Beninca v Shui Mir Pty Ltd
[2025] FedCFamC2G 131
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beninca v Shui Mir Pty Ltd [2025] FedCFamC2G 131
File number(s): MLG 2738 of 2024 Judgment of: JUDGE MANSINI Date of judgment: 5 February 2025 Catchwords: FAIR WORK – SMALL CLAIM – reasons for judgement delivered ex-tempore. Legislation: Fair Work Act 2009 (Cth) ss. 547, 548, 570
Federal Circuit and Family Court of Australia Act 2021 (Cth) s. 211
Federal Circuit and Family Court of Australia (Division 2) General Federal Law) Rules 2021 (Cth) r. 13.06(1)(e)
Cases cited: Ryan v Primesafe (2015) 323 ALR 107
Tucker v State of Victoria (No 2) [2021] VSCA 182
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 3 February 2025 Place: Melbourne The Applicant: Appearing in person The Respondent: No appearance ORDERS
MLG 2738 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DOMENIC BENINCA
Applicant
AND: SHUI MIR PTY LTD
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
3 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Within 28 days of these orders, the Respondent pay to the Applicant:
(a)$3,300.00 to the Applicant for underpayment of ordinary wages by the Respondent;
(b)$4,000.00 to the Applicant for 2 weeks’ notice upon termination;
(c)$2,000.00 to the Applicant for 1 weeks’ accrued annual leave payable upon termination; and
(d)$430.91 to the Applicant by way of interest on the amount that was required to be paid to the Applicant.
2.By 4.00pm on 5 February 2025, the Applicant is to serve a copy of these orders on the Respondent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge Mansini
These are the written reasons for judgement delivered ex tempore on 3 February 2025, amended in minor respects and only to correct typographical errors, insert citations and reflect the intention of the Court, as follows.
Before the Court is a claim for alleged underpayment of various employment entitlements, made by Mr Dominic Beninca against his former employer Shui Mir Pty Ltd.
The claim was commenced by originating application and Form 5 filed 14 August 2024. Mr Beninca elected that the small claims procedure at s.548 of the Fair Work Act 2009 (Cth) (the Act) apply.
The matter was finally heard today, following: a directions hearing on 11 September 2024, at which a program for filing of materials was fixed; and a first attempt at hearing on 6 December 2024, which was adjourned to ensure that the Respondent had adequate opportunity to participate in the hearing.
On each occasion, Mr Beninca has appeared without legal representation but with assistance of a support person. Notwithstanding evidence that the Respondent was served with the originating materials and notice of the final hearing and consequence of non-compliance with Court orders and failure to attend the hearing, there has been no appearance for or by the Respondent in these proceedings, no response or defence filed and no communication from the Respondent with the Court at all.
In the circumstances, the Court was content to proceed to hear the claim for relief absent the Respondent pursuant to r.13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law) Rules 2021 (Cth).
Turning then to consider the claim on the materials, evidence and submissions before the Court.
Where an applicant so elects and, as here, the smalls claims procedure applies to proceedings, the Court is not bound by any rules of evidence and procedure and may act in an informal manner and without regard to legal forms and technicalities: s.548(3) of the Act. This does not relieve an applicant of the necessity to establish their claim to a sufficient standard of proof.
As is appropriate in this jurisdiction, particularly where there is no legal representation, I have adopted a generous approach to admissibility of the material filed by the Applicant, oral evidence of Mr Beninca given on oath today and the oral argument advanced before the Court which comprised a combination of facts, evidence and legal submissions.
On what is before the Court, which was unchallenged given the non-participation of the Respondent, I find as follows.
The Respondent is in the business of motor vehicle importation which involves certain compliance checks.
After some initial discussions and a full day trial, on or about 18 March 2024, Mr Beninca and Mr Shui Mir of Shui Mir Pty Ltd entered into an oral contract of employment by which Mr Beninca was engaged as a vehicle inspector to check and photograph imported cars. It was agreed that Mr Beninca would work full time, between 9am and 5pm on Monday to Friday each week and for this he would be paid $2,000 per week before payroll tax but excluding legislated superannuation entitlements.
On 25 March 2024, Mr Beninca commenced work for the Respondent. His work involved reporting to the office for a daily run sheet, then driving to workshops to inspect vehicles and take photographs of the cars, VIN numbers and compliance plaques. He drove between 800 and 1,000 kilometres per week and worked from Monday to Friday each week until his employment came to an end on 16 July 2024 when it was orally terminated by Mr Shui Muir by reason that the employment relationship was “not working out”. Mr Beninca refused to work without a company-supplied vehicle on 15 July 2024 and did not perform work on 16 July 2024.
The period of employment was therefore 16 weeks. For this period, Mr Beninca submitted a spreadsheet which detailed that, on various dates in the period of 10 April 2024 and 14 August 2025, he received payment for 15 weeks’ pay but in the incorrect amount and was provided with just one pay slip. By that pay slip, it is apparent that the payment Mr Beninca received was $2,000.00 gross per week less an amount for payroll tax and less a further amount of $220.00 being for superannuation (which was not paid to Mr Beninca’s nominated superannuation account and was not consistent with the contract of employment).
Mr Beninca was not paid any notice upon termination of his employment. Under the National Employment Standards in the Act, which applied to his employment, for less than 1 year of service Mr Beninca was entitled to 1 weeks’ pay in lieu of notice plus an additional 1 weeks’ pay because he is over 45 years of age.
Mr Beninca did not take annual leave during the course of his employment and was not paid accrued but unused annual leave upon termination of employment. Under the National Employment Standards in the Act, Mr Beninca was entitled to accrue paid annual leave entitlements from the first day of his employment. For his 3 months’ service, Mr Beninca had accrued but not taken 1 week of paid annual leave.
In conclusion, of the claim as made to this Court:
(a)I accept that Mr Beninca was incorrectly deducted $220.00 per week for 15 weeks of employment, in contravention of his common law contractual entitlement, and was therefore underpaid the amount of $3,300 gross in ordinary wages.
(b)I accept that Mr Beninca was not paid any notice on termination of employment, in contravention of s.117(2) of the National Employment Standards in the Act, and was therefore entitled to be paid the amount of $4,000 gross being 2 weeks’ notice upon termination.
(c)I accept that Mr Beninca was not paid accrued but unused annual leave upon termination of employment, in contravention of s.90(2) of the National Employment Standards in the Act, and was therefore entitled to be paid $2,000 gross being 1 weeks’ accrued annual leave payable upon termination.
There is no reason why interest should not be allowed pursuant to s.547 of the Act and s.211 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Interest calculated in accordance with the Federal Court of Australia’s “Interest on Judgements Practice Note” will be ordered in the amount of $430.91.
There is a general rule that a party to a proceeding will bear their own costs. The statute provides that a party may be ordered to pay costs incurred by another party - but only in circumstances provided at s.570(2) of the Act. The authorities make clear that the discretion afforded by s.570(2) should be exercised cautiously and the case for its exercise should be clear: see Tucker v State of Victoria (No 2) [2021] VSCA 182 (Kyrou, McLeish and Sifris JJA) (Tucker) at [27]; Ryan v Primesafe (2015) 323 ALR 107 (Mortimer J) at [64]-[68]. In the present case, I am not minded to exercise the discretion to make any order as to costs.
For completeness, there are 3 further observations to be made:
(a)Mr Beninca intends to seek his entitlements to paid superannuation on wages with the Australian Taxation Office and accordingly there will be no order made in this respect.
(b)Mr Beninca complained of other alleged contraventions that may have given rise to a pecuniary penalty but did not apply for a pecuniary penalty order. Proceedings for pecuniary penalties may not be dealt with as small claims, or with the flexibilities that small claims proceedings attract. In those circumstances, I make no findings about those matters.
(c)Mr Beninca gave oral evidence of 17 weeks plus 2 days of work performed, for which he was paid but in the incorrect amount for 15 weeks (as found above) and the remainder for which he was not paid at all. However, this did not accord with his clear evidence of the employment period which (as I have found above) was for a total of 16 weeks. Further, how this oral evidence accorded with the calculations submitted was not adequately explained. As I could not make sense of the claim for an additional 2 weeks and 2 days in entirely unpaid wages, and it would appear that the Applicant’s oral evidence may have confused the entitlement to payment on notice of termination, I have not made orders in this respect.
I will make orders to give effect to these reasons and require payment be made to Mr Beninca within 28 days. The Applicant will be required to serve a copy of those orders on the Respondent given their non-participation in these proceedings.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Mansini. Associate:
Dated: 5 February 2025
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