Fair Work Ombudsman v Salmon
[2024] FedCFamC2G 789
•28 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fair Work Ombudsman v Salmon [2024] FedCFamC2G 789
File number: MLG 1555 of 2023 Judgment of: JUDGE SYMONS Date of judgment: 28 August 2024 Catchwords: INDUSTRIAL LAW – application for imposition of pecuniary penalty – admitted contraventions of ss 716(5) and 536(1) of the Fair Work Act 2009 (Cth) – where respondent has rectified underpayments and cooperated with the regulator by signing an agreed statement of facts – where respondent is no longer in business – where no need for specific deterrence – where respondent took responsibility for his actions despite challenging personal circumstances – modest penalty imposed Legislation: Fair Work Act 2009 (Cth), ss 536, 539, 546, 716 Cases cited: Australian Building and Construction Commission v Pattinson (2022) 274 CLR 450; [2022] HCA 13
Trade Practices Commission v CSR Ltd [1990] FCA 521
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of last submissions: 6 August 2024 Date of hearing: 6 August 2024 Place: Melbourne Solicitor for the Applicant: The Fair Work Ombudsman The Respondent: In person ORDERS
MLG 1555 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAIR WORK OMBUDSMAN
ApplicantAND: DANIEL ALAN SALMON
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
28 AUGUST 2024
THE COURT DECLARES THAT:
1.The respondent contravened:
(a)section 716(5) of the Fair Work Act 2009 (Cth) (FW Act) by failing without reasonable excuse to comply with a compliance notice given to him on 15 December 2022; and
(b)section 536(1) of the FW Act between 22 February 2021 and 10 June 2021 by failing to give Mr Matthew Allen pay slips within one working day of paying an amount in relation to the performance of work.
THE COURT ORDERS THAT:
2.Pursuant to s 546(1) of the FW Act, the respondent pay a pecuniary penalty of $1,000 to the Commonwealth for the contraventions declared in paragraph 1 of these orders.
3.The applicant pay the penalty identified in paragraph 2 of these orders to the consolidated revenue of the Commonwealth within 28 days of these orders.
4.The applicant has liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
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 SYMONS:
INTRODUCTION
This is an application for the imposition of a pecuniary penalty in respect of two admitted contraventions of the Fair Work Act 2009 (Cth) (FW Act).
The application proceeds, in part, by reference to a statement of agreed facts (SOAF) that was filed on 6 December 2023 and in which the respondent, Mr Salmon, admits to the following:
(a)a contravention of s 716(5) by failing to comply with a compliance notice dated 15 December 2022 (Compliance Notice); and
(b)a contravention of s 536(1) of the FW Act by failing to give pay slips to Matthew Allen (Employee) between 22 February 2021 and 10 June 2021 within one working day of making payment to the Employee in relation to the performance of work.
The parties consent to the making of declarations to this effect.
The outstanding issue is the size of any pecuniary penalty to be imposed.
The applicant seeks a penalty against the respondent in the total amount of $3,120. This includes an overall discount of 20 per cent for cooperation and corrective action and is calculated as follows:
(a)$990 (15% of the maximum) for the admitted failure to comply with the Compliance Notice; and
(b)$2,130 (20% of the maximum) for the admitted failure to give pay slips.
BACKGROUND
The SOAF establishes the following.
Mr Salmon at relevant times was a sole trader operating a carpentry business in Victoria trading as “D. Salmon Carpentry”.[1]
[1] SOAF [4](a).
Mr Salmon employed the Employee from 22 July 2019 to 18 June 2021 (Employment Period).
In February 2021, Fair Work Inspector (FWI) Coleman commenced an investigation into Mr Salmon’s compliance with the FW Act (Investigation).[2]
[2] SOAF [5].
Based on the information obtained during the Investigation, FWI Coleman formed a belief that:[3]
[3] SOAF [6].
(a)during the Employment Period, the Building and Construction General On-site Award 2010 (2010 Award) and the Building and Construction General On-site Award 2020 (2020 Award) covered and applied to Mr Salmon in respect of the Employee’s employment;
(b)The Employee was employed:
(i)between 22 July 2020 and 1 March 2021 as a second year full-time Apprentice Carpenter pursuant to clause 15 of the 2010 Award; and
(ii)between 2 March 2021 and 18 June 2021 as a second year full-time Apprentice Carpenter pursuant to clause 14 of the 2020 Award;
(c)Mr Salmon did not pay the Employee the minimum hourly rate in accordance with clause 19.7(b)(i)(A) of the 2010 Award and 2020 Award for work performed between 27 September 2020 and 6 June 2021;
(d)Mr Salmon did not pay the Employee at all for work performed between 7 June 2021 and 18 June 2021; and
(e)Mr Salmon did not pay the Employee any amount for accrued but untaken annual leave and annual leave loading at the end of the Employment Period.
By reason of the above, FWI Coleman formed a reasonable belief, within the meaning of section 716(1) of the FW Act, that in respect of the Employee’s employment, the Respondent had contravened:[4]
(a)clause 19.7(b)(i)(A) of the 2010 Award by failing to pay the Employee the minimum hourly rate;
(b)clause 19.7(b)(i)(A) of the 2020 Award by failing to pay the Employee the minimum hourly rate; and
(c)section 90(2) of the FW Act by failing to pay accrued, untaken annual leave on termination of employment.
(collectively, the Contraventions).
[4] SOAF [7].
The Compliance Notice
On 15 December 2022, FWI Coleman gave Mr Salmon the Compliance Notice by sending it toMr Salmon by post to 1 Willow Court Korumburra, Victoria and 56 Valley View Pde Korumburra, Victoria. A copy of the Compliance Notice was also sent to Mr Salmon by email to [email protected].[5]
[5] SOAF [8].
Pursuant to section 716(2) of the FW Act, the Compliance Notice required Mr Salmon to:[6]
(a)by 18 January 2023, take specified action to remedy the direct effects of the Contraventions (Specified Action) including:
(i)calculating and paying the outstanding amounts owed to the Employee in respect of the Contraventions;
(ii)calculating and paying to the Employee’s chosen superannuation fund any additional superannuation required to be paid in respect of the amounts referred to in paragraph 13(a)(i) (Superannuation Contributions); and
(b)by 25 January 2023, produce reasonable evidence to the Applicant of Mr Salmon’s compliance with the Compliance Notice by preparing and producing calculations and evidence that the amounts owed had been paid to the Employee.
[6] SOAF [9].
Mr Salmon admits that he did not take the Specified Action set out in the Compliance Notice by 18 January 2023 or produce reasonable evidence of having done so to the applicant by 25 January 2023, or at all.[7]
[7] SOAF [11].
It is agreed that on 4 October 2023, Mr Salmon commenced making weekly payments of $100 for six months, and weekly payments of $200 thereafter to the Employee until by 9 May 2024, Mr Salmon had paid the amount of $3,552.26 to the Employee which was the total amount outstanding by reference to paragraph 13(a)(i).
Mr Salmon further admits that between 22 February 2021 and 10 June 2021, he paid the Employee, in relation to the performance of work, on approximately a weekly basis and failed to give the Employee any pay slips within one working day of payment in accordance with s 536(1) of the FW Act.[8]
[8] SOAF [13]-[15].
PROCEEDINGS IN THIS COURT
Orders were made by the Court on 10 October 2023 (October orders) which listed the matter for a penalty hearing and established a timetable for the parties to file and serve submissions and any evidence on this question.
When the penalty hearing commenced on 27 May 2024, the applicant appeared represented by Ms Smith and Mr Salmon appeared on his own behalf. The matter ultimately did not proceed as the applicant sought (and was granted) an adjournment because it wished to consider further information that had come to light regarding Mr Salmon’s financial circumstances. The following orders were made (May orders):
THE COURT ORDERS THAT:
1.The penalty hearing listed 27 May 2024 be adjourned to 6 August 2024 at 2:15pm.
2.The applicant file and serve any supplementary submissions on or before 4:00pm on 18 June 2024.
3.The respondent file and serve any submissions in reply, on or before 4:00pm on 2 July 2024.
THE COURT NOTES THAT:
A.Should the applicant not wish to pursue the penalty hearing on the adjourned date, Chambers should be notified via email as soon as practicable to allow the hearing to be vacated.
On 25 July 2024, the applicant indicated via email sent to chambers that it intended to pursue the penalty hearing and did not intend to file any supplementary material pursuant to the May orders. Despite this indication, the applicant, on 5 August 2024, filed a second affidavit of Ms Raffety that (with annexures) ran to 172 pages. The affidavit refers to “further events following the commencement of these proceedings”, “events prior to the first Court hearing” and “events following the first Court hearing”.
Although the affidavit was filed late, I consider that it was compiled and put before the Court in an effort to provide a more complete picture of Mr Salmon’s circumstances and for that reason any criticism of the applicant’s conduct is not justified.
SUBMISSIONS AND EVIDENCE ON PENALTY
The applicant relies on the following material:
·The affidavit of Kate Meredee Dambacher Raffety affirmed and filed on 18 April 2024 (First Raffety affidavit);
·The affidavit of Ms Raffety affirmed and filed on 5 August 2024 (Second Raffety affidavit);
·The affidavit of Christine Cox affirmed and filed on 18 April 2024 (Cox affidavit);
·Written submissions filed on 9 May 2024.
Mr Salmon did not file any material responsive to the October or May orders, but he did participate in the hearing on penalty by telephone and was invited to make submissions on penalty which he did.
Penalty range sought by the applicant
Pursuant to s 539(2) of the FW Act, the maximum penalty that the Court may impose for a contravention of s 536(1) is $13,320 for an individual.
Pursuant to s 546(2)(a), the maximum penalty that the Court may impose for a contravention of s 716(5) is $8,250 for an individual.
As indicated above, the applicant seeks a total penalty be imposed in the amount of $3,120 for both contraventions.
When invited to respond to the penalty sought by the applicant, Mr Salmon did not offer a specific figure but asked that it be as modest as possible, to respond to his personal circumstances.
Factors relevant to penalty
The primary purpose of deterrence was re-emphasised by the High Court in the decision of Australian Building and Construction Commission v Pattinson[2022] 274 CLR 450. In that decision, the majority upheld the Commissioner’s appeal and confirmed that the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with provisions of the FW Act by those responsible and by (like) others. The Court rejected the approach implicit in the decision of the Full Court (the subject of the appeal) that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The majority held instead that “[t]he 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’ in a civil penalty regime”.[9] However, the High Court did accept that s 546 requires the Court to ensure that any penalty “strikes a reasonable balance between deterrence and oppressive severity”[10]. It was only in this more qualified sense that the concept of “proportionality” had any role to play.
[9] Pattinson at [10].
[10] Ibid at [41].
The High Court in Pattinson also referred to the several factors identified by French J in Trade Practices Commission v CSR Ltd [1990] FCA 521 which informed the assessment of a penalty of an appropriate deterrent value. The list revealed that both the circumstances of the contravener and the circumstances of the contravention may be relevant to the assessment of whether the maximum level of deterrence is called for.[11] However, the Court repeated the caution that the list of possible relevant considerations should not be approached as a “rigid catalogue of matters for attention” and instead the task of the court remains to determine what is an “appropriate” penalty in the circumstances of the particular case.[12]
[11] Ibid at [57].
[12] Ibid at [18] and [19].
In its written submissions – which were adopted at the penalty hearing – the applicant placed particular emphasis upon the following considerations.
General deterrence
The applicant submits that there is a modest need for general deterrence which reflects the following characteristics of the compliance notice regime.
The applicant submits that the efficacy of statutory notices, such as compliance notices, would be hindered if recipients were to perceive that a failure to comply carried no meaningful consequences. The applicant submits that the penalty it seeks for the failure to comply with the Compliance Notice is appropriate as a general deterrent in preventing similar contraventions by “like-minded” persons.
The applicant submits that the Court should have regard to the fact that the legislature has set penalties for failing to adhere to pay slip requirements in recognition of the important role of pay slips in enabling employees to understand their entitlements and determine the make-up of their pay over a pay period and allows the regulator to assess compliance with Commonwealth workplace laws. Failure to keep records, the applicant submits, undermines both the capacity of employees to pursue their entitlements and the applicant to enforce compliance with workplace laws.
At hearing, Mr Salmon did not make any submissions directed at this consideration.
Specific deterrence
The applicant’s submissions contain an acknowledgement that in this case the object of specific deterrence is not engaged. This is because Mr Salmon is no longer operating his carpentry business and consequently, he is no longer employing staff. On 18 January 2024, Mr Salmon’s business name ‘D Salmon Carpentry’ was cancelled.
The conduct of Mr Salmon in this proceeding provides further justification for an approach to penalty that takes out of account the object of specific deterrence.
At the adjourned hearing on 27 May 2024 and the final hearing on 6 August 2024, Mr Salmon participated in a manner that demonstrated a level of humility, insight and contrition into the circumstances of the contraventions and was prepared, in his own words, to “completely own” what occurred. He told the Court that he knows that he has to “deal with it”.
While I will elaborate on this further below, it also seems to me that the process of engaging in this proceeding is an experience that Mr Salmon is unlikely to quickly forget or wish to be repeated. I consider the prospect that Mr Salmon would engage in conduct that contravened workplace laws again is highly unlikely and the penalties to be imposed in this case must reflect this eventuality.
Nature, circumstances, and deliberateness of the contravening conduct
The circumstances surrounding the contravention of s 716(5) of the FW Act, which are drawn principally from the Cox affidavit and the First Raffety affidavit, are as follows.
The Compliance Notice was issued on 15 December 2022. It was the second compliance notice issued by the applicant to Mr Salmon; an earlier one dated 11 March 2022 was withdrawn by the applicant on 15 December 2022 following the identification by FWI Coleman of an error on 29 September 2022.[13] No explanation was offered by the applicant as to why the defective compliance notice was not immediately withdrawn.
[13] Annexure CC-1 to Cox affidavit.
On 19 December 2022 Mr Salmon sent the following email to FWI Coleman:[14]
Hi there
This is becoming very over wheming for me with a lot of things going on at the moment. There is a lot of information to go through. I have been in full time employment for sometime now and getting things back on track. Can I start paying this money starting the first week back in February.
[14] Annexure CC-2 to the Cox affidavit.
On 20 December 2022, an officer of the applicant emailed Mr Salmon, informing him that “[p]ayment of monies owing to the employee named on the Compliance Notice, Matthew Allen, are due by 18 January 2023”.[15] While I do not for a moment suggest that the author of this email intended it to have this effect, it seems to me that this statement was misleading because, as the email later acknowledged, the first action to be taken under the Compliance Notice was the calculation of entitlements, which may or may not have identified an underpayment.
[15] Annexure CC-3 to the Cox affidavit
Mr Salmon replied on 21 December 2022 with “there is no way I’m able to get the money paid by this date but as I said if I can start from Feb and happy to send screen shots etc of payments being made”.[16]
[16] Annexure CC-3 to the Cox affidavit.
On 23 December 2022, an officer of the applicant sent an email to Mr Salmon which stated that the applicant may consider his request to pay the outstanding amount in instalments, subject to the demonstration of financial hardship. The email identified actions and information that the business would be required to take before an instalment plan would be considered.[17]
[17] Annexure CC-3 to the Cox affidavit.
On 26 January 2023, the applicant sent Mr Salmon a Failure to Comply notice which prompted the following response from him on the same date:[18]
I have been asking to set up a payment schedule but no one has approved anything. Unfortunately with my current situations I can’t afford to pay this back in full. I understand it’s hard sorting this though email but due to my work commitments I can’t be on my personal phone and work phone at the same time.
Can we please sort some payment schedule out please.
[18] Annexure CC-3 to the Cox affidavit.
Further communication occurred on 26 January 2023, in which an officer of the applicant informed Mr Salmon that he had been supplied with the information needed to arrange for a payment plan. Mr Salmon replied: [19]
I do apologise for this things haven’t been very steady the last few months I missed this email.
I will get all of this together and send it to you.
Evidence of hardship are you just requiring a budget. I am full time working but my issue was I have a few depts (sic) I’m taking care of which obviously takes up my wage therefore to pay this outright isn’t possible.
[19] Annexure CC-3 to the Cox affidavit.
On 30 January 2023 an officer of the applicant identified the type of information that might constitute evidence of the business financial position. Mr Salmon provided the following response on 31 January 2023:[20]
Ok I’ll see what I can get together. As I said earlier it’s not that I can pay it I just the last 4-6 months have been pay check to pay check and unfortunately things relationship wise have failed.
I will get on to this and get it moving. Please allow me sometime but I won’t take too long.
[20] Annexure CC-3 to the Cox affidavit.
On 9 February 2023, an officer of the applicant sent a follow up email to Mr Salmon which gave him until “C.O.B tomorrow” to either rectify the Compliance Notice and provide evidence of the payment made to the Employee or provide evidence for a payment plan to be considered.[21]
[21] Annexure CC-3 to the Cox affidavit.
Mr Salmon replied on the same date as follows:[22]
Hi I’m very sorry
I have unfortunately had a family matter unfold in the last 10 days. Which has taken up all of my time.
Please allow me a little longer to get these together.
[22] Annexure CC-3 to the Cox affidavit.
This elicited the following response from the applicant’s representative on 10 February 2023:[23]
Dear Daniel
You have had ample opportunity to address the Compliance Notice and I have accommodated your requests.
Please note that if information is not received by C.O.B. today, I will no longer be available to assist you and the matter will be considered for enforcement action.
Regards
[23] Annexure CC-3 to the Cox affidavit.
Mr Salmon replied with:[24]
I’m asking if I can have the weekend to get this done. Pleasure understand the last 12 months have been very testing on me mentally financially and emotionally. I have recently gone through a break up which has involved kids and court cases. I understand this needs to be sorted.
I’m asking to have until Monday.
[24] Annexure CC-3 to the Cox affidavit.
Mr Salmon sent a further email to the officer of the applicant with whom he had been regularly dealing on 12 February 2023. The email repeated that it was Mr Salmon’s intention to manage any underpayment by way of instalment payment and to commence this process from 22 February 2023. The email provided information about Mr Salmon’s difficult business, financial and personal circumstances, the detail of which it is not necessary to rehearse in this judgment. Mr Salmon expressed regret that it had taken a long time to “get in motion” but hoped to work with the applicant “to guide this to completion”.[25]
[25] Annexure CC-6 to the Cox affidavit.
The applicant informed Mr Salmon by email and letter sent on 22 June 2023 that his matter had now been referred to the applicant’s Legal Compliance and Enforcement Branch but that the applicant would provide Mr Salmon with a further and final opportunity to take the actions required by the Compliance Notice by 6 July 2023.[26]
[26] Annexure KR-1 to the first Raffety affidavit.
Mr Salmon did not take the actions required by the Compliance Notice by 6 July 2023 and on 7 September 2023 the applicant commenced this proceeding by filing an application and statement of claim. A file note prepared by a lawyer working for the applicant records that Mr Salmon cooperated with the applicant to facilitate personal service on him of the originating documents and that discussions continued around the negotiation of a payment plan.[27]
[27] Annexure KR-8 to the first Raffety affidavit.
As noted earlier, in early October 2023, Mr Salmon commenced making weekly payments of $100 for six months, and weekly payment of $200 thereafter to the Employee until the total amount outstanding was paid in full.
The applicant submits that this narrative of events discloses that while Mr Salmon communicated an early intention to comply with the Compliance Notice, he ultimately failed to do so. The applicant further submits that Mr Salmon was given the opportunity to rectify his non-compliance by paying the Employee before these proceedings were commenced in September 2023, but only did so after proceedings were initiated.
I accept that factually the applicant’s submissions are correct. However, I also take into account other matters that are revealed by the records produced by the applicant. In particular, it is clear that while Mr Salmon did not ultimately commence the underpayment rectification process until after this litigation had commenced, he maintained communication with the applicant throughout the investigation and later Compliance Notice proceeding and never shirked his responsibilities. His level of culpability measured against the personal matters that were occupying him throughout this period is low.
Nature and extent of loss
It is agreed that the amount owed to the Employee was $3,552.26. The applicant submits that the effect of Mr Salmon’s non-compliance with the Compliance Notice is that the Employee did not have the benefit of receiving the full payment until approximately 16 months after compliance with the Compliance Notice was due.
The applicant submits that allied to the purpose of the compliance notice regime, there is a loss that accrues on each occasion that a person fails to comply with a compliance notice. This is an impost on both the regulator and, ultimately, the Court, which is funded by the tax-payer.
I accept both of these submissions.
Contrition, corrective action and cooperation
The applicant’s proposed penalty makes an allowance for a 20 per cent discount on account primarily of Mr Salmon’s corrective action in rectifying the underpayments and for his cooperation in signing the SOAF, which amongst other things, contains admissions that he contravened ss 536(1) and 716(5) of the FW Act. The making of admissions at a relatively early stage of the proceeding meant that the matter could proceed directly to a penalty hearing rather than there being a hearing on liability and then penalty. There is an obvious cost and time saving in the former approach.
The applicant accepts that Mr Salmon has shown contrition during and after the time for compliance with the Compliance Notice in the following communications:
(a)“I do apologise for this” (see [45] above);
(b)“im very sorry” (see [48] above);
(c)“I understand this need to be sorted” (see [50] above).
The applicant submits that these communications reveal that at various stages Mr Salmon showed a willingness to engage with the applicant, albeit that he was at times experiencing hardship and found its requests to be overwhelming. I accept this to be so.
It is also clear, especially from the various records annexed to the second Raffety affidavit, that Mr Salmon maintained regular communication with the applicant while the proceeding was on foot and did his best to participate in the Court process despite his lack of representation and trying personal circumstances. Although the applicant’s officers and lawyers dealt with Mr Salmon in a universally courteous, helpful, fair and transparent fashion, it must at times have felt to Mr Salmon that he was being required to jump through hoops to secure an outcome. I consider that Mr Salmon is unlikely to forget this chapter of his life anytime soon.
It is also the case that Mr Salmon expressed contrition when he communicated with the Employer by text message on 11 September 2023 in connection with finalising arrangements for rectifying the underpayment[28] and that he provided regular updates and evidence to the applicant concerning the rectification payments.
[28] Annexure KR-13 to the second Raffety affidavit.
Mr Salmon’s personal circumstances
The second Raffety affidavit contains information that further illuminates Mr Salmon’s personal circumstances.
It appears that on 13 May 2024, and in response to a request made by the applicant for Mr Salmon to provide evidence of his financial circumstances in advance of the first-listed penalty hearing, that Mr Salmon sent the applicant an email in which he identified the following financial commitments:[29]
·I have a car loan repayment that the car has been repossessed and being held until $8K is paid then the outstanding loan I’m unsure off.
·I have a trade account of $10K to pay off.
·I have a deposit to an old client of $20K to pay back.
·$7K owing to accountant.
[29] Annexure KR-21 to the second Raffety affidavit.
The applicant annexed to the second Raffety affidavit the following documents that were provided by Mr Salmon in response to the invitation to provide supporting evidence of his financial circumstances:[30]
·“Loan offer” dated 3 February 2022 issued to Mr Salmon and recording a credit amount of $59,302.27 for a loan term of 60 months and requiring monthly repayments of $988.37. The purpose of the loan was described as for paying out and closing a trading account with Dahlsens Building Centre.
·Statement dated 30 April 2024 issued by WEF Accounting to Mr Salmon in the amount of $10,538.96 (120+ days).
[30] Annexure KR-21 to the second Raffety affidavit.
The applicant encouraged Mr Salmon to fill out a statement of financial circumstances form that was attached to an email sent to him on 23 July 2024[31] and while Mr Salmon did not complete this document, he did provide a typed statement to the applicant on 29 July 2024 that amongst other things identifies debts in the total amount of almost $90,000.[32]
[31] Annexures KR-23 and KR-26 to the second Raffety affidavit.
[32] Annexure KR-26 to the second Raffety affidavit.
Mr Salmon’s statement also described how from towards the end of 2021 and “pushing in to 2022” things were not financially stable, and it was a “constant battle trying to keep up with depts (sic) and payments which unfortunately resulted in 2 cars in 2 years being re possessed one which I am current trying to get back so this doesn’t effect my credit rating as much”. Mr Salmon also provided detail of some difficult family circumstances related to a relationship breakdown and which he explained had now finally resolved but which had from late 2022 to recently, meant that this period of time, emotionally and financially was “full on”.
CONCLUSION
I consider that a penalty in the global amount of $1,000 should be applied in this case.
In fixing this amount I accept, as a general proposition, that a failure by an employer to comply with a compliance notice given under ss 716(2) and (3) of the FW Act, undermines the efficacy of the statutory notice regime and increases the administrative and cost burden of the workplace regulator and where proceedings are then issued, diverts judicial resources. This is a mischief to which general deterrence can and should appropriately be directed. I also accept the payslip contravention to be serious given the central place of this administrative obligation to the ability of employees to check that their entitlements are being properly met. The penalty amount that I have fixed on is concerned principally with acknowledging that all cases represent the opportunity to send a message to like employers within the industry that there will be consequences when workplace responsibilities are avoided.
However, beyond this objective, the characteristics of this case have led me to conclude that there is no need to go further than the application of a modest penalty.
While Mr Salmon’s engagement with the applicant was not exemplary, to the extent that it fell short of this standard it seems to me that this likely reflected the fact that Mr Salmon was juggling a series of difficult and distracting life challenges rather than indicative of an indifference to the role of regulator, the Employee’s entitlements or this proceeding.
Mr Salmon showed up and communicated in the plainest of terms what I understood to be a genuine desire to make things right and an acknowledgement of wrongdoing. There was a civility in the proceeding before me that I consider reflects well on Mr Salmon and on those who represented the applicant in her various interactions with Mr Salmon. While it is of course open to question why this proceeding was ever brought and/or maintained against Mr Salmon given the quantum of penalty sought against him and the personal circumstances that he was experiencing, it is not up to the Court to second-guess such matters.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 28 August 2024
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