Fair Work Ombudsman v Gaura Nitai Pty Ltd
[2017] FCCA 1242
•13 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v GAURA NITAI PTY LTD & ANOR | [2017] FCCA 1242 |
| Catchwords: INDUSTRIAL LAW – Application for imposition of pecuniary penalties – consideration of penalty – where single employee was underpaid – failure to comply with Notice to Produce – failure to keep proper records – production of false records. |
| Legislation: Crimes Act 1914 (Cth), s.4AA(1) Fair Work Act 2009, ss.44, 45, 61(2), 90(2), 117(2), 139(1), 325(1), 327, 535(1), 536(1), 541(2), 542(1), 550(1), 557(1) Fair Work Regulations, regs.3.33, 3.34, 3.36, 3.44(6) Hospitality Industry- Restaurant, Catering and Allied Establishments Award - South-Eastern Division 2002 cl. 5.1.2(f) |
| Cases cited: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 Fair Work Ombudsman v Oz Staff Career Services Pty Ltd [2016] FCCA 2594 Fair Work Ombudsman v Singh [2016] FCCA 1335Fair Work Ombudsman v Something Aussie Pty Ltd [2017] FCCA 186 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | GAURA NITAI PTY LTD |
| Second Respondent: | SAANDEEP CHOKHANI |
| File Number: | BRG 1112 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 2 June 2017 |
| Date of Last Submission: | 2 June 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 13 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Coulthard |
| Solicitors for the Applicant: | Office of the Fair Work Ombudsman |
| Solicitors for the Respondents: | Flannery Law |
ORDERS
THE COURT DECLARES THAT:
Gaura Nitai Pty Ltd contravened each of the following penalty provisions of the Fair Work Act 2009 (Cth):
(a)s.325 by unreasonably requiring Mr Gibin Mathew to spend part of an amount payable to him in relation to work performed by him;
(b)s.45 by failing to pay Mr Mathew casual loading for hours worked on a Monday to Friday while a casual employee in accordance with cl.13.1 of the Restaurant Industry Award 2010;
(c)s.45 by failing to pay Mr Mathew Saturday penalty rates for hours worked on a Saturday while a casual employee, in accordance with cl.34.1 of Restaurant Industry Award 2010;
(d)s.45 by failing to pay Mr Mathew Sunday penalty rates for hours worked on a Sunday while a casual employee, in accordance with cl.34.1 of Restaurant Industry Award 2010;
(e)s.45 by failing to pay Mr Mathew public holiday penalty rates for hours worked on a public holiday while a casual employee, in accordance with cl.34.1 of Restaurant Industry Award 2010;
(f)s.45 by failing to pay Mr Mathew minimum hourly rate of pay for ordinary hours worked on a Monday to Friday while a full time employee, in accordance with cl.20.1 of Restaurant Industry Award 2010;
(g)s.45 by failing to pay Mr Mathew Saturday penalty rates for ordinary hours worked on a Saturday while a full time employee, in accordance with cl.34.1 of Restaurant Industry Award 2010;
(h)s.45 by failing to pay Mr Mathew Sunday penalty rates for ordinary hours worked on a Sunday while a full time employee, in accordance with cl.34.1 of Restaurant Industry Award 2010;
(i)s.45 by failing to pay Mr Mathew public holiday penalty rates for hours worked on a public holiday while a full time employee, in accordance with cl.34.1 of Restaurant Industry Award 2010;
(j)s.45 by failing to pay Mr Mathew overtime rates for overtime worked on a Monday to Friday while a full time employee, in accordance with cl.33.2(a) of Restaurant Industry Award 2010;
(k)s.45 by failing to pay Mr Mathew overtime rates for overtime worked on a Saturday while a full time employee, in accordance with cl.33.2(b) of Restaurant Industry Award 2010;
(l)s.45 by failing to pay Mr Mathew overtime rates for overtime worked on a Sunday while a full time employee, in accordance with cl.33.2(c) of Restaurant Industry Award 2010;
(m)s.45 by failing to pay Mr Mathew weekly, fortnightly or, by agreement monthly in accordance with cl.27 of Restaurant Industry Award 2010;
(n)s.44 by failing to pay Mr Mathew annual leave entitlements upon his termination in accordance with s.90(2) of the Fair Work Act;
(o)s.44 by failing to provide Mr Mathew two weeks’ notice of termination or payment in lieu of notice in accordance with s.117(2)(b) of the Fair Work Act;
(p)s.535(1) by failing to record the hours of overtime Mr Mathew worked in accordance with regulation 3.34 of the Fair Work Regulations 2009 (Cth);
(q)s.535(1) by failing to record annual leave taken by Mr Mathew and the balance of his annual leave in accordance with regulation 3.36 of the Fair Work Regulations 2009 (Cth);
(r)regulation 3.44(6) of the Fair Work Regulations 2009 (Cth) by making use of false and misleading records; and
(s)s.536(1) by failing to provide Mr Mathew with a pay slip within one working day of paying an amount to his in relation to the performance of work.
Saandeep Chokhani was involved in each of the contraventions by Gaura Nitai Pty Ltd the subject of declarations (1)(a) – (1)(s) hereof.
THE COURT ORDERS, BY CONSENT, THAT:
Gaura Nitai pay a pecuniary penalty of $150,900 in respect of each of the contraventions set out in declarations (1)(a) – (1)(s) hereof;
Saandeep Chokhani pay a pecuniary penalty of $30,000 in respect of his involvement in the contraventions set out in declarations (1)(a) – (1)(s) hereof;
Each respondent pay the said penalties to the Consolidated Revenue Fund of the Commonwealth within 28 days of these orders.
Pursuant to s.545(1) of the Fair Work Act 2009 (Cth) Gaura Nitai Pty Ltd is to assess its compliance with the Fair Work Act and Restaurant Award for a six month period commencing on the date of this order, as it relates to all employees, in respect of:
(a)payment of minimum wages and entitlements; and
(b)employee records and pay slips,
and provide details of any contraventions and steps taken to rectify these to the Fair Work Ombudsman within 28 days of the expiration of the six month period.
Pursuant to s.545(1) of the Fair Work Act that Mr Chokhani:
(a)within a period of one month, register with the Fair Work Ombudsman’s “My Account” portal at and complete the profile including the Award options;
(b)within a further two weeks after the period in paragraph 5(a) above, provide to the Fair Work Ombudsman his “My Account” registration number; and
(c)within a period of two months, register with the Fair Work Ombudsman’s Online Learning Centre at and complete all education courses designed for employers and provide the Fair Work Ombudsman with evidence of completion of those courses within a further one month.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1112 of 2016
| FAIR WORK OMBUDSMAN |
Applicant
And
| GAURA NITAI PTY LTD |
First Respondent
| SAANDEEP CHOKHANI |
Second Respondent
REASONS FOR JUDGMENT
The exploitation of workers from other countries who are inspired to live and work in Australia with the hope of achieving permanent residency needs to be discouraged, in the strongest of terms whenever it is apparent that it has occurred. This is one of those cases.
The first respondent, Gaura Nitai Pty Ltd, operated a licensed cafe called “The Coffee Club Nundah” at the Nundah Village Shopping Centre, Nundah, Queensland. The second respondent, Saandeep Chokhani, is a director and shareholder of the first respondent. At all times relevant to this application he managed the first respondent’s Coffee Club business.
By these proceedings, the Fair Work Ombudsman seeks:
a)declarations that the first respondent contravened the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth) in a number of respects;
b)declarations that the second respondent was involved in those contraventions for the purposes of the Fair Work Act and thereby to be taken as having contravened the Act himself; and
c)the imposition of pecuniary penalties on the first and the second respondents for the contraventions alleged against them.
The applicant is also seeking other orders pursuant to s.545(1) of the Fair Work Act for the purpose of ensuring future compliance with the Act and Regulations by the respondents.
The first respondent admits the contraventions alleged against it. The second respondent admits that he was involved in those contraventions and that he must be taken to have committed the contraventions as well as the first respondent. The parties have filed a statement of agreed facts that record the admissions made by the respondents.
There is a factual dispute between the parties about certain matters to which I have referred later in these reasons. The applicant and the respondents led evidence on the disputed matters and the witnesses relied upon by each (Mr Mathew in the applicant’s case and the second respondent in the respondents’ case) were cross-examined.
Background
From 9 September, 2013 to 17 November, 2015 Gibin Mathew was employed by the first respondent and worked in its business at Nundah.
The circumstances in which he came to work for the first respondent are in dispute. Mr Mathew’s evidence is that before he worked for the first respondent, he worked as a chef at the Coffee Club in Wilston. The Coffee Club in Wilston was owned by Jitendra Varanasi, known as Jit. Jit sponsored Mr Mathew’s then Skilled Worker (subclass 457) visa while he worked at the Coffee Club in Wilston. In December 2012, Jit introduced Mr Mathew to the second respondent. In early 2013, Jit sold the Coffee Club in Wilston and so could no longer sponsor Mr Mathew’s 457 visa. New management took over the Coffee Club in Wilston and Mr Mathew was told that his sponsorship could not be maintained. Consequently, Mr Mathew needed to find a new visa sponsor.
Mr Mathew had trouble finding a new sponsor. He told Jit of his trouble and Jit said that he would speak to the second respondent about sponsoring Mr Mathew.
Mr Mathew swears that in August, 2013 he met the second respondent to talk about working for him. Mr Mathew says that the second respondent said to him, “I am not looking for a cook at the moment. If I need you I will call you.”
About three or four weeks later, the second respondent called Mr Mathews and they had a conversation to the following effect:
Second respondent: I need you to work for me because one of my staff is leaving and she needs to be replaced. I can sponsor you.
Mr Mathews: I am happy to work for you. If you are looking for money I don’t want your sponsorship.
Second respondent: That is ok. I don’t want your money just work for me.
Mr Mathew says that he told the second respondent “If you are looking for money I don’t want your sponsorship” because his friends had told him before he had the conversation with the second respondent that some employers want to be paid about $50,000 to sponsor an employee. Mr Mathew said that he could not afford to pay any money for his visa sponsorship because he owed a lot of money for his education in India.
The second respondent’s evidence is to the effect that he was not interested in sponsoring Mr Mathew for the purposes of his visa. He had not done that before and did not want that responsibility. After one of his other cooks had left in August, 2013 he did, however, agree to employ Mr Mathew on a casual basis.
Mr Mathew commenced working for the first respondent on a casual basis on 9 September, 2013. At that time he contacted a migration agency in Brisbane, to help obtain his 457 visa and to provide the second respondent with some assistance because he had not sponsored a visa worker before. The evidence demonstrates that Mr Mathew had been in contact with the migration agency for some time.
The second respondent swears that Mr Mathew was anxious that he should sponsor him because if the first or second respondents did not do so, he would have to return to India. He said that Mr Mathew proposed an arrangement “whereby there was no money to be paid” and, because of his persistence, he finally gave in and agreed to sponsor Mr Mathew. He knew that Mr Mathew was “desperate”.
Mr Mathew says that in about October, 2013 the second respondent called him and organised for them to go to the migration agent’s office. The second respondent suggests that Mr Mathew organised the meeting. Mr Mathew swore in his first affidavit filed on 27 April, 2017 that he could not remember the name of the migration agent that they consulted, but that person explained that the second respondent would need to pay Mr Mathew a salary of $53,900 plus superannuation to work as a full-time cook and they would need to sign a contract to that effect. There were also fees payable to the migration agent and Mr Mathew paid those fees.
However, the second respondent swears that Mr Mathew agreed that in return for the first or second respondent sponsoring his visa, he would accept only $600 per week and he would work on a full-time basis. The second respondent says that he agreed with this proposal.
To further the sponsorship application, on 22 October, 2013 Mr Mathew entered into a contract of employment with the first respondent which included the following terms:
a)the contract would commence upon Mr Mathew holding a 457 visa;
b)Mr Mathew would be engaged on a full time basis;
c)the first respondent would pay Mr Mathew, on a weekly basis, an annual income of $53,900 which the first respondent paid as an hourly rate of $27.2531;
d)Mr Mathew would be entitled to 28 days (4 weeks) annual leave per year; and
e)the first respondent or Mr Mathew could terminate the employment contract after giving one month notice or one month payment in lieu of notice.
The second respondent applied to become Mr Mathew’s 457 visa sponsor. That application was successful and on 10 December, 2013 the first respondent’s sponsorship of Mr Mathew under a subclass 457 visa was approved. As a result, the identity of Mr Mathew’s sponsor for the purposes of his 457 visa was changed to the first respondent.
The parties agree that Mr Mathew’s full-time employment pursuant to the contract that was signed on 22 October, 2013 commenced on 6 January, 2014.
Considerable time was taken in cross-examination of Mr Mathew so as to establish that the second respondent’s recall of the employment arrangements was correct. Mr Mathew did not accept the version of events contended for by the second respondent. Whilst I was left a little uncomfortable about Mr Mathew’s credit, it is not necessary to decide which version of events leading to the full-time employment is correct. That is so because even on the second respondent’s version, he knew that he would be paying Mr Mathew a flat rate of remuneration in circumstances where he knew that it would not, or was not likely to cover Mr Mathew’s award based entitlements. Moreover, the second respondent revealed himself to be a person who was willing to participate in conduct designed to mislead and deceive the relevant authorities – conduct which the second respondent would soon replicate when tasked with responding to enquires from the applicant for the purposes of investigating the allegations in these proceedings.
On 17 November, 2015 the first respondent terminated Mr Mathew’s employment without notice.
The industrial framework
The parties agree that the first respondent was bound by the Fair Work Act and the Fair Work Regulations in respect of Mr Mathew’s employment. Mr Mathew’s work at the Coffee Club Nundah entailed cooking and preparing meals, ordering and controlling stock levels and cleaning the kitchen.
The parties agree that the Restaurant Industry Award 2010 covered and applied to the first respondent and Mr Mathew during his employment. The first respondent was an employer in the ‘restaurant industry’. Mr Mathew was a Cook Grade 3 (tradesperson) as defined in clause 8.3.6 in Schedule B of the Restaurant Award.
The parties also agree that from 9 September, 2013 to 6 July, 2014 the Hospitality Industry- Restaurant, Catering and Allied Establishments Award - South-Eastern Division 2002 applied to and covered the first respondent and Mr Mathew for the purposes of calculating rates of pay under Schedule A of the Restaurant Award. Mr Mathew was a Cook (Tradesperson) Grade 3 as defined in clause 5.1.2(f) of the Hospitality Industry Award.
The contraventions
A.Underpayment of wages and other entitlements
The parties agree that during Mr Mathew’s employment the first respondent paid Mr Mathew rates of pay which did not meet his entitlements. Over the period that he was employed as a casual the first respondent underpaid Mr Mathew $1,430.58 calculated as follows:
| Entitlement | Entitlement Rate per hour | Hours | Entitlement | Paid | Underpayment |
| Casual loading | $4.69 | 532.25 | $2,496.25 | $1,373.16 | $1,123.09 |
| Saturday penalty rates | $27.57 | 39.75 | $1,095.91 | $1,044.55 | $51.36 |
| Sunday penalty rates | $31 .38 | 33.75 | $1,059.08 | $988.19 | $70.89 |
| Public holiday penalty rates | $42.82 | 8.75 | $374.68 | $189.44 | $185.24 |
| Total | $1,430.58 |
During Mr Mathew’s full-time employment and save for the periods that I will mention in a moment, the first respondent paid him $1,035.62 ($845.62 nett per week until 22 June, 2014 and $840.62 per week thereafter when payments were made) each week in accordance with his contract. He was paid a flat rate irrespective of the number of hours he worked or the time of day or the time of the week that he worked. That is to say, he was not paid any overtime or penalty rates to which he was entitled.
For the periods:
a)14 July, 2014 to 16 November, 2014 (18 weeks);
b)2 February, 2015 to 8 March, 2015 (5 weeks); and
c)23 March, 2015 and 3 May, 2015 (6 weeks)
Mr Mathew was paid nothing by the first or second respondent.
The amounts paid were less than the amounts to which Mr Mathew was entitled pursuant to the Restaurant Award because, generally speaking he was not paid penalty and overtime rates. There was a complete failure to pay even the minimum rate during the periods that Mr Mathew was not paid at all. Over the time during which Mr Mathew was employed on a full time basis, the first respondent underpaid Mr Mathew as follows:
| Period | Entitlement Rate | Hours | Entitlement | Paid | Underpayment | |||||
| Minimum hourly rate of pay | ||||||||||
| Full Time Period 1* | $19.07 | 526.18 | $10,034.25 | $10,034.25 | $0.00 | |||||
| Full Time Period 2** | $19.64 | 1,339.25 | $26,302.87 | $18,746.05 | $7,556.82 | |||||
| Full Time Period 3*** | $20.13 | 551 .00 | $11,091 .63 | $10,709.19 | $382.44 | |||||
| Sub-total | 2,416.43 | $47,428.75 | $39,489.49 | $7,939.26 | ||||||
| Saturday penalty rates | ||||||||||
| Full Time Period 1 | $22.88 | 113.00 | $2,585.44 | $2,585.44 | $0 .00 | |||||
| Full Time Period 2 | $24.55 | 258.75 | $6,352.31 | $4,382.19 | $1,970.12 | |||||
| Full Time Period 3 | $25.16 | 93 .00 | $2,339.88 | $2,339.88 | $0.00 | |||||
| Sub-total | 464.75 | $11,277.63 | $9,307.51 | $1,970.12 | ||||||
| Sunday penalty rates | ||||||||||
| Full Time Period 1 | $26.69 | 89.25 | $2,382.08 | $2,382.08 | $0.00 | |||||
| Full Time Period 2 | $29.46 | 238.00 | $7,011.48 | $4,482.98 | $2,528.50 | |||||
| Full Time Period 3 | $30.20 | 80.00 | $2,416.00 | $2,167.43 | $248.57 | |||||
| Sub-total | 407.25 | $11,809.56 | $9,032.49 | $2,777.07 | ||||||
| Public holiday penalty rates | ||||||||||
| Full Time Period 1 | $41 .94 | 32 .50 | $1,363.05 | $1,363.05 | $0.00 | |||||
| Full Time Period 2 | $49.10 | 62.00 | $3,044.20 | $2,553.20 | $491.00 | |||||
| Full Time Period 3 | $50.33 | 17.00 | $855.61 | $855.61 | $0.00 | |||||
| Sub-total | 111 .50 | $5,262.86 | $4,771 .86 | $491 .00 | ||||||
| Monday to Friday overtime rates | ||||||||||
| Full Time Period 1 | $28.60 - first two hours | 1.42 | $40.61 | $40.61 | $0.00 | |||||
| $38.13 – thereafter | 0.00 | $0 .00 | $0.00 | $0.00 | ||||||
| Full Time Period 2 | $29 .46 - first two hours | 14.00 | $412.44 | $412.44 | $0 .00 | |||||
| $39.28 – thereafter | 35.50 | $1,394.44 | $1,202.16 | $192.28 | ||||||
| Full Time Period 3 | $30.20 - first two hours | 14.50 | $437.90 | $437.90 | $0.00 | |||||
| $40.26- thereafter | 32.25 | $1,298.39 | $1,155.19 | $143.20 | ||||||
| Sub-total | 97.67 | $3,583.78 | $3,248.3 | $335.48 | ||||||
| Saturday overtime rates | ||||||||||
| Full Time Period 1 | $33.37 - first two hours | 6.25 | $208.56 | $208.56 | $0 .00 | |||||
| $38.13 – thereafter | 10.25 | $390.83 | $390.83 | $0.00 | ||||||
| Full Time Period 2 | $34.37 - first two hours | 6.75 | $232.00 | $137.48 | $94.52 | |||||
| $39.28 – thereafter | 14.00 | $549.92 | $333.88 | $216.04 | ||||||
| Full Time Period 3 | $35.23 - first two hours | 6.00 | $211.38 | $104.58 | $106.80 | |||||
| $40.26 -thereafter | 12.75 | $513.32 | $150.98 | $362.34 | ||||||
| Sub-total | 56 | $2, 106.01 | $1,326.31 | $779.70 | ||||||
| Sunday overtime rates | ||||||||||
| Full Time Period 1 | $38.13 | 29.75 | $1,134.37 | $1,078.48 | $55.89 | |||||
| Full Time Period 2 | $39.28 | 53.25 | $2,091 .66 | $752.50 | $1,339.16 | |||||
| Full Time Period 3 | $40.26 | 21 .75 | $875.66 | $590.23 | $285.43 | |||||
| Sub-total | 104.75 | $4,101.69 | $2,421.21 | $1,680.48 | ||||||
| Annual leave upon termination | ||||||||||
| 17 November 2015 | $27.2531 | 78.22 | $2,131.74 | $0.00 | $2,131.74 | |||||
| Termination in lieu of notice | ||||||||||
| 17 November 2015 | $20.13 | 76 | $1,529.88 | $0.00 | $1,529.88 | |||||
| TOTAL | $19,634.73 | |||||||||
* Full Time Period 1: 6 January, 2014 to 6 July 2014
** Full Time Period 2: 7 July, 2014 to 5 July, 2015
*** Full Time Period 3: 6 July 2015 to 17 November, 2015
The failure to pay Mr Mathew his entitlements in the nature of:
a)the minimum hourly wage for ordinary hours worked on a Monday to Friday in accordance with clause 20.1 of the Restaurant Award;
b)the Saturday penalty rate for the number of ordinary hours worked on a Saturday in accordance with clause 34.1 of the Restaurant Award and clauses A.5 and A.7 of Schedule A of the Restaurant Award;
c)the Sunday penalty rate for the number of ordinary hours worked on a Sunday in accordance with clause 34.1 of the Restaurant Award and clauses A.5 and A.7 of Schedule A of the Restaurant Award;
were each contraventions of s.45 of the Fair Work Act each time the first respondent failed to make a relevant payment.
Further, the first respondent contravened s.45 of the Fair Work Act by failing to pay Mr Mathew’s wages and penalties weekly or fortnightly in accordance with clause 27.2 of the Restaurant Award.
Upon the termination of Mr Mathew’s employment, he was entitled to be paid an amount for his accrued but untaken annual leave: s.90(2) of the Fair Work Act. The first respondent did not pay that to him and thereby contravened s.44 of the Fair Work Act.
By s.117(2) of the Fair Work Act Mr Mathew was entitled to two weeks’ payment in lieu of notice of termination resulting in an entitlement to $1,529.88. The first respondent failed to pay any amount to Mr Mathew in respect of two week’s payment in lieu of notice of termination, resulting in an underpayment of $1,529.88. By doing so, the first respondent contravened s.44 of the Fair Work Act.
The contraventions of s.45 of the Act are numerous. Following the hearing, the applicant provided, at my request, a schedule of the payments made by the first respondent to Mr Mathew over the course of his employment. That schedule, which I have marked as exhibit 3 in these proceedings, demonstrates that there have been the following contraventions:
a)17 contraventions for non-payment of ordinary time earnings;
b)14 contraventions for non-payment of Saturday rates;
c)24 contraventions for non-payment of Sunday rates;
d)2 contraventions for non-payment of Public Holiday rates;
e)4 contraventions for non-payment of overtime rates (Monday – Friday in excess of 2 hours);
f)4 contraventions for non-payment of overtime rates (Saturday, up to 2 hours);
g)3 contraventions for non-payment of overtime rates (Saturday in excess of 2 hours);
h)12 contraventions for non-payment of overtime rates (Sunday); and
i)29 contraventions for not paying Mr Mathew weekly or fortnightly during the periods when he was not paid at all.
The total number of contraventions that relate to non-payment or underpayment of Award entitlements is 109. However, two or more contraventions of the Fair Work Act may, depending upon the particular circumstances of the case, attract the operation of s.557(1) of the Act. By that subsection the Court must treat multiple contraventions of certain civil penalty provisions of the Act as a single contravention if the contraventions are committed by the same person and they arose out of a course of conduct by that person.
Section 557(1) is engaged in this case. The contraventions that I have just identified represent multiple contraventions of s.45 of the Fair Work Act. The contraventions were committed by the same entity, namely the first respondent. If they arose out of the same course of conduct, they must be taken to constitute a single contravention. That is the legislatively mandated outcome.
There can be no doubt that the contraventions all arose out of a course of conduct described compendiously as the employment of Mr Mathew by the first respondent. However, as the decision in Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153 directs, s.557(1) does not operate so as to consolidate into a single contravention, multiple contraventions of s.45 of the Act where those contraventions are based upon breaches of different terms or obligations in an Award. Section 557(1) of the Act will operate to consolidate multiple contraventions of the same term or obligation in an Award, but it will not operate across different terms or obligations.
Thus, after an application of s.557(1), the remuneration related contraventions with which the court must deal are as follows:
a)one contravention of s.45 for non-payment of ordinary time earnings;
b)one contravention of s.45 for non-payment of Saturday rates;
c)one contravention of s.45 for non-payment of Sunday rates;
d)one contravention of s.45 for non-payment of Public Holiday rates;
e)one contravention of s.45 for non-payment of overtime rates (Monday – Friday in excess of 2 hours);
f)one contravention of s.45 for non-payment of overtime rates (Saturday, up to 2 hours);
g)one contravention of s.45 for non-payment of overtime rates (Saturday in excess of 2 hours);
h)one contravention of s.45 for non-payment of overtime rates (Sunday);
i)one contravention of s.45 for not paying wages weekly or fortnightly;
j)one contravention of s.44 for non-payment upon termination of accrued but untaken annual leave; and
k)one contravention of s.44 for failure to pay two weeks’ pay in lieu of notice.
There is no dispute that Mr Mathew was a national system employee for the purposes of the Fair Work Act and that the first respondent was a national system employer. Consequently, to the extent that Mr Mathew’s employment contract dealt with matters contained in ss.61(2) or 139(1) of the Fair Work Act that aspect of his employment contract was a safety net contractual entitlement that the first respondent was obliged to observe: s.542(1) of the Fair Work Act. Whilst a failure to meet a safety net contractual entitlement is not a contravention of a civil penalty provision of the Act, any unpaid entitlements can be recovered in proceedings such as these by the applicant: s.541(2) of the Act.
The first respondent was required by s.542(1) of the Fair Work Act to satisfy Mr Mathew’s entitlements under his employment contract to:
a)an annual income of $53,900, to be paid as a weekly amount of $1,035.62; and
b)one month’s notice of termination or one month’s payment in lieu of notice of termination.
Mr Mathew worked 92.1 weeks for the first respondent as a full-time employee and accordingly was entitled to $95,380.60 in respect of those weeks of work. The first respondent paid Mr Mathew $79,888.41 for work performed, resulting in an underpayment of $15,492.19. Upon his termination Mr Mathew was entitled to one month’s payment in lieu of notice of termination resulting in an entitlement to an additional $4,491.67. The first respondent failed to pay any amount to Mr Mathew in respect of payment in lieu of notice of termination, resulting in an underpayment of $4,491.67.
The first respondent underpaid Mr Mathew $19,983.86 in respect of his safety net contractual entitlements. That is a little more than he would otherwise have been entitled to under the terms of the Restaurant Award.
By reason of the underpayment of his casual entitlements and his safety net contractual entitlements Mr Mathew was underpaid a total of $23,546.18 as follows:
Casual loading
$4.69
532.25
$2,496.25
$1,373.16
$1,123.09
Saturday penalty rates
$27.57
39.75
$1,095.91
$1,044.55
$51.36
Sunday penalty rates
$31.38
33.75
$1,059.08
$988.19
$70.89
Public holiday penalty rates
$42.82
8.75
$374.68
$189.44
$185.24
Subtotal – casual entitlements $1,430.58
Contractual wage
$1,035.62 per week
92.1 weeks
$95,380.60
$79,888.41
$15,492.19
Termination in lieu of notice
$53,900 per year
1 month
$4,491.67
$0.00
$4,491.67
Annual leave upon termination
$27.2531
78.22
$2,131.74
$0.00
$2,131.74
TOTAL
$23,546.18
B.Unreasonable requirement to spend
Because there were periods during which Mr Mathew went unpaid altogether, by 22 April, 2015 he was owed at least $19,334.26. The evidence demonstrates that Mr Mathew was concerned about not being paid his wage and he raised it with the second respondent and his wife. He was promised it would be fixed up, but the second respondent and his wife were evasive. Mr Mathew was in a bind. He could not leave his employment because if he did so he would breach a condition of his visa and his ability to remain in Australia would be seriously compromised. He was effectively working for nothing.
In response to Mr Mathew’s requests for payment the second respondent organised to speak to Mr Mathew over dinner. Mr Mathew says that:
42. That night Saandeep and I went to dinner at an Indian restaurant in Paddington. At dinner Saandeep said to me “I calculated 23 weeks of money. I can’t give you back this much money. I will deposit this money into your account and you have to withdraw the money and hand it back to me. If you are not giving me back this money I’m going to cancel your visa.”
43. This shocked me and I didn’t know what to do. I thought about my financial liabilities both in Australia and in India. I owed money for my education loan in India. I also owed money on my credit cards and had borrowed money from my family and friends when the Company had not paid me for such a long time.
44. I thought if Saandeep cancelled my visa I wouldn’t be able to pay back any of this, so I agreed to pay Saandeep the money because he said he would cancel my visa.
The second respondent denies that he threatened that he would organise the cancellation of Mr Mathew’s visa. He says that he stopped paying Mr Mathew because he had paid him in accordance with the written agreement but that Mr Mathew had not paid him back the difference between the amount payable under the agreement and the agreed orally amount of $600 per week. The second respondent swears that he wished to get together with Mr Mathew to “fix” the problem of “the money” by having Mr Mathew pay to him what he owed him.
However, the problem with the second respondent’s argument is that, even on the second respondent’s version of the employment arrangement, Mr Mathew did not owe him anything for over paid wages. Mr Mathew was owed a significant sum by the first respondent.
Mr Mathew and the second respondent met on 22 April, 2015 at the Commonwealth Bank of Australia at Garden City, Mt Gravatt, Brisbane. At that meeting the second respondent used one of the Commonwealth Bank’s computers to pay Mr Mathew $19,334.26 from the first respondent’s bank account by electronic bank transfer in two separate transactions. The two transactions were for:
a)$15,131.16 in wages owed for the period from 14 July 2014 to 16 November, 2014; and
b)$4,203.10 in wages owed for the period from 2 February 2015 to 8 March 2015.
Immediately after the payment occurred, the second respondent required that Mr Mathew pay $18,000.00 in cash to the second respondent. Mr Mathew made the $18,000.00 payment by withdrawing two amounts of $9,000.00 in cash from his account into which the first respondent’s payment had been made. He then gave the cash to the second respondent who deposited $9,000.00 of the $18,000.00 back into the first respondent’s bank account and the remaining $9,000.00 into Mr and Mrs Chokhani’s personal bank account.
There is no dispute about any of this.
I am satisfied that the second respondent did indeed threaten Mr Mathew that if he did not pay the money back to the second respondent he would organise to cancel Mr Mathew’s visa. It is not to the point that the second respondent may not have had the power to achieve that, what is at issue is whether he made such a threat. I am satisfied by the evidence that he did. I reject the second respondent’s denials about that matter.
Requiring Mr Mathew to repay $18,000 of the arrears of his wages as the second respondent did was unreasonable in all the circumstances. In doing so, the first respondent, by the second respondent’s actions contravened s.325(1) of the Fair Work Act. In accordance with s.327 of the Fair Work Act, the $18,000 must be taken to have never been paid to Mr Mathew.
C.Record Keeping
Pursuant to s.535(1) of the Fair Work Act and reg. 3.34 of the Fair Work Regulations, the first respondent was required to record the number of overtime hours worked by Mr Mathew or record when Mr Mathew started and ceased working overtime hours. It was also required to record any annual leave taken by Mr Mathew and the balance of Mr Mathew’s entitlement to annual leave. During Mr Mathew’s full time employment, however, the first respondent did not record the number of overtime hours worked by Mr Mathew or when he started and ceased working overtime hours. It made no records about his annual leave. Those failures were each contraventions of s.535(1) of the Fair Work Act.
D. Making use of false or misleading records
The first respondent was required by reg. 3.44(6) of the Regulations not to make use of records if the first respondent knew the entry is false and misleading. The first respondent was required by reg. 3.33 of the Regulations to keep a record that specified the gross and net amounts paid to Mr Mathew.
On 25 January, 2016 the applicant issued the first respondent with a Notice to Produce Records or Documents requesting various documents including all records or documents relating to wages paid to Mr Mathew during the his full time employment, including the gross amounts paid.
On 19 February, 2016 in response to the notice, the second respondent, acting on behalf of the first respondent, provided to the applicant pay records that recorded gross and net amounts purportedly paid to Mr Mathew.
The pay records were records the first respondent were required to keep in accordance with reg. 3.33 of the Regulations. However, the records incorrectly recorded the gross and net amounts paid to Mr Mathew. In particular, they recorded payments to Mr Mathew in the periods during which he received no pay at all (I have specified the periods earlier in these reasons). The pay records were false and misleading. Moreover, the second respondent (and therefore the first respondent) knew that the records were false and misleading.
By using the false and misleading pay records in those circumstances, the first respondent contravened reg. 3.44(6) of the Regulations.
E. Failure to provide a pay slip within one working day of paying wages
Section 536(1) of the Fair Work Act required that the first respondent give a pay slip to Mr Mathew within one working day of paying an amount to him in relation to the performance of work. However, at various times from 1 December, 2014 to 17 November, 2015 the first respondent did not give Mr Mathew a pay slip within one day of paying him an amount in relation to the performance of work. Consequently, the first respondent contravened s.536(1) of the Act.
The contraventions – summary
In summary, the contraventions in respect of which the first respondent has made admissions and the maximum penalty for each of the first and second respondents, can be summarised as follows:
| Contravention | Maximum penalty for the first respondent | Maximum penalty for the second respondent |
| Section 45 of the Act, by contravening cl.13.1 of the Restaurant Award - Failing to pay Mr Mathew casual loading for hours worked on a Monday to Friday when he was a casual employee | $51,000 | $10,200 |
| Section 45 of the Act, by contravening cl.34.1 of the Restaurant Award - Failing to pay Mr Mathew Saturday penalty rates for hours worked on a Saturday when he was a casual employee | $51,000 | $10,200 |
| Section 45 of the Act, by contravening cl.34.1 of the Restaurant Award - Failing to pay Mr Mathew Sunday penalty rates for hours worked on a Sunday when he was a casual employee | $51,000 | $10,200 |
| Section 45 of the Act, by contravening cl.34.1 of the Restaurant Award - Failing to pay Mr Mathew public holiday penalty rates for hours worked on a public holiday when he was a casual employee | $51,000 | $10,200 |
| Section 45 of the Act, by contravening cl.20.1 of the Restaurant Award - Failing to pay Mr Mathew minimum hourly rate of pay for ordinary hours worked on a Monday to Friday during the Full Time Period | $54,000 | $10,800 |
| Section 45 of the Act, by contravening cl.34.1 of the Restaurant Award - Failing to pay Mr Mathew Saturday penalty rates for ordinary hours worked on a Saturday when he was a full time employee | $51,000 | $10,200 |
| Section 45 of the Act, by contravening cl.34.1 of the Restaurant Award - Failing to pay Mr Mathew Sunday penalty rates for ordinary hours worked on a Sunday when he was a full time employee | $54,000 | $10,800 |
| Section 45 of the Act, by contravening cl.34.1 of the Restaurant Award - Failing to pay Mr Mathew public holiday penalty rates for hours worked on a public holiday when he was a full time employee | $51,000 | $10,200 |
| Section 45 of the Act, by contravening cl.33.2(a) of the Restaurant Award - Failing to pay Mr Mathew overtime rates for overtime worked on a Monday to Friday when he was a full time employee | $54,000 | $10,800 |
| Section 45 of the Act, by contravening cl.33.2(b) of the Restaurant Award - Failing to pay Mr Mathew overtime rates for overtime worked on a Saturday when he was a full time employee | $54,000 | $10,800 |
| Section 45 of the Act, by contravening cl.33.2(c) of the Restaurant Award - Failing to pay Mr Mathew overtime rates for overtime worked on a Sunday when he was a full time employee | $54,000 | $10,800 |
| Section 45 of the Act, by contravening cl.27 of the Restaurant Award - Failing to pay Mr Mathew weekly, fortnightly or, by agreement monthly. | $51,000 | $10,200 |
| Section 44 of the Act, by contravening s.90(2) of the Act - Failing to pay Mr Mathew annual leave entitlements upon his termination. | $54,000 | $10,800 |
| Section 44 of the Act, by contravening s.117(2)(b) of the Act - Failing to provide Mr Mathew two weeks’ notice of termination or payment in lieu of notice. | $54,000 | $10,800 |
| Section 325 of the Act - Unreasonably requiring Mr Mathew to spend part of an amount payable to him in relation to work performed. | $51,000 | $10,200 |
| Section 535(1) of the Act, by contravening regulation 3.34 of the Regulations - Failing to record the hours of overtime Mr Mathew worked. | $27,000 | $5,400 |
| Section 535(1) of the Act, by contravening regulation 3.36 of the Regulations - Failing to record annual leave taken by Mr Mathew and the balance of his annual leave | $27,000 | $5,400 |
| Regulation 3.44(6) of the Regulations - Making use of false and misleading records | $18,000 | $3,600 |
| Section 536(1) of the Act - Failing to provide Mr Mathew with a pay slip within one working day of paying an amount to his in relation to the performance of work. | $27,000 | $5,400 |
The second respondent does not dispute that he was involved in each of the contraventions for the purposes of s.550(1) of the Fair Work Act. Accordingly, he is to be taken to have contravened the relevant provisions as well as the first respondent.
The applicant points out in her counsel’s written submissions that over the period during which these contraventions occurred, the value of a penalty unit, being the measure by which a maximum penalty is to be calculated, changed. The value of a penalty unit for the purposes of the Fair Work Act is derived from s.4AA(1) of the Crimes Act 1914 (Cth). From 28 December, 2012 to 31 July, 2015 a penalty unit had a value of $170. From 1 August, 2015 to the present, a penalty unit has a value of $180.
Some of the contraventions identified above occurred prior to 31 July, 2015 and therefore a penalty unit of $170 applies to those contraventions. Similarly, some of the contravention occurred after 31 July, 2015 and therefore, a penalty unit of $180 applies to those contraventions. The above table reflects those propositions.
However, some of the contraventions (the remuneration related contraventions in particular) span the change in the value of a penalty unit. The issue that presents is: which value to use? The applicant submits a value of $180 is appropriate because:
a)the respondents have the benefit of s.557(1) of the FW Act to group multiple contraventions as a single contravention. As noted by Judge Hartnett in Fair Work Ombudsman v Something Aussie Pty Ltd [2017] FCCA 186 at [15]: “It is at the time when the course of conduct ended that the maximum penalty crystallises”. See also Fair Work Ombudsman v Amritsaria Four Pty Ltd [2016] FCCA 968 which was also followed in Fair Work Ombudsman v Oz Staff Career Services Pty Ltd [2016] FCCA 2594 and Fair Work Ombudsman v Singh [2016] FCCA 1335;
b)although the meaning of penalty unit should be considered as it was from time to time, this does not exclude the application of the increased penalty to contraventions which are reduced by the operation of s.557(1) of the Act and where the contraventions comprising each course of conduct continued after the penalty unit increased: Fair Work Ombudsman v Amritsaria Four Pty Ltd (above) at [43] to [53];
c)the Court can take into account, as a factor in mitigation of penalty, that a lower penalty applied for a not insignificant part of the contravening course of conduct: Fair Work Ombudsman v Something Aussie Pty Ltd (above) at [15]; Fair Work Ombudsman v Amritsaria Four Pty Ltd (above) [52]; and
d)adopting the applicant’s approach would not result in manifestly excessive penalties, as the increase of the value of a penalty unit was intended to maintain rather than increase the value of the maximum penalty.
Consideration of Penalty
It is worth reiterating that the overarching purpose for the imposition of civil penalties is “to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.”: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 at [55].
The underpayment contraventions arose because of the first respondent’s decision to pay rates of pay which were less than Mr Mathew’s minimum entitlements under the Restaurant Award. The evidence suggests that it was a single decision to pay Mr Mathew a particular rate of pay, rather than a series of decisions made independently of each other. So too, the contraventions that came about when Mr Mathew was not paid his contractual rate.
In those circumstances, I think it appropriate to impose a substantial pecuniary penalty for each of the contraventions relating to the underpayment of the minimum basic rate (or casual loading in respect of the casual employment), but to impose no penalty for the other remuneration related contraventions. To do otherwise would, it would seem to me, be punishing the same behaviour more than once.
Non-payment of basic minimum rates, penalty rates and appropriate loadings is always serious. Here the seriousness is compounded by the lengthy periods for which Mr Mathew went without any pay at all. However, I will not give this aspect of the matter much weight when determining penalties for the underpayment contraventions because the failure to pay weekly or fortnightly is the subject of a separate contravention.
The total underpayment was $21,065.31 but it was rectified and paid to Mr Mathew in February, 2017.
The requirement placed upon Mr Mathew to pay back to the second respondent $18,000 of the money that was otherwise owing to him was especially egregious. In my view, there could be no doubt that Mr Mathew was entitled to the whole of the sum paid to him by the first respondent on 22 April, 2015. The second respondent’s reasons for requiring that money to be paid back are not convincing or compelling. He has effectively misappropriated Mr Mathew’s earnings. As I have said above, I am satisfied that the second respondent threatened Mr Mathew that if he did not pay the money back, he would take steps to see his visa cancelled. That was an inappropriate and grotesque exploitation of the power imbalance that existed between the second respondent and Mr Mathew.
The second respondent admits that he knew the first respondent was required to pay minimum wages to Mr Mathew and that he signed a contract requiring Mr Mathew be paid a certain wages for the purposes of both immigration and workplace laws. However, the amounts paid to Mr Mathew were below the amounts set out in the contract. The applicant submits that the Court ought to infer that the system of paying Mr Mathew his wages then requiring Mr Mathew to pay a significant portion back to the first or second respondents was put in place by the first respondent to create the perception that Mr Mathew was paid his wages. I accept that submission and in my view it is appropriate to draw that inference. It was clearly a device utilised by the second respondent to secure for the first respondent cheaper labour. It was designed to take advantage of Mr Mathew’s position under his 457 visa.
But the first and second respondent’s deliberate deceit did not stop there. The creation and use of false records by the respondents is equally serious. It was conduct clearly designed to thwart the applicant’s investigations into Mr Mathew’s complaints. The deception caused additional expense and effort on the part of the applicant and her officers to uncover the respondents’ wrongdoing. It was not until after the applicant obtained documentary evidence corroborating Mr Mathew’s underpayments and after the applicant filed proceedings that the respondents admitted the contraventions
I accept the applicant’s submissions that the obligation to keep and use accurate records is central to the achievement of the object of the Fair Work Act. It is central to the regulator’s functions that there is a reliable way of determining whether the minimum conditions of employment are being maintained. That way is for employers to keep accurate records. The penalty in this case must mark the Court’s and the community’s disapproval of the creation of false employment records and the use of such records to attempt to deceive the applicant.
The record-keeping contraventions relate to the first respondent’s failure to make and keep records that include the overtime hours worked and the annual leave taken by Mr Mathew and his balance of annual leave. The respondents have admitted that the first respondent failed to make or keep records of the kind prescribed by regulations 3.34 and 3.36 of the Fair Work Regulations.
Similarly, the respondents have admitted the first respondent failed to provide Mr Mathew with payslips from 1 December, 2014 to 17 November, 2015. The failure to provide payslips to Mr Mathew is serious. It prevented him from ensuring that he was being paid the appropriate amounts to which he was entitled. The provision of pay slips is usually the only way an employee has of ensuring that they are being paid correctly and that their other entitlements such as superannuation and leave are being satisfied.
Neither respondent has been previously the subject of proceedings by the applicant for contravention of workplace laws and neither respondent has previously sponsored a worker through the subclass 457 visa stream in similar circumstances.
Conclusion
Despite the respondents’ submissions I am satisfied that the respondents’ conduct was deliberately exploitative of Mr Mathew’s position being, as he was, dependent upon the first respondent’s ongoing sponsorship so as not to jeopardise his 457 visa.
The respondents’ contraventions are serious and warrant a significant penalties because:
a)the underpayment contraventions were deliberate, occurring in the face of the respondents’ specific knowledge of their lawful obligations;
b)the second respondent caused the first respondent to create false and misleading records and provided those records to the applicant. The records were knowingly deceptive and intended to deceive the applicant and made it appear that the first respondent was complying with the Fair Work Act while operating with a disregard for Commonwealth workplace laws;
c)Mr Mathew was required to pay a significant portion of his wages under a threat of cancellation of his visa. The respondents exploited Mr Mathew’s reliance on first respondent to remain in Australia;
d)there is a strong need for specific deterrence as the second respondent continues to be involved in employing others; and
e)there is a strong need for general deterrence to ensure the community is aware that employers cannot deliberately and blatantly exploit vulnerable employees and disregard Commonwealth workplace laws.
The respondents submit that it is appropriate that the Court, on the specific facts of this case, group all of the contraventions together on the basis of common element. That is to say, they submit that there should be one penalty for all of the contraventions and which is imposed upon one of the respondents, but for both of them. They submit that the first respondent does not act independently of the second respondent, but was simply “the vehicle by which the second respondent conducted his business. The employment of Mr Mathew was part of the one ongoing employment arrangement and it is an utterly false dichotomy to (for instance), separate contraventions during the casual period and the full time period”.
However, I reject these submissions. All of the contraventions do not arise out of the same course of conduct in the relevant sense. Moreover, it is appropriate that there are penalties imposed upon both the first and second respondents.
Having regard to the matters I have discussed above, and making due allowance for the respondents’ cooperation with the applicant since the commencement of these proceedings, it seems to me that in respect of the first respondent the following penalties are appropriate:
| Contravention | The first respondent | The second respondent |
| Section 45 - Failing to pay casual loading when casual | $30,600 | $6,120 |
| Section 45 - Failing to pay Saturday penalty rates when casual | Nil | Nil |
| Section 45 of the Act - Failing to pay Mr Mathew Sunday penalty rates when casual | Nil | Nil |
| Section 45 of the Act - Failing to pay public holiday penalty rates when casual | Nil | Nil |
| Section 45 of the Act - Failing to pay minimum hourly rate of pay for ordinary hours worked on a Monday to Friday when full time | $35,100 | $7000 |
| Section 45 of the Act - Failing to pay Saturday penalty rates for ordinary hours worked on a Saturday when full time | Nil | Nil |
| Section 45 of the Act - Failing to pay Sunday penalty rates for ordinary hours worked when full time | Nil | Nil |
| Section 45 of the Act, by contravening cl.34.1 of the Restaurant Award - Failing to pay Mr Mathew public holiday penalty rates for hours worked on a public holiday when he was a full time employee | Nil | Nil |
| Section 45 of the Act - Failing to pay Mr Mathew overtime rates for overtime worked on a Monday to Friday when full time | Nil | Nil |
| Section 45 of the Act - Failing to pay overtime rates for overtime worked on a Saturday when full time | Nil | Nil |
| Section 45 of the Act - Failing to pay overtime rates for overtime worked on a Sunday when full time | Nil | Nil |
| Section 45 of the Act - Failing to pay weekly, fortnightly or, by agreement monthly. | $10,800 | $2000 |
| Section 44 of the Act - Failing to pay annual leave entitlements upon his termination. | $16,200 | $3,240 |
| Section 44 of the Act - Failing to provide two weeks’ notice of termination or payment in lieu of notice. | Nil | Nil |
| Section 325 of the Act - Unreasonably requiring to spend part of an amount payable in relation to work performed. | $40,800 | $8,160 |
| Section 535(1) of the Act - Failing to record the hours of overtime worked. | $2,700 | $540 |
| Section 535(1) of the Act - Failing to record annual leave taken and the balance of annual leave | Nil | Nil |
| Regulation 3.44(6) of the Regulations - Making use of false and misleading records | $12,000 | $2,400 |
| Section 536(1) of the Act - Failing to provide pay slips. | $2,700 | $540 |
| Totals | $150,900 | $30,000 |
It will be apparent from the foregoing that I have taken the approach of imposing a significant penalty in respect of one of the “casual” remuneration contraventions and then no penalty in respect of the others and a significant penalty in relation to the “full time” remuneration contraventions and no penalties in relation to the other “full time” contraventions. I have adopted a similar approach to the record keeping contraventions.
The total penalty for the first respondent is $150,900. The total penalty for the second respondent is $ 30,000. In my view those penalties are an appropriate response to the conduct which led to the contraventions, which was, given the circumstances of this case, particularly serious.
On the evidence, particularly that of the second respondent, they are not oppressive or crushing but they are sufficient to mark the Court’s disapproval of the respondents’ conduct and serve as a warning to others that similar conduct can have serious consequences and ought not be repeated.
The applicant seeks a number of other orders, none of which are opposed and which are, in the circumstances, appropriate.
I make the orders set out at the commencement of these reasons.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 13 June, 2017.
Date: 13 June 2017
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