The applicant, Thi An Trinh, seeks the imposition of pecuniary penalties against her former employer, The Clean Kitchen Pty Ltd (TCK), and its manager, Nicholas James Llewellyn, for three contraventions of the National Employment Standards of the Fair Work Act 2009 and Fair Work Regulations 2009.
Ms Trinh worked for TCK as a casual food and beverage attendant at its site called Abundance Café at Rose Park in April and May 2024.
TCK operated a catering and cafe business that also traded as The Little Catering Company at multiple locations. It was owned and managed by Mr Llewellyn, the second respondent.
The contraventions were of s 323 by not paying any of the owed wages of $1,282 for one month of casual work in April 2024, of s 116B by not making any superannuation contributions, and of reg 3.42 for not providing any employee records on subsequent request.
The contraventions claim was filed on 17 July 2024. TCK did not dispute the wage and superannuation contraventions, but paid nothing until after I made an order for payment in October 2024. Even then, the amounts were not paid within the time allowed by the Court, without explanation.
An outstanding issue is that of interest on the delayed entitlements of $1,423 which were paid seven months late. I order TCK to pay interest of $70.
The respondents denied contravention of the employer's reg 3.42 obligation to make available or provide copies of employment records. They admit the applicant made a written request on 21 June 2024 to Mr Llewellyn for payslips details but say that was not a request for pay records.
Mr Llewellyn denied any involvement, within the meaning of s 550, in both the admitted and disputed contraventions. As a result, a hearing of these issues took place on 2 February 2025
I found the records contravention was proven. I rejected the respondents' argument that the employer did not have to provide any records because the written request for payslips did not use the word "records". Having regard to the reg 3.33 requirement for a casual employee's records to include the hourly rate of pay, the hours worked, the gross and net pay, and any deductions, the request was clearly for these records.
I found Mr Llewellyn was knowingly involved in each contravention. He was the only person the applicant communicated with about her missing pay and superannuation after she ceased the job, he controlled decisions about entitlement payments, and he was the sole source of the repeated false assurances that she had been or would be paid. He received the records request.
This penalty application was listed for hearing and procedural orders were made. The respondents' solicitors then ceased acting. The applicant filed and served five witness statements, as directed. The respondents did not file or serve any evidence, nor did they appear at the hearing, without explanation.
The filed penalty application included a low non-binding nominated penalty amount. This was abandoned by Ms Trinh at a direction's hearing on 13 December 2024, when Mr Llewellyn did appear.
The maximum penalties at the relevant time of the s 323 and s 116B contraventions were $93,000 for a company and $18,780 for an individual. The maximums for the employee records' contravention were $31,300 and $6,260 respectively.[1]
[2]
Ms Trinh relies on her statements tendered in the contraventions claim and in this claim. She also relies on signed witness statements from colleagues Calea Quinn, Sophie Clarke, Cheryl Thompson, and Adkin Dsouza. I accept the witnesses' unchallenged evidence set out below.
Ms Trinh held a student visa at the time of this employment, having been in Australia since 2022. She had gained experience working in another café in Adelaide prior to this employment.
Ms Trinh obtained the employment through a social media advertisement and the approval of Ms Quinn, a supervisor. Ms Trinh met Mr Llewellyn at the café; he was introduced as the owner. He visited a few other times.
Ms Trinh was given access to, and used, a sophisticated payroll app called Director. This provided an automated secure method for the applicant to upload her tax, bank, and superannuation account details, and her hours of work. Access to the data ceased after the employment ceased. No pay slips have ever been provided.
Ms Trinh was not paid any wages for her work.
Ms Trinh repeatedly raised her missing pay with Ms Quinn. Ms Quinn told her she would raise the issue with Mr Llewellyn and later passed on his assurance that he would attend to her pay. This occurred a few times. Ms Quinn checked regularly with Ms Trinh if she had been paid. Ms Trinh had no difficulty performing her duties but decided to quit the job after many failed attempts to be paid. She told Ms Quinn of this decision on 6 May.[2]
On 10 May, Mr Llewellyn sent Ms Trinh a message that her pay had been returned due to her providing an incorrect account number. Ms Trinh confirmed she had correctly entered her details on Director. She sent the same correct account details to Mr Llewellyn on 10 May. He confirmed receiving them, but no payment was made until November.
On 24 May, Ms Trinh informed Mr Llewellyn that she would have to go to the FWO. After doing so, she again contacted him on 21 June. He did not respond on either occasion.
On 25 June, Ms Trinh discovered the ATO had received an untrue report from TCK of a payment of wages to her, and so sought an explanation from Mr Llewellyn. He did not respond.
The contraventions claim was then filed on 17 July.
On 31 October, Ms Trinh received a message from Mr Llewellyn which attached what he claimed were six records of payments to her between 10 May and 31 October. No payments were received by her.
Ms Trinh's evidence is of being compelled to take legal action to recover the money owed to her, after her sincere attempts to obtain payment from Mr Llewellyn were ignored. She describes the situation as having a "deeply distressing emotional toll"[3] on her. She explained that as a foreign student, even a week's wages were vital to meeting basic needs of rent, food, and bills. The financial strain caused a constant state of anxiety, stress, and uncertainty about her future.
Ms Trinh has devoted "countless hours" pursuing her rights, including with the office of the Fair Work Ombudsman, the Women's Work Centre, extensive research, engaging with former colleagues, and ultimately in presenting her case. She found the complexities of navigating legal proceedings to be overwhelming, with her having to take unexpected time off work for multiple conferences and hearings.
Calea Quinn was employed by TCK as a manager of its Delightful Café and Abundance Cafe from December 2022 to June 2024. Ms Quinn resigned because she was not being paid any superannuation contributions, which are all still outstanding. She observed significant delays in wage payments to other employees, which caused financial strain and uncertainty. The failures "created a tense and uncertain work environment",[4] and a negative impact on her and colleagues. Despite multiple requests, Ms Quinn did not receive any responses or payment.
Sophie Clarke was employed by TCK from February to May in 2024. She worked at the respondent's sites Delightful Café, Abundance, and at the Glenunga Football Club. Ms Clarke states her wages and pay slips were often delayed, sometimes for three weeks. Ms Clarke had to "follow up multiple times"[5] with Mr Llewellyn, regarding unpaid superannuation entitlements, which were only recently paid.
Ms Clarke states Mr Llewellyn "frequently" told her he was experiencing issues with his accountant, which caused delays in wage payments.
Ms Clarke states Mr Llewellyn referred to her as a "real person in contrast to staff members on working visas."[6] He expressed derogatory views about employees on visas, implying they were less deserving of proper treatment.
Cheryl Thompson was employed by TCK from January 2022 to August 2024.
Ms Thompson was not paid for her last two weeks of employment. She has only received one superannuation contribution.
Ms Thompson's evidence is of sending numerous messages to Mr Llewellyn requesting payment for both entitlements. She received excuses but no payments and was then ignored, causing significant frustration and financial stress. She then resigned.[7]
Adkin Dsouza[8] was employed as a Head Chef from March 2024 to July 2024. Only his first few pays were paid on time. All others were either late or not paid. Mr Dsouza would always ask Mr Llewellyn for his late pays and superannuation contributions. He received a "generic response" of it being paid but held up by a banking issue. He heard the same excuse being given by Mr Llewellyn to other employees when he worked at the respondent's different sites. Mr Dsouza resigned due to these issues.
After finishing the employment, Mr Dsouza was not paid any wages for his final fortnight, and none of his accrued annual leave or superannuation. Mr Dsouza repeatedly contacted Mr Llewellyn up to December 2024, when he stopped responding.
[3]
Mr Llewellyn initially claimed in the contravention claim to have paid the applicant on 25 June, but did not produce any banking evidence of doing so. It turned out nothing was paid. He later produced to the applicant extracts of six short internal documents that purported to show part payments made to her on 10 & 25 May and 18, 23, 26 & 31 October. None were bank records. None recorded payments of anything to the applicant. He has not explained why he made these assertions to her.
Mr Llewellyn states he has employed over 4000 people since 2005 in the hospitality industry.
[4]
Ms Trinh submits Mr Llewellyn engaged in a pattern of deceptive conduct to attempt to avoid paying her entitlements. He was in control of pays. He knew she had not been paid and that was why she resigned. He pretended to have paid her in May, then in June, then by instalments. She pointed out the claimed instalments were for more than her claimed wages and superannuation, included mixed up account numbers, and were without any communication.
The applicant submitted the second respondent's actions have allowed him to exploit countless innocent workers for many years, with most lacking the means to voice their right to fair payment.
[5]
The purpose of imposing a penalty is to encourage compliance through imposing a higher cost on contravening conduct than the money to be made from doing so. A civil penalty is not punitive. A civil penalty is not constrained by proportionality to the monetary value of the contraventions, but should not be crushing.
Ms Trinh has not alleged "serious contraventions" within the meaning of s 557. Despite that, she submits the evidence shows a pattern of similar intentional misleading and evasive conduct by Mr Llewellyn to employees about wages and superannuation, and is relevant to the assessment of appropriate penalties.
I find TCK operates a sophisticated business through Mr Llewellyn. It operated a commercial kitchen, the Little Catering Company, three cafes, a private school site, and a football club site. It uses a modern rostering, time recording and payroll app. Mr Llewellyn is a highly experienced business operator.
The contraventions against Ms Trinh started with TCK not paying her wages when due. That initially involved two fortnightly pays. They expanded to not paying any superannuation contributions, and later to not providing requested records at a time when all entitlements were being withheld.
Mr Llewellyn knew, at least through Ms Quinn, of the unpaid wages at the time of resignation. Mr Llewellyn then blamed Ms Trinh for what he claimed was a failed attempt to pay her. I find that given explanation was false. I find Mr Llewellyn made a series of other false excuses over the next five months to avoid paying basic entitlements.
Mr Llewellyn did not address why Ms Trinh's wages were not paid during her employment, and why she had to wait until November. Nor has he explained why no superannuation contributions were paid.
I find Mr Llewellyn decided to maintain his decision to not pay any entitlements to Ms Trinh until the Court had to make an order for payment. Even then, the payment was made in breach of the order.
I accept Ms Trinh has undertaken a prolonged legal process to pursue her wages and to seek correction of the respondents' contravening conduct. I accept her evidence of the damaging impact of the respondents' actions against her.
I reject Ms Trinh's submission that I effectively make a finding that Mr Llewellyn has engaged in similar conduct towards "countless" other employees, and that he has treated visa holder employees the worst.
The admitted evidence does not go that far. I am unable to accept hearsay evidence from the witnesses that they heard other employees were not paid their entitlements.
I conclude the evidence does prove Mr Llewellyn engaged in similar conduct of making late or no payments towards some of Ms Quinn, Ms Clarke, Ms Thompson and Mr Dsouza in response to their complaints of not being paid their due entitlements. I also accept the direct evidence of Mr Dsouza, of hearing Mr Llewellyn giving similar excuses to employees complaining of delayed payments. The similarities to Ms Trinh's circumstances are the existence of known unpaid entitlements, not denying the claimed amounts, falsely claiming to have made payments, falsely blaming others for non-payment, and disengaging from communications without paying. In short, Mr Llewellyn would deliberately give employees the 'run around' when seeking their entitlements, with some never being paid_._
The vulnerability of temporary foreign visa holding employees to being cheated out of minimum entitlements is well known. However, the limited evidence does not prove that this was a motivating factor for Mr Llewellyn's conduct against Mr Trinh or anyone else.
Ms Trinh was more vulnerable than an Australian citizen due to her then temporary residency, and her language and knowledge disadvantages.
The employee records contravention is also a very serious breach. It was associated with a failure to provide payslips, although that failure was not specifically alleged as a contravention. The withholding of pay records substantially increases the degree of difficulty faced by employees seeking their entitlements. Not providing any time and payment records is a common tactic deployed when cheating employees, as was the likely intention here.
The respondents have not shown any contrition or addressed rectification in any voluntary way. There is no evidence of acceptance of responsibility or of any corrective action to systems or processes. There has only been silence since the applicants' witness statements were served.
I consider the circumstances demonstrate a high need for specific deterrence of both respondents. While the underpayment amounts were relatively modest, although very important to Ms Trinh at the time, their amount was only limited by Ms Trinh quitting. The respondents' course of conduct had potential to reap much higher rewards from Ms Trinh's unpaid labour. TCK would likely have kept Ms Trinh's entitlements had she not been so persistent and well organised.
I conclude the most appropriate penalties are as follow. For the s 323 contravention of not paying any wages, I impose a penalty of $20,000 on TCK, and a penalty of $15,000 on Mr Llewellyn. Mr Llewellyn's deliberate conduct towards Ms Trinh was part of a pattern of similar conduct that calls for a proportionately larger deterrent.
The superannuation contravention resulted from a similar but separate and later decision to not pay a basic entitlement, although it involved a smaller entitlement. A degree of overlapping conduct with the decision to not pay any wages is reflected by lower penalties. I impose a penalty of $5,000 on TCK and $5,000 on Mr Llewellyn.
I impose penalties of $5,000 on TCK and $5,000 on Mr Llewellyn for the serious records contravention. Mr Llewellyn's lack of cooperation is the main cause of this contravention and so needs an effective deterrent.
I consider the totality of each respective penalty of $30,000 and $25,000 to be just outcomes in the circumstances.
I determine the penalties should be paid to the applicant, as the prosecutor of this action.
[6]
I order The Clean Kitchen Pty Ltd to pay to Ms Trinh within 14 days:
1.1 Interest of $70;
1.2 A total pecuniary penalty of $30,000.
I order Nicholas Llewellyn to pay to Ms Trinh within 14 days a total pecuniary penalty of $25,000.
Parties
Applicant/Plaintiff:
Trinh
Respondent/Defendant:
The Clean Kitchen Pty Ltd & Ors [2025] SAET 76
Legislation Cited (2)
Work Act 2009
Work Regulations 2009
Cases Cited (1)
Trinh v The Clean Kitchen Pty Ltd & Ors [2025] SAET 76 (25 July 2025)