Hill v McKenzie Matteson Pty Ltd as Trustee for McKenzie Matteson Family Trust - [2023] FedCFamC2G 343

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hill v McKenzie Matteson Pty Ltd as Trustee for McKenzie Matteson Family Trust [2023] FedCFamC2G 343

File number(s): SYG 567 of 2020
SYG 1845 of 2020

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 5 May 2023

Catchwords:
INDUSTRIAL LAW – application under the Fair Work Act 2009 (Cth) (FW Act) for remedies in relation to asserted failure by employer to pay amounts owing under award – relief granted and pecuniary penalties imposed – application under s 340(1) of the FW Act – whether employer terminated applicant’s employment because applicant made complaints or enquiries in relation to her employment – even if complaints or enquiries made employer terminated applicant’s employment for reasons that did not include as a substantial and operative factor the applicant’s having made complaints or enquiries in relation to her employment.

HUMAN RIGHTS – Sexual discrimination – application for relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) based on alleged sexual harassment contrary to s 28B of the Sex Discrimination Act 1984 (Cth) – whether respondent engaged in alleged acts of sexual harassment – evidence of applicant not accepted – application dismissed.

Legislation:
Australian Human Rights Commission Act 1986 (Cth) s 46PO

Crimes Act 1914 (Cth) s 4AA

Evidence Act 1995 (Cth) s 140

Fair Work Act 2009 (Cth) ss 12, 44, 45, 323(1), 340(1), 341(1)(c), 342(1), 360, 361(1), 536, 539(1), 539(2), 545(1), 545(2), 546(1), 546(2), 546(3)(c), 547(2), 550, 557, 557C

Sex Discrimination Act 1984 (Cth) s 28B

Fair Work Regulations 2009 (Cth) reg 3.46

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(e)

Restaurant Industry Award 2010 cls 13.1, 20.1, 30.2(a), 34.1

Cases cited:
Alam v National Australia Bank Limited [2021] FCAFC 178

Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113

Australian Building and Construction Commissioner v Parker [2017] FCA 564

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73

Berlyn v Brouskos (2002) 134 A Crim R 111

Blatch v Archer (1774) 1 Cowp. 63; 98 ER 969

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Briginshaw v Briginshaw (1938) 60 CLR 336

Carbo v United States 314 F2d 718 (9th Cir 1963)

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 97

Contin v The Queen [2012] VSCA 247

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59

El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260

EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch)

Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626

Fair Work Ombudsman v Chatime Australia Pty Ltd [2022] FedCFamC2G 934

Fair Work Ombudsman v Lohr [2018] FCA 5

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Henderson v Queensland [2014] HCA 52

Indiana Metal Products v National Labor Relations Board 442 F2d 46 (7th Cir 1971)

Kassem & Ors v Minister for Immigration & Anor (No.2) [2020] FCCA 1834

Mathieson v McKenzie Matteson Pty Ltd as Trustee for McKenzie Matteson Family Trust [2023] FedCFamC2G 342

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403

Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481

R v Holder (1983) 3 NSWLR 245

Royer v Western Australia [2009] WASCA 139

Russo v Aiello [2003] HCA 53

Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271

Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2022] FedCFamC2G 595

The Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46

Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd [1980] FCA 47; (1980) 44 FLR 149; (1980) ATPR 40-161

Trade Practices Commission v CSR Ltd [1991] ATPR 41-076

Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499

Division: Fair Work and General

Number of paragraphs: 195

Date of last submission/s: 6 April 2023

Date of hearing: 22 February 2022

Solicitor for the Applicant: Mr R Aslanian of Connect Legal, by telephone

The Respondents: No appearance by, or on behalf of, the respondents
ORDERS

SYG 567 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ELISABETH HILL

Applicant

AND:
MCKENZIE MATTESON PTY LTD (ABN: 625 953 488) AS THE TRUSTEE FOR MCKENZIE MATTESON FAMILY TRUST (ABN 42 516 004 223)

First Respondent

SCOTT ANDREW MATTESON

Second Respondent

order made by:

JUDGE MANOUSARIDIS

DATE OF ORDER:

5 may 2023

THE COURT DECLARES THAT:
1.By engaging in the conduct described in the first column of the table below (Table) the first respondent contravened the provisions of the Fair Work Act 2009 (Cth) (FW Act) described in the second column of the Table:

Contravening conduct Provision contravened Penalty (payable by)

Contravention 1: Failing to pay the applicant and another employee, being Kate Mathieson, the applicant in proceeding SYG562/2020, for ordinary hours worked (excluding penalty rates for work performed on Saturdays, Sundays, and public holidays) Clause 20.1 of the Award, and therefore s 45 of the FW Act $15,790 (first respondent)
$3,158 (second respondent)

Contravention 2: Failing to pay the applicant and Kate Mathieson for ordinary hours worked on Saturdays, Sundays, and public holidays Clause 34.1 of the Award, and therefore s 45 of the FW Act $36,842 (first respondent)
$7,368.40 (second respondent)

Contravention 3: Failing to make superannuation contributions in relation to the applicant and Kate Mathieson Clause 30.2(a) of the Award, and therefore s 45 of the FW Act $36,842 (first respondent)
$7,368.40 (second respondent)

Contravention 4: Failing to provide pay slips to the applicant and to Kate Mathieson Subsection 536(1) of the FW Act $36,842 (first respondent)
$7,368.40 (second respondent)

TOTAL $126,316 (first respondent)
$25,263.20 (second respondent)

2.The second respondent was involved in the first respondent’s contraventions of the FW Act identified in the second column of the Table.
THE COURT ORDERS THAT:
3.Pursuant to s 545(2)(b) of the FW Act the first respondent pay to the applicant $2,114.89.
4.Pursuant to s 545(1) of the FW Act the first respondent, within 21 days after the day on which these orders are pronounced, pay $531.41 to a superannuation fund nominated by the applicant, such nomination to be communicated by the applicant to the first respondent within 14 days after the day on which these orders are pronounced.
5.Pursuant to s 545(2)(b) of the FW Act the second respondent pay to the applicant $1,833.50.
6.Pursuant to s 545(1) of the FW Act the second respondent, within 21 days after the day on which these orders are pronounced, pay $460.90 to a superannuation fund nominated by the applicant, such nomination to be communicated by the applicant to the second respondent within 14 days after the day on which these orders are pronounced.
7.Pursuant to s 546(1) of the FW Act the first respondent pay the pecuniary penalties specified in the third column of the Table as payable by the first respondent.
8.Pursuant to s 546(3)(c) of the FW Act, within 28 days after the day on which these orders are pronounced, the first respondent pay to the applicant $31,579 of the pecuniary penalties referred to in order 7 as follows:

Contravention Penalty Payable to Kate Mathieson Payable to the applicant

1 $15,790 $11,842.50 $3,947.50

2 $36,842 $27,631.50 $9,210.50

3 $36,842 $27,631.50 $9,210.50

4 $36,842 $27,631.50 $9,210.50

TOTAL $126,316 $94,737 $31,579

9.Pursuant to s 546(1) of the FW Act the second respondent pay the pecuniary penalties specified in the third column of the Table as payable by the second respondent.
10.Pursuant to s 546(3)(c) of the FW Act, within 28 days after the day on which these orders are pronounced, the second respondent pay to the applicant $6,315.80 of the pecuniary penalties referred to in order 9 as follows:

Contravention Penalty Payable to Kate Mathieson Payable to applicant

1 $3,158 $2,368.50 $789.50

2 $7,368.40 $5,526.30 $1,842.10

3 $7,368.40 $5,526.30 $1,842.10

4 $7,368.402 $5,526.30 $1,842.10

TOTAL $25,263.20 $18,947.40 $6,315.80

THE COURT NOTES THAT:
11.Payments by the second respondent in discharge or partial discharge of orders 5 and 6 shall constitute, to the extent of the payment, a discharge of orders 3 and 4; and payments by the first respondent in discharge or partial discharge of orders 3 and 4 shall constitute, to the extent of the payment, a discharge of orders 5 and 6.

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).
ORDERS

SYG 1845 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ELISABETH HILL

Applicant

AND:
MCKENZIE MATTESON PTY LTD (ABN: 625 953 488) AS THE TRUSTEE FOR MCKENZIE MATTESON FAMILY TRUST (ABN 42 516 004 223)

First Respondent

SCOTT ANDREW MATTESON
Second Respondent

order made by:

JUDGE manousaridis

DATE OF ORDER:

5 may 2023

THE COURT ORDERS THAT:
1.The application is dismissed.

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
INTRODUCTION

The applicant, Ms Hill, commenced a proceeding (FW proceeding) seeking relief under the Fair Work Act 2009 (Cth) (FW Act) against each of McKenzie Matteson Pty Ltd (MMPL), and one of its two directors, Mr Matteson.[1] Ms Hill alleges that:
(a)MMPL failed to pay her amounts to which Ms Hill became entitled under the Restaurant Industry Award 2010 (Award) and, for that reason, MMPL contravened s 45 of the FW Act;
(b)MMPL failed to provide Ms Hill pay slips and, for that reason, MMPL contravened s 536(1) of the FW Act;
(c)MMPL contravened s 340(1) of the FW Act by terminating Ms Hill’s employment on 29 November 2019 because Ms Hill made a number of complaints or enquiries in relation to her employment and, for that reason, Ms Hill exercised her workplace rights; and
(d)Mr Matteson was “involved”, within the meaning of s 550(2) of the FW Act, in MMPL’s contraventions of the FW Act and, because of s 550(1), Mr Matteson is taken to have contravened s 44, s 45, and s 340(1) of the FW Act.
[1] Ms Hill had also claimed relief under the FW Act against MMPL’s other director, Mr McKenzie but, at the hearing, I made an order by consent that Ms Hill have leave to discontinue her claims against Mr McKenzie.
Ms Hill also commenced a second proceeding against each of MMPL and Mr Matteson (SD proceeding) in which Ms Hill seeks relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). Ms Hill claims that, during her employment with MMPL, Mr Matteson and other employees of MMPL sexually harassed her, contrary to s 28B(1), (2) and (6) of the Sex Discrimination Act 1984 (Cth) (SD Act).
Relevant to these reasons is a set of two proceedings (Mathieson proceedings) a former employee of MMPL, Ms Kate Mathieson, has brought against MMPL and Mr Matteson. In one of the proceedings Ms Mathieson seeks relief under the FW Act; and in the other proceeding Ms Mathieson seeks relief under s 46PO of the AHRC Act based on alleged acts of sexual harassment. I heard Ms Mathieson’s claims at the same time I heard Ms Hill’s claims; and I have had regard to the evidence on which Ms Mathieson relied at the hearing of her claims when considering the evidence on which Ms Hill relied at the hearing of her claims.
PROCEDURAL HISTORY AND COURSE OF HEARING
MMPL and Mr Matteson, through their lawyer, filed defences to Ms Hill’s claims in both proceedings, and affidavits in the FW proceeding and in the Mathieson proceedings.
On 9 September 2021 I referred the FW, SD, and Mathieson proceedings to mediation. On 24 September 2021, however, MMPL’s and Mr Matteson’s lawyer filed a notice of ceasing to act in each of the proceedings. On 16 November 2021 I made orders that all proceedings be set down for hearing on 22 February 2022.
MMPL and Mr Matteson did not appear at the hearing on 22 February 2022. Mr Aslanian, the lawyer for Ms Hill and Ms Mathieson, applied pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) that I hear Ms Hill’s and Ms Mathieson’s claims against MMPL and Mr Matteson. I agreed to that application, after being satisfied that MMPL and Mr Matteson had been given notice of the hearing.[2]
[2] Affidavit R S Aslanian 17.02.2022
In the FW and the SD proceedings Mr Aslanian read the affidavit Ms Hill made on 26 February 2021, and the affidavit Mr Aslanian made on 25 March 2021. In relation to the Mathieson proceedings, I read the affidavit Ms Mathieson made on 1 March 2021, and the affidavit Mr Aslanian made on 25 March 2021. I also read, for the purposes of all proceedings, the affidavit Mr Aslanian made on 17 February 2022. Mr Aslanian then made submissions in all proceedings on the basis of this evidence.
Although I made no order that evidence in the one proceeding be evidence in all other proceedings, I proceeded on the basis, as I understood Mr Aslanian to have proceeded, that I would be at liberty to have regard to the evidence filed in one proceeding to the extent it is relevant to any issue in any of the other proceedings. Mr Aslanian did not seek to read or tender any of the affidavits that have been filed by MMPL and Mr Matteson; and, for that reason, I have had no regard to them.
In these reasons for judgment I consider Ms Hill’s claims against MMPL and Mr Matteson. Before I do so, however, I will attend to two things. First, I will set out the evidence, most of which is based on what Ms Hill has deposed in the affidavit she made on 26 February 2021. Unless the context suggests otherwise, any unqualified statement of fact (of which there are relatively few) should be taken to reflect a finding of the fact stated. Second, I will consider the credibility of Ms Hill’s evidence. That will be necessary because, as will appear later, Ms Hill’s claims based on sexual harassment, and her claim based on MMPL’s contravention of s 340(1) of the FW Act, substantially rely on Ms Hill’s uncorroborated testimony and which to some extent is inconsistent with the limited contemporaneous documentary evidence.
EVIDENCE AND SOME FINDINGS
Ms Hill’s employment with MMPL
During 2019 MMPL owned and operated various hospitality and restaurant businesses. These included the Drift Bar & Restaurant (Drift Bar) at Cronulla, and the Splash Tapas Bar (Splash Bar) at North Cronulla.[3] The Drift Bar was a food, beverage, and entertainment venue that was licensed to serve and cater for up to 94 persons, including patrons and staff. The Drift Bar:[4]
(a)operated an in-house kitchen and bar, serving food and cocktails to both walk-in patrons, and pre-booked private functions;
(b)hosted and operated a night club on Friday and Saturday evenings, as well as private functions; and
(c)did not operate on Mondays and Tuesdays; but operated from 3:00 pm to 10:00 pm on Wednesdays, 5:00 pm to 10:30 pm on Thursdays, 4:00 pm to 3:00 am on Fridays, 4:00 pm to 3:00 am on Saturdays; and 12:00 pm to 10:00 pm on Sundays.
[3] Statement of claim, [3]; Defence, [3]
[4] Statement of claim, [3]; Defence, [3]
The Splash Bar was also a tapas bar and restaurant that served food and beverages; and it, too, operated an in-house kitchen and bar. According to Ms Hill, during the period she worked with MMPL, the Splash Bar was usually closed on Mondays and Tuesdays, and was open from 5:00 pm to 9:00 pm on Wednesdays and Thursdays, and from 12:00 pm to 10:00 pm on Fridays, Saturdays, and Sundays.[5]
[5] Affidavit E A Hill, [8]
According to Ms Hill, on or about 28 September 2019 she commenced casual employment with MMPL as a “Food & Beverage Attendant, grade 1” at the Drift Bar and the Splash Bar.[6] Ms Hill’s job description reflects the job classification specified in cl B.2.1 of schedule B to the Award. It is accepted on the pleadings that MMPL employed Ms Hill on a casual basis; Ms Hill was based at the Drift Bar and the Splash Bar; Ms Hill reported to Ms Mathieson and to Mr Matteson; Ms Hill’s duties included taking food orders, liaising with customers and kitchen staff, operating registers for processing payments, and bartending duties, including taking orders, and making beverages.[7] In her affidavit, Ms Hill says she undertook the work of a bartender and waitress, half at the Drift Bar, and half at the Splash Bar;[8] and that she undertook the work as alleged in the statement of claim, including work as a kitchen hand.[9]
[6] Affidavit E A Hill, [5]. MMPL and Mr Matteson in paragraph 8 of their defence admit this except they plead that Ms Hill commenced her employment on 3 October 2019.
[7] Statement of Claim, [10(a), (c), (d)(i), (d)(ii)]; Defence, [10(a), (c), (d)(i), (d)(ii)]
[8] Affidavit E A Hill, [9]
[9] Affidavit E A Hill, [17]
Ms Hill says that her regular days of work were as follows:[10]
[10] Affidavit E A Hill, [11]
a.        Thursday:
(a) 5:00 pm – 9:00 pm at Splash Tapas Bar
(b) 10:30 pm – 4:00 am at Drift Bar & Restaurant
b.        Friday:
(a) 6:00 pm – 9:00 pm at Splash Tapas Bar
(b) 10:30 pm – 4:00 am at Drift Bar & Restaurant
c.        Saturday: either of the following two options:
(a) Option 1:
i. 12:00 pm –10:30 pm at Splash Tapas Bar and
ii. 11:00 pm – 4:00 am at Drift Bar & Restaurant
(b) Option 2:
i. 6:00 pm – 10:30 pm at Splash Tapas Bar and
ii. 11:00 pm – 4:00 am at Drift Bar & Restaurant
d.        Sunday: either of the following two options:
(a) Option 1: 12:00 pm – 10:30 pm at Splash Tapas Bar
(b) Option 2: 6:00 pm – 10:30 pm at Splash Tapas Bar.
Ms Hill says she worked “on average 20 plus hours per week, including overtime when directed”.[11] Ms Hill annexes to her affidavit a document she describes as “a true copy of my hours of work” (Hill Hours and Payments Schedule).[12] Ms Hill does not give any evidence about the information on the basis of which the document was created. The Hill Hours and Payments Schedule does not fully reflect what Ms Hill says were her regular hours. The Hill Hours and Payments Schedule, for example, records Ms Hill worked to 4:00 am only on two occasions (on Saturday 5 October 2019, and Sunday 3 November 2019; and Ms Hill worked to 3:00 am on three occasions (Sunday 13 October 2019, Sunday 20 October 2019, and Saturday 9 November 2019).
[11] Affidavit E A Hill, [12]
[12] Affidavit E A Hill, [13]; annexure “EAH2”
Award coverage

Given the tasks Ms Hill performed, her employment was covered by the Award.[13] The following terms are relevant to determining Ms Hill’s entitlements under the Award.
[13] Statement of claim, [9]; Defence, [9]
(a)Ms Hill was to be paid a casual loading of 25% of the minimum hourly rate specified in cl 20.1 of the Award.[14] For the period after 1 July 2019, the minimum weekly wage was $762.10, and the minimum hourly rate (excluding casual loading) was $20.06.[15]
(b)The rates at which Ms Hill was to be paid included:
(i)150% of her ordinary base pay for overtime worked from Mondays to Fridays for the first two hours, and then 200% of her ordinary base pay for the rest of the overtime;[16]
(ii)175% of her ordinary base pay for overtime worked between midnight Friday and midnight Saturday for the first two hours, and 200% of her ordinary base pay for the rest of the overtime;[17] and
(iii)200% of her ordinary base pay for overtime worked between midnight Saturday and midnight Sunday.[18]
(c)Ms Hill was entitled to be paid at the termination of each time she was engaged to perform work, but she could agree to be paid weekly or fortnightly.[19]
(d)To the extent Ms Hill worked ordinary hours on Saturdays, Sundays, and public holidays, she would become entitled to be paid penalty rates calculated by applying the percentage specified in cl 34.1 of the Award to the minimum wage (as provided for by cl 20.1 of the Award).
(e)MMPL was required to make such superannuation contributions to a superannuation fund for the benefit of Ms Hill as would avoid MMPL’s being required to pay the superannuation guarantee charge under “superannuation legalisation”.[20]
[14] Award, [13.1]
[15] Fair Work Commission determination - MA000119 PR707538 (fwc.gov.au)
[16] Award, [33.2(a)]
[17] Award, [33.2(b)]
[18] Award, [33.2(c)]
[19] Award, [13.4]
[20] Award, [30.2(a)]. The expression “superannuation legislation” is defined in cl 30.1 of the Award.
Ms Hill says that she had worked a total of 173 hours, but MMPL paid her a total of only $1,240.[21] Ms Hill also says that MMPL did not provide her with any pay slips; it did not pay her overtime or penalty rates; did not provide her with rest breaks; and MMPL made no contribution to any superannuation fund.[22] The respondents admit MMPL did not provide Ms Hill with pay slips.[23] That failure engages s 557C(1) of the FW Act, which relevantly provides:
[21] Affidavit E A Hill, [19]
[22] Affidavit E A Hill, [20]
[23] Statement of claim, [12(a)]; Defence, [12(a)]
(1) If:
(a)in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and
(b)the employer was required:
. . . .
(iii) by subsection 536(1) or (2) to give a pay slip;
in relation to the matter; and
(c) the employer failed to comply with the requirement;
the employer has the burden of disproving the allegation.
Section 45 of the FW Act is one of the civil remedy provisions specified in s 557C(3). That means that in relation to allegations Ms Hill makes that MMPL contravened the Award and, therefore, s 45, MMPL has the burden of disproving the allegation. There is a question whether s 557C of the FW Act applies to persons who are “involved” in an employer’s contravention of s 45 of the FW Act. I consider that question later in these reasons.
Alleged sexual harassment incidents involving Rohit
Ms Hill describes a number of incidents of sexual harassment involving a male who was employed as a kitchen hand (Alleged Rohit incidents). Ms Hill says she only knows the employee by his first name, “Rohit”.
Alleged Rohit incident 1 – late October 2019 groping
Ms Hill says that “[o]n or about late October 2019, on a Friday night - Saturday morning around 1:00 am”, she was working at the Drift Bar on a shift behind the bar. At that time Rohit was picking up the glasses around the bar. While Ms Hill was pouring a drink, or in between doing so, Rohit walked from one side of the bar to the other side; and as he was walking past, Ms Hill “felt someone squeeze and grope my ass”.[24] Ms Hill was startled, and observed Rohit walking past Ms Hill with his head turned to Ms Hill’s direction laughing. Ms Hill told Rohit not to touch “my ass”. Rohit responded by stating he was only “mucking around”. Ms Hill said it was not funny.[25]
[24] Affidavit E A Hill, [23]
[25] Affidavit E A Hill, [26]
Ms Hill further says that “[l]ater on, approximately 3:00 am or 3:30 am, Rohit and Ms Hill were assigned to clean the male and female bar toilets”. While Ms Hill was in the process of cleaning the female toilets, and after Rohit had finished mopping up the male toilets, Rohit came into the female toilets to give Ms Hill the mop and bucket to clean the female toilets. Ms Hill felt “someone squeeze and grope my ass”. Ms Hill turned around and saw Rohit. Ms Hill said: “What the hell are you doing. I told you not to do that shit”. Rohit “rolled his eyes” at Ms Hill “sighed and then just walked out”.[26]
[26] Affidavit E A Hill, [28]-[29]
According to Ms Hill, the “next day, in the following shift on the Saturday afternoon”, she had a conversation with Mr Matteson in which Ms Hill said there were two things she wanted to bring to Mr Matteson’s attention that she was not happy about. Ms Hill said that while she was cleaning the toilets “last night” Rohit grabbed her “ass” and thought it was funny; and Ms Hill believes Rohit “had been drinking and was quite drunk most of the shift”. Mr Matteson responded: “Mmm..I’ll look into it”.[27]
[27] Affidavit E A Hill, [32]
In assessing this evidence, it may be relevant to identify other evidence about the dates and times Ms Hill worked, either at the Drift Bar, or at the Splash Bar. There are two items of evidence. The first is the Hill Hours and Payments Schedule to which I have already referred.[28] The second is a text message (Annexure EAH3) Ms Hill sent to Mr Matteson on 12 November 2019 in which Ms Hill sets out the hours she worked on 10, 11, and 12 October; 24, 25, and 26 October 2019; 31 October and 1, 2, and 3 November 2019; and 6 to 10 November 2019. The Friday night in late October 2019 to which Ms Hill intends to refer could conceivably include any one of 18 October 2019, 25 October 2019, or even 1 November 2019. The Hill Hours and Payments Schedule records that:
(a)on 18 October 2019 Ms Hill worked from 17:00 to 23:00; and her next shift started at 17:00 on Saturday 19 October 2019;
(b)on 25 October 2019 Ms Hill worked from 19:00 to 22:00; and her next shift started at 18:00 on Saturday 26 October 2019; and
(c)on 1 November 2019 Ms Hill worked from 16:00 to 23:30; and her next shift started at 12:00 on Saturday 2 November 2019.
[28] Being annexure “EAH2” to Ms Hill’s affidavit.
If the information recorded in the Hill Hours and Payments Schedule is correct, Ms Hill was not working at the Drift Bar at around 1:00 am or 3:30 am on any Friday night in late October 2019 when Ms Hill says Rohit had assaulted her.
Alleged Rohit incident 2 – late October/early November 2019 – stroking of leg
According to Ms Hill, in about “early November 2019 on a Saturday night around 12:00 am – 1:00 am”, while Ms Hill was working at the Drift Bar, Ms Hill and her friend had gone out for a cigarette. Ms Hill’s friend (Mr S) said that Rohit told Mr S that Ms Hill had kissed Rohit. Rohit came out the back door, at which point Mr S said, “don’t say anything”. Rohit said to Ms Hill that she had not invited Rohit for a cigarette. Ms Hill shrugged her shoulders. Rohit and Mr S then spoke in Nepalese. Ms Hill rolled her eyes and sighed. Rohit asked Ms Hill what was wrong. Ms Hill, sarcastically, said “Nothing at all”. As she was leaning against the brick wall, Rohit looked at Ms Hill’s feet, and slowly started to move his eyes up her body “with a seductive look”. When Rohit got to Ms Hill’s eyes, he winked and smirked at Ms Hill. Ms Hill raised up her arms with open palms to enquire what Rohit wanted, and said “what?” Rohit leaned and put his left hand on the back of Ms Hill’s right heel, and he stroked Ms Hill’s heel up to her calf, moderately squeezed Ms Hill’s calf, and then continued to stroke Ms Hill’s leg and reached just above the back of Ms Hill’s knee, at which point Ms Hill stopped Rohit by shaking her leg. Rohit then said: “You have such good muscles in your leg”. Ms Hill said, with her “teeth clenched and deep voiced”: “Don’t touch me!” Ms Hill went back inside the restaurant, and got depressed thinking that Mr Matteson “had obviously not spoken to Rohit about his behaviour and that if he had spoken to Rohit then he would have been on guard as he was an international student”.[29]
[29] Affidavit E A Hill, [34]-[41]
The Hill Hours and Payments Schedule records that Ms Hill was working at the times she says the incidents with Rohit occurred assuming Ms Hill intended a Saturday night in early November 2019 was either 2 or 9 November 2019. Annexure EAH3, however, under the heading “31/10-3/11” records “Sat Splash 12-4: 4”, from which I infer Ms Hill intended to represent that on Saturday 2 November 2019 she had worked four hours at the Splash Bar, and did not work on Saturday night.
Alleged Rohit incident 3 – gropes breasts
According to Ms Hill, “[o]n or about early November 2019, late on a Saturday night shift around 2:00 am”, while working at the Drift Bar, Ms Hill came face to face with Rohit, approximately 30 centimetres apart, as she was walking from the bar to the kitchen. As Ms Hill was about to walk past him, Rohit “elevated his arms and with both hands he grabbed and fondled both [of Ms Hill’s] boobs”. Ms Hill was stunned. Ms Hill says the following occurred:[30]
[30] Affidavit E A Hill, [44]-[48]
I said: “Are you fucking kidding me?”
Rohit: “What? They're there, they’re nice.”
I turned around and picked up a small creamy grey coloured bucket from the ground and then I turned back around and smacked him with the bucket to the left side of his face and I started to yell:
I said: “I said don’t fucking touch me!”
He was stunned that I had smacked him with the bucket, and he placed his hand to his face.
At this point Scott [Matteson] came out of the office and Kate [Mathieson] came to see what had happened. Scott walked towards us and said words to the effect:
Scott: “What the hell is going on?”
Kate: “Is everything alright?”
I said: “He just fucking grabbed my boobs. I’m fucking over this!”
I then threw the bucket back onto the ground and walked back out to the bar and continued to the [sic] work for the rest of the shift. I was so upset that this had happened, that it was allowed to happen. I was angry that anyone thought it was okay to touch me in any manner let alone to sexually harass me. I felt so gross and sick, I just wanted to go home, but didn’t know what to do. I was holding back tears and silent for the rest of my shift.
Alleged Rohit incident 4 – comments about personal life
According to Ms Hill, “[o]n or about late October or early November 2019 on a Friday or Saturday night around 11:00 pm at the” Drift Bar, while Ms Hill was in the kitchen working, Rohit approached Ms Hill and had the following conversation with her:[31]
[31] Affidavit E A Hill, [49]
Rohit: “What is happening between you and [Mr S]?”
I said: “Why do you want to know?”
Rohit: “Come on man.”
I said: “Come on what?”
Rohit: “Is he even good in bed?”
I said: “What the fuck Rohit?”
Rohit: “You know the chick sitting out there with the DJ?”
I said: “Yeah.”
Rohit: “I banged the fucking shit out of her and she hasn’t come back because she couldn’t take me.”
I said: “Rightio then”.
Rohit: “Come on you know what I'm talking about?”
I said: “Rohit I’ve got no fucking idea what you’re talking about? Fuck off!”
Rohit then went back to his work.
Alleged sexual harassment incidents involving Mr Matteson
Ms Hill describes a number of incidents of sexual harassment involving Mr Matteson (Alleged Matteson incidents).
Alleged Matteson incident 1 – 29 September 2019 touching thigh
According to Ms Hill, at around 2:30 am on 29 September 2019, after she had completed her first shift at the Drift Bar, she was sitting “outside on a stool”. Mr Matteson approached Ms Hill, stood in front of her, put his left hand on Ms Hill’s thigh, and asked whether she had a lift home. Ms Hill says she did not know how to take the situation; she “felt uncomfortable with the touch and invaded”. Ms Hill “refused” by stating, “no, Mum’s getting me”.[32]
[32] Affidavit E A Hill, [53]
Alleged Matteson incident 2 – observing female customer pulling up pants
According to Ms Hill, “[o]n or about early October 2019, on a Friday night, at approximately 11:00 pm”, Ms Hill walked to the “back office/store room” where she saw Mr Matteson “sitting on a chair, and a female customer pulling up her pants”. Ms Hill says it was clear to her that “they were most likely doing something sexual”. Ms Hill says she was embarrassed by what she “had walked in on”, and was “disgusted that this was going on in the workplace”. Ms Hill says she “started getting worried about what would happen when” Mr Matteson would call Ms Hill into the office next.[33]
[33] Affidavit E A Hill, [54]-[55]
Alleged Matteson incident 3 – comments on Ms Hill’s appearance
According to Ms Hill, “[o]n or about early October 2019 on a Saturday night around 1:00 am at the” Drift Bar, Ms Hill was not working “but visited the bar with some friends”. She was standing in front of the bar, and she said to Mr Matteson words to the effect of: “Hey Scott, I’m just here to have a few drinks with some friends”. Mr Matteson said Ms Hill should have rung beforehand and let him know. Ms Hill says she gave Mr Matteson a “puzzled look” because she did not know what Mr Matteson meant by that remark. Mr Matteson then leaned forward, and whispered into Ms Hill’s ear: “Don’t get too rowdy”. As Mr Matteson leaned forward, he put his left hand on Ms Hill’s upper back (above her bra strap) where her skin was exposed (because Ms Hill was wearing a singlet top), and continued by saying words to the effect: “You look really good tonight”. Mr Matteson then patted Ms Hill’s upper back, and then left. Ms Hill said she felt extremely uncomfortable, and very anxious; she felt embarrassed and worried about who had seen the incident, and what was going to happen in the future. Ms Hill turned around and went straight to her friends. One friend, “Henry”, asked if Ms Hill was all right, in response to which she said: “Yeah, I don’t know. That was weird”.[34]
[34] Affidavit E A Hill, [56]-[61]
Alleged Matteson incident 4 – Mr Matteson drives Ms Hill home
According to Ms Hill, “[o]n or about Mid-October 2019, on a Wednesday evening at around 10:30 pm at the Splash Tapas Bar”, Ms Hill did not have a way home because her car was broken “and [her] phone had died”. Ms Hill was trying to call her mother from the “Splash landline”, but she was not answering. Mr Matteson offered to drive Ms Hill home, in response to which Ms Hill said: “No, I’m sure mum will answer”. Mr Matteson kept offering, and Ms Hill says she felt like she “had no choice as it was getting late”, and she had no other way of getting home. So Ms Hill accepted Mr Matteson’s offer.
When Mr Matteson had driven Ms Hill to her street, Ms Hill said: “Anywhere down here is fine”. Mr Matteson, however, asked where Ms Hill’s house was. Ms Hill said it was at the end of the street “but anywhere is fine”. As Mr Matteson got to Ms Hill’s house, he drove halfway up the driveway and stopped the car. Ms Hill got out of the car, but Mr Matteson did not move his car for at least a minute; he kept the headlights shining on Ms Hill’s driveway. Ms Hill found this “all very strange”, and she was “worried as to why he wanted to know exactly where” Ms Hill lived, and why Mr Matteson should not just let her out when she requested. Ms Hill said she felt quite nervous, and promised herself never to get a lift with Mr Matteson again.[35]
[35] Affidavit E A Hill, [62]-[68]
Alleged Matteson incident 5 – Mr Matteson places hands on Ms Hill’s shoulders
According to Ms Hill, “[s]ometime in mid-October 2019 on a Saturday night at around 1:00am – 2:00am, at the” Drift Bar, Ms Hill was picking up empty glasses and bottles when a male customer verbally abused Ms Hill for apparently collecting a drink that was half full. Ms Hill was in tears and walked to the back office. Mr Matteson asked Ms Hill “[w]hat’s up?” Ms Hill said that a customer said Ms Hill had taken his drink still full. Ms Hill told Mr Matteson that she swore she did not; and she asked whether she is allowed to give the customer a new drink or not. Mr Matteson “smirked and giggled”, turned to the computer that showed live camera footage, and asked Ms Hill to “show me who”. Ms Hill pointed to the man. Mr Matteson then turned back to Ms Hill, placed both his hands on both her shoulders, caressed Ms Hill’s shoulders and arms by sliding his hands up and down her arms, and said to Ms Hill: “you don’t need to be upset, I’ll take care of you, have a seat in my office and start work again when you’re ready”.
Ms Hill says she felt uncomfortable with Mr Matteson’s actions; and it made her even more upset. Ms Hill was trying to stop herself from crying so she could leave the office. She felt trapped. Ms Hill got angry and frustrated, however, when she discovered 30 minutes later that Mr Matteson had just given the customer another drink. Ms Hill “was frustrated that [her] boss did not support [her] once again”.[36]
[36] Affidavit E A Hill, [69]-[75]
Alleged Matteson incident 6 – Mr Matteson stands close to Ms Hill
According to Ms Hill, in late October 2019 on a Saturday night, at around 11:00 pm, Ms Hill had completed her shift at the Splash Bar, and went to visit a colleague at the Drift Bar. While Ms Hill was talking to her colleague, Mr Matteson entered the kitchen from the bar. Mr Matteson asked whether Ms Hill was just hanging around. Ms Hill said she was just “chilling listening to the music”. Mr Matteson said Ms Hill should feel free to grab a drink if she wants. Ms Hill thanked him, but said she already had one. The following then occurred:[37]
He then came up to me and stood very close to me, grabbed the bottle of Corona beer from my hands, leaned in, was about 2cms away from my body, and placed the beer bottle down on the bench behind me to my right. Then he looked me in the eyes and said words to the effect, “you could have another one if you like”, then winked and smiled at me.
I was very shocked by and embarrassed by Scotts [sic] behaviour. It was in front of my colleague, Ella. Ella was also shocked as she looked at me very wide eyed and mouth opened. I felt so uncomfortable and started shaking with nervousness. I even asked Ella “what the hell was that?” hoping she may have had some answers. I didn't understand why those actions were necessary.
[37] Affidavit E A Hill, [78]-[79]
Alleged Matteson incident 7 – Wet T-shirt
According to Ms Hill, “[o]n or about early November 2019 on a Friday at about 5:00 pm - 6:00 pm at the Drift Bar”, while Ms Hill was tending the bar, she “suddenly felt drenched with water” on her left side “from head to toe”. Ms Hill turned to her left side and said “[w]hat the hell?!?!” and saw that Mr Matteson was the one spraying her. Mr Matteson stopped spraying Ms Hill and said “Wet T-shirt competition” while “giggling and smiling towards” Ms Hill.[38]
[38] Affidavit E A Hill, [80], [81]
Ms Hill says:[39]
This was not something that I expected from my boss and definitely not something that I would have ever welcomed from him. I felt quite embarrassed and humiliated. I felt like I was made out to be a complete idiot infront [sic] of everyone and displayed an object. I was quite upset that this was considered to be okay and I was supposed to be ok with it. I was scared because I didn't know what I was supposed to do as it was my boss. I was scared I would get in trouble if I got angry or upset. I then went out to the kitchen and got a tea towel and dried myself as best as I could. I then continued to work, and felt extremely awkward and uncomfortable doing anything. I felt really insecure in anything I did.
[39] Affidavit E A Hill, [82]
Alleged Matteson incident 8 – wear stuff like that and lover is here

According to Ms Hill, “[o]n or about early November 2019 on a Friday” Ms Hill finished her shift at the Splash Bar, and then went to the Drift Bar with another employee, Ms Boehm, at around 11:00 pm. Ms Boehm went into the kitchen via the back door while Ms Hill remained outside to finish her cigarette. Ms Hill then entered the kitchen and saw Ms Boehm standing next to Mr Matteson. Mr Matteson asked what Ms Hill was doing “tomorrow”. Ms Hill said she was going to the soccer game. Mr Matteson asked whether Ms Hill was going with “[y]our boyfriend”. Ms Hill said she was going with her soccer team. Mr Matteson then asked Ms Hill whether she could work “tonight”. Ms Hill said she could. As Ms Hill was about to begin her shift, Ms Hill said she apologised “about the skirt and not pants”, but, Ms Hill said, she was really sunburnt, and “it’s the only thing” she could get on and not be in pain. Mr Matteson said that was fine, and that Ms Hill “should wear stuff like that more often”.[40]
[40] Affidavit E A Hill, [85]
Approximately an hour and a half later, Mr Matteson said to Ms Hill by reference to Mr S, “Look, your lover’s here”.[41]
[41] Affidavit E A Hill, [86]
Alleged Matteson incident 9 – how things went with Ms Hill’s boyfriend
According to Ms Hill, on Saturday at around 6 pm, “in the very next shift”, she went to work at the Drift Bar. Ms Hill went through the front door and went into the back area. Ms Hill “poked” her head into “the office/store room” to greet Mr Matteson and bring to his attention her presence at work. After saying hello Mr Matteson asked: “How did the rest of your night go last night with your boyfriend?” Ms Hill says she laughed nervously, not knowing what to make of Mr Matteson’s comment. Ms Hill said this played on her mind, and she wondered whether Mr S had said something to Mr Matteson. Ms Hill was angry “because none of it was any of [Mr Matteson’s] business”, and Ms Hill was upset “that [Mr Matteson] was and could make me feel the way I was feeling”.[42]
[42] Affidavit E A Hill, [88], [89]
The Hill Hours and Payments Schedule records that Ms Hill commenced a shift at 12:00 on Saturday 2 November 2019; and the Hill Hours and Payments Schedule records that on Saturday 9 November 2019 Ms Hill worked 3 hours from 12:00 as part of a 9 hour shift that commenced at 18:00 on 8 November 2019. The Hill Hours and Payments Schedule does not record Ms Hill commencing a shift on Saturday at 6:00 pm, or at any other time. The “next shift” Ms Hill commenced, according to the Hill Hours and Payments Schedule, was at 12:00 on Sunday, 3 November 2019. The Hill Hours and Payments Schedule records that Ms Hill worked a nine hour shift commencing at 18:00 on Friday 8 November 2019 and ending at 3:00 on Saturday 9 November 2019; but Ms Hill did not work another shift until 17:00 on Friday 15 November 2019.
Alleged Matteson incident 10 – insinuation of oral sex
According to Ms Hill “[o]n or about mid October 2019 on a Friday night around 8:00 pm”, Ms Hill was not feeling well. Mr Matteson asked what was wrong with Ms Hill. Ms Hill said she had a cold or flu or something; blocked nose, headache, sore throat “[t]hat sort of shit”. Mr Matteson said: “Ha! How are your knees?”[43] Ms Hill says she reacted as follows:[44]
I then just left him there and went to serve customers. I felt extremely disgusted by his comment, uncomfortable and extremely repulsed that it was a comment that had come directly from my boss’ mouth. The reason I felt uncomfortable was because I realised that in his eyes he was sexually objectifying me and it was just so common and funny to him in my workplace. I was worried about saying anything because it was my boss. I felt powerless.
[43] Affidavit E A Hill, [90]
[44] Affidavit E A Hill, [91]
Alleged Matteson incident 11 – comment regarding Mr S
According to Ms Hill, “[o]n or about early November 2019, Ms Hill, while working at the Drift Bar, was standing at the bar having a general chat with a Kane about Mr S when Mr Matteson came to the bar, and overheard the conversation. Mr Matteson interrupted the conversation and, directing his words to Kane, said: “He’s a bit too young, he probably doesn’t know, not like us men”. Mr Matteson then proceeded to walk by. Ms Hill felt belittled by Mr Matteson’s comment, and she was frustrated that the conversation had turned into sexual innuendo.[45]
[45] Affidavit E A Hill, [92], [93]
Alleged Matteson incident 12 – comments regarding Ms Hill and Mr S
According to Ms Hill, “[o]n or about mid November 2019”, while Ms Hill was serving Mr S and a friend at the Drift Bar, Ms Hill made a funny comment to them as Mr Matteson was passing by. After Mr S and his friend had left Mr Matteson said to Ms Hill words to the effect: “You definitely wear the pants between you two”. Mr Matteson immediately walked away and “giggled when making the comment”. Ms Hill felt “quite angry with this comment”, and she felt “quite upset and miserable”.[46]
[46] Affidavit E A Hill, [94]-[97]
Alleged Matteson (set of) incident(s) 13 – comments about female customers
Ms Hill says that while working at the Drift Bar, Mr Matteson, on “a regular occasion”, “would laugh and make sexual comments about female customers about their appearance and physique.” It is unnecessary to set out the evidence in detail, other than to note that Ms Hill:[47]
(a)identifies ten classes of comments Mr Matteson, Kane, Rohit, “Scott (security)”, and sometimes male patrons “would make” about females who “would walk past the kitchen, or while watching them on the camera footage”, including “look at her ass”, “I’d tear that to pieces”, and “I’d ruin her”;
(b)identifies five classes of comments Mr Matteson and “male workers” made from behind the bar about female patrons ordering food and drinks, including “No avoiding those tits”, and “I’m gonna bang her tonight”; and
(c)identifies three specific comments, including a statement by Mr Matteson: “Watch this, I’m gonna go [sic] cockblock this guy”.
[47] Affidavit E A Hill, [98]
Alleged Matteson (set of) incident(s) 14 – comments about female workers
Ms Hill says that Mr Matteson, “on a regular occasion”, would laugh and make sexual comments about female workers, and about their appearance and physique. Ms Hill says she recalls Mr Matteson made three “[g]eneral comments” about female workers, including “Why is everyone here ugly. I just want some hot girls to bring the paying guys in”; a total of 8 comments about four employees, including “She’s got a big mouth”, and one is a “rug muncher”.[48]
[48] Affidavit E A Hill, [99]
Alleged sexual harassment incidents involving other male staff
Ms Hill describes a number of incidents of sexual harassment involving other male workers (Alleged other worker incidents).
Alleged other worker incident 1 – comments by other male workers about female staff
Ms Hill says that, while working at the Drift Bar, “on a regular occasion” the other male staff members would laugh and make sexual comments about female customers about their appearance and physique. Ms Hill recalls six comments made by at various times Kane, “Sam the barman”, Mr Matteson, “Scott (Security)”, Rohit, and Dan including Kane stating “I pounded the shit out of her”. Ms Hill says this made her feel repulsed; and she wondered whether those comments were made about herself. Ms Hill found she was second-guessing the way she looked and did her work.[49]
[49] Affidavit E A Hill, [100], [101]
Alleged other worker incident 2 – conduct of Sam
Ms Hill says that “Sam”, one of the male workers, “would almost always imitate sexual gestures, including thrusting and imitating slapping” whenever Ms Hill and other female workers would have to bend to get drinks from the fridge behind the bar. Ms Hill said this “would be behind the bar infront [sic] of customers and other workers”, and Sam “would laugh and try and get others involved”. Sam would “often get quite close, about 2-5cm away”.[50]
[50] Affidavit E A Hill, [102]-[104]
Ms Hill also says that, sometimes when she went inside the large cold room where drinks were stored, Sam “would enter the cold room and shut the door behind him so” Ms Hill could not leave. Sam would laugh, and move in front of Ms Hill when she tried to get around him. Eventually Sam said he was “only joking”, and he would move out of the way so Ms Hill could leave the cold room. Ms Hill said Sam’s conduct scared the hell out of her; and she would often find herself in a panic afterwards, and would often have to look over her shoulder whenever she would enter anywhere to get anything.[51]
[51] Affidavit E A Hill, [105], [106]
Alleged other worker incident 3 –“gotten any lately”?
According to Ms Hill, in about the middle of October 2019, at around 3:00 am on a Sunday, while she and others were cleaning, Ms Hill was standing in the bar area with Ms Mathieson, Sam, Kane, Mr Matteson and another worker, and “the boys were having a chat”. Sam asked Ms Mathieson “What about you Kate”, in response to which Ms Mathieson said: “Don’t put me into this”. Sam then asked “What about you Liz? Have you gotten any lately?”[52] Ms Hill said she felt singled out and was made to feel “extremely uncomfortable and very humiliated” because a number of male workers were “standing around and laughing at me”.
[52] Affidavit E A Hill, [107]
Other evidence
There is other evidence that is relevant to Ms Hill’s claims that she was sexually harassed. There is in evidence a report prepared by Dr Lim, a Consultant Psychiatrist, on 28 February 2021. In that report, Dr Lim sets out what Ms Hill said to him about what she experienced during her employment with MMPL. Dr Lim recorded the following:
Ms Hill told me that soon after she started working with the Respondent, her situation deteriorated quickly. She told me that at the second weekend, she was pulled into the owner’s office, and verbally abused. She told me that the owner had advised that he had been watching her on cameras. Ms Hill told me she started to feel increasingly uncomfortable with the level of camera scrutiny that was present on the premises. She told me that this verbal abuse from the owner made her feel threatened and intimidated and that she felt unable to stand up for herself due to the level of aggression he was displaying.
Ms Hill further described being subject to repeated intrusive sexual harassment of a physical nature by a kitchen hand who also worked with the Respondent. She told me that this began with the kitchen hand smacking her buttocks. She told me that after this incident, she reported the matter to the owner but no action was taken. She told me the kitchen hand’s behaviour progressively escalated. This included trapping her in the toilet, and grabbing her breast. She told me that on the latter occasion, she hit him in the head with a bucket and then became afraid that she would be subjected to some consequence. She told me that despite her repeated attempts to inform the owner about the kitchen hand’s behaviour towards her and despite the presence of cameras throughout the work environment, no action was taken.
Ms Hill provided further detail about her level of discomfort relating to the cameras. She told me that various staff members would watch footage captured on the camera, of situations where female patrons had fallen, or had inadvertently exposed themselves. She told me that this caused her to develop an impression of the work environment as a male-dominated and sexually aggressive one which further added to her sense of feeling threatened. Ms Hill told me she was herself subject to sexualised behaviour from the owner. She told me that he would often lean over her and make comments about the clothes she was wearing. She described another occasion in which she attended the work premises outside of work to socialise with her friends and that the owner approached her, put his hand on her back and commented on her physical appearance. Ms Hill told me that these actions were unwelcome and made her feel uncomfortable. She told me that the public manner in which this occurred made her feel embarrassed and she developed irrational feelings of guilt that she was inviting the sexual attention.
Evidence of complaints
Ms Hill says she made to Mr Matteson a number of complaints during the period of her employment with MMPL.
Complaint No 1 – pay slips
According to Ms Hill, “[o]n or about late October 2019 while closing a Sunday shift and at around 9:00pm – 10:00pm at the” Drift Bar, she approached Mr Matteson and said she was “applying for a rental and was hoping” she “could get some pay slips, or a pay slip”. Mr Matteson replied: “We don’t do payslips”.[53]
[53] Affidavit E A Hill, [109]
The Hill Hours and Payments Schedule records Ms Hill having worked on Sunday 20 October 2019 from 12:00 to 17:00, and shows that Ms Hill did not work on Sunday 27 October 2019. It does not record that Ms Hill worked at around 9:00 pm – 10:00 pm on any Sunday in late October 2019.
(Set of) Complaint(s) No 2 – late and missing payments
According to Ms Hill, during the first two weeks of her employment, she was paid in cash, which was given to her in a yellow envelope on her last shift of the week. From “mid October 2019 till 29 November 2019, approximately once a week”, Ms Hill “would complain” to Mr Matteson about the late payment of her wages.[54] Ms Hill says she “would either verbally ask him at work” or by texting him outside of work hours. Ms Hill says she recalls a number of “specific incidents”:[55]
(a)On or about mid-October 2019, on a Sunday at about 9:00 pm to 10:00 pm, while Ms Hill was closing and packing up the Drift Bar, Ms Hill told Mr Matteson that she did not get her pay from the week before. Mr Matteson asked how that happened, and said he would fix it next pay. Ms Hill said she was applying for a rental, and she was hoping she would get some pay slips. Mr Matteson said: “We don’t do pay slips”.[56] (The Hill Hours and Payments Schedule does not record Ms Hill having worked at about 9:00 pm to 10:00 pm on any Sunday in October 2019.)
(b)On or about the middle of October 2019, after finishing a Saturday to Sunday morning shift at the Drift Bar, Mr Matteson was handing out everyone’s wages; but Ms Hill’s wages were not there. Ms Hill told Mr Matteson that she still had not got her other pay, and that she was owed two weeks. Mr Matteson said: “What do you mean you don’t have your pay? I will get onto it”.[57]
(c)On or about late October 2019, on a Sunday, when she was not working, Ms Hill went to the Drift Bar. She told Mr Matteson that she had come to annoy him for her pay. Mr Matteson told Ms Hill to come and annoy him some other time, because he did not have time “at the moment”.[58]
[54] Affidavit E A Hill, [110]
[55] Affidavit E A Hill, [111]
[56] Affidavit E A Hill, [112]
[57] Affidavit E A Hill, [113]
[58] Affidavit E A Hill, [114]
Ms Hill says that, despite these complaints, Mr Matteson did not pay Ms Hill.[59]
[59] Affidavit E A Hill, [115]
(Set of) Complaint(s) No 3 – misleading or deceptive conduct
Ms Hill says that while working at both the Drift Bar and the Splash Bar she “noticed that the company was selling beer and cider that had expired back in 2017 and 2018”; and she also “noticed that they were cooking and serving expired and off-coloured food products, including raw beef”.[60] Ms Hill says that, from mid-October, “at least once a week”, she approached Mr Matteson at the Drift Bar and verbally complained to him “about the misleading and deceptive conduct”. Ms Hill says words to the following effect were spoken (errors in original): [61]
I said: “Scott, the cider in the fridge is expired, I’ll take it out.”
Scott: “it's fine I know, leave it.”
I said: standing at Scotts office door: “Scott the chef just copvered the beef with a glaze because it was slimy.”
Scott: “He’s the chef.”
I said: “Scott the staff are filling all the Vodka’s with the cheap barrel in the fridge, is that right? Surely not?”
Scott: “Yes that's what we do here.”
[60] Affidavit E A Hill, [116]
[61] Affidavit E A Hill, [117]
(Set of) Complaint(s) No 4 – illicit drug use and intoxication
Ms Hill says that, from October 2019 onwards, “at least once a week”, she verbally complained to Mr Matteson “that patrons were taking illicit drugs at the” Drift Bar.[62] Ms Hill says she “insisted with” Mr Matteson that “illicit drug use and intoxication during work hours was illegal and should stop immediately”. Ms Hill says she made these complaints by saying words to the following effect (errors in original):[63]
a. “I believe Rohit is drunk most of his shift.”
b. “when I cut of a patron for intoxication it is not followed.”
c. “many patrons of opposite sex are going in and out of the same sex bathrooms together.”
d. “A few patrons have asked me if I want to buy drugs.”
e. “Ive seen drugs in an entering patrons purse.”
f. “this should not be allowed and is against the law, I will also get in trouble if its continually allowed.”
[62] Affidavit E A Hill, [118]
[63] Affidavit E A Hill, [119]
(Set of) Complaint(s) No 5 – security complaints
Ms Hill says that “[w]hile [she] was working at the company” she noticed there was only one licensed security officer at the Drift Bar. That security officer “had also been assaulted by patrons multiple times, including being pushed and slapped”.[64] On top of that, “other work colleagues of mine and myself had also been assaulted”.[65] Ms Hill says from mid-October 2019, “at least 3 times”, she approached Mr Matteson at the Drift Bar and complained to him about the lack of security officers, and “told him about the assaults”. Ms Hill says she told Mr Matteson words to the following effect (errors in original):[66]
a. “Scott (reffereing to security guard Scott) just sits there, drinks and chats up girls.”
b. “I am not trained security and should not have to break up fights.”
c. “I’m worried if a huge fight breaks out.”
d. “I was hit tonight Scott, in the back, door security is hopeless and does nothing!”
e. “Kate was literally punched in the head tonight Scott, it’s not on anymore.”
f. “Can we at least get security that does there job.”
[64] Affidavit E A Hill, [121]
[65] Affidavit E A Hill, [122]
[66] Affidavit E A Hill, [123]
Ms Hill says that she mainly expressed these complaints to Mr Matteson at the doorway of his office, in response to which Mr Matteson “would just nod his head” and say “hmm” or “yep”.[67]
[67] Affidavit E A Hill, [124]
(Set of) Complaint(s) No 6 – sexual harassment complaints
Ms Hill says that from mid-October 2019 onwards, “at least 3 times” she approached Mr Matteson at the Drift Bar, and complained to him that she was being sexually harassed, and she asked Mr Matteson to “help stop the harassment”. After repeating the evidence Ms Hill gave in relation to Rohit, Ms Hill says she once told Mr Matteson that “the boys were being quite inappropriate” and that it was “uncomfortable”, in response to which Mr Matteson said “boys will be boys”.[68]
[68] Affidavit E A Hill, [125]-[128]
(Set of) Complaint(s) No 7 – complaints regarding breaks
Ms Hill says that she often worked 15 hour shifts without a break. In early October 2019, at a staff meeting Mr Matteson had called at 3:30 am. Mr Matteson said that “cigarettes count as our breaks”.[69]
[69] Affidavit E A Hill, [131]
Ms Hill says that in around late October 2019 on a Saturday night at around 2:00 am at the Drift Bar, while having a cigarette, Ms Hill complained to Mr Matteson about the lack of rest breaks. Mr Matteson told Ms Hill to go back to work. Ms Hill said “[w]e’re working 16 hour shifts”, in response to which Mr Matteson said that no one worked those hours.[70]
[70] Affidavit E A Hill, [132]
(Set of) Complaint(s) No 8 – liquor licence
According to Ms Hill, from November 2019 “onwards”, “at least 5 or 6 times”, she approached Mr Matteson at the Drift Bar, and “complained to him that we were catering and serving alcohol for over 100 patrons, even though we were only licensed to cater for 94 patrons”. Ms Hill says she told Mr Matteson that this was “a violation of our liquor licence”. Ms Hill was told “[m]any times…. to count patron numbers and everytime we were over” Ms Hill would alert Mr Matteson by saying “we’re over what do you want to do”, and “120, no more?”, and “hey Scott we are at 98, already past, think we should stop”. Mr Matteson responded with “no we’ll be right”, and “few more”, and “just keep counting”.[71]
[71] Affidavit E A Hill, [134]-[136]

Ms Hill also says that she would not serve a drunk patron; but Mr Matteson told Ms Hill she had to “because he was a valued customer”. One late Friday night shift Ms Hill says she “cut a drunk customer”, but Mr Matteson came up behind Ms Hill, and poured the customer a drink and said “we don’t cut him off”.[72] Ms Hill further says she complained to Mr Matteson that he had “made” Ms Hill “serve shots past the lawful license hours because “business was slow”.[73]
[72] Affidavit E A Hill, [137]
[73] Affidavit E A Hill, [138]
Complaint No 9 – RSA certification
Ms Hill says that in early November 2019 at the Splash Bar, during a Thursday evening shift, Ms Hill observed one of the workers, “Cassandra”, working behind the bar serving alcohol to customers without the required RSA certificate. Ms Hill approached Mr Matteson and told him that Cassandra did not have the relevant certification, and that it was “illegal for her to serve alcohol to patrons and could get us all in big trouble”. Mr Matteson said that Cassandra was only dealing with empty alcohol bottles. After Ms Hill insisted that Cassandra was serving full alcohol beverages Mr Matteson said: “She is getting her RSA soon”.[74]
Alleged theft
[74] Affidavit E A Hill, [139], [140]
12 November 2019 – Ms Hill chases up wages
According to Ms Hill, on 12 November 2019 she sent a text message to Mr Matteson “requesting my pay”. That is a reference to a text message Ms Hill sent to Mr Matteson on 12 November 2019, which includes the following:[75]
And also Scotty I just want to again bring up my wage. I really do need my wage arrears this week please. Without $$$ I am struggling to live hahah [angry emoji]
Just wanted to make you aware.
I know you have a lot on your plate and I can see and appreciate that,
Stressful shit this all is haha
If you need me at drift fri/sat night don’t hesitate [smiling emoji]
Thanks again Scotty
[75] Affidavit E A Hill, [141], [143]; annexure “EAH3”
Mr Matteson responded at 2:23 pm on 12 November 2019 as follows:[76]
I do apologise for that
Send me through your hours and I’ll have that for you today
[76] Affidavit E A Hill, [141], [143]; annexure “EAH3”
Ms Hill responded by a text message she sent at 2:27 pm on 12 November 2019.[77]
[77] Affidavit E A Hill, [142], [143]; annexure “EAH3”
Nah all good Scotty
Shit happens
Hope this makes sense
Hours
10/10-12/10
Thurs drift 6-9.30: 3.5
Fri drift 6-12.30: 6.5
Sat drift 6-3: 9
= 19 - $380
24/10-26/10
Thurs splash 6-10: 4
Fri splash 7-10: 3
Sat splash/drift 6-12: 6
=13 - $260
31/10-3/11
Thurs Drift 6-10: 4
Fri Drift/Splash 4-11.30: 7.5
Sat Splash 12-4: 4
= 15.5 - $310
$400 out of this $950 arrears was paid on 9/11
6/11-10/11
Thurs splash 3.5hr
Fri splash 4hr
Fri Drift 10.30-3.30: 5hr
= 12.5 - $250
Total = 60 hours - $1200.
Minus $400 already paid.
Remainder = $800
This text message shows that Ms Hill was being paid at an hourly rate of $20. Further, the text message implies that, as at 12 November 2019, Ms Hill claimed she was owed $800. According to the Hill Hours and Payments Schedule, by 12 November 2019 Ms Hill had worked a total of 150 hours since 28 September 2019. Assuming a $20 an hour rate, Ms Hill had earned a total of $3,000. If, as Ms Hill claimed in her text message, she was owed $800 as at 12 November 2019, that means the she would have already been paid $2,200. The Hill Hours and Payments Schedule, however, records that Ms Hill had only received three payments totalling $1,240.
14 November 2019 – Ms Hill asks Mr Matteson to forward pay to Ms Mathieson
On 14 November 2019 Ms Hill sent the following text message to Mr Matteson:[78]
Hey Scotty can you please forward my pay on to Kate tonight and I will grab it from her
Thanks heaps
[78] Affidavit E A Hill, [143]; annexure “EAH3”
Mr Matteson responded by text sent on the same day with: “No worries”.
Ms Hill gives no evidence of any conversation or any text message exchanges with Ms Mathieson about Ms Mathieson collecting Ms Hill’s pay.
3:30 am 17 November 2019 – Ms Hill notices theft of her wages
According to Ms Hill:[79]
On Sunday the 17^th of November 2019, at approximately 3:30 am I noticed that there had been a theft at the Drift Bar & Restaurant, of my wages and Kate’s personal belongings.
[79] Affidavit E A Hill, [144]
Ms Hill does not say what it is she observed which led her to notice there had been a “theft” of her “wages” and Ms Mathieson’s “personal belongings”.
Ms Hill’s evidence must be viewed in the light of the following matters:
(a)The Hill Hours and Payments Schedule shows that on Saturday 16 November 2019 Ms Hill worked for 12 hours from 11:00 to 23:00; and that on Sunday 17 November 2019 Ms Hill worked for 5 hours from 12:00 to 17:00. According to the Hill Hours and Payments Schedule, therefore, Ms Hill was not working at 3:30 am on 17 November 2019 when she says she had noticed the theft of her wages and Ms Mathieson’s personal belongings. Ms Hill does not give any evidence to suggest she was at the Drift Bar at 3:30 am on 17 November 2019 for reasons other than work.
(b)Ms Mathieson, in her affidavit, deposes that “at approximately 3:30 am” on Sunday 17 November 2019 she “noticed that there had been a theft at the [Drift Bar] because [her] personal possession[s] including cash, key-card and charms were missing”; and Ms Hill’s “cash wages had been stolen too”.[80]
(c)Ms Mathieson, in her affidavit, also says that on 18 November 2019 she had a conversation with Mr Matteson in which Ms Mathieson says she gave to Mr Matteson the following explanation of how she discovered the theft:[81]
It was about 3:30 in the morning when I was closing up and I grabbed my bag and Liz offered to give Sam Baraket a lift home and we got in the car and I went to get a cigarette and when [sic] to get Liz’s pay and noticed that stuff was missing out of my bag. Liz then said to me: “What do you mean?” As we got to Sam’s place, Sam Baraket went to get out of the car and get his house keys and said: “Hold on. My wallet’s missing.” As he was shuffling through his bag. I said that we’d have to wait until the morning to figure out what was happening as we couldn’t call you this late.
[80] Affidavit of K Mathieson, [299]
[81] Affidavit of K Mathieson, [303]
According to Ms Hill, at around 11 am on 17 November 2019, Ms Mathieson telephoned Mr Matteson from the Drift Bar landline, and Ms Hill heard Ms Mathieson say (errors in original):[82]
a. “Sam’s wallet and things from my bag and lizzies wage was stolen last night.”
b. “I don't know what time or how.”
c. “Ok ok.”
[82] Affidavit E A Hill, [145]
Ms Hill asked Ms Mathieson what was said, and Ms Mathieson said that “Scott will sort it out when he gets back”.[83]
[83] Affidavit E A Hill, [146]
Communications and conversations about alleged theft
At 2:53 pm on 18 November 2019 Mr Matteson sent the following text message (errors in original):[84]
Hi Everyone,
In relation to the theft of money on Saturday night.
I’m currently reviewing the footage from the cameras both inside and outside the back door.
In order to assist
Could you please tell me if you saw anyone in the kitchen or at or around the back door at anytime during the night. I’m only referring to person(s) who shouldn’t normally be there
Thank you for your help and I will keep you updated
[84] Affidavit of E A Hill, [150]; annexure “EAH4”
According to Ms Hill, Mr Matteson asked her questions about the alleged theft:
From Monday 18^th till Wednesday 20^th November 2019, at least 3 or 4 times a day, Scott rang me and asked me about the theft and who I think did it:
a. “Do you suspect anyone?”;
b. “Why didn't you get your pay earlier?”;
c. “Do you know that there are cameras on the safe at the bar?”;
d. “Tell me your thoughts.”
On each occasion, I complained to Scott that he was being intrusive, I had already provided him information, I had no further information to provide and it was now a NSW Police matter.
I said words to the effect: “Stop calling me. This is making me anxious. I didn’t get my pay earlier because you didn’t give it to me Scott.”
Ms Hill says that on Monday 18 November 2019, when she was not rostered to work, she met with Ms Mathieson, who told Ms Hill that “she filed a police complaint regarding the theft”.[85]
[85] Affidavit E A Hill, [148]
According to Ms Hill, on 19 November 2019 Mr Matteson text messaged her “saying that the theft was done by an employee of the company, and he had video footage”.[86] That is a reference to the following text message Mr Matteson sent at 12:43 pm on 19 November 2019 (errors in original):[87]
It has come to our attention through video footage that the person responsible for the missing property last weekend is unfortunately a staff member.
I am asking whoever it was to return the goods no questions asked by close of business this weekend - the police have been notified and video footage has been observed. further action will be taken if necessary.
Moving forward no valuables of any sort are to brought to your shift. No wages will be handed to anyone but the person they belong. If u cannot collect your wages they will be stored in the safe until you do.
Any employee suspected of being under the influence of drugs or alcohol, either when presenting for work or during the shift, will immediately be sent home.
It is unfortunate that these measures need to be put in place but theft or drug consumption will not be tolererated. This includes giving away discounted or free product to patrons. There will be no further warning and instant dismissal will occur where it is found to have gone on.
Please acknowledge the above by return text.
[86] Affidavit E A Hill, [154]
[87] Affidavit E A Hill, [155]; annexure “EAH5”
According to Ms Hill, when the “next week’s roster came out”, she found out that she was not rostered to work any shifts between 27 November 2019 and 1 December 2019.
29 November 2019 – meeting at “Old Joe’s”
According to Ms Hill, on Friday 29 November 2019 she attended a meeting at Old Joe’s, located in Northies Cronulla Hotel, with Mr Matteson, Ms Mathieson, and Ms Hill’s mother. Ms Hill does not say anything about how it was that she came to the meeting. Ms Mathieson however, has given evidence from which it may be possible to infer the reasons for which the meeting occurred.
Ms Mathieson’s evidence in relation to scheduling of meeting
Ms Mathieson says that on Monday 25 November 2019 Mr Matteson rang her and asked her “to attend a meeting about the workplace theft”, and Ms Mathieson said she “would only come with a support person”.[88] Later that day, being at 6:08 pm on 25 November 2019, Ms Mathieson sent a text message asking Mr Matteson whether she was being terminated.[89] That is a reference to the following text message (errors in original):[90]
Hey, after our conversation last night not sure if i have employment with you anymore. If could u plz let me know asap as I have to organise things as I can’t be out of work and if not could u plz organise a separation certificate and my severance pay. Obviously I would like to continue to work there as I’m a hard worker and out of all been there to pick up when everyone else has let you down. I think Rochelle being manager would be a great idea as doing everything has been a bit much and taken it’s toll and perhaps she can do something different that i havent. Its certainly taken its toll on me as it has on u working long hrs. I stand by what I’ve said yesterday evening but respect ypur choice if you feel I'm.not working as part of the team.
Thanks Scotty
[88] Affidavit of K Mathieson, [319]
[89] Affidavit of K Mathieson, [318]
[90] Affidavit of K Mathieson, [319]; annexure “KM17”
The text message refers to “our conversation last night”, but does not identify what the conversation was about. At the very least it implies that Mr Matteson said something that suggested to Ms Mathieson that Mr Matteson was considering terminating her employment; and Ms Mathieson did not dispute that Mr Matteson was entitled to terminate Ms Mathieson’s employment, if that is what Mr Matteson intended to do.
There then followed on 27 November 2019 a number of text messages between Ms Mathieson and Mr Matteson.[91]
[91] Affidavit of K Mathieson, [324]; annexure “KM18”
(a)At 11:59 am Mr Matteson sent a text to Ms Mathieson asking whether she is able to come and see Mr Matteson “[i]f not tonight then tomorrow morning”.
(b)At 4:53 pm Ms Mathieson sent a text to Mr Matteson stating that she was assuming she no longer had a job because she has seen the roster. She asked Mr Matteson to “confirm this”.
(c)At 4:54 pm Mr Matteson sent a text message to Ms Mathieson, stating that he needed to sit down with her, and again asked whether she is able to come and see him “tonight”.
(d)At 4:57 pm Ms Mathieson sent the following text message:
I do understand this Scott, however if I know [sic] longer have a job sitting down and chatting is really irrelevant. If you could just let me know if I’m employed at drift anymore I’d appreciate it as I’m quite anxious about it all.
(e)At 5:11 pm Ms Mathieson sent the following text message to Mr Matteson (errors in original):
Scott if you are refusing to tell me if I have a job and don’t want to put that in sms I find that quite upsetting. As u have already sent out rosters and I’m not on it and my normal.hrs aren’t there it is clear I'm no longer employed with you and sitting down and discussing this won’t change the choice u have already visibly made.
(f)At 7:07 pm Mr Matteson sent the following text message to Ms Mathieson:
Firstly I haven’t sent the roster out so I’m [sic] sure what you have seen. You have denied my accusation and I was going to show you the evidence, and give you the chance to be honest. I don’t believe it’s appropriate to hire and fire via text. If you are not interested in that then you give me no choice. I will forward a formal letter by email. I require your keys and uniforms returned by close of business Thursday.
(g)At 7:20 pm Ms Mathieson sent the following text message to Mr Matteson:
After your last message it’s clear why you want to meet with me. Regarding your last message is this just including me or your whole staff? Either way I am able to meet with you Friday morning
Further text messages passed between Mr Matteson and Ms Mathieson, the end result of which was that Ms Mathieson and Mr Matteson agreed to meet 12:30 pm at “old Joe’s at northies”, in Cronulla.
Ms Hill’s evidence of the meeting
According to Ms Hill, a conversation to the following effect occurred:[92]
Mr Matteson: You will not be getting any further shifts. You and Kate have been colluding with each other. Who else would it have been? Tell me who you think then.
Ms Hill:I told you, Scott. I’m not going to go around blaming people. You said you had footage of it?
[92] Affidavit of E A Hill, [157]
Ms Hill further says that she had brought to the meeting “my handwritten notes about all the issues that I had complained about”. Ms Hill says she showed the notes to Mr Matteson, stating that “you already know this is the stuff that’s going on, but I’ve written it all done [sic], have a look”.[93] Ms Hill has annexed to her affidavit a copy of the notes she says she gave to Mr Matteson (Hill Notes).[94] The copy that is annexed to her affidavit is difficult to read, but the notes begin and end as follows (underlining and errors in original):
[93] Affidavit of E A Hill, [158]
[94] Affidavit of E A Hill, [159]; annexure “EAH6”
illegals
*FRAUD
- refilling alcohol bottles from cheaper alcohol and seling as something different
. . .
- discriminated against for my illnesses “what am I taking on”
PG4
In the course of preparing these reasons, I instructed my Associate to request from Mr Aslanian a clearer copy of the Hill Notes and also of the notes Ms Mathieson, in her affidavit, said she had prepared for the purpose of the meeting of 29 November 2019 and which she had annexed to her affidavit. At 2:06 pm on 6 April 2023 Mr Aslanian attached what he described as “4 clear images of the scanned photos which appear in EAH6”, being annexure “EAH6” to Ms Hill’s affidavit (Photo EAH6). The scanned photos, however, included additional material. These were notes that, as I set out below, Ms Mathieson, in her affidavit, said she had prepared. Photo EAH6 is as follows (underlining and errors in original):
Kate:
Start March 13^th 2019
-     never more than $500 into acc when working on average 50 hrs per wk. + cash in hand off books
-     from 24th June 2019 only $464 or less into acc, working average of 50 hrs + per wk. until 24/11/19.
-     Eliott left June 2019.
-     Verbal Abuse began after Eliott left and continued until last day of work.
illegals
*FRAUD
-     refilling alcohol botles from cheaper alcohol and seling as something different
-     selling alcohol out the back door late at night
-     having different women in the office multiple times
-     doing illegal drugs with people in the office.
PG1
-     verbally degrading his staff members. “imbosiles” “mutts”
-     working whilst intoxicated.
-     selling out of date bottled alcohol cider “2017” beer “2017”.
-     taking staff tips at the end of the night. Because he could or because the “tills were down”
-     Docking staff pay because the tills were down.
-     Making Gabbie not report her wrist incident as a work incident 10/11/19
-     paying cash in hand to employees.
-      not paying supers correctly.
-     not actually paying staff i.e. website designer never paid employees not paid for weeks would have to be asked multiple times.
-     discussing staff personal info w other businesses and public.
-     not the approved beer used in the beer taps. (in texts)
PG2
-     too long shifts for employees w no breaks
-     not enough time given to employees between shifts i.e. 13hr shift then back work 6 hours later for another 16 hours. Fri 11am 4am then Saturday 11am – 4 am
-     no public holiday or overtime rates.
-     allowed female staff members to leave by themselves w no transport to get home in the early hours of the morning i.e. 2-4 am.
-     often members of staff w no sec licence were made to be & work as security, suffering injuries. i.e. kate & Sam suffering punches to the face
-     staff working without an RSA i.e. Cassandra Splash 15/11/19 other staff members w RSA were not made aware.
-     staff often having to cover for bosses whereabouts during business hours.
-     No payslips provided to employees.
Other
-     No clear rules & regs for staff and would then berage and berade staff if they did something wrong in his eyes.
-     often staff members were overworked
PG3
-     i.e. had to open alone or run business alone being overun, stressed & anxious & were again beraged if got something wrong
-     texts messages asking [illegible] low pay from Kate to Scott.
-     kate never knew what she was employed as. i.e. she was told as kitchen chef but was often made to set up bar. serve bar. waitress. make cocktails. clean. stocktake. settle tills. pay employees. do rosters. Also be emotional support for nearly all employees as most called her “mum”. And often beraged for doing so or getting something wrong/making a mistake even if she was told to do it.
-     telling public and other staff members our personal business
-     discriminated against for my illnesses “what am I taking on?”
PG4
According to Ms Hill, after she handed Mr Matteson the Hill Notes, Mr Matteson sat down, read the Hill Notes for two to three minutes, handed the Hill Notes back to Ms Hill, after which the following conversation occurred:[95]
Ms Hill:All we’re asking is what we’re lawfully owed. Please do the right thing.
Mr Matteson: You really want to work? Then work tonight if you want.
Ms Hill:I haven't even been paid now, why would I add anymore free work to that? There’s too much water under the bridge, Scott.
[95] Affidavit of E A Hill, [160]
It is open to find, and I find, that by annexing only a copy of that part of Photo EAH6 commencing with the word “illegals” (that is, the Hill Notes), Ms Hill intended to convey that that was the document she gave to Mr Matteson to read at the meeting of 29 November 2019. It is also open to find, and I find, that the Hill Notes forms part of Photo EAH6. I also find that Photo EAH6 is one document containing the same handwriting and, in any event records on the bottom right hand page “PG1”, “PG2”, “PG3”, and “PG4”.
Ms Mathieson’s evidence of the meeting

Even on these assumptions, I am satisfied that Mr Matteson did not dismiss Ms Hill from her employment because she made any one or more of the complaints or enquiries she says she made in relation to her employment, or for reasons that included as a substantial and operative factor Ms Hill’s having made any one or more of the complaints Ms Hill says she made. I am satisfied Mr Matteson dismissed Ms Hill from her employment because he suspected and perhaps believed that she, together with Ms Mathieson, had been dishonest in having reported to Mr Matteson that Ms Hill’s wages had been stolen from the premises of the Drift Bar. I so find, first, because, Dr Lim recorded that Ms Hill reported that the “owner eventually concluded that she was the one who had stolen her wages which led to her not being offered anymore shifts”; and, second, because, on the findings I have made, it is open to find, and I do find, Mr Matteson had reasonable grounds for so suspecting or believing. An employer’s suspecting or believing that an employee has not been honest would almost invariably lead the employer to terminate the employee’s employment. The findings I have made include the following:
(a)Ms Hill, in her affidavit, says she noticed the theft at a time the Hill Hours and Payments Schedule does not record she was working (see paragraph 114(a) of these reasons).
(b)On her evidence, Ms Hill gave a nonsensical response to a reasonable question from Mr Matteson about why Ms Hill had not collected the cash wages Mr Matteson had provided to Ms Mathieson on 14 November 2019, before 3:30 am on 17 November 2019, being the time and day on which Ms Hill says she noticed the theft (see paragraphs 114(b) of these reasons).
(c)On her own evidence Ms Hill failed to provide to Mr Matteson information about the alleged theft he reasonably requested Ms Hill provide and which, if the theft had in truth occurred, Ms Hill would have been in a position to give (see paragraph 114(c) of these reasons).
(d)Ms Hill failed to provide in her affidavit information about the alleged theft, which Ms Hill would have been in a position to give if the theft had in truth occurred (see paragraphs 114(d) of these reasons).
Conclusion
For these reasons, Ms Hill’s claim based on MMPL’s contravening s 340(1) of the FW Act fails.
Relief (other than penalty)
As against MMPL Ms Hill is entitled to:
(a)an order under s 545(2)(b) of the FW Act that MMPL pay Ms Hill $1,823.29, being the difference between the $4,823.29 MMPL ought to have paid Ms Hill under the Award, and the $3,000 I have found MMPL had paid to Ms Hill, together with interest on that amount under s 547(2) of the FW Act; and
(b)an order under s 545(1) of the FW Act that MMPL pay Ms Hill $458.21, together with interest under s 547(2) on that amount, to a superannuation fund nominated by Ms Hill.
Given I have found Mr Matteson was involved in MMPL’s contraventions to the extent it made payments for 150 hours work, MMPL is liable to pay compensation in the amount calculated by applying to each of $1,823.29 and the $458.21 to which I refer in the previous paragraph the ratio of 150/173, being the ratio of the hours I have found Ms Hill worked (150) and the hours Ms Hill has alleged but MMPL has not disproved Ms Hill worked (173). As against Mr Matteson, therefore, Ms Hill is entitled to:
(a)an order under s 545(2)(b) of the FW Act that MMPL pay Ms Hill $1,580.90,[132] together with interest on that amount under s 547(2) of the FW Act; and
(b)an order under s 545(1) of the FW Act that MMPL pay Ms Hill $397.30,[133] together with interest under s 547(2) of the FW Act on that amount, to a superannuation fund nominated by Ms Hill.
Pecuniary Penalty
[132] 150/173 x $1,823.29 = $1,580.90
[133] 150/173 x $458.21 = $397.30
Power
Under s 546(1) of the FW Act this Court may, on application, order a person to pay a pecuniary penalty the Court considers is appropriate if the Court is satisfied the person has contravened a “civil remedy provision”. That expression is defined in s 539(1) of the FW Act to include the provisions identified in column 1 of the table to s 539(2) of the FW Act. Column 1 includes s 45 and s 536(1) of the FW Act.
Subsection s 546(2) of the FW Act provides that the pecuniary penalty the Court may impose must not, where the person is an individual, be more than “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)” and, if the person is a “body corporate”, must not be more than five times “the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2)”.
The maximum penalty units specified in the table in s 539(2) of the FW Act for the contraventions of each of s 45 and s 536 of the FW Act during the period of Ms Hill’s employment with MMPL is 60 penalty units. Under s 12 of the FW Act, “penalty unit” has the meaning given by s 4AA of the Crimes Act 1914 (Cth). The penalty unit during the time of Ms Hill’s employment with MMPL was $210. That means the maximum penalty that may be imposed on MMPL and Mr Matteson respectively for each contravention of s 45 and s 536 of the FW Act is $63,000 and $12,600.
Principles[134]
[134] I repeat hear what I said in Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2022] FedCFamC2G 595, at [13]-[30]
Object of making orders under s 546(1) of the FW Act
In Australian Building and Construction Commissioner v Pattinson the plurality observed that civil penalty provisions of the kind enacted in s 546(1) of the FW Act have a “statutory function of securing compliance with provisions of the [statutory] regime”;[135] that “whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty . . . is primarily if not wholly protective in promoting the public interest in compliance”;[136] that the “principal, and . . . probably the only, object of the 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”;[137] and that “deterrence is the “principal and indeed the only object” of the imposition of a civil penalty: “[r]etribution, denunciation and rehabilitation have no part to play””.[138] In short, the task of assessing an appropriate penalty under s 546(1) of the FW Act is to assess a “penalty of appropriate deterrent value”.[139]
[135] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [14], quoting from the judgment of the plurality in The Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, at [24]
[136] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [15], quoting from The Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, at [55]
[137] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [15], quoting from Trade Practices Commission v CSR Ltd [1991] ATPR 41-076, at pages 52,152
[138] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [16], quoting from Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 97, at [19]
[139] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [18]
The objective of deterrence, however, must be considered having regard to “the need for deterrence in respect of the particular case”.[140] The purpose of s 546(1) of the FW Act is “the deterrence of future contraventions of a like kind by the contravenor and by others”;[141] and an “appropriate” penalty “is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case”.[142]
[140] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [46]
[141] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [10] (my emphasis)
[142] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [46] (my emphasis)
Assessing penalty for single contravention – factors
The plurality in Pattinson recognised that, when assessing an appropriate penalty under s 546(1) of the FW Act, the Court may have regard to a number of factors that are relevant to assessing what is necessary for deterrence in respect of the particular contravention in question. That is apparent from the plurality referring,[143] with approval, to the following passage from the judgment of French J in Trade Practices Commission v CSR Ltd:[144]
[143] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [18]
[144] Trade Practices Commission v CSR Ltd [1991] ATPR 41-076, at pages 52,152‑52,153
The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following:
1.The nature and extent of the contravening conduct.
2.The amount of loss or damage caused.
3.The circumstances in which the conduct took place.
4.The size of the contravening company.
5.The degree of power it has, as evidenced by its market share and ease of entry into the market.
6.The deliberateness of the contravention and the period over which it extended.
7.Whether the contravention arose out of the conduct of senior management or at a lower level.
8.Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.
9.Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.
The plurality in Pattinson characterised these as factors that “informed the assessment under the Trade Practices Act 1974 (Cth) of a penalty of appropriate deterrent value”,[145] further noting the following:[146]
It may readily be seen that this list of factors includes matters pertaining both to the character of the contravening conduct (such as factors 1 to 3) and to the character of the contravenor (such as factors 4, 5, 8 and 9). It is important, however, not to regard the list of possible relevant considerations as a “rigid catalogue of matters for attention” as if it were a legal checklist. The court’s task remains to determine what is an “appropriate” penalty in the circumstances of the particular case.
[145] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [18]
[146] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [19] (footnotes omitted)
Approach to assessing penalties for multiple contraventions
What I have said so far concerns the assessment of an appropriate penalty for a single contravention. In many cases, however, the Court is required to assess multiple contraventions of civil remedy provisions of the FW Act. The approach to assessing pecuniary penalties in those circumstances was outlined by Bromwich J in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (New Shanghai) as follows (emphasis in original):[147]
(1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
(2)Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
(3)Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.
(4)Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.
(5)Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO . . . and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary . . . .
[147] Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301, at [36]
The first step requires the Court to identify the contraventions in relation to which the appropriate penalties are to be assessed.
The second step requires the Court to consider whether any two or more of the contraventions in question are to be treated as a single contravention under s 557(1) of the FW Act, which provides:
For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if:
(a)the contraventions are committed by the same person; and
(b)the contraventions arose out of a course of conduct by the person.
I considered some of the principles relating to s 557(1) of the FW Act in Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor.[148] After reviewing a number of cases, I said:[149]
Two firm principles may be drawn from the cases to which I have referred, one negative, and one positive. The negative principle is that s.557(1) of the FW Act does not apply to contraventions of different terms of modern awards, even if such contraventions arise out of a course of conduct, and even if the contraventions affect only one person. The positive principle is that s.557(1) of the FW Act applies to the multiple contravention of the one term of a modern award, even where the contravention may affect two or more persons. These principles may be extrapolated to contraventions of civil penalty provisions that do not involve the contravention of a term of a modern award. Just as s.557(1) of the FW Act does not apply to the contravention of two or more separate terms of an award, so too does it not apply to contraventions of two or more separate civil remedy provisions that do not involve a breach of a term of an award. On the other hand, s.557(1) of the FW Act applies to multiple contraventions of a single civil penalty provision, even though the contraventions may affect two or more persons.
These principles, important as they are, are limited. The judgments to which I have referred do not explicitly consider the meaning of “course of conduct”. From the words themselves, it may be said that “course of conduct” denotes a series of acts that are connected in some way; and given that it is conduct – namely, acts or omissions of a person – that is required to be connected in some way, the required connection must be sought, at least in substantial part, in the state of mind that the person engaging in the conduct has in relation to the conduct. That a contravener’s state of mind is relevant to determining whether conduct he or she has engaged in is a “course of conduct” is supported by the judgment of Nettle J in Berlyn v Brouskos. In that case, his Honour considered the meaning of “course of conduct” as that expression appears in the definition of “stalking” given in s.21A(2) of the Crimes Act 1958 (Vic). His Honour concluded that “course of conduct” for the purposes of that subsection is a course of conduct as prescribed in the California Penal Code, namely, “a pattern of conduct composed of a series of acts over a period of time however short, evidencing a continuity of purpose”.
Although the question whether conduct amounts to a “course of conduct” is to be determined, at least substantially, by reference to the person’s state of mind, proof of that state of mind may, and usually will be inferred from objective matters existing outside that person’s mind. Of importance would usually be whether the relevant conduct consists of an omission, the number of acts or omissions that are claimed to constitute the course of conduct, the time that separates each act or omission from the other, and whether the acts or omissions are similar or dissimilar, and, if dissimilar, whether they are jointly necessary to the achievement of the conduct that constitutes the contravention.
[148] Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626
[149] Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626, at [32]-[34] (footnotes omitted)
Subsection 557(1) of the FW Act applies only to the civil remedy provisions listed in s 557(2). These include s 44(1) and s 536(1), (2), and (3); but s 557(2) does not include s 340(1) of the FW Act.
The third step contained in the passage from the judgment of Bromwich J in New Shanghai requires the Court to consider whether there is any overlap “between groups of separate aggregated contraventions” to ensure the same conduct is not penalised twice and, if there is an overlap, whether there should be “further adjustment”. Bromwich J did not expressly describe the nature of the adjustment that may need to be made to avoid a double penalty; but the passage suggests that the adjustment is to be made by further aggregation. That is apparent from the fourth step the passage identifies, namely, the consideration of “the appropriate penalty in respect of each final individual group of contraventions, taken in isolation” (emphasis added).
Given s 557(1) of the FW Act, however, there would appear to be no further room to treat two or more contraventions as one contravention by applying what is often referred to as the “one transaction principle” or the “course of conduct principle”. That is what Bromwich J concluded in Fair Work Ombudsman v Lohr, where his Honour accepted the FWO’s submission that s 557 of the FW Act “is the express statutory manifestation of the one transaction or course of conduct principle”; that by “enacting s.557 Parliament has determined how multiple contraventions arising from a course of conduct are to be treated”; and that, once s 557 has been applied it is not open to “further consolidate the … contraventions into one contravention by applying that principle, in effect, again”.[150] That is also what the Full Federal Court held in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union:[151]
The important point to emphasise is that the course of conduct principle, in the criminal context at least, does not operate to permit a sentencing judge to impose a single sentence in respect of multiple offences on the basis that the offences formed part of a course of conduct. Absent a statutory provision that provides otherwise, a sentencing judge is to impose a separate sentence, albeit with the option of concurrency, for each offence.
. . . .
The important point to emphasise is that, contrary to the Commissioner’s submissions, neither the course of conduct principle nor the totality principle, properly considered and applied, permit, let alone require, the Court to impose a single penalty in respect of multiple contraventions of a pecuniary penalty provision. . . . That is not to say that the Court can impose a single penalty in respect of each course of conduct. Likewise, there is no doubt that in an appropriate case involving multiple contraventions, the Court should, after fixing separate penalties for the contraventions, consider whether the aggregate penalty is excessive. If the aggregate is found to be excessive, the penalties should be adjusted so as to avoid that outcome. That is not to say that the Court can fix a single penalty for the multiple contraventions.
[150] Fair Work Ombudsman v Lohr [2018] FCA 5, at [33]
[151] [2017] FCAFC 113, at [114], [148] (Dowsett, Greenwood, and Wigney JJ)

Thus, the third step when assessing multiple contraventions of provisions of the FW Act is to provisionally assess the appropriate penalty for each contravention, including each set of contraventions, which, because of s 557(1) of the FW Act, are to be treated as single contraventions.
The fourth step is to consider whether any adjustment should be made to the penalties that have been (provisionally) considered to be appropriate for the contraventions in question. That involves applying what is often referred to as the “one transaction principle”, which has been described as follows:[152]
At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
[152] Royer v Western Australia [2009] WASCA 139, at [22]
Lockhart J stated the principle in the context of the imposition of penalties for contraventions of provisions of the Trade Practices Act 1974 (Cth) in Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd:[153]
Guidance is given in the field of sentencing for criminal offences by the well-known principle that where several offences are heard together and arise out of the same transaction it is a sound working rule that the sentences imposed for those offences should be made concurrent; it is inappropriate to sentence consecutively when the offences were all really involved in the same episode . . .
[153] Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd [1980] FCA 47; (1980) 44 FLR 149; (1980) ATPR 40-161, at 42, 277
The Full Federal Court has confirmed the relevance of the “one transaction principle” in the assessment of multiple contraventions of a single civil remedy provision in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union:[154]
There is no doubt that, in an appropriate case involving multiple contraventions, the Court should consider whether the multiple contraventions arose from a course or separate courses of conduct. If the contraventions arose out of a course of conduct, the penalties imposed in relation to the contraventions should generally reflect that fact, otherwise there is a risk that the respondent will be doubly punished in respect of the relevant acts or omissions that make up the multiple contraventions.
[154] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, at [148] (Dowsett, Greenwood, and Wigney JJ)
There are two matters to note about the application of the “one transaction principle”. First, the principle does not relieve the Court from assessing a penalty for each contravention, even if the contravention arose out of a course of conduct.[155] Second, “even if the contraventions are properly characterised as arising from a single course of conduct, a judge is not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of the contraventions”.[156]
[155] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, at [114], [148] (Dowsett, Greenwood, and Wigney JJ)
[156] Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73, at [235] (Allsop CJ, Middleton and Robertson JJ)
The fifth step consists of the application of the “totality principle”. Under that principle, a sentencing judge is required “to impose a sentence or sentences which reflect the overall criminality of the offending for which the offender has been convicted”.[157] In R v Holder Street CJ described the principle as follows:[158]
The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight-forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
[157] Contin v The Queen [2012] VSCA 247, at [38]
[158] R v Holder (1983) 3 NSWLR 245, at page 260
The totality principle has been held to apply to the assessment of pecuniary penalties.[159]
Application
[159] Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59, at [41]
Identification of contraventions
I have found that MMPL and Mr Matteson (as a person involved) engaged in the following contravening conduct:

Contravening conduct Provision contravened

Contravention 1: Failing to pay Ms Hill for ordinary hours worked (including casual loading) Clause 20.1 (read with cl 13.1) of the Award, and therefore s 45 of the FW Act

Contravention 2: Failing to pay to Ms Hill for ordinary hours worked on Saturdays, Sundays, and public holidays Clause 34.1 of the Award, and therefore s 45 of the FW Act

Contravention 3: Failing to make superannuation contributions Clause 30.2(a) of the Award, and therefore s 45 of the FW Act

Contravention 4: Failing to provide pay slips Subsection 536(1) of the FW Act

Grouping under s 557(1) of the FW Act

MMPL contravened on multiple occasions each of cl 20.1 (read with cl 13.1), cl 34.1, and cl 30.2(a) of the Award, and s 536(1) of the FW Act. Subsection 557(1) of the FW Act, therefore, applies to the multiple contraventions of each of these clauses of the Award, and of s 536(1) of the FW Act.
In reasons for judgment that I will publish at the time I publish these reasons for judgment (Mathieson Judgment),[160] I have also found that MMPL and Mr Matteson (as a person involved) engaged, in relation to Ms Mathieson, in multiple contraventions of cl 20.1, cl 34.1, cl 30.2(a) of the Award, and also of s 536(1) of the FW Act. Subsection 557(1) of the FW Act applies to MMPL’s multiple contraventions of these clauses of the Award and of s 536(1), even though MMPL contravened them in relation to two different employees.[161] That means the one pecuniary penalty must be assessed in relation to each of Contraventions 1, 2, 3, and 4 as they related to Ms Mathieson and Ms Hill.[162]
[160] Mathieson v McKenzie Matteson Pty Ltd as Trustee for McKenzie Matteson Family Trust [2023] FedCFamC2G 342
[161] This follows from what I held in Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626, at [32]: Subsection 557(1) “of the FW Act applies to the multiple contravention of the one term of a modern award, even where the contravention may affect two or more persons”.
[162] Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481, at [166]: “For the reasons I have outlined above, I am satisfied that, even allowing for the fact that there are separate contraventions recorded by the declarations, it is appropriate that there be one penalty imposed on each of the respondents in each of the proceedings, having regard to the course of conduct principle.”
The contraventions in relation to which penalties are to be assessed, therefore, are as follows:

Contravening conduct Provision contravened

Contravention 1: Failing to pay Ms Mathieson and Ms Hill for ordinary hours worked (excluding work performed on Saturdays, Sundays, and public holidays) Clause 20.1 (read with cl 13.1) of the Award, and therefore s 45 of the FW Act

Contravention 2: Failing to pay Ms Mathieson and Ms Hill for ordinary hours worked on Saturdays, Sundays, and public holidays Clause 34.1 of the Award, and therefore s 45 of the FW Act

Contravention 3: Failing to make superannuation contributions in relation to Ms Mathieson and Ms Hill Clause 30.2(a) of the Award, and therefore s 45 of the FW Act

Contravention 4: Failing to provide pay slips to Ms Mathieson and Ms Hill Subsection 536(1) of the FW Act

Assessment of penalties before adjustment

I have identified in the Mathieson Judgment the relevant factors in relation to Contraventions 1, 2, 3, and 4 as follows:
(a)MMPL’s contraventions occurred from 13 March 2019 to 29 November 2019; they were systematic; and, I have found, deliberate. MMPL failed to comply entirely or almost entirely with all of the clauses of the Award, other than cl 20.1, and MMPL failed to comply almost entirely with s 536(1) of the FW Act. The amount of the underpayments, and the amount of the unpaid superannuation, are significant. These matters point to a penalty on the higher end of the scale.
(b)There is no evidence that Mr Matteson is no longer or does not intend to participate in a business; for that reason the penalties should incorporate an element for specific deterrence.
(c)General deterrence is an important factor. MMPL’s contraventions relate to the terms of an Award, which, like all modern awards, establish the basic entitlements of employees covered by the Award. The penalty should therefore be set to deter employers who might be tempted to flout provisions of awards.
(d)There is no evidence of contrition or corrective action. Some credit, however, should be given to MMPL and Mr Matteson for admitting in relation to Ms Mathieson, that she had worked the days and hours she claimed to have worked.
In the Mathieson Judgment I assessed the penalties for Contraventions 1, 2, 3, and 4 as follows:

Contravening conduct Provision contravened Penalty MMPL (Mr Matteson) (% maximum)

Contravention 1: Failing to pay Ms Mathieson and Ms Hill for ordinary hours worked (excluding penalty rates for work performed on Saturdays, Sundays, and public holidays) Clause 20.1 of the Award, and therefore s 45 of the FW Act $18,900 ($3,780) (30%)

Contravention 2: Failing to pay Ms Mathieson and Ms Hill for ordinary hours worked on Saturdays, Sundays, and public holidays Clause 34.1 of the Award, and therefore s 45 of the FW Act $44,100 ($8,820) (70%)

Contravention 3: Failing to make superannuation contributions in relation to Ms Mathieson and Ms Hill Clause 30.2(a) of the Award, and therefore s 45 of the FW Act $44,100 ($8,820) (70%)

Contravention 4: Failing to provide pay slips to Ms Mathieson and Ms Hill Subsection 536(1) of the FW Act $44,100 ($8,820) (70%)

TOTAL $151,200 ($30,240)

Adjustments?

In the Mathieson Judgment I decided that no adjustment is required under the one transaction principle. I did decide, however, that the penalties as a whole overstate MMPL’s contravening conduct, viewed as a whole. I therefore decided to adjust the overall amount to $126,316 for MMPL, and $25,263.20 for Mr Matteson, which is approximately 83.54% of the total amount assessed for Contraventions 1, 2, 3, and 4. I therefore propose to order the following penalties.

Contravening conduct Provision contravened Penalty MMPL (Mr Matteson) (% maximum)

Contravention 1: Failing to pay Ms Mathieson and Ms Hill for ordinary hours worked (excluding penalty rates for work performed on Saturdays, Sundays, and public holidays) Clause 20.1 of the Award, and therefore s 45 of the FW Act $15,790 ($3,158) (30%)

Contravention 2: Failing to pay Ms Mathieson and Ms Hill for ordinary hours worked on Saturdays, Sundays, and public holidays) Clause 34.1 of the Award, and therefore s 45 of the FW Act $36,842 ($7,368.40) (70%)

Contravention 3: Failing to make superannuation contributions in relation to Ms Mathieson and Ms Hill Clause 30.2(a) of the Award, and therefore s 45 of the FW Act $36,842 ($7,368.40) (70%)

Contravention 4: Failing to provide pay slips to Ms Mathieson and Ms Hill Subsection 536(1) of the FW Act $36,842 ($7,368.40) (70%)

TOTAL $126,316 ($25,263.20)

To whom penalties should be paid

Subsection 546(3)(c) of the FW Act provides that the Court may order that a pecuniary penalty be paid to a “particular person”. Ms Hill is in the position of the applicant in Sayed v Construction, Forestry, Mining and Energy Union:[163]
In this appeal . . . the policy considerations of s 546(3) “speak loudly” in the circumstances to justify the payment of the penalty imposed to the individual affected by the contravention who, under the authority of the FW Act, commenced and maintained this enforcement proceeding. If [the applicant] had not pursued the action, it is unlikely that it would have been pursued. [The applicant] took on the proceeding at obvious cost to himself.
[163] Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4, at [116]
It is appropriate, and I therefore propose, to make an order under s 546(3)(c) of the FW Act that the penalties I propose MMPL and Mr Matteson pay in relation to Contraventions 1, 2, 3, and 4 be paid to Ms Mathieson and to Ms Hill in the proportion of 3:1; that is, 75% to Ms Mathieson, and 25% to Ms Hill. This proportion broadly reflects the relative periods for which Ms Mathieson and Ms Hill were employed by MMPL. This translates to MMPL and Mr Matteson paying the penalties I propose to impose as follows:
(a) MMPL:

Contravention Penalty Payable to Ms Mathieson Payable to Ms Hill

1 $15,790 $11,842.50 $3,947.50

2 $36,842 $27,631.50 $9,210.50

3 $36,842 $27,631.50 $9,210.50

4 $36,842 $27,631.50 $9,210.50

Amount payable $126,316 $94,737 $31,579
(b) Mr Matteson:

Contravention Penalty Payable to Ms Mathieson Payable to Ms Hill

1 $3,158 $2,368.50 $789.50

2 $7,368.40 $5,526.30 $1,842.10

3 $7,368.40 $5,526.30 $1,842.10

4 $7,368.40 $5,526.30 $1,842.10

Amount payable $25,263.20 $18,947.40 $6,315.80

SD PROCEEDING

Given I have not accepted Ms Hill’s evidence in relation to the alleged sexual harassment incidents, it follows that Ms Hill’s claims under s 46PO of the AHRC Act must fail.
DISPOSITION
In the FW proceeding I propose to make declarations that MMPL contravened s 45 and s 536(1) of the FW Act, and that Mr Matteson was involved in those contraventions. I also propose to order:
(a)pursuant to s 545(2)(b) of the FW Act, that MMPL pay to Ms Hill $2,114.89, being the sum of $1,823.29 and interest from 29 November 2019 (the date on which MMPL terminated Ms Hill’s employment ) up to 5 May 2023, (the date on which I propose to pronounce orders) as calculated in paragraph 191 below;
(b)pursuant to s 545(1) of the FW Act, that, within 21 days from the day on which I pronounce orders, MMPL, pay $531.41, being the sum of the $458.21 superannuation contribution MMPL failed to make and interest from 29 November 2019 (the date on which MMPL terminated Ms Hill’s employment ) up to 5 May 2023, (the date on which I propose to pronounce orders) as calculated in paragraph 192 below;
(c)pursuant to s 545(2)(b) of the FW Act, that Mr Matteson pay to Ms Hill $1,833.50, being the sum of $1,580.90 and interest from 29 November 2019 (the date on which MMPL terminated Ms Hill’s employment ) up to 5 May 2023, (the date on which I propose to pronounce orders) as calculated in paragraph 193 below;
(d)pursuant to s 545(1) of the FW Act, that, within 21 days from the day on which I pronounce orders, Mr Matteson, pay $460.90, being the sum of the $397.30 superannuation contribution MMPL failed to make and interest from 29 November 2019 (the date on which MMPL terminated Ms Hill’s employment ) up to 5 May 2023, (the date on which I propose to pronounce orders) as calculated in paragraph 194 below;
(e)pursuant to s 546(1) of the FW Act that MMPL and Mr Matteson pay the pecuniary penalties I have assessed in relation to Contraventions 1, 2, 3, and 4; and
(f)pursuant to s 546(3)(c) of the FW Act, within 28 days after the day I pronounce orders:
(i)MMPL pay $31,579 of the pecuniary penalties referred to in (e) to Ms Hill; and
(ii)Mr Matteson pay $6,315.80 of the pecuniary penalties referred to in (e) to Ms Hill.
I have calculated interest on $1,823.29 as follows:

Period start Period end Days Interest rate Amount

29.11.2019 31.12.2019 33 5.25% $8.70

01.01.2020 30.06.2020 182 4.75% $43.10

01.07.2020 31.12.2020 184 4.25% $39.00

01.01.2021 30.06.2021 181 4.10% $37.10

01.07.2021 31.12.2021 184 4.10% $37.70

01.01.2022 30.06.2022 181 4.10% $37.10

01.07.2022 31.12.2022 184 4.85% $44.60

01.01.2023 05.05.2023 125 7.10% $44.30

TOTAL $291.60

I have calculated interest on $458.21 as follows:

Period start Period end Days Interest rate Amount

29.11.2019 31.12.2019 33 5.25% $2.20

01.01.2020 30.06.2020 182 4.75% $10.80

01.07.2020 31.12.2020 184 4.25% $9.80

01.01.2021 30.06.2021 181 4.10% $9.30

01.07.2021 31.12.2021 184 4.10% $9.50

01.01.2022 30.06.2022 181 4.10% $9.30

01.07.2022 31.12.2022 184 4.85% $11.20

01.01.2023 05.05.2023 125 7.10% $11.10

TOTAL $73.20

I have calculated interest on $1,580.90 as follows:

Period start Period end Days Interest rate Amount

29.11.2019 31.12.2019 33 5.25% $7.50

01.01.2020 30.06.2020 182 4.75% $37.30

01.07.2020 31.12.2020 184 4.25% $33.80

01.01.2021 30.06.2021 181 4.10% $32.10

01.07.2021 31.12.2021 184 4.10% $32.70

01.01.2022 30.06.2022 181 4.10% $32.10

01.07.2022 31.12.2022 184 4.85% $38.70

01.01.2023 05.05.2023 125 7.10% $38.40

TOTAL $252.60

I have calculated interest on $397.30 as follows:

Period start Period end Days Interest rate Amount

29.11.2019 31.12.2019 33 5.25% $1.90

01.01.2020 30.06.2020 182 4.75% $9.40

01.07.2020 31.12.2020 184 4.25% $8.50

01.01.2021 30.06.2021 181 4.10% $8.10

01.07.2021 31.12.2021 184 4.10% $8.20

01.01.2022 30.06.2022 181 4.10% $8.10

01.07.2022 31.12.2022 184 4.85% $9.70

01.01.2023 05.05.2023 125 7.10% $9.70

TOTAL $63.60

As for the SD proceeding, I propose to make an order dismissing it.

I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 5 May 2023

File number(s):	SYG 567 of 2020 SYG 1845 of 2020
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	5 May 2023
Catchwords:	INDUSTRIAL LAW – application under the Fair Work Act 2009 (Cth) (FW Act) for remedies in relation to asserted failure by employer to pay amounts owing under award – relief granted and pecuniary penalties imposed – application under s 340(1) of the FW Act – whether employer terminated applicant’s employment because applicant made complaints or enquiries in relation to her employment – even if complaints or enquiries made employer terminated applicant’s employment for reasons that did not include as a substantial and operative factor the applicant’s having made complaints or enquiries in relation to her employment. HUMAN RIGHTS – Sexual discrimination – application for relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) based on alleged sexual harassment contrary to s 28B of the Sex Discrimination Act 1984 (Cth) – whether respondent engaged in alleged acts of sexual harassment – evidence of applicant not accepted – application dismissed.
Legislation:	Australian Human Rights Commission Act 1986 (Cth) s 46PO Crimes Act 1914 (Cth) s 4AA Evidence Act 1995 (Cth) s 140 Fair Work Act 2009 (Cth) ss 12, 44, 45, 323(1), 340(1), 341(1)(c), 342(1), 360, 361(1), 536, 539(1), 539(2), 545(1), 545(2), 546(1), 546(2), 546(3)(c), 547(2), 550, 557, 557C Sex Discrimination Act 1984 (Cth) s 28B Fair Work Regulations 2009 (Cth) reg 3.46 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06(1)(e) Restaurant Industry Award 2010 cls 13.1, 20.1, 30.2(a), 34.1
Cases cited:	Alam v National Australia Bank Limited [2021] FCAFC 178 Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 Australian Building and Construction Commissioner v Parker [2017] FCA 564 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 Berlyn v Brouskos (2002) 134 A Crim R 111 Blatch v Archer (1774) 1 Cowp. 63; 98 ER 969 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Briginshaw v Briginshaw (1938) 60 CLR 336 Carbo v United States 314 F2d 718 (9th Cir 1963) Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2018] FCAFC 97 Contin v The Queen [2012] VSCA 247 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59 El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260 EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch) Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626 Fair Work Ombudsman v Chatime Australia Pty Ltd [2022] FedCFamC2G 934 Fair Work Ombudsman v Lohr [2018] FCA 5 Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 Henderson v Queensland [2014] HCA 52 Indiana Metal Products v National Labor Relations Board 442 F2d 46 (7th Cir 1971) Kassem & Ors v Minister for Immigration & Anor (No.2) [2020] FCCA 1834 Mathieson v McKenzie Matteson Pty Ltd as Trustee for McKenzie Matteson Family Trust [2023] FedCFamC2G 342 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481 R v Holder (1983) 3 NSWLR 245 Royer v Western Australia [2009] WASCA 139 Russo v Aiello [2003] HCA 53 Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2022] FedCFamC2G 595 The Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd [1980] FCA 47; (1980) 44 FLR 149; (1980) ATPR 40-161 Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 Yalda v Consulate General of the Republic of Iraq, Sydney [2021] FCCA 499
Division:	Fair Work and General
Number of paragraphs:	195
Date of last submission/s:	6 April 2023
Date of hearing:	22 February 2022
Solicitor for the Applicant:	Mr R Aslanian of Connect Legal, by telephone
The Respondents:	No appearance by, or on behalf of, the respondents

SYG 567 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ELISABETH HILL Applicant
AND:	MCKENZIE MATTESON PTY LTD (ABN: 625 953 488) AS THE TRUSTEE FOR MCKENZIE MATTESON FAMILY TRUST (ABN 42 516 004 223) First Respondent SCOTT ANDREW MATTESON Second Respondent

order made by:	JUDGE MANOUSARIDIS
DATE OF ORDER:	5 may 2023

Contravening conduct	Provision contravened	Penalty (payable by)
Contravention 1: Failing to pay the applicant and another employee, being Kate Mathieson, the applicant in proceeding SYG562/2020, for ordinary hours worked (excluding penalty rates for work performed on Saturdays, Sundays, and public holidays)	Clause 20.1 of the Award, and therefore s 45 of the FW Act	$15,790 (first respondent) $3,158 (second respondent)
Contravention 2: Failing to pay the applicant and Kate Mathieson for ordinary hours worked on Saturdays, Sundays, and public holidays	Clause 34.1 of the Award, and therefore s 45 of the FW Act	$36,842 (first respondent) $7,368.40 (second respondent)
Contravention 3: Failing to make superannuation contributions in relation to the applicant and Kate Mathieson	Clause 30.2(a) of the Award, and therefore s 45 of the FW Act	$36,842 (first respondent) $7,368.40 (second respondent)
Contravention 4: Failing to provide pay slips to the applicant and to Kate Mathieson	Subsection 536(1) of the FW Act	$36,842 (first respondent) $7,368.40 (second respondent)
TOTAL	$126,316 (first respondent) $25,263.20 (second respondent)

Contravention	Penalty	Payable to Kate Mathieson	Payable to the applicant
1	$15,790	$11,842.50	$3,947.50
2	$36,842	$27,631.50	$9,210.50
3	$36,842	$27,631.50	$9,210.50
4	$36,842	$27,631.50	$9,210.50
TOTAL	$126,316	$94,737	$31,579

SYG 1845 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ELISABETH HILL Applicant
AND:	MCKENZIE MATTESON PTY LTD (ABN: 625 953 488) AS THE TRUSTEE FOR MCKENZIE MATTESON FAMILY TRUST (ABN 42 516 004 223) First Respondent SCOTT ANDREW MATTESON Second Respondent

Contravening conduct	Provision contravened
Contravention 1: Failing to pay Ms Hill for ordinary hours worked (including casual loading)	Clause 20.1 (read with cl 13.1) of the Award, and therefore s 45 of the FW Act
Contravention 2: Failing to pay to Ms Hill for ordinary hours worked on Saturdays, Sundays, and public holidays	Clause 34.1 of the Award, and therefore s 45 of the FW Act
Contravention 3: Failing to make superannuation contributions	Clause 30.2(a) of the Award, and therefore s 45 of the FW Act
Contravention 4: Failing to provide pay slips	Subsection 536(1) of the FW Act

Contravening conduct	Provision contravened
Contravention 1: Failing to pay Ms Mathieson and Ms Hill for ordinary hours worked (excluding work performed on Saturdays, Sundays, and public holidays)	Clause 20.1 (read with cl 13.1) of the Award, and therefore s 45 of the FW Act
Contravention 2: Failing to pay Ms Mathieson and Ms Hill for ordinary hours worked on Saturdays, Sundays, and public holidays	Clause 34.1 of the Award, and therefore s 45 of the FW Act
Contravention 3: Failing to make superannuation contributions in relation to Ms Mathieson and Ms Hill	Clause 30.2(a) of the Award, and therefore s 45 of the FW Act
Contravention 4: Failing to provide pay slips to Ms Mathieson and Ms Hill	Subsection 536(1) of the FW Act

Contravening conduct	Provision contravened	Penalty MMPL (Mr Matteson) (% maximum)
Contravention 1: Failing to pay Ms Mathieson and Ms Hill for ordinary hours worked (excluding penalty rates for work performed on Saturdays, Sundays, and public holidays)	Clause 20.1 of the Award, and therefore s 45 of the FW Act	$18,900 ($3,780) (30%)
Contravention 2: Failing to pay Ms Mathieson and Ms Hill for ordinary hours worked on Saturdays, Sundays, and public holidays	Clause 34.1 of the Award, and therefore s 45 of the FW Act	$44,100 ($8,820) (70%)
Contravention 3: Failing to make superannuation contributions in relation to Ms Mathieson and Ms Hill	Clause 30.2(a) of the Award, and therefore s 45 of the FW Act	$44,100 ($8,820) (70%)
Contravention 4: Failing to provide pay slips to Ms Mathieson and Ms Hill	Subsection 536(1) of the FW Act	$44,100 ($8,820) (70%)
TOTAL	$151,200 ($30,240)

Contravention	Penalty	Payable to Ms Mathieson	Payable to Ms Hill
1	$15,790	$11,842.50	$3,947.50
2	$36,842	$27,631.50	$9,210.50
3	$36,842	$27,631.50	$9,210.50
4	$36,842	$27,631.50	$9,210.50
Amount payable	$126,316	$94,737	$31,579

Period start	Period end	Days	Interest rate	Amount
29.11.2019	31.12.2019	33	5.25%	$8.70
01.01.2020	30.06.2020	182	4.75%	$43.10
01.07.2020	31.12.2020	184	4.25%	$39.00
01.01.2021	30.06.2021	181	4.10%	$37.10
01.07.2021	31.12.2021	184	4.10%	$37.70
01.01.2022	30.06.2022	181	4.10%	$37.10
01.07.2022	31.12.2022	184	4.85%	$44.60
01.01.2023	05.05.2023	125	7.10%	$44.30
TOTAL	$291.60