Lin v Max Bean Pty Ltd - [2023] FedCFamC2G 1127

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lin v Max Bean Pty Ltd [2023] FedCFamC2G 1127

File number(s): MLG 2956 of 2021

Judgment of: JUDGE MANSINI

Date of judgment: 30 November 2023

Catchwords: INDUSTRIAL LAW – FAIR WORK – alleged contraventions of general protections provisions, underpayments and failures to keep records – findings that the First Respondent contravened ss.44, 45, 323, 340 and 343 of the Fair Work Act 2009 (Cth) – where Second and Third Respondents were variously involved within the meaning of s.550 – declarations made – penalty and relief to be addressed separately.

Legislation:
Fair Work Act 2009 (Cth) ss.3, 12, 26, 44, 45, 90, 97, 99, 117, 125, 323, 324, 340, 341, 342, 343, 360, 361, 365, 368, 386, 535, 536, 539, 545, 546 550, 739, 793

Fair Work Regulations 2009 (Cth)

Food, Beverage and Tobacco Manufacturing Award 2020 cls.4, 10, 23, 25, 26

Wage Theft Act 2020 (Vic)

Cases cited:
Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union & Anor [2000] FCA 1793

Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72

Fair Work Ombudsman v DTF World Square Pty Lty (in liq) (No 3) [2023] FCA 201

Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627

Pau Soon Lin v Max Bean Pty Ltd [2021] FWC 6268

QantasAirways Limited v Transport Workers Union of Australia [2023] HCA 27

Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202

Division: Division 2 General Federal Law

Number of paragraphs: 170

Date of last submission/s: 27 February 2023

Date of hearing: 8 March 2023

Place: Melbourne

The Applicant: Appeared in person

The First Respondent: No appearance

The Second Respondent Appeared in person

The Third Respondent Appeared in person
ORDERS

MLG 2956 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PAU SOON LIN

Applicant

AND:
MAX BEAN PTY LTD

First Respondent

MS XIAO XIAO

Second Respondent

MS KIM WANG

Third Respondent

ORDER MADE BY:

JUDGE MANSINI

DATE OF ORDER:

30 NOVEMBER 2023

THE COURT DECLARES THAT:
1.The Third Respondent and, pursuant to s.793 of the Fair Work Act 2009 (Cth), also the First Respondent:
(a)dismissed the Applicant on 30 September 2021 for reasons that included that the Applicant proposed to exercise his workplace right to take paid personal leave on 30 September 2021, in contravention of s.340 of the Fair Work Act; and
(b)threatened to dismiss the Applicant on 30 September 2021 with the intent to coerce the Applicant not to exercise his right to take paid personal leave on 30 September 2021, in contravention of s.343 of the Fair Work Act.

2.The Second Respondent was involved, within the meaning of s.550 of the Fair Work Act, in the contraventions of ss.340 and 343 of the Fair Work Act subject of declarations 1(a) and (b).
3.The First Respondent contravened ss.45 and 323 of the Fair Work Act by not paying the Applicant the 25% casual loading on the relevant ordinary rate of pay to which he was entitled under cl.10.1 of the Award for the period 27 July 2020 to 4 July 2021.
4.The First Respondent contravened ss.45 and 323 of the Fair Work Act by not paying the Applicant for overtime worked per cl.23.2 of the Award and to which he was entitled in the period 5 July 2021 to 30 September 2021.
5.The First Respondent contravened ss.45 and 323 of the Fair Work Act by not paying the Applicant the annual leave loading component for leave taken on 20 August 2021 to which he was entitled under cl.25.6 of the Award.
6.The First Respondent contravened s.44 of the Fair Work Act by its failure to pay one weeks’ notice pay to the Applicant following his dismissal, pursuant to s.117(2)(b) of the National Employment Standards in the Fair Work Act.
7.The First Respondent contravened s.44 of the Fair Work Act when it did not pay the Applicant for personal/carer’s leave being for 30 September 2021 pursuant to s.99 of the Fair Work Act.
8.The First Respondent contravened s.45 of the Fair Work Act when it did not pay annual leave loading on the Applicant’s accrued but unused annual leave following his dismissal pursuant to cl.25.12 of the Award.
9.The Second Respondent was involved, within the meaning of s.550 of the Fair Work Act, in the contraventions subject of declarations 3, 4, 5, 6, 7, and 8.

THE COURT ORDERS THAT:
10.To the extent of any contraventions plead in the amended statement of claim but not made out in accordance with these reasons, the application is dismissed.
11.To the extent of the contraventions made out in accordance with these reasons and subject of declarations 1 to 9, this matter will be subject of a separate program for filing of evidence and a hearing on the question of penalty and relief (if any).

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY

This is an application under the Fair Work Act 2009 (Cth) involving allegations of dismissal from employment for a prohibited reason and various underpayment claims.
The matter involves the following parties:
(a)Max Bean Pty Ltd is the First Respondent company, which operated (and operates) a food manufacturing business located at Fairfield, in the State of Victoria;
(b)Ms Xiao Xiao is the Second Respondent, who is and was at all material times a director of the Company;
(c)Ms Kim Wang is the Third Respondent, who is and was at all material times the factory manager of the First Respondent; and
(d)Mr Pau Soon Lin is the Applicant, who was employed by the company as a factory worker for some 14 months prior to his dismissal.
At the time of his dismissal, the Applicant was unwell and not at work. Central to the dispute was whether the Applicant was terminated and if so for reasons which included an intent to coerce him not to exercise or the proposed exercise of his right to take personal/carer’s leave.
Additionally, and although there is no dispute that the Applicant was not correctly paid certain entitlements during his employment for the company, the nature and quantum of those underpayments was in issue.
For the reasons that follow, I have determined that the company took adverse action against the Applicant by dismissing him from his employment and further contravened ss.44, 45, 323, 340 and 343 of the Fair Work Act, that the Second and Third Respondent were variously involved in the contraventions and to hear separately about the appropriate relief in the form of penalties and compensation (if any) for those contraventions.
APPLICATION BEFORE THE COURT
The claim
By the pleadings (the amended statement of claim filed 3 February 2023), the Applicant was understood to seek declarations that the First Respondent had contravened the Fair Work Act. Specifically:
(a)The general protections provisions at ss.340 and 343;
(b)The minimum payment provisions and the National Employment Standards at ss.44, 45, 90, 99, 117, 125, 323; and
(c)The record-keeping and payslip provisions at ss.535 and 536 of the Fair Work Act,
and further, that the Second and Third Respondents, by their involvement in these alleged contraventions, were involved within the meaning of s.550 of the Fair Work Act.
Although the pleadings included claims that the First Respondent had contravened the Wage Theft Act 2020 (Vic), the Court was not addressed about its jurisdiction to determine claims under both the Fair Work Act and the Wage Theft Act. More specifically, the Court was not addressed about whether the Wage Theft Act is a “general State industrial law” that is excluded from application of the Fair Work Act (pursuant to s.26) or whether the Wage Theft Act claims were otherwise sought to be pursued in the Court’s accrued jurisdiction. In any event, by the various submissions made in writing (which the Applicant said were prepared with assistance of a lawyer) and orally to the Court, the material was entirely focussed on the claims arising under the Fair Work Act. The Fair Work Act attracts a civil standard of proof and a reverse onus (distinct from a criminal standard, beyond reasonable doubt, under the Wage Theft Act). By the approach taken to the presentation of his claim and evidence, the Applicant was understood to have elected to pursue the Fair Work Act claims and did not press the components of the pleadings that related to the Wage Theft Act. These reasons proceed on that basis.
In addition to declarations of certain contraventions, the pleadings articulated relief sought as follows:
(a)An order that the First Respondent company (either wholly or jointly and severally with the Second and Third Respondents) pay compensation to the Applicant for economic loss for underpayment of wages and entitlements of $24,452.83;
(b)An order that the First Respondent company (either wholly or jointly and severally with the Second and Third Respondents) pay interest on the amounts ordered to be paid by the Court at the applicable pre-judgment rate;
(c)An order imposing pecuniary penalties and that such penalty be paid to the Applicant within 28 days of the Court’s orders;
(d)Damages for loss of earnings of $25,000 and for hurt, loss and humiliation; and
(e)Liberty to apply in the event of non-compliance with the Court’s orders, that the Applicant’s legal costs be paid and any other orders the Court deems appropriate.
By their defence (which was not amended following the amended statement of claim), contraventions of s.44, 45 and 125 (and, in part, s.536) were admitted as against the First Respondent and Second Respondent, while the Third Respondent denied any finding that she was involved in those or any of the alleged contraventions. The Respondents also disputed the quantum of the underpayment owing to the Applicant and otherwise opposed the relief sought by the Applicant.
Evidence and other documents before the Court
The following affidavits were filed during the course of the proceedings:
(a)Affidavit of the Applicant sworn 31 August 2022 (Applicant’s First Affidavit);
(b)Affidavit of the Applicant sworn 21 December 2022 (Applicant’s Second Affidavit);
(c)Affidavit of Pei Shean Sim (the Applicant’s wife) sworn 30 August 2022;
(d)Affidavit of the Second Respondent sworn 14 November 2022; and
(e)Affidavit of the Third Respondent sworn 14 November 2022.
The following documents were also filed during the course of the proceedings:
(a)On 18 November 2021, the Applicant filed an originating application and a statement of claim;
(b)On 8 February 2022, the Respondents filed a response and a defence;
(c)On 23 February 2022, the Applicant filed a reply;
(d)On 16 January 2023, the Applicant filed an outline of written submissions;
(e)On 24 January 2023, the First Respondent, Second Respondent and the Third Respondent each filed an outline of written submissions;
(f)On 3 February 2023, the Applicant filed an amended statement of claim accompanied by an additional document detailing the calculations related to each claim;
(g)On 17 February 2023, the Applicant filed a document titled statement of agreed facts which was not received as such given the Applicant accepted it contained disputed matters (he had prepared his own account and sought the Respondents’ input, but they never replied);
(h)On 20 February 2023, the Respondents filed an outline of written submissions; and
(i)On 27 February 2023, the Applicant filed an outline of written submissions in reply.
Procedural context
Since the original application was filed on 18 November 2021, the relevant procedural context is as follows.
The Applicant was initially, and until 15 August 2022, represented by a lawyer.
The three Respondents were initially, jointly and until 20 October 2022, represented by a lawyer.
After the withdrawal of legal representation, there was an attempt at mediation which was not successful and so the matter was set down for hearing to take place on 30 and 31 January 2023.
On 27 January 2023, the hearing was adjourned to take place on 8 and 9 March 2023 and programming orders were made in the following terms:
3.By no later than 4.00 pm on 3 February 2023, the First Respondent is to file any application it intends to make for permission for the First Respondent company to appear unrepresented at the hearing. Such application if made must be accompanied by affidavit evidence in support.
4.By no later than 4.00 pm on 3 February 2023, the Applicant is to file and serve an amended statement of claim which sets out:
(a)the precise orders that he now seeks, with reference to the statutory power pursuant to which that order may be made;
(b)the total quantum of the alleged underpayment;
(c)the methodology/breakdown of the underpayment figure, for each class or category of alleged underpayment; and
(d)for each class or category of alleged underpayment, a reference to the evidence before the Court that supports such finding of alleged underpayment.
5.By 4.00pm on 10 February 2023, the parties are to file and serve any application to bring further evidence in these proceedings including to articulate why further evidence is necessary.
6.By 4.00 pm on 17 February 2023, the parties are to file and serve an agreed statement of facts which includes all facts that are agreed or admitted as between the parties (for example, it would include the agreed translation of the text messages in evidence).
7.By 4.00 pm on 20 February 2023, the Respondents are to file and serve an outline of submissions in response to the amended statement of claim.
8.By 4.00 pm on 27 February 2023, the Applicant is to file and serve an outline of submissions in reply.
AND THE COURT NOTES THAT:
A.In the event of non-compliance with the above directions, pursuant to r.13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Court may determine the application as if it were undefended.
The matter proceeded to final hearing on 8 March 2023. All parties were in-person. The First Respondent was afforded permission to be represented by the Second Respondent who for that occasion requested and was afforded assistance of an interpreter.
THE EVIDENCE
The following is a summary of the evidence before the Court in this matter. Recitation of uncontentious facts constitute findings I have made.
About the Applicant
The Applicant was born in Malaysia and came to Australia as a tourist in 2016.
The Applicant subsequently obtained a temporary student visa whilst completing a Diploma in Business which permitted some work (not more than 40 hours per fortnight). The Applicant had by then also completed a Diploma in Information Technology in Malaysia.
Whilst applying for a permanent visa, the Applicant was granted a bridging visa. In 2021, the Applicant became a permanent resident of Australia.
The Applicant’s first language is Mandarin and he also speaks English and Bahasa Malaya. In evidence, the Applicant described his level of English as “intermediate” and on the Court’s assessment was competent in both his written and spoken English.
The Applicant married a Ms Pei Shean Sim in March 2021 and became a father in or around September 2022. The Applicant’s wife was employed as a full-time accountant prior to the birth of their first child.
Prior to working for the First Respondent, the Applicant had brief experience in food delivery as well as some 4 years’ experience as a retail fast food (Pizza Hut) restaurant manager. After his employment with the First Respondent came to an end, the Applicant worked as a food delivery driver. Since 15 January 2022 and at the time of the hearing, the Applicant was employed as a van driver.
About the company
The First Respondent operates (and, at the relevant times, operated) a soybean product manufacturing business at 172A Perry Street, Fairfield in the State of Victoria.
The Second Respondent is and was at all relevant times a director of the First Respondent.
The Third Respondent was formerly a director of the First Respondent. Her role at the relevant times was that of Factory Manager.
Terms and conditions of the employment relationship
In or around July 2020, the Applicant responded to an online advertisement for a casual job as a factory worker with the First Respondent. In response to his interest in the role, the Applicant received a telephone call from the Third Respondent. The Applicant recalled that the Third Respondent invited him to the factory and, after 2 hours of work, the Third Respondent advised that he was fit for the role and asked if he was willing to take the job. The Applicant said “yes” and words to the effect that he could start immediately.
On 27 July 2020, the Applicant commenced his employment with the company as a factory worker engaged on a casual basis.
Whether the First Respondent provided any written documents to the Applicant upon commencement of employment was disputed. The Applicant said he did not receive anything in writing, whereas the Second and Third Respondents said that he was given an induction form on his first day of 27 July 2020 but did not return the signed copy until later, on 8 October 2020. The induction form in evidence was marked with an employment date of 27 July 2020 and as signed by the Applicant and the Third Respondent on 8 October 2020. The induction form in evidence was a single page which relevantly included the following alongside a column which was marked to indicate that the Applicant had “completed” and had no comments on:
Employment Conditions
•Work times and meal breaks;
•Leave entitlements;
•Notification of sick leave or absence from work;
[…]
Payroll Procedures
•Pay rates;
•Taxation;
•Superannuation;
[…]
Following discussion with the Third Respondent about commencing a full-time role, on about 4 July 2021, the Applicant and the First Respondent varied the terms of the employment agreement such that the Applicant became a full-time employee (employment variation). The only written record of the employment variation was in text messages exchanged on 4 July 2021 between the Applicant and the Third Respondent. It was not contentious that the employment variation agreement was that the Applicant was to work full-time commencing 5 July 2021 which included shifts commencing at 7.30am on Monday to Friday each week, and in exchange would be paid a salary of $70,000 per annum plus superannuation and would be entitled to accrue and take paid annual leave and paid personal/carer’s leave. The Second Respondent accepted that the Third Respondent had discussed the employment variation with the Applicant but told the Court that the Second Respondent had not authorised the employment variation.
At all times, as a casual and a full-time employee, the Applicant’s role involved processing soybeans in a soybean machine to produce soy milk. The Applicant gave evidence that his duties more specifically included:
(a)processing of raw ingredients with a machine;
(b)packaging and labelling of product;
(c)pallet handling with manual forklift and despatching of product;
(d)storing of final product, raw ingredient and packaging material;
(e)refrigerating product in fridge; and cleaning and sanitising of tools, equipment and machinery; and
(f)cooking of tofu.

It was accepted that there was no forklift in the workplace and the Applicant was not required to drive a forklift in the performance of his role but he did use a pallet jack. The Applicant also accepted that he had no certificates in food processing, had no experience in soybeans but did have prior experience in food handling.
In relation to the day to day management of employment matters, the Second Respondent was understood to say in evidence that her role entails (and, at the relevant times, entailed) managing the production orders but not staff duties and pays which were the responsibility of the First and Second Respondents. The Applicant disagreed – his recollection was that he was to approach the Third Respondent for any issues about wages, leave entitlements, operations and work shifts. The Applicant produced text messages between himself and the Third Respondent, sent in April, June, July and August 2021, which evidenced an exchange which included the amount that the Third Respondent would pay the Applicant, as well as prior directions from the Third Respondent to the Applicant about shift start times and a request from the Applicant to the Third Respondent for a payslip. The Second Respondent also gave evidence that she would print payslips and ask the Third Respondent as manager to distribute them by hand to employees including the Applicant.
August 2021 communications
In mid-August 2021, the Applicant communicated with the Third Respondent by text message in which he requested to take one day off work to help his wife (to be taken on 20 August 2021). The Applicant’s Second Affidavit annexed and marked as NAATI-translated (not certified) which relevantly included the following exchange:
Applicant:                 Sat. 14 August. 07:40
Kim, 20^th/Friday I would like to take a leave. I need to help my wife to move things. Is that ok?
Third Respondent:       [no time stamp]
ok
Third Respondent:       Sat.14 Aug. 12:35
Justin, this will be the last time I approve your personal leave. I do not wish to repeat the same thing to you again and again. Unless you are really sick, I hope you do not take any more leave. The reason has been explained to you many times. If your wife is not happy with the terms I offer to you, I think I can accept your resignation. After all, your wife is more important than your work. You have been working here for almost a year. You are the one who has taken the most leave as far as I know. I do not hold any opinion against you. You always have some excuse. However, it is really unsuitable to my work. I have told you millions of times. For me, it seems a bit selfish to take so much leave. Ever since you turned full-time, your work attitude and your work performance have not matched the standard of remuneration that I offer to you. If you really feel that I have been calculating and messing with yo, I would really feel upset. John wishes to finish work earlier, I wish the same. My time for my two children is very little. With you, I have to understand and accept all kinds of requests made by you. Why should it be so hard? It is too exhausting. I hope everyone can work together happily. You can ask for high salary, but I need you to deliver the matching performance. I need you to have self-awareness I acknowledge that you may be more capable than most people, however if the problem can be resolved by money, then it is not a problem. Whether being an employee or boss, I hope you and your wife can understand, it is not easy for everyone. Before you make request to others, please consider if it is reasonable to do so. Actually for the past one year, I am really grateful to you. No matter what, you are still willing to stay with me. Anyway, you need to have a good chat with your wife. I will find a time next week to talk to you.
Applicant:                  Sat.14 Aug. 16:57
Actually I am aware of what you said. I understand it is not easy for you. I am very sorry in the past year I brought you so much inconvenience. I am an average person, not smart, just keep learning. I really wish to meet your expectation too. After all, I wish to share the load with you. But it is too hard. Perhaps when you find someone else to replace me, I will go back to casual, and once the new person gets the hand on, I will resign. I also feel bad to keep taking leave, I feel embarrassed too. Otherwise you will be tired and everyone is tired. I really feel awful that I keep troubling everyone.
Third Respondent:       Sat. 14 Aug. 18:08
to be honest, if it was not for covid, I would not have to work so hard. I know that you and John are very good employees. I am indeed quite picky. But from the beginning to end, your personality and character really please me, so I am willing to rather pay more, than cut your hours. However lately I notice that everyone has been tired, not just you, John is tired, my mum is tired, Xiaoxiao is tired too. Therefore this week I find another person to share the work. Whether you take leave or sick leave, I understand. From your perspective, there is no fault. Mainly it is difficult for me, so I have to be selfish and ask you try not to take leave. I really have no choice. Today during delivery I have thought a lot. Whether you continue to work or not, I will still have to employ more people. The machine cannot be installed as electricity supply is insufficient. Still waiting for review. I am thinking next week, let’s find a time to sit down and have a chat about how to work together in the future. I would like to hear your thoughts. I do not wish you are tired, and I do not wish myself tired either. Once people are tired, everyone will be in a bad status. I have been absentminded lately, In bad state physically, and mentally as well. You are tired, I am tired too. Everyone is tired. The money is not earnt with happiness. I do not want to do it this way. We should have a chat to see if we can still work together happily or go our separate ways.
Applicant:                  [no time stamp]
You are really a boss that there is nothing to complain about. You do everything yourself. No, you are not selfish. It is just our circumstance is more special, once one person is absent, the others will be tired, that’s why I feel very bad. It is difficult for me too. I already refused my wife last time. But due to covid, our friends cannot come over to help. I have no choice but to ask you for leave. We can see that you are very tired, so I never wish to make it difficult for you. However, what I wish and what I can do are two different things. Let’s talk more next week.
Third Respondent:       [no time stamp]
Yes, let’s sit down with John. You two help me to find more people. I still feel more comfortable to work with you two, except that you two need to work with the boss. But other than paying salary, I have always treated you two as colleagues and friends. I do not appreciate the way our elder generation works. I get involved in everything myself because I enjoy doing it myself. If I do it, I feel achievement too. If I do not get my hands on, what else do I do? You cannot take money with you when you die. We should find something happy for us to engage in, that’s what makes life meaningful.
I just feel sorry for your wife.
I reckon you must be too tired to have sex hahaha.
There were various disputes about translation however if this particular translation was disputed there was no alternate translation before the Court.
Termination of the employment
On his last day in the workplace, the Applicant spoke to a colleague (a Chin Lye Mun (“John”)). By the Applicant’s account, he told John that he was feeling sick and may take sick leave if he was not feeling well the next day. John did not file a witness statement or give evidence to the Court. The Second Respondent gave hearsay evidence of a different account, to the effect that the Applicant said he would not be at work the next day but did not mention any illness.
At 6.52am on Thursday 30 September 2021, the Applicant’s wife contacted the Third Respondent by text message. They had an exchange. The Applicant’s 31 August 2022 affidavit annexed a translation stamped as NAATI-accredited and certified, as follows:
Applicant’s wife:        Thu 30 Sep 06:52
Kim, good morning. I’m Justin’s wife. Justin started coughing last night, and it’s getting worse today. He will go to see a doctor today. I think it’s a cold, so he can’t go to work today.
Third Respondent:       Thu 30 Sep 08:13
Could you please ask Justin to tell me?
Thank you
Applicant’s wife:        [no time stamp]
He’s resting, seeing a doctor at 12.
I will ask him to call you when he wakes up.
The First and Second Respondents indicated that this translation was disputed but they did not produce an alternate translation to the Court.
In cross-examination, the Applicant was asked to explain why he did not text the employer himself to ask for sick leave. The Applicant’s evidence was that he was sick and resting and not feeling well and was unable to text the Third Respondent to say that he could not go to work. He accepted that he had not asked his wife to do so on prior occasions. The Third Respondent asked further questions about why, when the Applicant understood that the process of the soybeans could not wait for 6 hours and he was the person who ground the soybeans by the machine and there were only 3 people working that day, and why if he could tell his colleague on 29 September 2021 that he was sick, did he not contact the Third Respondent himself on 29 or 30 September 2021 to tell her that he was sick. The Applicant responded that he could not foresee the day prior (when putting the soybeans into the water) that he would be sick or worsen on the next day. He said that, on 29 September 2021 when he got home, he took a panadol but then the next day he was still sick and it was hard for him to tell the Third Respondent in advance that he was sick. The Applicant also gave evidence that he thought the Third Respondent had noticed him coughing and unwell when he was at work on 29 September 2021.
The Applicant’s wife was also cross-examined about why the Applicant was able to speak with her about his condition but not communicate directly with his employer. The Applicant’s wife responded that when she woke up to go to work at 6.00am on 30 September 2021, she saw her husband still feeling very sick and that he asked her to please help him send a message to his boss and that she only had the Third Respondent’s mobile phone number so that is who she made the message to because she left the house to go to work. When pressed, she maintained that he was very sick and in such condition that he wanted to sleep for the morning. The Applicant’s wife also said that she had booked the GP appointment for him and he did not receive the COVID-19 test result until the next day which was 1 October 2021.
At 8.14am on Thursday 30 September 2021, the Third Respondent communicated with the Applicant by text message. The next thing the Applicant did was telephone the Fair Work Ombudsman to ask for advice about his rights. The Applicant did not respond to the Third Respondent until 8.40pm that evening, which delay he said was due to his illness and shock and distress at the Third Respondent’s message. The Applicant’s evidence annexed a translation of the exchange with the Third Respondent on that day, marked as prepared by a NAATI professional translator. The Respondents did not produce their alternate translation but it was cited in a decision of the Fair Work Commission. The Applicant accepted that the difference was immaterial and the Court could receive the Respondents’ translation as before the Fair Work Commission which was as follows:
Third Respondent:       Thursday 08:14
If you do not come to work today, then you do not need to come anymore Justin. I have had enough of you fooling me around like this.
Applicant:                  Thursday 20:40
Thanks for your message. I am advised by my doctor that I need to take a covid test which I have done today, and have not received the result yet. Therefore I will be following the guideline to stay home tomorrow.
(sic.)
Third Respondent:       [no time stamp]
Be a human, Justin, good luck.
[no time stamp]
I have packed up your stuff. After you recover, please remember to pick them up. Have a good rest.
[no time stamp]
Next time you find a job and need to take leave, do not let your wife apply leave for you. It is really not cool.
[no time stamp]
good wishes.
[no time stamp]
Do not promise to your boss when you cannot make it. You waste your own time other’s as well. It is really bad. Everyone is not easy.
(sic.)
In response to questions of the Court at the hearing, the Third Respondent acknowledged that she was not happy that the Applicant had not given notice of his non-attendance sooner, because the soybean process had commenced the night before, and this placed so much pressure on her. She maintained that the company policies required a medical certificate if he wanted sick leave and that he did not ask for personal leave. She said that, because he did not follow policies and had already told others in August that he would resign, then she understood that he had already decided that he did not want to come back. When asked why then she told him by text message not to come back, she responded that was “just a warning”, she did not have authority and the Applicant knew that.
The Third Respondent also conveyed her own personal belief that the Applicant had already decided that he wanted to resign.
The Applicant accepted in cross-examination that he had previously mentioned to another colleague (a Xian Laimen) that he was studying “IT” and would look for another job in the field when he had finished his studies. However, the Applicant denied telling a colleague that he would resign and said the suggestion that he could be taken as having quit his job just because he did not attend on 30 September 2021 was not rational.
The Applicant was also asked in cross-examination about why he was too sick to telephone his employer himself to notify that he would not be at work but was able to telephone the Fair Work Ombudsman that same morning of 30 September 2021. The Applicant gave an explanation to the effect that he was stressed after the text message from the Third Respondent and wanted to understand his rights.
Also in cross-examination, the Applicant was asked to explain why he did not give the employer a medical certificate. The Applicant responded that he was unable to get one because he was instructed not to attend the medical clinic and to stay at home until he had obtained a COVID-19 test result.
On Saturday 2 October 2021, the Third Respondent again communicated with the Applicant by text message. This message was included in the Applicant’s translation marked as prepared by a NAATI professional translator. The Applicant’s translation in evidence before the Court was as follows:
Third Respondent: Sat 15:01
To date, there is still no response from you. I am tired, Justin. I will transfer $1065 to you 3 times, write you a referral letter if you need it. If you do not wish to collect your belongings, you can ask your younger sister to pick them up. Even though we do not have a happy ending, and there has been some unpleasure, when I needed the help the most, when this covid brought such big change to my life, I am still grateful from the bottom of my heart that chose to stay and help me. Though your aspiration is no longer with me, when I was at my most difficult time, you helped me without any complaints, I will remember you.
(sic.)
If the above translation was disputed, there was no equivalent alternate translation cited in the Fair Work Commission decision or in evidence before the Court.
By the translations the Applicant provided, there was a further and lengthy exchange between the Applicant and the Third Respondent on 2 and 3 October 2021 which is unnecessary to repeat here but on its face was plainly and mutually unpleasant in its tone and substance and included mutual references to taking of legal action, reiteration of the direction that the Applicant was to collect his belongings, a statement that the Applicant had given the Third Respondent a COVID-19 test result and an accusation that the Applicant took sick leave and obtained a COVID-19 test in order to fraudulently benefit from a social security payment of $450.
On 3 October 2021, the Applicant lodged a claim with the Fair Work Commission pursuant to s.365 of the Fair Work Act. In summary, by that application, the Applicant claimed that the text messages of 30 September 2021 constituted dismissal from his employment with the First Respondent in contravention of the general protections provisions of the Fair Work Act. There was no dispute that there was no formal termination letter.
On 10 October 2021, the First Respondent filed a response with the Fair Work Commission which outlined their opposition to the claim on grounds that the Applicant was not dismissed from his employment but rather the Third Respondent’s text message dated 30 September 2021 was a warning. Before the Court in these proceedings, the Respondents were understood to contend that the Applicant had resigned from his employment and that his personal belongings were packed up on 30 September 2021 because the company had rules which required that personal items are not left at the site.
On 2 November 2021, the Second Respondent communicated with the Applicant by email. By that email, the Second Respondent stated that she had sent a statement to “immigration” regarding alleged immigration fraud and social security fraud. The Applicant’s evidence was that he felt intimidated and threatened by this correspondence and that of a similar kind sent on 2 October 2021.
On 4 November 2021, the Fair Work Commission delivered reasons for its decision that the Applicant was dismissed from his employment on 30 September 2021. The jurisdictional pre-requisite being satisfied, the Commission certified that reasonable attempts the resolve the dispute (other than by arbitration) had been unsuccessful pursuant to s.368(3)(a) of the Fair Work Act.
The Second and Third Respondents gave evidence to the Court that the Third Respondent lacked the requisite authority to terminate the Applicant’s employment. The Applicant strongly disputed this and in cross examination asked her to explain how it was that she did not have authority for such matters but did represent the company at “Fair Work”. The Third Respondent responded that her representation at “Fair Work” was because the text message exchange was between them and “Fair Work” did not ask or order the Second Respondent to attend.
Records of time, wages and payments made
The Court received some evidence of records of time, wages and payments made to the Applicant during the course of his employment with the First Respondent, summarised as relevant to each period of his employment and upon termination below.
As a casual employee
There was no dispute that the Applicant was engaged to work as a casual employee in the period 27 July 2020 to 4 July 2021 and paid:
·For the period 27 July 2020 to 6 September 2020, at the rate of $24.66 per hour; and
·For the period 7 September 2020 and 4 July 2021, at the rate of $24.80 per hour.
A bundle of payslips was produced by the Applicant which reflected that the Applicant was paid at those (above) hourly rates, and the quantum of his weekly pay was different or varied each week. The payslips also establish that there was no additional amount paid for casual loading.
On the pleadings, there was no dispute about the number of hours and times of day worked and as such any evidence as relates to exact hours worked during the casual employment period is not summarised here.
As a full time employee
There was no dispute that the Applicant was converted to a full time employee in the period 5 July 2021 until 30 September 2021. The evidence was that the Applicant was paid an annual salary as a full time employee, which converted to a weekly amount of $1,348.00 per week or $35.47 per hour. That he was paid in this amount for the duration of his full time employment is also not disputed.

Nor was it contentious that the Applicant regularly worked more than 38 hours per week during this period or that the Applicant was not paid any additional amount for overtime hours worked.
However the instance of overtime worked by the Applicant was disputed.
The Applicant alleged that he worked an average of 12 overtime hours per week for which he was not paid. He prepared further calculations on direction of the Court which explained the averaged amounts and arrived at a figure of $6,988.32 in unpaid overtime.
The Respondents’ evidence of the overtime worked was as follows:
(a)The Second Respondent’s evidence included a record of hours worked, comprised of 3 columns “Date”, “Start time” and “Off time” and the descriptor “KIM record”. On the face of this evidence, the Second Respondent said this was a timesheet recorded by the Third Respondent had recorded but there was no explanation in evidence as to how that typed document was put together or on what source records it was based.
(b)The Second Respondent’s evidence also included a record in the same format as that at (a), but with the descriptor “PAU SOON LIN record”.
(c)The Second Respondent also deposed:
..we had provide the alarm activity report from the third party (security Guardian group) to attest the applicant cheat on his working time and his own working time record. For example we did not working on the public holiday and he still record on his timesheet. the applicant can not approved his timesheet correct and overtime payment calculated by himself with any evidences. we had required the applicant approved the calculation for overtime and other claims via our lawyer, but the applicant only respond for the amount that he want to without any calculation details and evidences.
(sic.)
and produced in evidence a document titled “Customer Activity Report” which appeared to be a record of access to and from the workplace in the period from 5 July 2021 to 29 September 2021. The document was marked with an ID number but is not obviously a record of any particular employee having entered and exited the workplace, does not establish actual start and finish times of work and without further explanation as to its relevance is given appropriate weight.
There was also evidence that the Applicant was entitled to accrue and take paid annual and personal/carer’s leave as a full time employee, which appeared uncontentious between the parties.
There was evidence of one instance of paid annual leave, taken on one occasion on 20 August 2021, as evidenced by the payslip dated 16 August 2021 to 22 August 2021 in evidence (although, by the earlier extracted text message exchange of 14 August 2021 this was originally a request to take paid personal/carers’ leave). The payslip reflected that the Applicant was paid $269.60 for 7.6 hours of annual leave on that occasion (or $35.47 per hour). The payslip does not reflect an amount paid for annual leave loading.
It is also common ground that the Applicant’s entitlement to superannuation had not been paid or paid in full at the time of the employment coming to an end. As of the Applicant’s Second Affidavit and the Second Respondent’s affidavit, the superannuation underpayment had been rectified following action by the Australian Tax Office, other than to the extent of any superannuation owing on additional entitlements to payment for wages that may be identified in this decision.
On termination of employment
The final termination payment was another issue between the parties. At the time of the hearing, the Applicant continued to claim underpayment for the final period of employment as follows:
(a)Wages for personal/carer’s leave on 30 September 2021 in the amount of $283.79 being for 8 hours at $35.47 per hour;
(b)Payment in lieu of one weeks’ notice on termination in the amount of $2,004.26 per week at his full rate of pay being higher than the agreed day rate because it includes superannuation; and
(c)Payment of 17.5% annual leave loading on his accrued annual leave balance of 44.43 hours – that is, 17.5% x $1,576.12 = $275.82.
By her evidence, the Third Respondent admitted on behalf of the Respondents that the Applicant was not paid for his last 8 days of employment. By this, she is understood to accept the claim that the Applicant is owed one weeks’ pay plus payment for the last day of employment on 30 September 2021 (although she disputed that it was properly characterised as paid personal/carer’s leave).
For completeness, on the payslips and text messages in evidence before the Court, the accrued but unused annual leave balance was paid to the Applicant by early October 2021 and otherwise incomprehensible on the evidence. However there is nothing before the Court to establish that any amount of annual leave loading was paid on the accrued annual leave.
Pay slips and other records
During the Applicant’s employment, it is claimed that he only received 6 pay slips relating to the pay periods of 27 July 2020 to 6 September 2020. The Applicant contended that he did not receive any other pay slips from the First Respondent in relation to all other pay periods but ultimately was able to produce all relevant payslips in these proceedings on account of enquiries made by his then lawyer.
The Respondents’ evidence was that it was the Second Respondent who prepared payslips and the Third Respondent was responsible to deliver them to employees by hand and denied that this may not always have happened within one day. The Respondents maintained that the Applicant was provided all records during the course of the employment and again, subsequently, as requested for the purposes of these proceedings.
The Second Respondent admitted that a Fair Work Information Statement was not provided.
ADVERSE ACTION CLAIM
Legal framework
Part 3-1 of the Fair Work Act is titled “General Protections”.
Within it, “Division 3 – Workplace rights” includes provisions designed to protect “workplace rights” and the exercise of those rights.
In relation to the first alleged contravention, the starting point is s.340(1) which relevantly provides (and at all relevant times, provided):
Protection
(1)A person must not take adverse action against another person:
(a)       because the other person:
(i)        has a workplace right; or
(ii)       has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)       to prevent the exercise of a workplace right by the other person.
“Adverse action” is defined at s.342(1). Relevantly, adverse action is taken by an employer against an employee if the employer dismissed the employee: s.342(1)(a).
Sub-section 342(2) goes on to clarify that the meaning of “adverse action” includes a threat of such action: s.342(2)(a). There are then exceptions for action authorised by or under certain State, Territory and Commonwealth laws: s.342(3).
“Workplace right” is defined at s.341, in three broad categories which relevantly provides (and provided) that a person has a workplace right if the person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body: s.341(1)(a). In turn, “workplace law” is defined to include the Fair Work Act and any other law of the Commonwealth, a State or Territory that regulates the relationships between employers and employees and “workplace instrument” is defined as an instrument that is made under or recognised by a workplace law that concerns the relationship between employers and employees: s.12 of the Fair Work Act.
In relation to the second alleged contravention, s.343 of the Fair Work Act provides (and provided) a prohibition on a person organising, taking or threatening to organise or take any action against another person with intent to coerce the other person or a third person to exercise or not exercise or propose to exercise or not exercise a workplace right.
It is well-established that coercion involves the application of illegitimate pressure to induce the other party to act: Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union & Anor [2000] FCA 1793. The pressure being only illegitimate if it involves unlawful threats or amounts to unconscionable conduct: Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202. Further, in Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 the Full Court held at [174] that:
Coercion has been held to require the satisfaction of two elements: negation of choice; and, the use of unlawful, or illegitimate or unconscionable means.
The element of negation of choice involves a subjective test of intent. The latter element, use of unlawful, illegitimate or unconscionable means, is an objective test.
Division 7 is titled “Ancillary Rules” and recognises that some adverse action may be taken for more than one reason. In order to be actionable under Part 3-1, it is sufficient that the relevant action is taken for reasons that include a proscribed reason: s.360.
The statute also provides a rebuttable presumption concerning the proof of the reasons for which adverse action was taken: s.361. That is – if, in an application in relation to a contravention of Part 3-1 of the Fair Work Act, a person is accused of having taken action for a particular reason or with particular intent and if the taking of that action for that reason or with that intent would constitute a contravention of Part 3-1 then it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Sections 340 and 343 are civil remedy provisions. The Fair Work Act confers jurisdiction upon this Court to hear applications for relief relating to contraventions of civil remedy provisions: s.539(2). That power extends to relief in the form of declarations, compensation and penalties: ss.545 and 546.
The liability of bodies corporate (in terms of conduct and state of mind of a body corporate) is provided for at s.793 of the Fair Work Act. That provision relevantly provides that any conduct engaged in on behalf of a body corporate by an officer, employee or agent of the body corporate, within the scope of their actual or apparent authority, is taken for the purposes of the Fair Work Act and the procedural rules to have been engaged in by the body corporate. And if, for the purposes of the Fair Work Act or the procedural rules it is necessary to establish the state of mind of a body corporate, including a person’s knowledge, intention, opinion, belief or purpose and reasons for any such intention, opinion, belief or purpose, it is enough to show that:
(a)the conduct was engaged in by a person of the body corporate with the scope of his or her actual or apparent authority; and then
(b)that person had that state of mind.
A “person” who is involved in a contravention of a civil remedy provision, within the meaning of s.550, is also taken to have contravened that section: s.550(1). Such person is involved in a contravention of a civil remedy provision including if the person:
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention
Who were the person or persons with relevant authority?
The Second Respondent is and was a director of the First Respondent company. The Second Respondent’s denial that the Third Respondent was authorised to deal with employment matters such as hiring and firing was entirely unpersuasive compared with the evidence that:
(a)The Third Respondent was previously a director of the First Respondent and had knowledge of plant, equipment and staffing issues;
(b)The Third Respondent interviewed candidates for employment, made offers of employment, distributed payslips and fielded and responded to leave requests, and issued directions to employees about their attendance at work;
(c)The Third Respondent had in fact offered the original casual employment and then, subsequently, a full time role to the Applicant with a higher salary which was not withdrawn and was honoured;
(d)The Third Respondent required the Applicant to communicate with her directly (rather than via his wife) about his illness and personal leave request on 30 September 2021 (and did not refer him to any other person for that purpose); and, further
(e)The Second Respondent did not at any stage seek to withdraw the Third Respondent’s communications of 30 September 2021 in which the Applicant was advised not to return to work for the First Respondent.
The evidence supports a finding that the Third Respondent was the day to day manager and decision maker on behalf of the First Respondent in relation to, at least, decisions about matters concerning the Applicant’s employment.
For the above reasons, I do not accept that the Third Respondent was not authorised to decide whether to dismiss the Applicant from his employment.
Was there an adverse action in the form of a dismissal?
The Applicant’s case is that he was dismissed and that the dismissal was adverse action taken for a prohibited reason in contravention of s.340 of the Fair Work Act. The Respondents’ primary case is that there was no dismissal.
The question of whether there was a dismissal at all was resolved by the Fair Work Commission as a threshold issue by decision of Commissioner Platt in Pau Soon Lin v Max Bean Pty Ltd [2021] FWC 6268. The Respondents apparently did not exercise their right to appeal that decision but nonetheless sought to re-agitate their claim that there was no dismissal in these proceedings.
The Fair Work Act defines “dismissed” by reference to s.386: s.12. Section 386 of the Fair Work Act provides that a person has been dismissed if the person’s employment has been terminated at the employer’s initiative or the person has resigned but was forced to do so because of a conduct, or a course of conduct, engaged in by the employer. The expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. A termination is at the employer’s initiative when:
(a)the employer’s action “directly and consequentially” results in the termination of employment; and
(b)had the employer not taken this action, the employee would have remained employed.
The evidence before the Court establishes that, as of 29 September 2021, the Applicant remained gainfully employed by the First Respondent and that he was expected to attend for work the following day.
Having learned at 6.52am via the Applicant’s wife that the Applicant claimed to be unwell and was not going to be at work that day, at 8.14am on 30 September 2021, the Third Respondent communicated to the Applicant in writing that if he did not present for work that day then he did not need to come to work anymore. The Applicant did not respond until that evening, which he said was due to his illness and shock and distress at the Third Respondent’s message. By the Applicant’s response of 8.40pm that same day, he did not accept that the employment had come to an end – rather, he said that his doctor had advised that he needed to take a COVID-19 test and he would therefore be staying home the following day. By her relatively immediate reply (there was no time stamp, indicative of an instantaneous response) the Third Respondent continued her sentiment that the Applicant was no longer welcome at work and confirmed that she had already packed up his possessions for collection.
I accept it is possible that these communications were sent in the “heat of the moment” and that the Third Respondent was feeling upset and emotional at the time. However, the Third Respondent was clear in her communications of 30 September 2021 that the Applicant was not to return to the workplace and did not seek to retract those communications. Rather, the Third Respondent continued to reiterate her position in the next exchange in evidence, on 2 October 2021, when she confirmed the Applicant’s final payment among other parting sentiments.
On the evidence before the Court, it is implausible to suggest that the Third Respondent considered the Applicant had resigned his employment by his non-attendance on 30 September 2021 for at least the following reasons:
(a)There is no evidence of a clear communication from the Applicant to suggest that the Applicant intended to resign. To the contrary, the evidence of the contemporaneous text message of 8.40pm on 30 September 2021 plainly evinced the Applicant’s intention to also take personal leave and not attend for work the next day as distinct from a resignation.
(b)Regardless of whether the Third Respondent accepted that the Applicant was unfit for work due to illness or that this was in any way a valid exercise of the right to take personal/carer’s leave or in accordance with the Respondent’s policies, the Third Respondent was aware by her communication with the Applicant’s wife that the Applicant claimed to be unwell on that day and sought to take paid personal leave as distinct from a resignation.
(c)The 14 August 2021 exchange reflected that the Third Respondent and the Applicant shared a mutual intention to continue the employment relationship, and to have a discussion one week later, to confirm they could work together happily in the future. There is no evidence of a discussion that occurred the following week. The evidence is that the employment relationship continued for a further 4 to 5 weeks which reflects an implied agreement to continue the employment as distinct from a resignation or mutually agreed separation.
(d)On a most favourable interpretation of the Third Respondent’s evidence, the 14 August 2021 discussion may have amounted to a disciplinary discussion about the legitimate requirements of the Applicant when applying to take leave and the consequences of a failure to comply in the future. However, even if the Third Respondent perceived a further failure to comply with company requirements for taking of leave by his conduct on 30 September 2021, that is not a basis to conclude that the Applicant had resigned his employment and never intended to return to work. The relevance of this is considered further below.
On the evidence of the plain words used in the communications between the Applicant and the Third Respondent on 30 September 2021, it is also implausible to suggest that the Third Respondent had issued a warning or a caution which was to be observed for future reference. Rather, the Applicant was directed not to return to the workplace in clear terms. Those communications were reinforced by the final communications of 2 October 2021.
With regard to the earlier findings about the Third Respondent’s authority and by operation of s.793 of the Fair Work Act, the Third Respondent’s conduct is taken to have been engaged in also by the First Respondent.
Accordingly, I am satisfied that there was an adverse action in terms of a dismissal at the initiative of the First Respondent.
Was the dismissal for a reason(s) that included a prohibited reason?
It was not contentious that the Applicant, as a full-time employee of the First Respondent, possessed a “workplace right” or entitlement under the Award that covered and applied to the Applicant’s employment, to take paid personal/carer’s (sick) leave in accordance with the National Employment Standards in the Fair Work Act: cl.26.1 of the Award as in force at 30 September 2021. The personal/carer’s leave entitlement was expressed as being available to the Applicant in circumstances of him being unfit for work because of a personal illness or personal injury that affected him: s.97 of the Fair Work Act. The entitlement to paid personal/carer’s leave was subject of a requirement that notice be given to the employer as soon as practicable however that may be a time after the leave had started: s.97(2)(a) of the Fair Work Act.

It was open to the employer to require evidence that would satisfy a reasonable person that the leave was taken for a reason specified in s.97 of the Fair Work Act. The Third Respondent was plainly suspicious about the bona fides of the Applicant’s claimed illness on 30 September 2021. Regardless of whether another colleague was so advised and the employer could have been notified sooner, or whether the Applicant was so unwell that he could not make a telephone call to the Third Respondent himself, the Third Respondent was in no doubt that the Applicant sought to access his entitlement to paid personal leave on 30 September 2021 (and, later that day learned he also intended to take paid personal leave on 1 October 2021).
More specifically, the Applicant, through his wife, plainly caused the First Respondent to be on notice that he purported to be ill and unfit to attend for work on 30 September 2021. The Applicant’s wife communicated to the Third Respondent (who I have found was the appropriate person) in clear terms that he was sick and could not attend for work. By her response the Third Respondent knew that the Applicant proposed to take paid personal leave on that day – within less than 90 minutes, she communicated directly and in writing to the Applicant that if he did not attend for work that day then he need not come back to work again.
In the present case, it is clear that the Applicant (whether directly, at 8.40pm on 30 September 2021, or indirectly through his wife at 6.52am on 30 September 2021) proposed to exercise his workplace right to take paid personal/carer’s leave on 30 September 2021 (and, perhaps also, on 1 October 2021). As the High Court of Australia in QantasAirways Limited v Transport Workers Union of Australia [2023] HCA 27 (Qantas) recently clarified, the focus of the statutory provision at s.340(1)(a)(iii) is on the nature of the affected person’s current or past proposal: to exercise or not to exercise a workplace right; and in this way applies where the person proposes to exercise a workplace right in the future that they have in the present. As held per Kiefel CJ, Gageler, Gleeson and Jagot JJ, s.340(1)(a)(iii) undoubtedly applies to adverse action taken before, during or after the proposed exercise of a workplace right.
It follows that the issue that attracted much focus in the Respondents’ defence – whether there was a valid exercise of the workplace right - need not be established. It is enough that the Applicant proposed to exercise a workplace right that he presently held, in the future.
It falls then to determine whether the reason(s) for the Applicant’s dismissal included the proposal to access his paid personal leave entitlement on 30 September 2021 (and perhaps also on 1 October 2021). The contemporaneous and documented communications in evidence established that the Third Respondent’s contemporaneous response to the notification that the Applicant purported to be ill on that day was to tell him in unequivocal terms that if he did not attend for work then he should not return to the workplace and his things would be packed for him to collect. Then, when he did not attend for work on that day, the Third Respondent again confirmed by written communication that the Applicant was dismissed and could collect his possessions which had already been packed. Two days later, she confirmed that he would be paid a final payment (among other messages of “good luck” and advice about how to handle future leave situations with other employers) therein reiterating that the employment relationship had ended.
The actuating reason for the dismissal was plainly the proposal to take paid personal leave on 30 September 2021 (and, although not strictly plead, perhaps also the proposal to take paid personal leave on 1 October 2021). It may be accepted that the Third Respondent doubted the bona fides of the Applicant’s proposal to exercise his workplace right to take personal leave and considered he had not followed company policy. The 14 August 2021 exchange provides further context in that it is apparent that the Third Respondent was frustrated by the Applicant’s prior requests to take leave and had committed that she would not approve any more of his personal leave requests. The Applicant was not requested to justify his request to take personal leave with evidence and there was no disciplinary process or objective reason which could be found to have formed the only reason for the dismissal. The Third Respondent’s conduct was plainly motivated by and in response to the Applicant’s request to take personal leave, and was not retracted, corrected or sought to be withdrawn by the Second Respondent or any other person on behalf of the First Respondent.
As reasoned above, the First Respondent attempted to characterise the Third Respondent’s text messages of 30 September 2021 as a “warning” rather than a direction not to return to the workplace which simply can not be accepted on the evidence.
Also as reasoned above, I do not accept that the Third Respondent understood the Applicant to have resigned by his non-attendance, against the context of their 14 August 2021 exchange or otherwise.
For completeness, the disputed translation of the text message exchanges is a matter that may have taken on some importance in this context but, ultimately, matters little. The Applicant invited the Court to accept the Respondents’ translation but the Respondents did not put their alternate translation in evidence (whether in writing or orally) before the Court. Accordingly, the Court has received the only translation that was in evidence before it. The Court did have the benefit of the Respondents’ translation of the text message exchange of 30 September 2021 which was extracted in the Fair Work Commission decision. On a careful analysis, there is no material difference between those competing translations as would possibly alter the relevant findings in this matter.
Was action taken to coerce the Applicant not to exercise his right to paid personal/carer’s leave?
Having regard to the findings on the evidence as made above, the essential elements of a contravention of s.343 of the Fair Work Act are made out.
The relevant act was the text message of the Third Respondent, sent to the Applicant at 8.14am on 30 September 2021. That action was taken in direct response to the Third Respondent being notified of the Applicant’s claimed illness and intention to take paid personal leave and not attend for work on that day.
By that text message, the Third Respondent plainly threatened the Applicant with dismissal if he did not attend for work on that day. The evidence is that the Third Respondent was motivated by frustration at the soy beans that would be spoiled or ruined if the Applicant did not attend and the context of her prior warnings to him that she would not approve personal leave going forward.
The Third Respondent applied illegitimate means with the intention to induce the Applicant to attend for work rather than to act on his proposal to exercise his workplace right to take paid personal/carer’s leave.
Was the Second Respondent involved in the general protections contraventions?
The Second Respondent was not understood to admit any involvement in the contraventions of ss.340 and 343 of the Fair Work Act. Rather, the Second Respondent maintained there was no dismissal at all and the Applicant was resigned or was warned.
By her role as director and her inaction or omission (by not acting to withdraw the Third Respondent’s dismissal), the Second Respondent was indirectly involved in those contraventions of ss.340 and 343 of the Fair Work Act, within the meaning of s.550 of the Fair Work Act.
Resolution of adverse action claims
For the above reasons:
(a)the Third Respondent acting with authority on behalf of the First Respondent and therefore pursuant to s.793 also the First Respondent, dismissed the Applicant and threatened to take action with the intention to coerce the Applicant in contravention of ss. 340 and 343 of the Fair Work Act; and
(b)the Second Respondent was involved, within the meaning of s.550 of the Fair Work Act, in the First and Third Respondent’s contraventions of ss.340 and 343 of the Fair Work Act.
The conclusion to these reasons addresses the matter(s) of what (if any) relief be granted.
UNDERPAYMENT CLAIM
Legal framework
A principle purpose of the Act is to ensure a guaranteed safety net of fair, relevant and enforceable minimum standards for employees through the National Employment Standards (NES), modern awards and national minimum wage orders: s.3(b) of the Fair Work Act.
The core provisions at Part 2-1 of the Fair Work Act provide for compliance with and interaction between the sources of the main terms and conditions under the Act. There, the Fair Work Act proscribes that an employer must not contravene a provision of the NES (s.44) and a person must not contravene an award (s.45). These are civil remedy provisions.
Part 2-9 provides for other terms and conditions of employment including the method and frequency of payment for performance of work which is to be in full (excepting permitted deductions per s.324 which is not presently of relevance) and at least monthly, inclusive of any incentive based payments and bonuses that become payable during the relevant period: s.323. This is also a civil remedy provision.
Part 3-6 sets out the other rights and responsibilities proscribed by the statute including employer obligations in relation to employee records and payslips. Pertinent to the present case is the obligation on an employer to make, and keep for 7 years, employee records of the kind prescribed by the Fair Work Regulations 2009 (Cth) in relation to each of its employees: s.535. Further, an employer must give a pay slip to each of its employees within 1 working day of paying them an amount in relation to the performance of work: s.536. These are also civil remedy provisions.
As outlined above, a person “involved in” a contravention of a civil remedy provision (including where found to have aided, abetted, counselled or procured the contravention or been in any direct or indirect way knowingly concerned in or party to the contravention) is taken to have contravened the provision: s.550.
Such cases may attract a reverse onus of proof. In Fair Work Ombudsman v DTF World Square Pty Lty (in liq) (No 3) [2023] FCA 201 at [91]:
Section 557C shifts the burden of proof to the employer in a proceeding relating to a contravention by an employer of certain civil remedy provisions of the Act in circumstances in which, relevantly, the employer was required to make and keep records or to give a pay slip and, absent a reasonable excuse, the employer failed to comply with the requirement. The provision reflects a legislative policy that an employer should not be able to take advantage of its failure to make or keep certain records to defeat a claim that it has underpaid its employees, see for example: Gallagher v AAG LabourServices Pty Ltd [2020] FCA 1753 at [18] (Jackson J).
Section 557C is concerned with the overall burden of proof – when engaged, it is both the legal and evidential burden that shift to the defaulting employer. If the evidence adduced by the employer is insufficient to disprove the allegation on the balance of probabilities, then the effect of s.557C is that the claim must be upheld: Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627; 290 IR 331 at [14].
If satisfied of a contravention of a civil remedy provision, the Court may make any order it considers appropriate: s.545.
Did the Award cover and apply and, if so, what classification?
The Respondents admitted (in their defence) that during both casual and full-time periods of employment, the Food, Beverage and Tobacco Manufacturing Award 2020 (Award) covered and applied to the Applicant’s employment. To the extent the Respondents endeavoured to take a different position at hearing, they did not articulate any argument as to why the Award did not cover and apply to the Applicant’s employment.
The most appropriate classification under the Award was disputed: the Applicant contended he was appropriately classified as a Level 3 under the Award; whereas the Respondents’ defence contended that he was a Level 1 until 1 November 2020 and a Level 2 thereafter. The Second and Third Respondents gave evidence that the Applicant was not able to be classified as Level 3 because he does not have any qualification or certification for of manual factory processing of food and he had less than one year experience of soybean manufacturing and he could not answer basic questions about soybean production (at the hearing).
The Award was expressed to cover employers throughout Australia in the food, beverage and tobacco manufacturing industry and their employees in the classifications to the Award to the exclusion of any other modern award: cl.4.1. Dealing with each component in turn:
(a)The “food, beverage and tobacco manufacturing industry” is relevantly defined to mean the preparing, cooking, baking, blending, brewing, preserving, processing, manufacturing and milling of food products as well as certain ancillary activities. The First Respondent was plainly, on its own evidence, engaged in the industry as defined.
(b)None of the exclusions from coverage of the Award were identified as relevant and there was no suggestion of another modern award that might cover the First Respondent as to require an assessment of the most appropriate to the work performed by the Applicant: cl.4.3 and cl.4.6 and cl.4.7.
(c)Whether the Applicant was appropriately classified as Level 1, Level 2 or Level 3 of the Award (resolved below), there was understood to be agreement that at least one classification to the Award was relevant to the Applicant as an employee of the First Respondent.
Consistent with the Respondents’ earlier admission and on the evidence before the Court as to the nature of the business and the Applicant’s work, I am satisfied that the Award covered and applied to the First Respondent and the Applicant for the duration of the Applicant’s employment with the First Respondent.
It remains to resolve the classification most appropriate or suitable to the Applicant’s role during his employment with the First Respondent.
The classification structure and definitions which applied to employees covered by the Award are at Schedule A therein.
The evidence about the Applicant’s qualifications and experience established that he did not (and does not) hold a relevant qualification in food processing. Whilst the Applicant claimed to have equivalent recognised enterprise or industrial experience, training or prior learning experience or skills to Level 3, the evidence in support was limited to oral claims that he had prior experience in food handling whereas, in writing, the Applicant deposed to have completed two diplomas in Melbourne relating to business and technology, prior experience in food delivery and as a retail fast food (Pizza Hut) restaurant manager.
Absent 3 months’ experience in the food, beverage and tobacco manufacturing industry or with the First Respondent, and not having established recognised enterprise or industrial or prior learning experience and/or skills sufficient for appointment to Level 2 or above, the Applicant necessarily commenced employment with the First Respondent as a Level 1 classification.
The Award contemplates progression to a Level 2 classification in a timeframe of less than 3 months. The payslips in evidence reflect that from commencement of employment for a period of 2 calendar months, the Applicant was paid at the rate of $24.66 per hour which then increased to $24.80 per hour for the balance of his casual employment period. On what limited evidence is before the Court, I find that the Applicant was a Level 1 classification until the pay period commencing 7 September 2020 and a Level 2 classification for the remainder of the casual and full time periods of employment.
Casual employment
As amended, the Applicant was understood to plead this component of his claim in the following two alternatives:
(a)If he was paid the correct hourly rates of pay for his casual period of employment then he was owed the 25% casual loading to be calculated on those hourly rates that he was paid as a casual; or, in the alternative,
(b)The hourly rates of pay for the casual period of employment were incorrect and he was entitled to the minimum hourly rate for a Level 3 employee plus 25% calculated on that Level 3 hourly rate.
The Respondents admitted that the Applicant was entitled to receive the 25% casual loading in accordance with cl.10.1 of the Award, for the casual period of employment, but denied that it was not paid. However, they admitted that from 1 November 2020 onwards the Applicant was underpaid “by about” $0.71c per hour at the base rate until 30 June 2021 and then by $1.35 per hour between 2 and 4 July 2021.
The evidence established that the Applicant was employed as a casual employee for the period 27 July 2020 to 4 July 2021.
Clause 10.1 of the Award as in force at the relevant times provided:
10.1 A casual employee working ordinary time must be paid:
(a) the ordinary hourly rate; plus
(b) a casual loading of 25% of the ordinary hourly rate.
I have earlier concluded that the Applicant was properly classified as and therefore entitled to an ordinary hourly rate of pay aligned with a Level 1 until 7 September 2020 and then a Level 2 under the Award. The payslips in evidence reflect a single or loaded rate and do not identify a discrete or separate amount of casual loading paid to the Applicant during this time.
The Respondents dates and assertions were not supported by the evidence. However, the basic proposition they asked the Court to find in favour of had merit when regard is had to the Applicant’s correct classification under the Award. That is:
(a)For the period 27 July 2020 to 6 September 2020, for which I have found the Applicant was properly classified as a Level 1 under the Award, he was entitled to be paid at the ordinary hourly rate of $20.33 per hour plus a 25% casual loading = $25.41 per hour but he was paid $24.66 per hour – leaving a shortfall, or underpayment, of $0.75c per hour; and
(b)For the period 7 September 2020 to 4 July 2021, for which I have found the Applicant was properly classified as a Level 2 under the Award, he was entitled to be paid at the ordinary hourly rate of $20.92 per hour plus a 25% casual loading = $26.15 per hour but he was paid $24.80 per hour – leaving a shortfall, or underpayment, of $1.35 per hour.
Accordingly, the Applicant was not paid the minimum ordinary hourly rates inclusive of the casual loading to which he was entitled under cl.10.1 of the Award and was not paid in full each month in accordance with s.323 of the Fair Work Act.
For the above reasons, the First Respondent is found to have contravened ss.45 and s.323 of the Fair Work Act by not paying the Applicant the casual loading to which he was entitled under cl.10.1 of the Award for the period 27 July 2020 to 4 July 2021.
The Second Respondent admitted to responsibility for certain underpayments and I accept as director of the First Respondent that she was involved in these contraventions, within the meaning of s.550 of the Fair Work Act.
I do not consider the evidence established a knowing concern or involvement of the Third Respondent in these respects.
Full time employment
The dispute about entitlements for the Applicant’s full time period of employment was limited to the number of hours’ overtime the Applicant worked and, therefore, the quantum of the entitlement to unpaid overtime and an annual leave loading for a single day of leave taken.
The evidence established that the Applicant was employed to work for the First Respondent, as a full time employee, from 5 July 2021 until his dismissal on 30 September 2021.

The Applicant, by his amended statement of claim, made an allegation of underpaid overtime worked during the full time period of his employment and specified the quantum of his claim by reference to days and hours worked on an averaged approach. It was the Respondents who answered this claim by admitting to not having paid any overtime at all during this period and accepting that overtime was, regularly, worked (even though they disputed the Applicant’s calculation as to the quantum of it).
Clause 23.2 of the Award in force at the relevant times provided that employees who are not continuous shift workers will be paid the following rates for overtime (meaning work performed outside ordinary hours of work on any day or shift) as follows:
(a)150% of the ordinary hourly rate for the first 3 hours; and
(b)200% of the ordinary hourly rate thereafter.
Ordinary hours of work are in turn defined at clause 12 of the Award.
The First Respondent was required to make and keep records of overtime worked: s.535 and Reg.3.34. On the materials before the Court, the First Respondent produced a record of overtime worked (marked Kim’s record, at Annexure 4 to the Second Respondent’s affidavit (Kim’s record)). The evidence was that Kim’s record was kept by the Third Respondent in her role as manager. I accept Kim’s record as the most precise record of hours including overtime worked and is more reliable than the averaged approach or the other evidence of hours worked that was not otherwise adequately explained to the Court.
However, the Respondents’ own record as prepared by Kim disclosed that the Applicant was not paid for the hours he worked in addition to 38 hours in any given week. There was nothing before the Court as to the arrangement of ordinary hours of work in the First Respondent’s workplace. The averaging arrangements in the Award relevant to day workers like the Applicant, being limited to 38 per week not exceeding 152 hours in 28 days, were not argued or identified as applicable to justify the hours worked without overtime pay even on Kim’s record.
Accordingly, the First Respondent contravened ss.45 and 323 of the Fair Work Act by not paying the Applicant at the relevant overtime rates for hours worked in addition to 38 hours in each week during the period of his full time employment and as identified in Kim’s record and to which he was entitled pursuant to cl.23.2 of the Award.
Additionally, the evidence was that an ordinary days’ pay was paid for the single day of annual leave taken on 20 August 2021 in the amount of $275.82 but there was no amount for annual leave loading. Under cl.25.6 of the Award, the Applicant was entitled to a day work loading of 17.5% of the wages to which he was otherwise entitled on that day = $49.66.
It was also accepted that superannuation was not initially paid but was rectified by the time of the hearing before this Court. The Applicant was not understood to specify any claim for a contravention or otherwise under cl.22 of the Award in relation to this period, other than to the extent that superannuation was not paid on underpaid amounts determined by this Court. Superannuation owed on the underpayment amounts pursuant to this judgement is a matter that may be relevant to relief, in terms of compensation, and about which the Court will be addressed about separately. Otherwise, I find no contravention in this respect.
For the above reasons, the First Respondent is found to have contravened ss.45 and 323 of the Act by:
(a)not paying the Applicant for overtime worked per cl.23.2 of the Award and to which he was entitled in the period 5 July 2021 to 30 September 2021, in contravention of s.45 of the Fair Work Act;
(b)not paying the annual leave loading component for leave taken on 20 August 2021 to which he was entitled under cl.25.6 of the Award, in contravention of s.45 of the Fair Work Act; and
(c)not paying in full for the period 5 July 2021 to 30 September 2021, as identified at (a) and (b) above, in contravention of s.323 of the Fair Work Act.
The Second Respondent admitted to responsibility for certain underpayments and I accept as director of the First Respondent that she was involved in these contraventions, within the meaning of s.550 of the Fair Work Act.
I do not consider the evidence established a knowing concern or involvement of the Third Respondent in these respects.
On termination of employment
As the evidence summarised above disclosed, the Respondents admitted that once regard was had to his accrued annual leave which was paid out by early October 2021, the Applicant had not been paid for:
(a)Wages characterised as paid personal leave for the day of 30 September 2021, for an ordinary days’ pay which the Applicant calculated as being in the amount of $283.79;
(b)Payment in lieu of one weeks’ notice on termination in the amount of $2,004.26 per week at his full rate of pay including superannuation.
The Applicant also claimed annual leave loading on his accrued but unused annual leave which was paid out by early October 2021 in the amount of 17.5% x $1,576.12 = an underpayment of $275.82. For completeness, as earlier indicated, it was understood that the remaining component of accrued but unused annual leave was paid or, if it were claimed, was incomprehensible on the evidence before the Court.
Other than to the extent that the dismissal and validity of the personal leave request were strongly contested for the purposes of the alleged adverse action contraventions, the non-payment of notice pay and non-payment for 30 September 2021 (however characterised) was either admitted or not seriously disputed in evidence.
With regard to the earlier findings, the Applicant was entitled to these amounts as plead pursuant to: s.117(2)(b) and s.44 of the Fair Work Act; s.99 of the National Employment Standards in the Fair Work Act and s.44 of the Fair Work Act and cl.25.12 of the Award and s.45 of the Fair Work Act, respectively. There being no evidence before the Court that those amounts were paid, the First Respondent has contravened each of these provisions in respect of each of these underpayments. It was not plead but, for completeness, these payments became due after the employment relationship had ended and there is no related contravention of s.323.
The Second Respondent admitted to responsibility for certain underpayments and I accept as director of the First Respondent that she was involved in each of these contraventions, within the meaning of s.550 of the Fair Work Act.
I do not consider the evidence established a knowing concern or involvement of the Third Respondent in these respects.
Pay slips and other records
The Applicant claimed that the First Respondent failed to provide the Applicant pay slips within one working day of the payment being made, in contravention of s.536(1) of the Act. I accept the evidence of the Respondents that pay slips were distributed to employees including the Applicant by hand and, on the evidence before the Court, make no finding of a contravention in this respect.
In respect of the Applicant’s claim that the First Respondent knowingly made and kept pay slips that were false and misleading in a material particular, in contravention of s.535 and/or 536 of the Act - on an inspection of the payslips in evidence, it is apparent that the payslips did record casual loading and/or overtime worked for the relevant periods of the Applicant’s employment. However, I do not consider the evidence to rise so high as to establish a knowing intention to create a false and misleading payslip in contravention of ss.535 and/or 536 of the Act. The contravention as it was plead is not made out in this respect.
The failure to establish distribution of the Fair Work Statement was admitted but does not amount to a contravention that attracts a civil remedy provision and therefore no declaration will be made in this respect.
CONCLUSION
The above reasons explain the various contraventions the Court has determined the Respondents to have variously engaged or been involved in.
The Court has a broad discretion to make a declaration. I consider this an appropriate case for declaratory relief in relation to each determined contravention of a civil remedy provision, if for no other reason than to record the Court’s disapproval of the contravening conduct. I will make declarations giving effect to these reasons.
The Respondents were afforded opportunity to engage in the questions of what, if any, relief ought be granted were the Applicant to succeed in establishing the alleged contravention(s) and barely addressed the relevant considerations. Having regard to the seriousness of the matter and in all of the circumstances, it is appropriate that the Respondents be afforded further opportunity (with the benefit of these reasons) to consider, prepare and file written evidence and submissions as to the questions of what, if any, compensation and pecuniary penalty(ies) ought be imposed for the contraventions. A program will be ordered so that the parties may address the Court about those matters.

I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.
Associate:
Dated: 30 November 2023

File number(s):	MLG 2956 of 2021
Judgment of:	JUDGE MANSINI
Date of judgment:	30 November 2023
Catchwords:	INDUSTRIAL LAW – FAIR WORK – alleged contraventions of general protections provisions, underpayments and failures to keep records – findings that the First Respondent contravened ss.44, 45, 323, 340 and 343 of the Fair Work Act 2009 (Cth) – where Second and Third Respondents were variously involved within the meaning of s.550 – declarations made – penalty and relief to be addressed separately.
Legislation:	Fair Work Act 2009 (Cth) ss.3, 12, 26, 44, 45, 90, 97, 99, 117, 125, 323, 324, 340, 341, 342, 343, 360, 361, 365, 368, 386, 535, 536, 539, 545, 546 550, 739, 793 Fair Work Regulations 2009 (Cth) Food, Beverage and Tobacco Manufacturing Award 2020 cls.4, 10, 23, 25, 26 Wage Theft Act 2020 (Vic)
Cases cited:	Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality and Miscellaneous Workers’ Union & Anor [2000] FCA 1793 Esso Australia Pty Ltd v The Australian Workers’ Union [2016] FCAFC 72 Fair Work Ombudsman v DTF World Square Pty Lty (in liq) (No 3) [2023] FCA 201 Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627 Pau Soon Lin v Max Bean Pty Ltd [2021] FWC 6268 QantasAirways Limited v Transport Workers Union of Australia [2023] HCA 27 Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202
Division:	Division 2 General Federal Law
Number of paragraphs:	170
Date of last submission/s:	27 February 2023
Date of hearing:	8 March 2023
Place:	Melbourne
The Applicant:	Appeared in person
The First Respondent:	No appearance
The Second Respondent	Appeared in person
The Third Respondent	Appeared in person

MLG 2956 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR PAU SOON LIN Applicant
AND:	MAX BEAN PTY LTD First Respondent MS XIAO XIAO Second Respondent MS KIM WANG Third Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	30 NOVEMBER 2023