Watson v Kylebay Removals

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 2025 (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 2025 (Cth).

1. This matter falls for determination in circumstances where the respondents have not pleaded to the case advanced by the applicant, nor have they provided any significant evidence to contradict the applicant's claims. Only the second respondent has played a role in the proceeding, albeit it has not been one that has shed much light on the matter before the Court. On the eve of judgment being delivered the second respondent advised that the first respondent had been put into liquidation in December 2025, providing the Court with a notice of winding up showing a liquidator was appointed by the Supreme Court of New South Wales on 15 December 2025.
2. The applicant worked in a removals business as a general hand and driver from May 2015 until the termination of his employment on 24 March 2023. The employment was pursuant to an oral contract (the contract) made between himself and Mr Palmer, the second respondent. Over the period of the applicant's work the corporate entity recorded as paying the applicant's wages changed, without any consultation with the applicant. The first entity went into liquidation. The second was de-registered. The applicant's role remained the same. From May 2020, the first respondent paid the applicant's wages.
3. Commencing February 2022, the applicant made a series of complaints about the failure by his employer to make superannuation contributions to his benefit. He was assured by the second respondent that the matter would be addressed.
4. The applicant was then absent from work on paid sick leave from 13 February 2023 due to blood clots in his lungs. When the first respondent ceased paying sick leave on 9 March 2023, the applicant complained and requested information about the entitlements he believed he had accrued over the years of his employment. There followed much correspondence back and forth between the applicant and the second respondent concerning the applicant's accrued entitlements and his capacity to return to work. On 24 March 2023, the applicant sent the first respondent a medical report that he was fit to return to work but would benefit from a period of light duties. By letter that day, the first respondent terminated the applicant's employment, without any payment in lieu of notice, or payment in respect of accrued annual leave or long service leave.
5. The applicant claimed that his dismissal contravened:

(a) s 340 of the Fair Work Act 2009 (Cth) (the Act) as the first respondent dismissed him because he had exercised workplace rights by the making of complaints;

(b) s 351 of the Act as it was because of his disability; and

(c) s 352 of the Act as it was because he had taken paid sick leave.

(1) by failing to pay him notice upon the termination of his employment as required by s 117 of the Act, the first respondent contravened s 44 and 323 of the Act;

(2) by failing to pay his accrued annual leave upon the termination of his employment as required by s 90(2) of the Act the first respondent contravened s 44 and s 323 of the Act; and

(3) by failing to pay his accrued long service leave the first respondent contravened s 4(1) and s 4(2) of the Long Service Leave Act 1955 (NSW) (LSL Act) and s 323 of the Act.

1. The applicant also alleged that the first respondent contravened s 536(3) of the Act by providing him with misleading payslips between May 2020 and his dismissal in May 2023, which payslips recorded that superannuation contributions had been made, when they had not.
2. The applicant sought declarations of those contraventions and compensation.
3. He alleged that the second and third respondents were involved in the dismissal contraventions, and that the second respondent was involved in the underpayment contraventions.
4. As the matter in unable to proceed against the first respondent pursuant to s 471B of the Corporations Act 2001 (Cth), I have dealt with the balance of the claims against the respondents. For reasons which are set out below, I have found the applicant's case as against the second respondent made out. I will make declarations accordingly.

1. The applicant commenced in this Court on 8 June 2023 after having made an application to the Fair Work Commission alleging dismissal in contravention of a general protection. The applicant's Form 2 application attached the usual certificate issued under s 368 by the Fair Work Commission that attempts to resolve the dispute other than by arbitration had been and were likely to be unsuccessful.
2. The application and Form 2 were also accompanied by a Statement of Claim.
3. A firm of solicitors filed notices of address for service for the second and third respondents, and for "Kyle Bay Removals Pty Ltd". I infer that was an intended reference to the first respondent.
4. By consent, orders were made on 28 June 2023, for the respondents to file and serve their defence by 28 July 2023, and for the matter to proceed to a mediation.
5. The respondents did not file their defence or defences in accordance with the Court's orders. On 20 September 2023, the solicitor filed notices of ceasing to act in respect of all respondents. The notice of ceasing to act in respect of the corporate entity correctly identified the first respondent.
6. The matter did not resolve at mediation.
7. The matter was listed for a directions hearing before another judge of this Court on 4 July 2024. There was no appearance by the respondents and the Court made orders that the applicant make any application for default judgment by 16 August 2024 and take reasonable steps to draw the respondents' attention to such orders. No such application was lodged by the applicant.
8. On 2 September 2024, the matter was listed for directions. There was no appearance by the respondents. The Court issued orders of the same date adjourning the matter for directions on 30 September 2024 and again directing the applicant to take reasonable steps to draw the respondents' attention to such orders.
9. On 20 September 2024, the applicant's representative filed a notice of ceasing to act.
10. The matter was listed for further directions on 30 September 2024 before another judge of this Court. There was no appearance by the respondents. The Court made Orders granting leave to the applicant to file any affidavit of service by 18 October 2024 and providing him with a copy of r 6.06 and r 6.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
11. The matter was listed for further directions on 3 October 2024. The respondents did not appear. The matter was reallocated to another judge.
12. On 30 October 2024, the matter came before another judge of the Court for directions.
13. The second respondent wrote to the Court on 29 October 2024, stating the following, inter alia:

Please note Kyle Bay removals (INTL) PTY LTD has appointed a liquidator (AMB Solvency) and ceased trading.

Regards Charles

1. At the directions listing on 30 October 2024, the applicant and second respondent were present, however, there was no appearance by the first and third respondents. The Court made orders pursuant to s 440D of the Corporations Act 2001 (Cth) staying proceedings against the first respondent, noting that a liquidator had been appointed. The matter was listed for further directions on 20 November 2024. As it happens, at that stage, a liquidator had not been appointed. There was ongoing, and conflicting correspondence with the Court thereafter from the second and third respondents about their failed attempts to appoint a liquidator.
2. The matter was listed for a directions hearing on 20 November 2024. There was no appearance for the first respondent. The Court made orders setting a timetable for the preparation of the matter for hearing requiring only the second and third respondents to file and serve defences and any affidavit evidence.
3. In the event the second and third respondents filed "defences" on 2 December 2024. Those defences did not plead to the facts alleged in the statement of claim, nor address in any clear manner the issues that arose in the proceeding.
4. On 19 March 2025, the matter was transferred to my docket and listed for directions on 24 March 2025. Given the conflicting correspondence between the parties about the status of the first respondent, I consulted the Australian Securities and Investments Commission website to ascertain whether the first respondent was recorded as being in liquidation, and that record contained no such indication. I made orders requiring the second respondent to file evidence as to that issue and later disclosed that search to the parties for the purpose of hearing whether they consented to judicial notice being taken of that record. The parties who appeared did not oppose that course.
5. On 31 March 2025, the second respondent filed an affidavit in accordance with the orders of 24 March 2025 the effect of which was that he had been in talks with a liquidator, only for that process to ultimately fall over for lack of funds.
6. In the event, there was no impediment to the proceedings continuing against the first respondent until December 2025.
7. The matter was listed for hearing on 17 June 2025. There was no appearance for the first or third respondent on that date. The second respondent appeared by audio-visual link.
8. At the hearing, the applicant read the following:

(a) Affidavit of Michael James Watson dated 05 April 2025;

(b) Affidavit of Michael James Watson dated 03 May 2025; and

(c) Affidavit of Michael James Watson dated 31 May 2025.

1. The latter affidavit traversed some of the conciliation that was conducted by the Fair Work Commission. I had no regard to that part of the applicant's evidence. That evidence could not inform the Court as to any issue of relevance in the proceeding.
2. None of the evidence read by the applicant was challenged by cross-examination.
3. The second respondent read the following:

(a) Affidavit of Charles Palmer dated 31 March 2025; and

(b) Affidavit of Charles Palmer dated 15 April 2025.

1. Neither affidavit engaged with the applicant's claims in any meaningful way. The applicant did not cross-examine the second respondent.
2. Some of the evidence was objectionable. The applicant traversed the failure of the respondents to engage in processes before both the Fair Work Commission and this Court. The second respondent also traversed that in his evidence. I disregarded those parts of the evidence as it could not logically inform the Court as to any issue of relevance in the proceeding.

1. The relevant operative provisions of the Act are set out below as follows:

44 Contravening the National Employment Standards

An employer must not contravene a provision of the National Employment Standards.

Note: This section is a civil remedy provision (see Part 4‑1).

87 Entitlement to annual leave

Amount of leave

(1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to:

(a) 4 weeks of paid annual leave; or

(b) 5 weeks of paid annual leave, if:

(i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or

(iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).

Note: Section 196 affects whether the FWC may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.

(2) An employee's entitlement to paid annual leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee's ordinary hours of work, and accumulates from year to year.

Note: If an employee's employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.

Award/agreement free employees who qualify for the shiftworker entitlement

(3) An award/agreement free employee qualifies for the shiftworker annual leave entitlement if:

(a) the employee:

(i) is employed in an enterprise in which shifts are continuously rostered 24 hours a day for 7 days a week; and

(ii) is regularly rostered to work those shifts; and

(iii) regularly works on Sundays and public holidays; or

(b) the employee is in a class of employees prescribed by the regulations as shiftworkers for the purposes of the National Employment Standards.

(4) However, an employee referred to in subsection (3) does not qualify for the shiftworker annual leave entitlement if the employee is in a class of employees prescribed by the regulations as not being qualified for that entitlement.

(5) Without limiting the way in which a class may be described for the purposes of paragraph (3)(b) or subsection (4), the class may be described by reference to one or more of the following:

(a) a particular industry or part of an industry;

(b) a particular kind of work;

(c) a particular type of employment.

(1) If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.

(2) If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

117 Requirement for notice of termination or payment in lieu

Notice specifying day of termination

(1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1: Section 123 describes situations in which this section does not apply.

Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a) delivering it personally; or

(b) leaving it at the employee's last known address; or

(c) sending it by pre‑paid post to the employee's last known address.

(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); and

(b) in money by one, or a combination, of the methods referred to in subsection (2); and

(c) at least monthly.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: Amounts referred to in this subsection include the following if they become payable during a relevant period:

(a) incentive‑based payments and bonuses;

(b) loadings;

(c) monetary allowances;

(d) overtime or penalty rates;

(e) leave payments.

(a) cash;

(b) cheque, money order, postal order or similar order, payable to the employee;

(c) the use of an electronic funds transfer system to credit an account held by the employee;

(d) a method authorised under a modern award or an enterprise agreement.

(3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.

Note: This subsection is a civil remedy provision (see Part 4‑1).

340 Protection

(1) A person must not take adverse action against another person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed - taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) Each of the following is an anti‑discrimination law:

...

(ab) the Disability Discrimination Act 1992;

...

(a) the Anti‑Discrimination Act 1977 of New South Wales;

...

352 Temporary absence - illness or injury

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Note: This section is a civil remedy provision (see Part 4‑1).

536 Employer obligations in relation to pay slips

(1) An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: Section 80 of the Paid Parental Leave Act 2010 requires an employer to give information to an employee to whom the employer pays an instalment under that Act.

(a) if a form is prescribed by the regulations - be in that form; and

(b) include any information prescribed by the regulations; and

(c) not include any information prescribed by the regulations in relation to paid family and domestic violence leave; and

(d) comply with any requirements prescribed by the regulations in relation to the reporting of paid family and domestic violence leave.

Note 1: This subsection is a civil remedy provision (see Part 4‑1).

Note 2: If an employer fails to comply with subsection (1) or (2), the employer may bear the burden of disproving allegations in proceedings relating to a contravention of certain civil remedy provisions: see section 557C.

(3) An employer must not give a pay slip for the purposes of this section that the employer knows is false or misleading.

Note: This subsection is a civil remedy provision (see Part 4‑1).

1. Regulation 3.46 of the Fair Work Regulations 2009 (Cth) (FW Regulations) provides as follows:

Pay slips - information to be included in pay slips

(1) For paragraph 536(2)(b) of the Act, a pay slip must specify:

(a) the employer's name; and

(b) the employee's name; and

(c) the period to which the pay slip relates; and

(d) the date on which the payment to which the pay slip relates was made; and

(e) the gross amount of the payment; and

(f) the net amount of the payment; and

(g) any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive - based payment or other separately identifiable entitlement; and

(h) on and after 1 January 2010--the Australian Business Number (if any) of the employer.

(2) If one or more amounts are deducted from the gross amount of the payment under subsection 324(1) of the Act, the pay slip must also include, for each deduction:

(a) the amount of the deduction; and

(b) the name, or the name and number, of the fund or account into which the deduction was paid.

(3) If the employee is paid at an hourly rate of pay, the pay slip must also include:

(a) the rate of pay for the employee's ordinary hours (however described); and

(b) the number of hours in that period for which the employee was employed at that rate; and

(c) the amount of the payment made at that rate.

(4) If the employee is paid at an annual rate of pay, the pay slip must also include the rate as at the latest date to which the payment relates.

(5) If the employer has made, or intends to make, superannuation contributions for the benefit of the employee, the pay slip must also include:

(a) the amount of each contribution that the employer made during the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contribution was made; or

(b) the amounts of contributions that the employer intends to make in relation to the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contributions will be made.

(5A) For the purposes of subregulation (5), a pay slip is not required to include the name, or the name and number, of a fund if:

(a) the pay slip is required to be given to the employee within the period of 14 days commencing on the first day on which the employer pays an amount to the employee in relation to the performance of work; and

(b) by the time the pay slip is given to the employee:

(i) there is no chosen fund for the employee (within the meaning of Division 4 of Part 3A of the Superannuation Guarantee (Administration) Act 1992); and

(ii) the Commissioner of Taxation has not notified the employer or the employer's agent (as applicable), in accordance with section 32R of that Act, of whether the Commissioner is satisfied that there is a stapled fund for the employee or, if the Commissioner is satisfied that there is a stapled fund, of the details of the fund.

"contributions" does not include a contribution in respect of a defined benefit interest (within the meaning of the Superannuation Industry (Supervision) Regulations 1994) in a defined benefit fund (within the meaning of the Superannuation Industry (Supervision) Act 1993).

Note: Subsection 536(2) of the Act is a civil remedy provision. Section 558 of the Act and Division 4 of Part 4-1 deal with infringement notices relating to alleged contraventions of civil remedy provisions.

1. Section 4 of the LSL Act provided, relevantly, as follows:

(1) Except as otherwise provided in this Act, every worker shall be entitled to long service leave on ordinary pay in respect of the service of the worker with an employer. Service with the employer before the commencement of this Act as well as service with the employer after such commencement shall be taken into account for the purposes of this section.

(2)

(a) Subject to paragraph (a2) and subsection (13) the amount of long service leave to which a worker shall be so entitled shall -

(i) in the case of a worker who has completed at least 10 years service with an employer be -

(A) in respect of 10 years service so completed, 2 months, and

(B) in respect of each 5 years service with the employer completed since the worker last became entitled to long service leave, 1 month, and

(C) on the termination of the worker's services after the completion of 15 years service, in respect of the number of years service with the employer completed since the worker last became entitled to an amount of long service leave, a proportionate amount on the basis of 2 months for 10 years service, and

(ii) in the case of a worker who has completed at least 10 years service but less than 15 years with an employer and whose services with the employer are terminated or cease for any reason, be a proportionate amount on the basis of 3 months for 15 years service, and

(iii) in the case of a worker who has completed with an employer at least five years service, and whose services are terminated by the employer for any reason other than the worker's serious and wilful misconduct, or by the worker on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker, be a proportionate amount on the basis of 2 months for 10 years service.

...

(a3) For the purposes of subsections (2), (3) and (3A), month means 4 and one-third weeks.

...

(5)

(a) Where the services of a worker are terminated otherwise than by the worker's death and any long service leave -

(i) to which the worker was entitled has not been taken, or

(ii) accrues to the worker upon such termination and has not been taken,

the worker shall, subject to subsection (13), be deemed to have entered upon the leave from the date of such termination and the employer shall forthwith pay to the worker in full the worker's ordinary pay for the leave less any amount already paid to the worker in respect of that leave.

(7) Subject to subsection (5), where a worker enters upon a period of long service leave, the employer of the worker shall pay to the worker the ordinary pay to be paid to the worker in respect of the period of leave in one of the following ways -

(a) in full when the worker commences the period of leave, or

(b) at the same time as the worker's ordinary pay would have been paid if the worker had remained on duty, in which case payment shall, if the worker in writing so requires, be made by cheque posted to an address specified by the worker, or

(c) in any other way agreed between the employer and the worker,

and the ordinary pay shall become due to the worker accordingly.

(8) Except as provided in subsection (5), payment shall not be made by an employer to a worker in lieu of any long service leave or part thereof to which the worker is entitled under this Act nor shall any such payment be accepted by the worker.

...

(11) For the purposes of this section -

(a) service of a worker with an employer means continuous service, whether on a permanent, casual, part-time or any other basis, under one or more contracts of employment,

...

(c) where a business, undertaking or establishment or any part thereof has, whether before or after the commencement of this Act, been transmitted from an employer (in this paragraph called the transmittor) to another employer (in this paragraph called the transmittee) and a person who at the time of the transmission was a worker in the employ of the transmittor in that business, undertaking, establishment or part thereof becomes a worker in the employ of the transmittee -

(i) the continuity of the period of service of the worker shall be deemed not to have been broken by reason of the transmission, and

(ii) the period of service which the worker has had with the transmittor or any prior transmittor shall be deemed to be service of the worker with the transmittee.

In this paragraph transmission, without limiting its ordinary meaning, includes transfer, conveyance, assignment or succession, whether by agreement or operation of law, and transmitted has a corresponding meaning,

(a) In this subsection -

Award includes -

(a) an agreement, and

(b) a modern award in force under the Fair Work Act 2009 of the Commonwealth, and

(c) a Division 2B State award under Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth.

Corporation means any body corporate formed or incorporated in or outside New South Wales.

Holding company and subsidiary have the same meanings as they have in the Corporations Act 2001 of the Commonwealth.

Termination means termination by any person or by any cause.

(b) For the purposes of this subsection -

(A) the holding company, or

(B) a subsidiary, or

(C) a subsidiary of the holding company,

of another corporation, the first mentioned corporation and that other corporation shall, and no two corporations shall in any other case, be deemed to be related to each other,

(ii) a worker shall be deemed to have transferred from the service of an employer to the service of another employer, only if before, concurrently with or within a period of two months after the termination of the worker's services with the first mentioned employer the worker entered into a contract of employment with that other employer, and the transfer shall be deemed to have occurred at the time of that termination.

(c) Where before or after the commencement of the Long Service Leave (Amendment) Act 1967 a worker has transferred from the service of an employer (in this paragraph called the first employer) being a corporation to the service of another employer being a corporation related to the first employer at the time of that transfer, then for the purposes of this section -

(i) the continuity of the period of service of the worker shall be deemed not to have been broken by reason of the transfer, and

(ii) the period of service which the worker has had with the first employer before the commencement of the service of the worker with that other employer (including any service which by reason of a prior transfer or prior transfers or for any other reason the worker is deemed by this section or, for the purposes of long service leave for such service, the worker is deemed by any Act or award to have had with the first employer) shall be deemed to be service of the worker with that other employer.

(d) Where before or after the commencement of the Long Service Leave (Amendment) Act 1967 a worker has entered into a contract of employment with an employer, being a corporation, within a period of twelve months after the completion of an apprenticeship with another employer, being a corporation which at the time of such entry into employment was related to the first mentioned employer, the period of the worker's apprenticeship shall be taken into account for the purpose of ascertaining the period of service of the worker with the first mentioned employer under that contract of employment.

(e) Where the services of a worker with an employer are terminated and that employer is a corporation to which any other corporation is related at the time of that termination, the services of the worker shall not, for the purposes of subsections (2) and (5), be deemed to have been so terminated if the worker transfers to the employment of any such related corporation.

(f) A worker or the worker's personal representative shall not be entitled by virtue of this subsection to long service leave or payment therefor in respect of any period of service if in respect of that period of service an employer was required by any other provisions of this Act, or by any other Act or any award, to give to the worker any long service leave and to pay wages or other remuneration therefor, or to pay wages or other remuneration for long service leave deemed to have been given to the worker, and if the obligations of that employer in that behalf have been fully satisfied and discharged.

Note: An offence against this Act arising under this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation - see section 10A.

1. None of the respondents denied any of the following facts pleaded by the applicant:

(1) That he was a national system employee within the meanings of ss 13, 42, 322, 335 and 339(b) of the Act;

(2) That the first respondent was his employer and a "national system employer" within the meaning of the Act;

(3) That the applicant commenced employment at the Punchbowl Yard on 7 May 2015;

(4) That the applicant had a base salary of $82,420; and

(5) That the applicant reported directly to the operations manager, Mr Jonathan Jones and Director, Mr Palmer.

1. Nor did any of the respondents deny either the pleading, or the applicant's evidence, that he continued working at the same yard until the termination of his employment in March 2023, reporting directly to Mr Jones and Mr Palmer, but that during that time the entity recorded on his payslips changed, without any consultation with him or agreement that he be employed by any different entity. The applicant identified two prior entities, namely, Kyle Removals Pty Ltd and Kyle Bay Storage & Removals (NSW) Pty Ltd. I accept that evidence of Mr Watson.

Alleged dismissal in contravention of general protections

1. None of the respondents deny either the pleading, or the applicant's evidence, that in January 2022, the applicant discovered that he had only been paid $4,005 in superannuation and raised that matter with Mr Jones. It is clear from a later email from the applicant to Mr Hambleton, that the amount of $4,005 was the total of the superannuation that had been paid over the eight years of the applicant's employment in the business. The applicant has attached to his affidavit of 3 May 2025, a statement from IOOF, apparently his superannuation fund, current as at 9 March 2023, showing employer contributions of $4,005.91. In contrast, the applicant's payslip for 2 February 2023 purported to show contributions for the year of $5,159.26. The applicant swore that when he raised the apparent underpayment with Mr Jones, Mr Jones advised that Mr Palmer had not paid anybody's superannuation but that it would be rectified.
2. The applicant states that he raised the issue again with Mr Jones and then confronted Mr Palmer in September 2022. Mr Palmer assured him that the issue would be resolved within 28 days. The applicant swears that he again raised the issue with Mr Palmer 28 days later and received a similar assurance.
3. The applicant states that throughout the remainder of 2022, he monitored his superannuation balance and observed that no additional payments were made even though the payslips that he received indicated superannuation payments being made.
4. Neither by pleading, nor by Mr Palmer's affidavits, were the applicant's claims about his employer's failure to pay superannuation, about the applicant's payslips incorrectly recording that payments had been made, or about his complaints to Mr Jones and Mr Palmer denied. I accept Mr Watson's evidence.

Exercise of Workplace Rights - Complaints - s 341

1. I am satisfied that during 2022 the applicant exercised a workplace right, within the meaning of s 341(1)(c)(ii) of the Act, by making complaints in relation to his employment, namely, his complaints about his employer's apparent failure to pay superannuation contributions.
2. The applicant then states that whilst on annual leave in January and February 2023 he was hospitalised and diagnosed with blood clots in his lungs and from 13 February 2023, was on paid sick leave due to his medical condition.
3. The applicant stated that on 9 March 2023, his employer ceased paying sick leave.

Exercise of Workplace Rights - Complaints - s 341

1. The applicant then called Mr Jones and asked why his sick leave payments had stopped, stating that he had been employed for eight years and should have accrued significant personal leave and requested copies of his leave records for reconciliation and was advised by Mr Jones that he had no leave entitlements remaining. The applicant said that was impossible and he had been employed for eight years and should have both annual and personal leave accrued and asked Mr Jones to email him his personal leave and annual leave ledger.
2. On 13 March 2023 at 5.41 pm, the company accountant, Ms Jane Hoxha, emailed the applicant advising that all his annual and personal leave entitlements had been exhausted as of 9 March 2023. The applicant responded, requesting an explanation given his eight years of employment and the fact that he had hardly taken annual or sick leave over that time. He requested a detailed summary of all his entitlements dating back to 2015.
3. By email dated 14 March 2023, Mr Palmer responded:

I am sure you are aware we had been forced to liquidate the old company and therefore by law required to dismiss all staff, thus allowing the staff to contact the liquidator so he could refer staff to the government department that handles entitlements owed to staff in a liquidated company. Please contact David Hambleton EMAIL (dhambleton@rodgersreidy-qld.com.au).

As for Super we are working with the ATC with scheduled payments and any future questions please contact Andrew at admin@aaacc.net.au who is dealing with all ATC related matters. Note Andrew has nothing to do with former entities and has no information in relation to former companies of which you were engaged, so he will only be able to assist with current matters.

1. The applicant responded that day, denying that he had been advised he was dismissed and requesting documentation of that communication. He also repeated his request for a complete history of all his annual and personal leave.
2. It is unnecessary to further relate the exchanges between the applicant, Mr Palmer, Ms Hoxha the accountant, and Mr Hambleton who was referred to in the email above, prior to 24 March 2023. I am satisfied that by his email communications regarding the issue of his accrued entitlements in early 2023 the applicant exercised a workplace right, within the meaning of s 341(1)(c)(ii) of the Act, by making complaints in relation to his employment, namely, his complaints about his employer's apparent failure to pay him personal leave to which he was entitled and/or to properly record his annual and personal leave accruals.
3. I am satisfied that in the period from 13 February 2023, the applicant was not fit for work because of a personal illness affecting him, within the meaning of s 97(a) of the Act. Given there was no dispute that the applicant was paid for that time, I infer that the applicant complied with any requirement to provide evidence to substantiate the reason for his leave, in accordance with s 107(3)(a) of the Act, and accordingly, the applicant's absence from work was a temporary absence because of illness, within the meaning of s 352 of the Act and reg 3.01(4) of the FW Regulations.
4. I am also satisfied that the applicant's blood clots were a physical disability within the meaning of that term in s 351 of the Act.

1. On 20 March 2023, the applicant had a conversation with Mr Jones, in which Mr Jones advised the applicant that he could return to light duties per his medical advice. Mr Palmer did not contest that evidence, and I accept it.
2. On 20 March 2023, Mr Palmer wrote to the applicant by email requesting the applicant's return to work date. Later that morning Mr Palmer wrote as follows:

Good Morning Mick ,

As advised by Johnathan (operations manager) you wish to return work as light duties. Please be advised we require you to be in capacity and able to return to full duties and have a full medical certificate stating you are able to preform the duties required by your roll as a Machanic and store man. and knowing the urgency of the repairs and services of the trucks and equipment this is very important . Please supple all above certificate and information to me Charles prior to your return.

Regards Charles

1. On 24 March 2023, the applicant's treating doctor wrote to Mr Palmer as follows:

I believe Mr Watson is fit to go back to work from a pulmonary perspective, but I believe he would benefit from a period of light duties and I hope that you were able to help him with this regard.

1. The applicant also provided a medical certificate certifying his fitness for light duties until 7 April 2023 and indicating the applicant would be reviewed on the latter date.
2. On 26 March 2023 at 11.11 am, Mr Palmer emailed the applicant stating:

As explained there is no light duties work and we need you to return to Kyle Bay Removals at full capacity and able to do full duties. As stated the doctor said (I Believe)that states he is unsure on your capacity to do your job .I have spoken to work cover and legal and both advised that you will NOT return to Kyle Bay Removals until we receive a doctors certificate stating you are in good and fit health to do the job you are employed for and in full capacity. Please note we wish you a speedy recovery.

1. At 12.12 pm on 26 March 2023, the applicant emailed the following reply to Mr Palmer and Mr Jones:

This is notice of my resignation effective immediately. You have left me no choice but to resign. The stress and anxiety I am suffering due to your negligence in not paying my superannuation over the 8 years of employment with you, on top of you refusing to provide my annual leave and sick leave balances as requested several times and you not paying me my salary whilst I have been on medical leave is affecting my health.

Charles you are phoenixing, not advising staff including myself of companies going into liquidation and not providing the legal notices to staff of being dismissed and reemployed under the new operating business names. This has seriously impacted my health.

I will be collecting my personal items from the facility this week. I will contact Lorne to arrange.

Charles, I will not rest until I get what I am owed from you. All the superannuation you owe me, & all the leave you owe me, all since the beginning of my employment with Kyle Bay Removals from 7 May 2015.

1. Mr Palmer wrote to the applicant by email on 28 March 2023 attaching a letter as follows:

Michael Watson

Reference: Dismissal Notice

Dear Michael,

I mailed to you last Friday 24/3/2023 a letter saying that we dismissed you on the basis we could not see you having the capacity to fulfill the job-role delegated you, nor do we have any role within the business that works for anyone on light duties.

This is a removalist business and requires staff to not only maintain the vehicles but to carry heavy loads and or move heavy objects around the warehouse, there is no-one exempt from being required to fulfill this roles.

I note in an email you forwarded today Sunday a non-business day an email stating that you wish to resign from the company, I accept that resignation while at the same time again remind you that we dismissed you on Friday 24th March 2023 by way of written notice and mailed the same to your home address.

I note you claim not to be aware of the entity in which you work, yet each week you, provide a time sheet nominating for whom you carried out your services and each week you are provided with a pay slip detailing your income and the funds transferred to your account nominate the business that is paying you.

You are also ignoring the fact that everyone in the organisation is aware of the court case I went through in 2019 that not only caused me to Rent Part of the warehouse and control of the business and control of how the business is managed. I am offended at your suggestion that you believe I have a phoenix operation and will inform the board of you suggesting that is how we operate and add that it's up to them should they wish to act against the comment.

I also note that you claim to be owed money by me since 2015 when you started working for me, yet you ignore the fact that you assisted in helping me cut the warehouse facility in half so the new Tenant could use half, you assisted me make sure that cleared an area for his transport and goods to be stored. As for the ownership of the business you have always known that I had to take in partners to keep the business afloat, so it surprises to me you now claim to know nothing about what I went through, how much I lost and you are ignoring the fact I am still fighting to hang onto what is left.

Be assured any action you take against me will be vigorously defended and any action you threaten the business with I can assure you the board will have their solicitors take all steps to ensure any claim of wrong doing by them is cleared up and any defamation that causes the business name harm will result in legal proceedings against you.

Yours sincerely

Charles Palmer

Operation Manager

1. The applicant pleaded that the first respondent had terminated his employment on 24 March 2023. That pleading was not denied by the first or second respondent.
2. I am satisfied that the first respondent took adverse action against the applicant, within the meaning of item 1 of s 342(1) of the Act. The first respondent asserted by its letter of 28 March 2023 that it had dismissed the applicant by letter dated 24 March 2023. The second respondent stated in what was styled as his defence that he "wrote a letter dismissing him [the applicant] on the basis that we could not engage a party (Mr Watson) that we had no position to offer him", Mr Palmer did not provide any sworn or affirmed evidence as to his reasons for so acting. The first respondent provided neither a defence nor any evidence.
3. The evidence provided by the applicant supports the conclusion that the reasons of the second respondent, and therefore, the first respondent, included the applicant's complaints in early March 2023 about the apparent loss of his employment entitlements as a consequence of the alleged liquidation and de-registration of the earlier entities who had operated the business. The first respondent proceeded with unseemly haste in dismissing the applicant once he provided the 24 March 2023 report containing his request for light duties. That request was for light duties until a review of his fitness could be conducted on 7 April 2023. The claim in the dismissal letter that the applicant's request for light duties could not be accommodated was contrary to the earlier advice from Mr Jones, Mr Watson's direct supervisor, about the availability of light duties. The letter of dismissal also records Mr Palmer's offence at the applicant's claims that he was running a phoenix operation, and the threat of defamation proceedings. The first respondent had not expressed any concern earlier about the fact that the applicant was not at work between 13 February 2023 and 20 March 2023. Mr Palmer's email concerning the apparent immediate need for the applicant to return to full duties followed soon after the applicant had communicated with Mr Hambleton, the liquidator of one of the previous entities, about his unpaid superannuation and annual leave entitlement. The first respondent's position sharpened considerably, shortly after the liquidator identified the applicant's to annual leave accrued previously. I am not satisfied that the first respondent rebutted the presumption imported by s 361 of the Act, namely, that the first respondent dismissed the applicant because of his exercise of workplace rights, his temporary absence from work due to his illness and his physical disability.
4. I am satisfied that the first respondent contravened ss 340, 351 and 352 of the Act by the dismissal of the applicant.

Involvement of Second and Third Respondents in Contraventions of ss 340, 351 and 352

1. I am satisfied that the second respondent was involved in the first respondent's contravention of s 340 of the Act. He was the person who took the action on behalf of the first respondent. Although the presumption in s 361 does not operate in respect of a claim of accessorial liability pursuant to s 550, I am satisfied from the evidence, that Mr Palmer acted to dismiss the applicant because of the complaints the applicant had made about his accrued entitlements. He acted to dismiss the applicant shortly after the applicant had been raising the issue of his unpaid superannuation and leave entitlements. His letter of dismissal referred to his offence at the suggestion that he had a phoenix operation. That was a reference to the complaints the applicant had made about the change of entities without his knowledge and failure to accrue and pay his leave entitlements. As set out above, the second respondent did not give any sworn evidence about his reasons. Although his reason for acting to dismiss the applicant was stated to be his unfitness for work, he proceeded to dismiss the applicant hastily after receipt of the request for light duties, in circumstances where he had assured the applicant on 14 March 2023 that he had an ongoing position and the applicant was due to be reviewed within a fortnight (that is by 7 April 2023). The second respondent's claims that the short term request for light duties could not be accommodated was contrary to the advice from the applicant's direct supervisor on 20 March 2023. I am satisfied having regard to that evidence, and the failure of the second respondent to call any evidence about his reasons for acting, that he acted to dismiss the applicant because of the applicant's exercises of workplace rights by making complaints.
2. Although I have not applied the presumption in s 361 in reaching that conclusion, in the absence of sworn or affirmed evidence from the second respondent as to his reasons, I am satisfied there is an appropriate basis to conclude that the applicant's exercises of workplace rights by the complaints in relation to his employment were a part of Mr Palmer's reasons for acting against the applicant.
3. I am not satisfied that the third respondent was involved in those contraventions. The statement of claim does not allege that the third respondent was motivated by any of the proscribed reasons, only that the third respondent was involved in making the decision and there is no contemporaneous evidence to support the conclusion that the third respondent acted for the reasons which are attributed to the first respondent. In those circumstances, the applicant's case does not establish involvement of the third respondent in these contraventions.

1. The applicant sought compensation of one year's salary, that is $82,420 in respect of the economic loss he had suffered in consequence of these contraventions. The respondents made no attempt to contradict or argue against that quantum. Given the applicant's age (66 at the date of termination) and the nature of his work, I consider it likely that he would suffer difficulty in finding alternative employment. I am satisfied that amount is an appropriate amount of compensation in the circumstances.
2. I am also satisfied in the circumstances of the present case, that it is appropriate to make the compensatory order against the second respondent given the current state of the first respondent and given the second respondent was the instigator of the contravention, and the cause of the applicant's loss and: see Veeraragoo v Goldbreak Holdings Pty Ltd (No 2) [2018] FCA 1448 at [49]-[51] (Veeraragoo).
3. The applicant sought an amount of $40,000 in respect of non-economic loss. I am satisfied, given the applicant's age, his illness at the time of termination, and his length of service that the contravening conduct of the second respondent would have caused him substantial emotional distress. It is appropriate to make an order for compensation for non-economic loss in the sum of $20,000. For the same reason as I set out above, it is appropriate to make that order as against the second respondent.

1. I am satisfied that the employer contravened s 536(2) and s 536(3).
2. I am satisfied that the first respondent at all times between 15 May 2020 and 24 March 2023 provided the applicant with payslips. I am satisfied, having regard to:

(a) the applicant's evidence of the admission of Mr Jones, a supervisor employed by the first respondent, that Mr Palmer had not paid anyone's superannuation;

(b) the failure of the first respondent and second respondent to provide any evidence contradicting that evidence;

(c) the applicant's evidence of the assurances from Mr Palmer in September 2022, and then 28 days later, that he would pay the outstanding superannuation, which are admissions of failure to pay the requisite superannuation;

(d) the absence of any evidence from the first and second respondent to contradict that evidence;

(e) the applicant's evidence that in the remainder of 2022 his payslips indicated that superannuation contributions were being paid although his superannuation balance did not record those statements;

(f) the absence of any evidence from the first and second respondent to contradict that claim;

(g) the applicant's payslip dated 2 February 2023, which shows year to date superannuation contributions exceeding the contributions recorded in the superannuation balance dated 9 March 2023;

that from no later than the end of September 2022, the first respondent contravened s 536(2) by failing to include the correct superannuation information in the applicant's payslips, and s 536(3) by giving the applicant payslips it knew were false or misleading.

1. I am satisfied that Mr Palmer knew of the failure to make the appropriate superannuation contributions and was aware that the payslips recording that such payments had been made were false.
2. I am, therefore, satisfied that Mr Palmer was involved in the first respondent's contravention, within the meaning of s 550 of the Act.

1. The applicant seeks a declaration that the first respondent contravened s 117(1) and s 44 of the Act by failing to give or pay notice to the applicant of the termination of his employment.
2. The applicant was over 45 years old at the time of the termination of his employment. He was born on 16 September 1956, and was therefore 66 at the date of dismissal.
3. The applicant had over five years relevant service. Although he was employed by the first respondent between 15 May 2020 and 24 March 2023, he had prior service dating back to 7 May 2015 with what he alleged in the statement of claim were "associated entities" within the meaning of s 50AAA of the Corporations Act 2000 (Cth). None of the respondents denied that pleaded fact. They are, therefore, taken to have admitted it. The applicant identified periods during which those associated entities were recorded as his employer on his payslips.
4. Although there is a period between September 2019 and May 2020 in respect of which the applicant was unable to identify the entity recorded on his payslip, I infer that the entity so recorded was either one of the known associated entities or another associated entity of the first respondent, given that the three known entities for the balance of the period from 7 May 2015 to 24 March 2023 are associated entities.
5. Given the applicant served in the business over that period without being given any formal communication from any of the entities about the arrangements concerning his employment, I am satisfied that there was a "transfer of employment" as contemplated by s 22(7) of the Act when each successive entity commenced paying the applicant, and accordingly, the applicant's service as at the date of termination is taken to have been continuous from the time he commenced employment in 2015.
6. Given the applicant's age and length of service he was entitled to be given five weeks' notice of termination or paid in lieu of such notice pursuant to s 117(2) of the Act, if he was terminated by the employer. He was not. Based on his annual salary of $82,420, he should have been paid $7,903.30 upon termination.
7. I am satisfied that the termination of the applicant's employment was at the employer's initiative. As set out above, the first respondent acted to dismiss the applicant on 24 March 2023. Even if that communication was regarded as not effective because the applicant submitted a resignation by email before the dismissal letter reached him, by the second respondent's email communications with the applicant in March 2023, the first respondent resiled from its obligations which arose by dint of the applicant's service with the first respondent and its predecessor entities. The first respondent failed to make superannuation contribution payments to the benefit of the applicant since at least early in 2022, when Mr Jones assured the applicant that there had been no payments made, but that it would be rectified. The first respondent continued to issue false and misleading payslips to the applicant. That conduct was sufficient to destroy the relationship of trust between the applicant and the first respondent, such that it left the applicant with no effective or real choice but to resign: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; [1995] IRCA 625.
8. I am satisfied that the first respondent contravened s 44 of the Act by failing to give or pay notice to the applicant of the termination of his employment as required by s 117(1) of the Act, and the second respondent, as the instigator of the termination, was involved in that contravention within the meaning of s 550 of the Act.
9. I am satisfied that it is appropriate to make orders for compensation to the applicant of $7,903.30 in respect of the contraventions. I am satisfied it is appropriate to make that order against the second respondent, given the current state of the first respondent and given the second respondent was the instigator of this contravention and thereby caused the applicant's loss. .

1. The applicant was not paid long service leave at the termination of his employment.
2. I am satisfied that there were successive transmissions of business, within the meaning of that term in s 4 of the LSL Act between the entity that originally employed the applicant, being Kyle Removals Pty Ltd, and Kylebay Storage & Removals (NSW) Pty Ltd and then the first respondent. The applicant's uncontradicted evidence was that although he was based at the same location in the same role, reporting to the same superiors over the period between 7 May 2015 and the termination of his employment in March 2023, he was never consulted about, nor informed that, he would be dismissed or employed by any other entity, however, the entity recorded on his payslips changed over the life of his employment. I am satisfied in those circumstances that there was a transfer, conveyance, assignment or succession of the business that was ultimately operated by the first respondent from the Punchbowl Yard.
3. I am, therefore, satisfied that the applicant had continuous "service" for the purposes of the LSL Act over the period from 7 May 2015 to 24 March 2023.
4. I am satisfied that the applicant's services were terminated by the first respondent for reasons other than the applicant's serious and wilful misconduct, and that he is entitled to his accrued long service leave on a proportionate basis.
5. The applicant was, therefore, entitled at termination, pursuant to s 4(2)(a)(ii) of the LSL Act, to a proportion of two months (or 8 and 2/3 weeks) long service leave at his ordinary pay, in the same proportion that his period of service from 7 May 2015 to 24 March 2023 (2,877 days) represents of 10 years. The relevant proportion is 78.82 per cent. One week's ordinary pay being $1,580.66, the amount of long service leave owing to the applicant was $10,797.59.
6. I am satisfied that the first respondent contravened s 323 of the Act by failing to pay the applicant's accrued long service leave upon the termination of his employment. Mr Palmer was involved in that contravention of the Act, within the meaning of s 550 of the Act as he instigated the termination of the applicant without any payment in satisfaction of his accrued entitlements.
7. I am satisfied that it is appropriate to make orders for compensation to the applicant in the amount of $10,797.59. Given the second respondent took the action that amounted to the contravention of s 323 of the Act, had a central role in the entities operating the business in which Mr Palmer was employed, and had not consulted the applicant about the circumstances whereby those entities changed, I am satisfied it is appropriate to make that order as against the second respondent: see Veeraragoo above.

1. The applicant was not paid out any accrued annual leave upon termination.
2. I am satisfied that the applicant had service with the first respondent's associated entities which accrued an entitlement to annual leave and that such entitlement was untaken at the time of his termination in March 2023. The email from the liquidator of 16 March 2023 indicates that there were 151.93 hours of accrued leave from one of the associated entities.
3. Given my conclusion about the application of s 22(5) of the Act to the circumstances. I am satisfied that the first respondent was obliged by s 90(2) to pay out the applicant's untaken annual leave entitlement upon the termination of the applicant's employment. It did not, and thereby contravened s 44 of the Act. The second respondent was involved in that contravention as he instigated the termination of the applicant without any payment in satisfaction of his accrued entitlements.
4. The applicant claimed that he had accrued but untaken leave of two weeks for each year of service, totalling 15.8 weeks altogether. Neither the first nor second respondent engaged with that calculation or produced any record to contradict that claim. Accordingly, I am satisfied that the applicant had accrued leave of that amount and that an order for compensation should be made in respect of that leave accrual. Based on an annual salary of $82,420, I conclude that a week's pay is $1,580.66 and 15.8 weeks' pay is $24,974.43.
5. I am satisfied that it is appropriate to make an order that the second respondent pay compensation to the applicant in the amount of $24,974.43. Given the current circumstance of the first respondent, the fact that the second respondent took the action (of dismissing the applicant without payment of his accrued annual leave entitlement), the fact that the second respondent had a central role in the entities that operated the business in which Mr Palmer was employed, and had not consulted the applicant about the circumstances whereby those entities changed, I am satisfied it is appropriate to make that order as against the second respondent: see Veeraragoo above.

1. The applicant's claims for penalties as against the second respondent remains to be determined. I will list the matter for further directions to hear from the parties as to how that part of this matter should proceed in the circumstances.

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.