Fair Work Ombudsman v Lodge MGL Pty Ltd
[2023] FedCFamC2G 622
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Lodge MGL Pty Ltd [2023] FedCFamC2G 622
File number(s): SYG 770 of 2022 Judgment of: JUDGE GOODCHILD Date of judgment: 18 July 2023 Catchwords: INDUSTRIAL LAW – Fair Work – Pecuniary penalties – failure of the respondent to comply with Compliance Notice – whether penalty should be imposed and level of penalty to be imposed – factors relevant to penalty. Legislation: Crimes Act 1914 (Cth) s 4AA
Evidence Act 1995 (Cth) s 140
Fair Work Act 2009 (Cth) ss 3, 12, 539, 546, 551, 716
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: Australian Building and Construction Commissioner v Menon [2020] FCA 1418
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 399 ALR 599
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCA 8; (2008) 165 FCR 211
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
Fair Work Ombudsman v Corporation Sun Pty Ltd [2020] FCCA 2849
Fair Work Ombudsman v Hiyi Pty Ltd & Ors [2016] FCCA 1634
Fair Work Ombudsman v Rum Runner Trading Pty Ltd & Anor [2018] FCCA 1129
Fair Work Ombudsman v Trek North Tours & Anor (No 2) [2015] FCCA 1801
Kelly v Fitzpatrick [2007] FCA 1080
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 11 April and11 May 2023 Place: Sydney Solicitor for the Applicant: Mr D Trindade of Clayton Utz Respondent: Mr Ghaleb for the Respondent company ORDERS
SYG 770 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
Applicant
AND: THE LODGE MGL PTY LTD
Respondent
order made by:
JUDGE GOODCHILD
DATE OF ORDER:
18 JULY 2023
DECLARATIONS
1.The respondent contravened s 716(5) of the Fair Work Act2009 (Cth) by failing to comply with the Compliance Notice issued by the applicant on 6 August 2021.
THE COURT ORDERS THAT:
2.The respondent pay $5,500 to the Consolidated Revenue Fund of the Commonwealth of Australia, pursuant to s 546(1) of the Fair Work Act 2009 (Cth) by 18 January 2024.
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).
REASONS FOR JUDGMENT
JUDGE GOODCHILD:
The Fair Work Ombudsman seeks relief against the respondent, The Lodge MGL Pty Ltd, for its contravention of s 716(5) of the Fair Work Act 2009 (Cth) (“the Act”) as it failed to comply with a Compliance Notice. The respondent is a small business owner operating a standalone café in a shopping centre in a southern suburb of Sydney.
The respondent has admitted in the Statement of Agreed Facts filed by the parties on 14 December 2022 that it failed to comply with a Compliance Notice issued by the applicant dated 6 August 2021. That Compliance Notice required the respondent to calculate and back pay award entitlements to three former employees who had worked for the café business.
The respondent consents to an order sought by the applicant that the Court make a declaration regarding the respondent’s contravention. Based upon the admissions contained within the Statement of Agreed Facts, I am minded to make the declaration, as sought.
The applicant also seeks that the respondent pay a pecuniary penalty for its contravening conduct. This Judgment addresses what, if any, penalty should be imposed in respect of the admitted contravention, pursuant to s 546 of the Act.
STATEMENT OF AGREED FACTS
A Statement of Agreed Facts (“SOAF”) was entered into by both parties and was filed with the Court on 14 December 2022.
During April 2021, following requests for assistance from three former employees, a Fair Work Inspector commenced an investigation into the respondent’s compliance with the Act, specifically underpayment of wages and non-payment of superannuation. A Compliance Notice was served on the respondent on 6 August 2021. The applicant failed to comply with that Notice. The applicant lodged the Application and Statement of Claim in this Court against the respondent on 27 May 2022.
The underpayments to three casual staff members occurred throughout 2020 and 2021 and were $4235.52; $248.16 and $4,738.10
The superannuation contributions to be made were: $444.41 and $497.50.
The underpayments were repaid to the three former employees on 18 October 2022. The superannuation contributions occurred on 11 November 2022.
RELEVANT PRINCIPLES
Civil penalty principles
The High Court in Pattinson[1] stated at [9] that the purpose of a civil penalty is “primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act”.
[1] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 399 ALR 599 (‘Pattinson’).
The plurality in Pattinson considered that the power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is “no place for a notion of proportionality”. The Court said:
What is required is that there be “some reasonable relationship between the theoretical maximum and the final penalty imposed”. That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546; the deterrence of future contraventions of a like kind by the contravenor and by others.
At [60], the plurality also considered that subjective factors are important in the determination of penalty, stating:
Indeed, in some cases, the circumstances of the contravenor may be more significant in terms of the extent of the necessity for deterrence than the circumstances of the contravention. In this regard, it is simply undeniable that, all other things being equal, a greater financial incentive will be necessary to persuade a well resourced contravenor to abide by law rather than to adhere to its preferred policy then will be necessary to persuade a poorly resourced contravenor that its unlawful policy preference is not sustainable.
At [71] of Pattinson, it was reiterated that the Court should fix a penalty “it considers fairly and reasonably to be appropriate to protect the public interest from future contraventions of the Act”.
The authorities are clear that in determining the appropriate quantum of penalty to impose, the Court should have regard to all of the circumstances of the case.[2] Some considerations relevant to that assessment have been delineated in a number of decisions,[3] and include:
[2] Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCA 8; (2008) 165 FCR 211 at [12] (Graham J); Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [74]-[76] per Gaudron, Gummow and Hayne JJ; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
[3] Mason v Harrington Corporation Pty Ltd [2007] FMCA 7; Kelly v Fitzpatrick [2007] FCA 1080 at [14] per Tracey J; Blandy v Coverdale NT Pty Ltd [2008] FCA 1533 at [23] per Reeves J.
·The nature and extent of the conduct which led to the contraventions;
·The circumstances in which the conduct took place;
·The nature and extent of any loss or damage sustained as a result of the contraventions;
·Whether there has been similar previous conduct by the respondent;
·The size of the business enterprise involved;
·Whether or not the contraventions were deliberate;
·Whether the party committing the contraventions has exhibited contrition;
·Whether the party committing the contraventions has taken corrective action;
·Whether the party committing the contraventions has cooperated with the enforcement authorities;
·The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
·The need for specific and general deterrence.
Again, in Pattinson at [47], the plurality considered that in determining the penalty that is appropriate to protect the public interest by deterring future contraventions of the Act, the penalty be moderated by taking into account the above listed factors. In determining the appropriateness of penalty the Court stressed “it is important to recall that an “appropriate” penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. Further, the Court considered at [47] “where those responsible for contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court”.
Maximum penalties
Section 539(2) of the Act provides a table which indicates the maximum “penalty units” for contraventions of the kind admitted to in this matter. For a contravention of s 716(5) of the Act, the maximum penalty is 30 penalty units.
Section 546(2) of the Act prescribes that a pecuniary penalty imposed by the Court must not be more than the maximum number of penalty units referred to in the table in s 539(2) of the Act. As the respondent is a body corporate, pursuant to s 546(2)(b) of the Act, it is liable to five times the maximum number of penalty units provided in the table in s 539(2) of the Act.
A penalty unit is defined in s 12 of the Act to have the same meaning as given by s 4AA of the Crimes Act 1914 (Cth). For offences committed from 1 July 2020 to 31 December 2022, a penalty unit is $222.00.
In the present matter, therefore, the maximum penalty that the Court may impose against the respondent is $33,300.[4]
[4] (Penalty unit ($222.000) x maximum penalty prescribed for contravention of s 716(5) (30 penalty units) x ceiling for liability of a body corporate (5)).
In its Outline of Submissions, the applicant submits that an appropriate penalty to be paid by the respondent is in the range of $18,648 to $21,321, being a penalty that is 70-80% of the maximum penalty after which a 20% - 30% discount is applied.
Standard of proof
The power of this Court to order the imposition of pecuniary penalties for the contravention of a civil remedy provision arises from s 546(1) of the Act. Section 551 of the Act provides that the Court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention of a civil remedy provision. Accordingly, s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) requires the Court in such proceedings to apply the civil standard of proof on the balance of probabilities. In arriving at a conclusion of satisfaction that a case has been proved on the balance of probabilities, s 140(2) of the Evidence Act provides:
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In approaching my assessment of the evidence for the purposes of considering the appropriate penalty, I have borne in mind the applicable standard and taken into account the matters specified in s 140 of the Evidence Act. I am required to have regard to the nature and consequences of the factual matters and be reasonably satisfied as to the proof of the assertions made by each party with respect to those factual matters.
I am reasonably satisfied on the balance of probabilities, having regard to these matters, of each of the findings of fact which I have made in these Reasons in the determination of the appropriate penalty.
THE PENALTY HEARING
11 April 2023
The penalty hearing proceeded via Microsoft Teams with the applicant represented by a solicitor and no appearance by or on behalf of the respondent. Shortly after noting appearances, a gentleman joined the Teams hearing via telephone. He identified himself as an authorised officer of the respondent and responsible for the overall operation and control of the business of the respondent. I informed the respondent about r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), which provides that a corporation must not carry on proceedings without a lawyer, without leave of the court. Ultimately, the respondent sought the Court’s leave to dispense with the representation requirement, which I granted.
Exchanges then took place between myself and the respondent regarding his knowledge of the hearing listed that day as well as his non-compliance with orders requiring the filing of affidavit evidence and submissions. In the course of those discussions, the respondent told the Court of his unsuccessful attempts to file affidavit material prior to the hearing. The respondent insisted that he wished to rely upon this affidavit and requested that he be provided the opportunity to make the affidavit available to the applicant and the Court.
In the above circumstances, I adjourned the proceedings to 11 May 2023 to give the respondent the opportunity to serve on the applicant’s email address any affidavit evidence and submissions he wished to rely upon in respect of penalty. I made orders to that effect, as well orders for the applicant to serve on the respondent’s new email address, which he had nominated at the hearing, a copy of the SOAF, the applicant’s affidavit, and the applicant’s submissions. I also ordered the applicant to file and serve on the respondent any evidence in reply and any further written submissions by 3 May 2023.
11 May 2023
The matter proceeded to hearing on 11 May 2013. The applicant joined the proceedings by telephone. It was difficult to hear him. He explained that he was unable to make himself available on Microsoft Teams as he was working in the café, that he had no staff, that he had to keep the café open, and was therefore participating in the hearing and working at the same time.
The night before hearing the respondent forwarded to the Court and to the applicant by email a document titled “Affidavit”. The respondent informed me that he had “forgotten” to serve the document on the applicant sooner.
The legal representatives for the applicant objected to the document on a number of grounds as follows: due to its late service; that it was not in the proper form; that it contained a range of matters that seek to depart from the SOAF; that it contains a range of matters that the applicant would seek the opportunity to rebut and that the document was more in the nature of a submission. The applicant stated that it would need an adjournment to file and serve affidavit evidence in reply to properly respond to some of the material in the document.
I requested the legal representative of the applicant to identify the material that he could not meet, going through the document paragraph by paragraph. I explained to the respondent that due to the late provision of the affidavit, the applicant was prejudiced because they wished to seek further evidence to respond to some of the things said in the document and the proceedings would need to be adjourned. The Court gave the respondent the option of not relying upon parts of the document that the applicant objected to. The respondent chose to proceed and chose not to read a number of paragraphs contained in his affidavit. The material he chose not to rely upon largely related to the attempts he made to contact the office of the applicant prior to the issuing of the Compliance Notice. This evidence was overtaken by the SOAF. I otherwise allowed the remaining evidence contained in the document titled “Affidavit” and I treated that evidence as sworn evidence of the respondent. I also gave the respondent the opportunity to address me further on matters raised in his affidavit and also on matters relevant for my task of determining penalty.
The applicant did not require the respondent for cross-examination on either the affidavit or anything that fell orally from him at the hearing. In the circumstances, I accept the evidence as given by the respondent both in his written ‘affidavit’ and that evidence given orally before me.
FACTORS RELEVANT TO THE ASSESSMENT OF PENALTY
Nature, extent and circumstances of the respondent’s conduct and nature and extent of loss
In this matter, the contravention relates to a failure to comply with a Compliance Notice issued under s 716 of the Act.
As referred to above, the underpayments were as follows:
·$4235.52;
·$248.16; and
·$4,738.10.
The superannuation contributions to be made were:
·$444.41; and
·$497.50.
The underpayments were repaid to the three former employees on 18 October 2022. The superannuation contributions occurred on 11 November 2022.
The applicant submits that it made “extensive efforts to engage with the respondent for the purpose of seeking compliance with the Compliance Notice in an attempt to avoid instituting proceedings”. The applicant says it made first attempts to contact the respondent in May 2021 not long after requests for assistance were made by the former employees. The Compliance Notice was issued in August 2021 and the originating application was not filed in this Court until May 2022. I accept that the applicant made efforts to engage with the respondent. The respondent says that he also made attempts to get in contact with the officers of the applicant before and after the serving of the Compliance Notice. There can be little doubt, however, that the respondent was on clear notice at least from September 2021 of the prospect of action being taken by the applicant and the respondent simply did not do enough to properly address the concerns raised by the regulator. The respondent did not take corrective action promptly.
However, the underpayments were not large in absolute terms, they occurred over a relatively short period of time and, as noted, the underpayments and contributions have been paid.
The respondent said that he has at all times used his best endeavours to comply with all statutory obligations. I asked him why the previous employees were not paid. He responded that he did not have the “pay details” of the staff to pay them. He said he requested their details and they were not provided. He said that one of the previous employees was engaged for a trial period and at the time he did not think he had an obligation to remunerate him for that trial period. The respondent explained that when he started the business he was disorganised from the beginning. He said there were a number of challenges and that it was chaotic. He says that the failure to pay his employees occurred at a time when his business was just starting. When I asked if he accepted some responsibility for his previous employers not being paid he said, “Yes, of course I do. My action has done that and I shouldn’t have, I should have made sure that, you know, now we do.”
The respondent said that when the business started, just before the COVID-19 pandemic, there was no formal procedure when people were employed. He said staff were being trialled and he explained he was bringing people in and seeing if they could do the work. He told the court that the procedures for hiring staff have changed since then. He said the details are now obtained so the business did not have this issue again.
A failure to pay employees their proper entitlements is a serious issue. Employers must understand that employees are entitled to be paid all of what is owing to them. Further, the regulator is entitled to expect that the recipients of Compliance Notices comply with the Notice promptly.
Compliance with minimum standards
One of the principal objects of the Act, as set out in s 3(b) of the Act, is to ensure:
…a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders…
The applicant submits that the respondent’s failure to comply with the Compliance Notice undermines the Act’s enforcement framework and the safety net entitlements it is designed to protect.[5]
[5] Fair Work Ombudsman v Corporation Sun Pty Ltd [2020] FCCA 2849 at [63]; Fair Work Ombudsman v Trek North Tours & Anor (No 2) [2015] FCCA 1801 at [21]-[22].
Deterrence - general and specific
The applicant submits that to achieve general deterrence, a penalty should be set at a level to deter others who may engage in similar conduct, and must not be seen by others as just “an acceptable cost of doing business”.[6] The applicant submits that the efficacy of the Compliance Notice was diminished when the respondent only took steps to rectify the underpayments after the applicant commenced proceedings. I accept those submissions.
[6] Fair Work Ombudsman v Rum Runner Trading Pty Ltd & Anor [2018] FCCA 1129 at [120].
With respect to specific deterrence to ensure that the respondent will not embark upon the same contravening conduct in the future, the applicant points to the fact that the respondent is still registered and continues to operate a business. The applicant says in its written submissions filed before the hearing that there has been a “complete lack of contrition or remorse displayed by the respondent for the contravention” and it is on this basis that the applicant seeks a penalty that will contain sufficient sting or burden to deter the respondent from future conduct that undermines the powers of the Fair Work inspectors or the efficacy of statutory Notices.
At the penalty hearing, the respondent expressed genuine contrition and remorse not only for his actions but also for the impact of his actions on his previous employees. The respondent gave evidence that procedures have been put in place so that the non-payment of staff is not repeated.
It was apparent that the respondent was acutely aware of the potential impact on his business of the adverse publicity that was generated when the applicant posted a media release on its website identifying that these proceedings had been commenced by the applicant against the respondent and setting out the allegations in the proceedings. The respondent’s submissions spoke of the publicity which the proceedings attracted and the impact on the business and when legally represented, his lawyers requests of the applicant to have the media release removed. While I accept that there is no evidence of impact on the respondent’s business other than his bare assertion, it is quite clear that for the circumstances of this small business operator, the prospect of adverse publicity may loom large as a specific deterrence.
I accept the submission of the applicant that the regulator’s use of the media by the posting of a standard media release on its website and any subsequent adverse publicity that such posting would generate, is not something that I can take into account for the purposes of any mitigation of penalty.
The size and financial resources of the respondent
The size and financial circumstances of the respondent does not exculpate contraventions of the Act and the Regulations.[7] The financial circumstances of the respondent may be a relevant consideration in determining an appropriate penalty, and whether the size of the penalty is meaningful.[8]
[7] Fair Work Ombudsman v Hiyi Pty Ltd & Ors [2016] FCCA 1634 at [47].
[8] Kelly the Fitzpatrick [2007] FCA 1080 at [28].
The applicant accepts that the respondent does not operate a large business. I am satisfied the respondent operates a small business in southern Sydney. He deposes to having limited experience with employment law matters. I accept this.
The respondent says that during 2021-2022 the business suffered great loss during COVID-19. He stated that it was a very stressful time physically and mentally. He stated that he was suffering from COVID-19 and depression and trying to keep up with the business rent, daily expenses of operating a business and his home loan. The respondent said that the business was “struggling to even just stay afloat and keep our heads above water”.
The respondent makes the following assertions about his financial circumstances:
(a)during the period 2021-2022 the business suffered great loss during COVID-19. It was a very stressful time physically and mentally. He claimed he suffered from COVID-19 and depression trying to keep up with the business rent, daily expenses of operating a business and home loan;
(b)currently the business is on a payment plan with an outstanding debt of $112,747.71 of unpaid rent;
(c)the payment plan is $3,500 due each week in addition to the ongoing monthly payment of roughly $14,252.76; and
(d)currently the business is operating at a loss.
The applicant submitted that the evidence from the respondent that during 2021-2022 the business suffered great loss during COVID-19 was conclusion evidence, that there was no data or material to support such an assertion, that there is not what you might expect ordinarily to show the financial state of the business. It was submitted that it was considered that these assertions about a payment plan and outstanding debt should be given no weight.
I accept that financial circumstances do not excuse the contraventions of the workplace law. The size of the company is relevant when considering what penalties are necessary to deter that company from committing contravening conduct in the future. Additionally, the size of the company is also relevant to general deterrence because of other potential companies of a similar size are more likely to take notice. The penalty should not be greater than is necessary to achieve the object of the deterrence.
The find that the respondent operates a small business in southern Sydney with a sole shareholder and director. The respondent is not a large employer.
Similar previous conduct
There is no evidence before me that the respondent has previously been the subject of court proceedings involving contraventions of workplace laws.
Involvement of senior management
The company is a small company with a sole director, shareholder and company secretary of the respondent. There is only one level of management within the business. I am satisfied that the contraventions occurred because of the actions taken or not taken by the company, through its sole director and shareholder.
Contrition
The applicant submits that at the time of submissions there was no evidence of remorse or contrition for the respondent’s conduct. The applicant notes that the absence of contrition may affect any capacity for leniency, referring in particular to Australian Building and Construction Commissioner v Menon [2020] FCA 1418 at [98].
When asked at the hearing if he felt contrition for what had occurred with the non-payment of his previous employees, the respondent agreed he was sorry for what had occurred. I asked him if he accepted at least some responsibility for his staff not being paid and his response was “Yes, of course I do. My action has done that, and I shouldn’t have, like-I should have made sure that, you know-now we do. ” He referred the Court to the changes the business had made. He said that he would not wish anyone to be in any way financially stressed. He said he understands how that feels and he wishes he did not make that mistake and “he hoped that they are okay”.
I accept that the respondent is genuinely contrite. I accept that this contrition was late in coming however it was not challenged. There has been an acceptance of wrongdoing and a credible expression of regret.
Corrective action and cooperation with the Fair Work Ombudsman
The applicant acknowledges that the respondent entered into the SOAF with the applicant, admitting that it did not comply with the Compliance Notice. This has saved the Court and the parties the time and expense of contested proceedings.
As noted above, the underpayments were repaid to the former employees on 18 October 2022. The superannuation contributions occurred on 11 November 2022. The applicant says that the repayments took 13 months and “significant involvement from the [applicant] (including commencement of this proceeding) to do so”.
The applicant submitted that the respondent should be afforded no more than a 20% discount on account of its admissions and cooperation.
Before me, the respondent says that when he received the ‘Failure to Comply’ letter he did his best to contact the applicant. He said that all of this was happening through COVID-19. He said that it was a stressful time not just for himself but for everybody else. He said that he was overwhelmed. He said that when he received that letter, he was trying to sort it and that his business that was suffering like everybody else.
Whilst it certainly took some time by the respondent and at the urging by the applicant, corrective action was taken. I give weight to that fact and to the entering into the SOAF and the resolution of these proceedings without the need for contested proceedings.
CONSIDERATION OF PENALTY
The applicant submitted that the total penalty to be imposed should be between $23,100 - $26,400. I consider this to be excessive.
The respondent entered into the SOAF with the applicant admitting that they did not comply with the Compliance Notice. As noted earlier, this saved the Court and the parties the time and expense of contested proceedings. The respondent has remunerated the employees the amounts required by the Compliance Notice. The respondent has expressed remorse or contrition with respect to the non-payment of the former employees. My assessment of that expression of remorse or contrition was that it was genuine. The respondent clearly regretted his conduct and explained that procedures were put in place so that similar conduct would not be repeated. The respondent has not been the subject of any previous or subsequent action by the applicant. It is difficult for me to make any finding with respect to the financial circumstances of the company, however the respondent is not a large employer and it is accepted that the respondent operates a small business.
In my view, paying appropriate regard to the contravention that occurred and giving careful consideration to the circumstances of the case, I consider that the appropriate penalty for the contravention is $5,500.
In the circumstances, rather than allowing a one-month period within which to pay the penalty, the Court will allow the respondent until 18 January 2024 (a period of six months) to pay, in full, the penalty sum.
I make orders accordingly.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 18 July 2023
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