful and thorough consideration of this issue by the Federal Court in Transport Workers' Union of Australia v Qantas Airways Ltd (Penalty) [2025] FCA 971 (Qantas penalty case) per Lee J at [231] to [299], albeit while recognising some significant factual differences between the scope of that litigation and the nature of its parties to the instant case. To whom the penalty does depends on the nature and circumstances of the case. In Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170; (2008) 171 FCR 357 at [44], Gray J observed that:

Where a public official vindicates the law by suing for and obtaining a penalty, it is appropriate that the penalty be paid to the Consolidated Revenue Fund. Otherwise, the general rule remains appropriate, that the penalty is to be paid to the party initiating the proceeding, with the Gibbs [1992] FCA 553; 37 FCR 216 exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted.

1. In essence, the principle that penalty be paid to the applicant who pursues the is that it is a 'bounty' of sorts for their individual contribution to enforcement of workplace laws. As Lee J said in the aforementioned Qantas penalty case at [298] (citing Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Botany Cranes) [2023] FCAFC 40; (2023) 297 FCR 438):

Given the order contemplated is not to be regarded as compensatory in any way (Botany Cranes (at 500-501 [235])), some guide to appropriate quantum can be achieved by focussing on the relationship between risk and reward (linked, as this concept necessarily is, to incentive). It does not strike me as intuitively wrong that greater rewards might be appropriate in circumstances of greater risk.

1. The amount of the underpayments to the applicant were, objectively, not financially substantial. In part that is probably because the underpayments arose sufficiently early in his employment that they did not have the time or scope to accumulate. As against those amounts, there might be many an employee who may consider that pursuit of proceedings such as this to be not relatively worthwhile. While, unlike proceedings such as the Qantas penalty case where the union in question quite clearly brought the proceedings on behalf of a class of persons, the applicant does not expressly do so. However, broadly speaking the class of persons he represents are those persons who might be employed by the respondent in future, or employees of small businesses who take the view the respondent did that their own personal business woes, or shambolic practices, are somehow an excuse for failing to meet their obligations as an employer. Having regard also to the fact that the respondent ultimately conceded all by one of the contraventions, the applicant is vindicated in having prosecuted this case. Overall, in the exercise of discretion, I am satisfied that half the penalty should be paid to the applicant, with the balance to be paid to the Commonwealth.

1. The applicant seeks competition for both economic, and non-economic loss, the latter being said to be comprised of anxiety, hurt, embarrassment and distress.
2. It is appropriate to consider what would have occurred had the general protections not been contravened and the applicant's employment not terminated. The applicant quite candidly acknowledges that he was a casual employee and that his employment could have been terminated within a short period. However, he also points to the fact that the circumstances of his employment by the respondent were such that, had it not been for the complaints or inquiries which ultimately led to his employment being terminated, he would have continued to work for the respondent "for a substantial period of time". In support of this the applicant points to the evidence of the respondent during cross-examination that the applicant was a "good worker" and would still be working, but for the conversation on 15 April 2023.
3. Despite submitting that the employment might have conditioned for a long period, the applicant advances a cautious calculation, namely that he would have continued in employment for a period of 2 months, performing the same hours he performed during his employment, and therefore suffered (an approximation) $12,000 in economic loss.
4. In terms of compensation for non-economic loss for hurt, distress and humiliation or other similar descriptions, the applicant says that finding that the dismissal from employment gave rise to hurt and humiliation in respect of the employee gives the court discretion to resolve this by compensating for the hurt and humiliation, citing Australia Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCAFC 333; (2011) 193 FCR 526 and In v Giri Australia Pty Ltd (No 2) [2024] FedCFamC2G 133 per Judge Symons.
5. The applicant's evidence in support of this claim is that he was embarrassed by reason of the loss of his job in a small town in which he knew many of the customers of The Wang. He claims to have been additionally distressed because of the untrue allegations spread by the respondent as to why the employment ended, saying that he was accused of being aggressive and unprofessional. The applicant says he had to seek assistance from his parents and relocate to another town to seek employment and in the circumstances, seeks $12,000 for non-economic for the s 340 breach.
6. The respondent submits that $1,000 non-economic loss is appropriate for the misrepresentation contraventions on the basis that they were recklessly made but on the basis of genuine mistake. In terms of the dismissal contravention, the respondent says that despite his concession that the applicant was "a good worker", that it was "highly unlikely" that the applicant would have remained in employment for much longer with the respondent because "it was clear that the relationship of trust had broken down" and therefore it was unrealistic that he would have stayed. However, this seeks to take the benefit of the contravention as being a mitigating factor. The respondent submits that $6,000 for economic loss is the appropriate quantum "given the extremely brief duration of the applicant's employment"[34].
7. I accept the submissions of the applicant in reply that the respondent cannot rely on his own unlawful conduct which caused the relationship to break down to support a submission reducing the compensation payable. Nor does the fact that the applicant was a casual employee render it unreasonable to conclude that he could not have had any expectation of ongoing employment from the respondent: see for example ss 12, 15A and 384 of the Act.

1. I accept that the applicant did experience some emotional hardship, including feelings of embarrassment at the abrupt termination of his employment and the reasons which the respondent continued to promulgate about the basis of that termination, including but not limited to his continued defence of these proceedings in circumstances where he ultimately admitted his contraventions.
2. There is very limited corroborative evidence about the non-economic loss the applicant suffered. I am however prepared to accept that by reason of the nature of the regional area in which The Wang is located, that alternative employment options may have been limited, and moreso having regard to the respondent's explanations for the termination.
3. Despite having found that half the penalty should go to the applicant, I remind myself of the principle set out at [155] above, that such an order is not compensatory. I also take into account that the purpose of damages is compensatory, and not punitive.
4. I take into account the casual nature of the applicant's employment with the respondent, but given the nascent stage of the respondent's business and his evidence about how crucial it was that the business be operating and the limited staff available in the area and the logistics of his own living, travel and working arrangements in order to attend the business himself, the applicant's cautious estimate of 2 months of ongoing employment is reasonable. Accordingly, I am satisfied that $12,000 is a reasonable quantum for economic loss in all the circumstances of this case.
5. In terms of non-economic loss, I am of the view having regard to the somewhat limited evidence, that in the exercise of my discretion, an appropriate quantum of damages anxiety hurt, embarrassment and distress in this case is $4,000.

1. The applicant having succeed in establishing all the contraventions alleged, albeit all but one having been eventually conceded, I am of the view that the respondent should be ordered to pay:

(a) civil pecuniary penalties in respect of each of the 10 contraventions established, in the sum of $5,775 per contravention, with a reduction for totality resulting in a sum of $50,000 to be paid:

(i) 50% to the applicant; and

(ii) 50% to the consolidated revenue fund of the Commonwealth;

(b) $12,000 for economic loss to be paid to the applicant; and

(c) $4,000 for non-economic loss to be paid to the applicant.

1. It is reasonable to require that the aforementioned amounts be paid to their respective recipients within 28 days. I will so order.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] Respondent's written submissions filed 26 July 2024

[5] Respondent's written closing submissions filed 11 September 2024 at [3]

[6] Respondent's written closing submissions filed 11 September 2024 at [4]

[7] Transcript 30 July 2024 (Hearing Transcript day 1) at T55.26 to T55.43

[8] Transcript 31 July 2024 (Hearing Transcript day 2) at T31.01 to T31.16

[10] Hearing Transcript day 2 at T32.15 to T32.40

[11] Hearing Transcript day 2 at T20.9 to T22.45

[12] Hearing Transcript day 1 at T56.22 to T56.24

[13] Hearing Transcript day 1 at T56.43

[14] Hearing Transcript day 2 at T26.15 to T27.02

[15] Hearing Transcript day 2 at T28.33 to T28.35

[16] Respondent's closing submissions at [12]

[17] Respondent's closing submissions at [14]

[18] Respondent's closing submissions at [15]

[19] Respondent's closing submissions at [16]

[20] Hearing Transcript day 2 at T37.01

[21] Hearing Transcript day 2 at T37.15 to T37.18

[22] Hearing Transcript day 2 at T37.01

[23] Hearing Transcript day 2 at T20.17 to T20.39

[24] Hearing Transcript day 2 at T21.09 to T22.03

[25] Hearing Transcript day 2 at T37.35 to T37.36

[26] Hearing Transcript day 2 at T37.26

[27] Hearing Transcript day 2 at T37.41 to T37.44

[28] Respondent's closing submissions at [3]

[29] The appellant was a corporation, trading under the name "Merringtons"

[31] Respondent's closing submissions at [45]

[32] Respondent's closing submissions at [49] and [57]

[34] Respondent's closing submission at [68]