Mathieson v McKenzie Matteson Pty Ltd as Trustee for McKenzie Matteson Family Trust
[2023] FedCFamC2G 342
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mathieson v McKenzie Matteson Pty Ltd as Trustee for McKenzie Matteson Family Trust [2023] FedCFamC2G 342
File number(s): SYG 562 of 2020
SYG 1786 of 2020Judgment 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 infer s 340(1) of the FW Act – whether employer terminated applicant’s employment because applicant made complaints or inquiries in relation to employment – even if complaints and enquiries made whether 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 engages 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, 61, 87, 88, 90, 94(6), 323(1), 340(1), 342(1), 351(1), 352, 360, 361(1), 536, 536, 539, 545, 546, 547(2), 550, 556, 557
Sex Discrimination Act 1984 (Cth) ss 28B
Fair Work Regulations 2009 (Cth) regs 3.46, 5.36
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 13.06(1)(e)
Fast Food Industry Award 2010 cl 3.1
Hospitality Industry (General) Award 2010 cl 4.2
Registered and Licensed Clubs Award 2010 cl 3.1
Restaurant Industry Award 2010 cls 3.1, 4, 4.1, 4.2, 13.1, 20, 20.1, 30.2(a), 31.2, 33.1, 33.2, 34.1, 35.2(b)
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
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
Indiana Metal Products v National Labor Relations Board 442 F2d 46 (7th Cir 1971)
Hill v McKenzie Matteson Pty Ltd as Trustee for McKenzie Matteson Family Trust [2023] FedCFamC2G 343
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
Trade Practices Commission v Bata Shoe Company of Australia Pty Ltd [1980] FCA 47
Trade Practices Commission v CSR Ltd [1991] ATPR 41-076
Division: Fair Work and General Number of paragraphs: 234 Date of last submission/s: 6 April 2023 Date of hearing: 22 February 2022 Place: Sydney 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 562 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KATE MATHIESON
Applicant
AND: MCKENZIE MATTESON PTY LTD (ABN: 625 953 488) AS 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 Elizabeth Hill, the applicant in proceeding SYG567/2020, 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 Elizabeth 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 (first respondent)
$7,368.40 (second respondent)Contravention 3: Failing to make superannuation contributions in relation to the applicant and Elizabeth Hill 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 payslips to the applicant and to Elizabeth Hill Subsection 536(1) of the FW Act $36,842 (first respondent)
$7,368.40 (second respondent)Contravention 5: Failing to pay the applicant overtime rates for work performed between midnight Saturday and midnight Sunday Clause 33.2(c) of the Award, and therefore s 45 of the FW Act $36,842 (first respondent)
$7,368.40 (second respondent)Contravention 6: Failing to give the applicant a minimum break of 10 hours between the finish of ordinary hours on one week day and the commencement of ordinary hours of work on the next day Clause 31.2(d) of the Award, and therefore s 45 of the FW Act $36,842 (first respondent)
$7,368.40 (second respondent)TOTAL $200,000 (first respondent)
$40,000 (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 and second respondents pay to the applicant $20,188.52.
4.Pursuant to s 545(1) of the FW Act the first and second respondents, within 21 days after the day on which these orders are pronounced, pay $4,837.27 to a superannuation fund nominated by the applicant, such nomination to be communicated by the applicant to the respondents within 14 after days the day on which these orders are pronounced.
5.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.
6.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 $168,421 of pecuniary penalties referred to in order 5 as follows:
Contravention Penalty Payable to applicant 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 5 $36,842 $36,842 - 6 $36,842 $36,842 - Total $200,000 $168,421 $31,579
7.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.
8.Pursuant to s 546(3)(c) of the FW Act the second respondent pay to the applicant $33,684.20 of the pecuniary penalties identified in the third column of the Table as follows:
Contravention Penalty Payable to applicant 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 $7,368.402 $5,526.30 $1,842.10 5 $7,368.40 $7,368.40 - 6 $7,368.40 $7,368.40 - Total $40,000 $33,684.20 $6,315.80
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 1786 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KATE MATHIESON
Applicant
AND: MCKENZIE MATTESON PTY LTD (ABN: 625 953 488) AS 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 Mathieson, has commenced two proceedings against each of McKenzie Matteson Pty Ltd (MMPL), and its director, Mr Matteson.
In the first proceeding (FW proceeding), Ms Mathieson claims relief under the Fair Work Act 2009 (Cth) (FW Act).[1] Ms Mathieson alleges that:
(a)MMPL failed to pay her amounts to which Ms Mathieson became entitled under the Restaurant Industry Award 2010 (Award), and under a number of provisions of the Fair Work Act 2009 (Cth) (FW Act) and, for these reasons, MMPL contravened s 44 and s 45 of the FW Act;
(b)MMPL failed to provide Ms Mathieson payslips and, for that reason, contravened s 536(1) of the FW Act;
(c)MMPL contravened s 340(1) and s 351(1) of the FW Act by terminating Ms Mathieson’s employment on 27 November 2019 because, respectively:[2]
(i)Ms Mathieson made a number of complaints in relation to her employment and, for that reason, exercised her workplace rights; and
(ii)Ms Mathieson had the protected attribute arising from her family responsibilities, and the absences from work that resulted from her family responsibilities.
(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 the provisions of the FW Act Ms Mathieson alleges MMPL contravened.
[1] Ms Mathieson 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 Mathieson have leave to discontinue her claims against Mr McKenzie.
[2] Ms Mathieson initially also alleged MMPL contravened s 352 of the FW Act, but she no longer presses that claim
In the second proceeding (SD proceeding) Ms Mathieson seeks relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). Ms Mathieson claims that, during her employment with MMPL, Mr Matteson 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 (Hill proceedings) another former employee of MMPL, Ms Elizabeth Hill, has brought against MMPL and Mr Matteson. In one of the proceedings Ms Hill seeks relief under the FW Act; and, in the other proceeding Ms Hill seeks relief under s 46PO of the AHRC Act based on alleged acts of sexual harassment. I heard Ms Hill’s claims at the same time I heard Ms Mathieson’s claims; and I have had regard to the evidence on which Ms Hill relied at the hearing of her claims when considering the evidence on which Ms Mathieson relied at the hearing of her claims.
PROCEDURAL HISTORY AND COURSE OF HEARING
MMPL and Mr Matteson, through their lawyer, filed defences to Ms Mathieson’s claims in both proceedings, and a defence in each of the Hill proceedings. MMPL and Mr Matteson also filed affidavits in all proceedings.
On 9 September 2021 I made orders referring the FW, SD, and Hill proceedings to mediation. On 23 September 2021, however, the lawyer for MMPL and Mr Matteson 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 Mathieson and Ms Hill, applied, pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, that I hear Ms Mathieson’s and Ms Hill’s claims. I agreed to that application, after being satisfied that MMPL and Mr Matteson had notice of the hearing.[3] In the FW and the SD proceedings I read the affidavit Ms Mathieson made on 1 March 2021, and the affidavit Mr Aslanian made on 25 March 2021. I read these affidavits for the purpose of both the FW and the SD proceedings. Mr Aslanian then made submissions on the basis of this evidence. In relation to the Hill proceedings, Mr Aslanian read the affidavit of Ms Hill made on 26 February 2021, and his affidavit made on 25 March 2021. I also read, for the purposes of all proceedings, the affidavit Mr Aslanian made on 17 February 2022.
[3] Affidavit R S Aslanian 17.02.2022
Although I made no formal order that evidence in any one of the FW, SD, and Hill proceedings be evidence in all other proceedings, I proceeded on the basis 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 Mathieson’s claims. Before I do so, I will attend to two things. First, I will set out the evidence, most of which is based on what Ms Mathieson has deposed in the affidavit she made on 21 March 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 Mathieson’s evidence. That will be necessary because, as will appear later, all of Ms Mathieson’s claims based on sexual harassment, and her claim based on MMPL’s contravention of s 340(1) of the FW Act, rely on her uncorroborated testimony which is not supported by, and to some extent is inconsistent with, the limited contemporaneous documentary evidence.
EVIDENCE AND SOME FINDINGS
Ms Mathieson’s employment with MMPL
During 2019 MMPL owned and operated various hospitality and restaurant businesses. These are the Drift Bar & Restaurant (Drift Bar) at Cronulla, and the Splash Tapas Bar (Splash Bar) in North Cronulla.[4] 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:[5]
(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;
(c)was licensed to operate as a nightclub seven days a week; and
(d)did not operate on Mondays and Tuesdays, but operated from 3:00 pm to 10:00 pm on Wednesdays; 3:00 pm to 10:30 pm on Thursdays; 11:00 am to 3:00 am on Fridays; 11:00am to 3:00 am on Saturdays; and 11:00 am to 10:00 pm on Sundays.
[4] Statement of claim, [3]; Defence, [3]
[5] Statement of claim, [3]; Defence, [3]
According to Ms Mathieson, on or about 13 March 2019 she commenced employment with MMPL as a Food and Beverage Supervisor at the Drift Bar and, to a much lesser extent, the Splash Bar.[6] Ms Mathieson worked on average 50 hours a week, mostly at the Drift Bar, as follows:[7]
Wednesdays 3:00 pm - 10:00 pm
Thursdays 3:00 pm - 11:30 pm
Fridays 2:00 pm - 4:00 am
Saturdays 11:00 am - 4:00 am
Sundays 11:00am - 10:00 pm
[6] Affidavit K Mathieson, [5]
[7] See also affidavit K Mathieson, [10]
Ms Mathieson’s duties included cooking and preparing meals; ordering kitchen supplies and managing stock inventory and food items; ordering alcohol stock once a week; performing general kitchen hand duties, including washing the dishes; supervising kitchen staff; and generally supervising MMPL’s food and beverage operations. The last-mentioned task included Ms Mathieson assisting in the service of alcohol for patrons; in MMPL’s complying with “Responsible Service of Alcohol” (RSA); in basic cellar duties in alternating bar, beer, and soft drink lines; and balancing the tills.[8] Ms Mathieson reported directly to Mr Matteson, who made all decisions in relation to Ms Mathieson’s employment.[9]
[8] Statement of claim, [10]; Defence, [10]; affidavit K Mathieson, [13]
[9] Affidavit K Mathieson, [13], [14]
Award coverage
Given the tasks Ms Mathieson performed as an employee of MMPL, her employment was covered by the Award. That follows from cl 4 of the Award, which provides:
This industry award covers employers throughout Australia in the restaurant industry and their employees in the classifications listed in Schedule B—Classification Structure and Definitions to the exclusion of any other modern award.
The expression “restaurant industry” is defined in cl 3.1 of the Award as follows:
restaurant industry means restaurants, reception centres, night clubs, cafes and roadhouses, and includes any tea room, café, and catering by a restaurant business but does not include a restaurant operated in or in connection with premises owned or operated by employers covered by any of the following awards:
(a) Hospitality Industry (General) Award 2010;
(b) Registered and Licensed Clubs Award 2010; or
(c) Fast Food Industry Award 2010
In their defence, MMPL and Mr Matteson neither admit nor deny the Award covered Ms Mathieson’s employment.[10] I find MMPL’s activities fall within the definition of “restaurant industry” contained in cl 4.1 of the Award; and I also find that MMPL’s activities did not fall within the expression “hospitality industry”, as defined in cl 4.2 of the Hospitality Industry (General) Award 2010; nor did MMPL’s activities constitute the activities of a “club”, as defined in cl 3.1 of Registered and Licensed Clubs Award 2010; and MMPL’s activities did not fall within the expression of “fast food industry” as defined in cl 3.1 of the Fast Food Industry Award 2010. The Award, therefore, covered Ms Mathieson’s employment with MMPL.
[10] Statement of claim, [74]; Defence, [74]
Ms Mathieson alleges, but MMPL and Mr Matteson deny, that the duties Ms Mathieson performed as an employee of MMPL were consistent with the classification of a “[f]ood and beverage attendant grade 3”. Item B.2.3 of Schedule B to the Award defines “Food and beverage attendant grade 3” to mean:
. . . . an employee who has the appropriate level of training and is engaged in any of the following:
(a) supplying, dispensing or mixing of liquor;
(b) assisting in the cellar;
(c) undertaking general waiting duties of both food and liquor including cleaning of tables;
(d) receipt of monies;
(e) assisting in the training and supervision of food and beverage attendants of a lower grade;
(f) delivery duties; and
(g) taking reservations, greeting and seating guests.
MMPL and Mr Matteson do not plead any facts relating to the work Ms Mathieson performed, and for that reason it is not possible to determine which, if any, of the classifications specified in schedule B to the Award MMPL and Mr Matteson contend Ms Mathieson’s duties fell into. I find that Ms Mathieson performed the duties of a “Food beverage attendant”, as defined in the Award; and that her entitlements under the Award are those that applied for employees of that classification.
The following terms are relevant to determining Ms Mathieson’s entitlements under the Award.
(a)Ms Mathieson’s hours as a full time employee had to be an average of 38 hours per week.[11]
[11] Award, [31.1]
(b)The arrangement of ordinary hours had to meet a number of conditions. [12] These included:
[12] Award, [31.2]
(i)a minimum of 6 hours, and a maximum of 11.5, being worked on any one day; Ms Mathieson’s not being rostered to work more than 10 hours per day on more than three consecutive days without a break of at least 48 hours;
(ii)Ms Mathieson’s not being required to work more than 8 days of more than 10 hours in a four week period;
(iii)Ms Mathieson’s being given a minimum break of 10 hours between the finish of ordinary hours of work on one day, and the commencement of ordinary hours of work on the next day; and
(iv)Ms Mathieson’s being given a minimum of 8 full days off per four-week period.
(c)Ms Mathieson was to be paid the minimum wage specified in cl 20 of the Award for a person performing the duties of a food and beverage attendant grade. For the period 1 July 2018 to 30 June 2019 the minimum weekly wage was $794.70, and the hourly rate was $20.91;[13] and for the period after 1 July 2019, the minimum weekly wage was $818.50, and the minimum hourly rate was $21.54.[14]
(d)Ms Mathieson was required to be paid at the overtime rates specified in cl 33.2 for work done outside the spread of hours referred to in (b).[15] The rates included 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] 175% of her ordinary base pay for overtime worked between midnight Friday and midnight Sunday for the first two hours, and 200% of her ordinary base pay for the remaining hours;[17] and 200% of her ordinary base pay for overtime worked between midnight Saturday and midnight Sunday.[18]
(e)To the extent Ms Mathieson 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 of the Award).
(f)MMPL was required to make such superannuation contributions to a superannuation fund for the benefit of Ms Mathieson as will avoid MMPL’s being required to pay the superannuation guarantee charge under “superannuation legalisation”.[19]
[13]Fair Work Commission determination - MA000119 PR606445 (fwc.gov.au)
[14] Fair Work Commission determination - MA000119 PR707538 (fwc.gov.au)
[15] Award, cl 33.1
[16] Award, cl 33.2(a)
[17] Award, cl 33.2(b)
[18] Award, cl 33.2(c)
[19] Award, cl 30.(2)(a). The expression “superannuation legislation” is defined in cl 30.1 of the Award.
Payments made to Ms Mathieson
According to Ms Mathieson, during the early period of her employment, MMPL paid Ms Mathieson on an hourly basis at the rate of $30. MMPL paid Ms Mathieson partly in cash, and partly by transfer into her bank account. For the first 14 weeks MMPL paid Ms Mathieson around $400 per week in cash, and $400 per week into her account, and for the following 23 weeks MMPL paid Ms Mathieson $400 in cash, and $464 into her bank account. MMPL did not pay Ms Mathieson for any overtime she worked on Mondays and Tuesdays.[20]
[20] Affidavit K Mathieson, [11]
The statement of claim annexes a table (Mathieson Hours and Payments Schedule), which specifies, among other things, the days on which and the hours for which Ms Mathieson worked at the Drift Bar and Splash Bar, the amounts MMPL paid Ms Mathieson, and the days on which MMPL paid Ms Mathieson. The respondents admit the information contained in the Mathieson Hours and Payments Schedule is correct.[21] That schedule, however, does not reflect Ms Mathieson’s evidence. The Mathieson Hours and Payments Schedule shows that from 17 March 2019 to 23 June 2019 Ms Mathieson was paid $1,000 per week. From 30 June 2019, however, Ms Mathieson was paid the following amounts:
[21] Statement of claim, [4]; Defence, [4]
Date Amount
30.06.2019 $864
07.07.2019 $464
14.07.2019 $864
21.07.2019 $714
28.07.2019 $664
04.08.2019 $464
11.08.2019 $564
18.08.2019 $464
25.08.2019 $764
01.09.2019 $764
08.09.2019 $564
15.09.2019 $864
22.09.20119 $864
29.09.2019 $664
06.10.2019 $464
13.10.2019 $714
20.10.2019 $864
27.10.2019 $864
03.11.2019 $614
10.11.2019 $464
17.11.2019 $464
24.11.2019 $464
Incidents said to constitute sexual harassment
Ms Mathieson describes a number of incidents (Alleged sexual harassment incidents), which she claims constituted sexual harassment by Mr Matteson.
Mr Matteson asks Ms Mathieson to have dinner with him
According to Ms Mathieson, from about April or May 2019 onwards, Mr Matteson frequently asked Ms Mathieson to have dinner with him, which she refused. Mr Matteson’s constant requests that Ms Mathieson have dinner with him, notwithstanding her declining to do so, made Ms Mathieson feel very uncomfortable, and pressured.[22]
[22] Affidavit K Mathieson, [18]-[24]
11 August 2019 – lunch with Mr Matteson
According to Ms Mathieson, on 11 August 2019 Ms Mathieson asked Mr Matteson whether he minded her going to the “Chinese shop” to get something for herself to eat. Mr Matteson said he did not mind, but asked if Ms Mathieson could get something for him to eat. Ms Mathieson agreed, and bought food for herself, and a seafood meal for Mr Matteson. Ms Mathieson placed the food she bought for Mr Matteson in a bag; and, when she returned to work, and she placed the bag containing towards the left side of the DJ Box as far away as possible from the DJ Box from which Ms Mathieson sat to eat her food. As she started eating her food, Mr Matteson came to the bar and asked if the food in the bag was his. He asked Ms Mathieson to get some cutlery, which she did. Mr Matteson asked Ms Mathieson whether she wanted any of his food. As he asked, he lifted his fork containing food and placed it a few centimetres from Ms Mathieson’s lips, and asked whether Ms Mathieson did not like seafood. Ms Mathieson answered she did not like seafood, and she pulled her head back when Mr Matteson put his fork close to her lips. Mr Matteson smirked, and he put the food straight into his mouth. This became a recurring event, almost every Friday, Saturday, and Sunday.[23]
[23] Affidavit K Mathieson, [25]-[38]
Mr Matteson makes comments about “having fun together”
According to Ms Mathieson, Mr Matteson suggested to Ms Mathieson on a number of occasions that they should have “fun together”.[24]
[24] Affidavit K Mathieson, [39]-[46]
Mr Matteson stands very close to Ms Mathieson
According to Ms Mathieson, on a number of occasions, Mr Matteson made Ms Mathieson very uncomfortable by standing very close to her, and not moving away. Ms Mathieson says this occurred on 28 August 2019,[25] and on 14 September 2019.[26]
[25] Affidavit K Mathieson, [48]-[53]
[26] Affidavit K Mathieson, [54]-[60]
Mr Matteson touches Ms Mathieson’s back
According to Ms Mathieson, on a Saturday evening, while Ms Mathieson was in the kitchen making pizzas, and many staff members were going in and out of the kitchen, Mr Matteson walked into the kitchen on to the left hand island bench where Ms Mathieson was preparing the pizzas. Mr Matteson stood very close to Ms Mathieson. After Ms Mathieson said she was putting the pizzas out, Mr Matteson put his hand on Ms Mathieson’s lower back as far down as the start of her bum crack, and he asked Ms Mathieson whether she minded making him a pizza. After Ms Mathieson said “that’s fine”, Mr Matteson smiled, and patted Ms Mathieson on her lower back and bum crack, and left. Ms Mathieson was surprised, but decided to give Mr Matteson the benefit of the doubt, and assume his touching was an accident.[27]
[27] Affidavit K Mathieson, [61]-[65]
Mr Matteson whips Ms Mathieson with a tea towel
According to Ms Mathieson, in or about September “2018” (I find this is intended to be a reference to 2019), while Ms Mathieson was tilling up the cash register, Mr Matteson whipped Ms Mathieson’s backside with a tea towel. Mr Matteson said: “That one’s going to leave a mark”.[28]
[28] Affidavit K Mathieson, [66]-[70]
Mr Matteson drives Ms Mathieson home and touches her
According to Ms Mathieson, at 4:00 am on 24 August 2019 Ms Mathieson was still at work. In response to Mr Matteson’s asking how Ms Mathieson was going to get home, Ms Mathieson said she was going to try and catch a cab. Mr Matteson offered Ms Mathieson a lift, which she accepted.[29] Ms Mathieson says that, when they arrived outside the complex where she lived, the following occurred:[30]
As I went to unclick my seat belt to free myself, I noticed he leaned over and he unclicked my seat belt and then he continued to further lean over me to open the passenger's side of the door, which he was struggling to do because it was a far reach from where he was sitting in the driver’s seat.
While attempting to open the passenger’s door, the left hand side of Scott’s face, including his left cheek and temple, brushed against my breasts, as he did a back and forth movement in an attempt to open the door.
At this point his head was right up close to my breasts and because he couldn’t reach the handle of the passenger’s door he kept putting his right hand on my left leg to shuffle himself more over towards the door.
The second time that he put his hand on my left leg I said words to the effect of: “What are you doing?” At the same time, Scott softly rested the left side of his face on my breasts and he titled his head back and looked up at me, making eye contact and he smirked at me. At this point I just grabbed the passenger’s handle and quickly got up and as I moved my body out of the vehicle, I nudged him with my chest to free myself and said words to the effect: “Thanks for the lift.”
[29] Affidavit K Mathieson, [71]-[73]
[30] Affidavit K Mathieson, [81]-[85]
Mr Matteson comments on Ms Mathieson’s pants
According to Ms Mathieson, in August 2019 she was wearing her work shirt and long tights at work. Ms Mathieson had a brief conversation with Mr Matteson’s wife in the course of which Ms Mathieson sensed that Mrs Matteson disapproved of the clothes Ms Mathieson was wearing. About five minutes later, Mr Matteson approached Ms Mathieson, and told her that Ms Mathieson “can’t be wearing those pants. They look like hysterectomy pants”. Ms Mathieson told Mr Matteson: “We all wear tights because it’s easy to move around the bar”. Mr Matteson told Ms Mathieson: “You need to wear long pants or jeans”.[31]
[31] Affidavit K Mathieson, [88]-[92]
Mr Matteson comments on Ms Mathieson’s breasts
According to Ms Mathieson, Mr Matteson commented on Ms Mathieson’s breasts on four occasions. It is unnecessary to set out the comments Ms Mathieson says Mr Mathieson made.[32]
[32] Affidavit K Mathieson, [93]-[114]
Mr Matteson comments on Ms Mathieson’s backside and legs
According to Ms Mathieson, on or about 22 June 2019, as Ms Mathieson went to get more stock from the cool room, Mr Mathieson said: “You’ve got a nice ass”. In August 2019, on a Saturday at about 1:00 am, while another employee in the presence of Mr Matteson complimented Ms Mathieson’s appearance, and said to Mr Matteson: “She looks good, doesn’t she”, Mr Matteson said “Yeah, your ass looks good in those”.[33] On a Sunday when Ms Mathieson arrived at work wearing shorts, Mr Matteson said: “Ooh look at your legs”; and, after Ms Mathieson said she had brought her pants with her and that she would get changed Mr Matteson said: “That’s OK. You have nice legs”.[34]
[33] Affidavit K Mathieson, [115]-[124]
[34] Affidavit K Mathieson, [125][-127]
Mr Matteson comments on Ms Mathieson’s pants being see-through
According to Ms Mathieson, at around 2:00 am on a day in July 2019, being at around closing time, a customer had shattered a glass on the floor. Ms Mathieson obtained a dustpan and broom and, proceeded to clean up the glass. Mr Matteson said that Ms Mathieson’s pants were see-through, even though they were not.[35]
[35] Affidavit K Mathieson, [128]-[133]
Mr Matteson comments on Ms Mathieson’s private parts
According to Ms Mathieson, on a Friday night in August 2019, while Ms Mathieson was bending to unlock a number of tables to move, Mr Matteson said if Ms Mathieson kept bending over Mr Matteson would see her “gash”. After this comment Ms Mathieson started to wear men’s sized shirts that would sit below her buttocks; she felt Mr Matteson was constantly watching her, and focusing on her body.[36]
[36] Affidavit K Mathieson, [134]-[140]
Mr Mathieson alludes to oral sex
According to Ms Mathieson, in September 2019, whenever Ms Mathieson would bend down to pick up stock, or any other items, Mr Matteson would say things like “how many times have you been on your knees this week?”[37]
Incidents relating to Ms Mathieson’s daughter
[37] Affidavit K Mathieson, [141]-[143]
Incident of 20 September 2019
According to Ms Mathieson, on 20 September 2019 a security guard (SG) informed Ms Mathieson there was someone to see her. Ms Mathieson went to the front of the restaurant. SG, who was with another security guard, pointed to the person who had come to see Ms Mathieson; and it was Ms Mathieson’s daughter. After she had finished speaking with her daughter, SG asked Ms Mathieson whom she had spoken to. In response to SG’s questions, Ms Mathieson revealed her daughter was fifteen years of age, SG said that, “looking like that”, she did not look 15 years of age. Ms Mathieson said that SG was disgusting, but SG laughed.
Later in the evening, in the presence of Mr Matteson, SG asked Ms Mathieson what was wrong with her. Ms Mathieson said SG’s earlier comments about her daughter were not well-received. Mr Matteson asked what happened. SG said that Ms Mathieson’s daughter had come to work, and SG said he had asked whether she was going to come in and Ms Mathieson said her daughter was on 15 years old, but Ms Mathieson’s daughter did not look 15 years old. The following then occurred:[38]
[38] Affidavit K Mathieson, [149]-[156]
SG: You should have seen what she was wearing (laughed)
Mr Matteson: I’d play buy her
[SG], Sam Baraket and Scott Matteson all laughed. Jasmine, who was at the bar, had a looking of disgust on her face and Gabbi was shaking her head. I looked at Sam Baraket and said:
Ms Mathieson What’s play buy?
Sam:Well it’s like lay buy.
Mr Matteson It means I play around with her until she’s 18 and then I buy her.
Sam: Oh yeah I could be your son in law soon. I could be her Daddy.
Mr Matteson: Imagine if I was your son in law.
Sam: Fuck, she’s fuckable.
Mr Matteson: Oh yeah she’s fuckable.
I said: If you come near her, I’ll kill you. She’s not open for anything.
They all laughed. I looked towards [SG] and Mr. Matteson and said, “it’s not Funny!” About 10 minutes later Sam Baraket said words to the effect of:
Sam: Hello Mummy.
SG: She’s edible.
Scott Matteson was laughing and encouraging and provoking the situation by laughing and not stopping the two men. Sam Baraket continued to say: “Play buy sounds like a good idea.”
I then looked towards Scott Matteson and said words to effect of:
I said: You have a daughter. How would you feel if that was your daughter?
Mr Matteson:My daughter would never wear that.
I said: What was it that she was wearing?
Scott Matteson looked over at [SG] who smirked and then Scott Matteson said: “a little tight number was it?”
Scott Matteson continued to make comments about my daughter. I remember he said the following:
a. “young girls that wear things like that, no wonder she’s trouble”;
b. “She’s very well developed now isn't she Kate, just like her mother”;
c. “When your daughter turns 18, that’s it”.
Incident on 5 December 2019
Ms Mathieson says that on 5 December 2019, after her daughter had visited Ms Mathieson at the restaurant, Mr Matteson said “Sweet girl. Better keep her away from me”.[39]
[39] Affidavit K Mathieson, [167]
Mr Matteson’s comments about Ms Mathieson’s personal life
Ms Mathieson says she recalls three incidents in which Mr Matteson made remarks about her personal life. The first occurred in May 2019 where, on Mr Matteson seeing an intoxicated patron putting his hand up his partner’s dress, Mr Matteson said to Ms Mathieson, “I bet you could do that”. Ms Mathieson says that “[o]ne of our old managers” who had come out to help, “heard” Mr Matteson’s comment.[40] The second incident occurred on Friday 26 July 2019 when Mr Matteson overheard Ms Mathieson refer to a relationship she had ended with another person. Mr Matteson made a number of statements including “You’re a cougar”, “Did you have to give him lessons”.[41] The third incident occurred in May 2019, when Ms Mathieson needed to get past Mr Matteson to get to the cool room. Mr Matteson stepped in the way of Ms Mathieson and said that “[w]e caught someone and one of the guys in the cool room fucking before. It’s one of the two places that don’t have cameras”. Ms Mathieson asked whether they got fired, in response to which Mr Matteson said: “No, I didn’t fire them. I thought it was funny”. Mr Matteson raised his eyebrows and smiled at Ms Mathieson.[42]
[40] Affidavit K Mathieson, [173]-[175]
[41] Affidavit K Mathieson, [176]-[178]
[42] Affidavit K Mathieson, [191]-[194]
Mr Matteson makes comments regarding female patrons
According to Ms Mathieson, on a daily basis Mr Matteson made sexualised comments in relation to female patrons.[43] There was also an incident in October 2019, where Mr Matteson made a comment about a patron’s breasts.[44]
[43] Affidavit of K Mathieson, [195]
[44] Affidavit of K Mathieson, [196]-[205]
Other incidents
A number of other incidents occurred. These consisted of comments Mr Matteson made about other employees;[45] conduct of SG, [46] and Mr SB.[47]
[45] Affidavit of K Mathieson, [213]-[218]
[46] Affidavit of K Mathieson, [219]-[221]
[47] Affidavit of K Mathieson, [222]-[223]
Other evidence
There is other evidence that is relevant to Ms Mathieson’s claims that she was sexually harassed. There is in evidence a report prepared by Dr Lim, a consultant psychiatrist, on 28 February 2021.[48] In that report, Dr Lim sets out what Ms Mathieson said to him about Mr Matteson’s conduct. Dr Lim recorded the following:
Ms Mathieson told me that the restaurant and bar she operated had been in the same area as the Respondent's business premises. She told me that the Respondent invited her to join his business working as a chef. Ms Mathieson told me that whilst things were initially cordial, over time their relationship deteriorated and she started to feel increasing uncomfortable in the environment working with the Respondent. She identified that her discomfort became apparent after about one month of working with the Respondent. She informed me that matters started with the Respondent attempting to engage with her socially, to have dinner together. She declined his invitations but over time, his behaviour escalated and he started to make comments on her physical appearance including speaking about her breasts. He would also make further comments which included sexual innuendo. Ms Mathieson told me she further developed a perception that he would engineer situations where he would be physically close to her, brush past her, and put his hands on her.
Ms Mathieson told me she had attempted to set boundaries but felt intimidated by the Respondent. She told me that he consistently displayed aggressive and intimidating behaviour in the work environment and that if he was contradicted or rejected, the abuse would escalate, for example he might follow an employee around the whole day shouting profanities at them. Ms Mathieson told me that his harassing or intimidating behaviour would also affect other staff and that on occasion she would confront him about his behaviour. She told me that he would then respond by harassing her.
Ms Mathieson provided a description of an event she reported occurring in the latter third of her employment with the Respondent. She told me that the business tended to operate late and that on one occasion, the Respondent insisted on taking her home in his ute. She told me she felt uncomfortable with this but accepted under a degree of coercion. She told me that when they arrived at her residence, he reached across her ostensibly to open the door of the passenger seat for her but in doing so touched her breasts. Ms Mathieson told me she was extremely upset by this event and her psychological symptoms escalated noticeably from this point on. She told me that the Respondent further escalated in his behaviour after this event and would frequently confront her in the cold room and would make statements of a sexual nature such as advising Ms Mathieson that the location would allow “some private time” and that this was the only place apart from the back room with no cameras. Ms Mathieson confirmed that she interpreted these comments as being associated with the threat of unwanted sexual contact with the Respondent.
[48] Dr Lim’s report is annexed to the affidavit of Mr Aslanian made on 25 March 2021
Complaints
Ms Mathieson also says she made complaints in relation to the following matters.
Payslips and cash in hand payments
Apart from two occasions, MMPL did not issue any payslips to Ms Mathieson. Ms Mathieson says that, at least once a week, Ms Mathieson complained to Mr Matteson about the lack of payslips, and cash in hand payments. Ms Mathieson expressed those complaints by making statements to the effect of “I need to see a payslip to see what I have been paid”, “I need to see the payslip because I think I have been underpaid”, “other employees are complaining to me that they don’t receive a payslip”, “I need to see what tax has been taken out”, and “You should be supplying us with payslips”. Mr Matteson responded by saying words to the effect of “I don’t need to give payslip every week”, and “No-one has asked me for payslips”.[49]
[49] Affidavit of K Mathieson, [227]-[228]
Ms Mathieson says that on two occasions she had “requested my payslips in writing, and was provided with one, “but that’s the only time”.[50] Ms Mathieson has annexed to her affidavit two payslips she says MMPL issued to her.[51] The first is dated 6 May 2019 and is as follows:[52]
Employers Name: Drift Bar & Restaurant
Date of Payment: 6/5/2019
[50] Affidavit of K Mathieson, [267]
[51] Affidavit of K Mathieson, [225]
[52] Affidavit of K Mathieson, [225]; annexure “KM-2”
ABN : . . .
Pay Period: 29/4/19 – 5/5/19
Employees Name Kate Mathieson
Award: Hospitality
Hourly Rate: $30.00
Bank Details: . . .
Entitlements Unit Rate Total Wages worked for Ordinary Hours 38 30.00 $1140.00 Wages YTD $50160 Gross payments $1140.00 Deductions Taxation $231.00 Total deductions $231.00 Tax Withheld YTD $10164 Net payment $909 Employer superannuation contribution – 9.50% Contribution $108.30 Super Contribution YTD $3899.5
The second payslip is in the same form, but it is for the period 6 May 2019 to 12 May 2019.[53]
[53] Affidavit of K Mathieson, [225]; annexure “KM-2”
Ms Mathieson says that one of the two occasions on which Mr Matteson provided Ms Mathieson with a payslip occurred on 24 September 2019, as shown in the following text exchange:[54]
[From Ms Mathieson] Hey lovely, would u be able to send me 3 recent dated pay slips with same amount to my email . . . . as I’m looking at moving as we didn’t when I was with Elliot and real estate need income proof. Thank you
[From Mr Matteson] No worries I’ll do it later tonight
[From Ms Mathieson] Thank you
[54] Affidavit of K Mathieson, [269]; annexure “KM-10”
Ms Mathieson does not annex the payslips she received from Mr Matteson in response to this request; and Ms Mathieson does not say Mr Matteson did not provide the three payslips Ms Mathieson requested.
Underpayment and late payment of wages
Ms Mathieson says that, from June 2019 to November 219, she was often only paid between $100 and $300 in cash instead of the $400 cash payment Mr Matteson had agreed to pay. At least once a week during the period June 2019 to November 2019, Ms Mathieson expressed her complaints by making statements to the effect of “You need to pay me on time and properly, I can’t afford to not get my pay for weeks”; “You haven’t paid me my $400.00 as we agreed”; and “I spent so much time developing your website and I haven’t received anything for doing it or any extra pay for hours spent on it outside of work”.[55]
[55] Affidavit of K Mathieson, [228], [229]
Misleading or deceptive conduct
Ms Mathieson says she complained to Mr Matteson on a number of occasions about what she believed was MMPL misleading or deceiving its customers. Ms Mathieson expressed these complaints by making statements to the effect of: “You shouldn’t be selling alcohol out the back door. You could lose your liquor license”; “I do not feel comfortable doing it for you”; and: “You are selling ciders and beers that you purchased for cheap. They are out of date, it is a health risk”.[56]
[56] Affidavit of K Mathieson, [231]-[233]
Drug use and intoxication
Ms Mathieson says that, from July 2019, “at least once a week” she complained about alcohol and drug use at the Drift Bar.[57] Ms Mathieson says that, although she does not remember all of the complaints she made, she remembers what she said, namely:
a. “some of the workers, including . . . , were drunk during work hours”
b. “I observed work colleagues having illegal drugs at the bar and restaurant”;
c. “I saw your friends enter your office and snort a white powdery substance while you sat with them”;
d.“I saw you drunk at work”;
e.“using drugs at work is illegal, you should stop it”;
f.“I won't cover for you when the police come”.
[57] Affidavit of K Mathieson, [233]
Liquor licence, cash payments, and remuneration
According to Ms Mathieson, Mr Matteson was selling bottles of alcohol at the back of the Drift Bar after trading hours and in the early hours of the morning, which Ms Mathieson says she knew was unlawful and “in breach of our liquor licence”; Mr Matteson “was removing large sums of cash from the till and not recording the transaction”; and Mr Matteson authorised over 100 patrons and “sometimes up to 134 patrons” at the Drift Bar “even though we were only licensed to cater for 94 patrons”.[58] Ms Mathieson says that although she does not remember every complaint, she remembers she said to Mr Matteson: “We don’t get our legal break between shifts, it’s unsafe as we are all exhausted and we need to have our entitled time between shifts, or an accident is seriously going to happen”.[59]
[58] Affidavit of K Mathieson [238]
[59] Affidavit of K Mathieson [239]
Sexual harassment in the workplace
Ms Mathieson says that in “September and October 2019, at least four times” she approached Mr Matteson and complained about him sexually harassing her. Although Ms Mathieson says she does not remember every complaint, she does remember saying “Please stop harassing me”, “Elisabeth is also being sexually harassed by other workers”, and “This has to stop, can you look into this immediately?”[60] Ms Mathieson says that, despite these complaints, Mr Matteson “did not perform any investigation or discipline any employee or even provide any training about bullying and sexual harassment”.[61]
[60] Affidavit of K Mathieson, [240]
[61] Affidavit of K Mathieson, [241]
Other complaints
According to Ms Mathieson, she was never paid any overtime, penalty rates, or given allowances or any rest breaks.[62] Every week she would finish work on a Sunday morning at 4:00 am, and would have to come back to work on the same day at 11:00 am.[63] Sometimes she would have to work 15 hour shifts without sufficient rest breaks.[64] From early September 2019 onwards, Ms Mathieson says that at least twice a week she approached Mr Matteson and complained about her underpayment and fatigue. Ms Mathieson says:[65]
I do not remember every complaint, but I remember I said: “Scott, we are required by law to haver [sic] a minimum of eight hours between shifts and we are lucky to have four hours. We are all exhausted and need to have proper breaks. Staff will not continue to work these hours. I am not getting paid for these extra hours.”
One time, after I complained, I recall I asked Scott what award I was under and he said “My award.”
[62] Affidavit of K Mathieson, [242]
[63] Affidavit of K Mathieson, [243]
[64] Affidavit of K Mathieson, [244]
[65] Affidavit of K Mathieson, [245], [246]
Lawful absences
Ms Mathieson says she was “off work at times, either because myself or my kids were not well”. Ms Mathieson says she was hospitalised for about 2 days in around September 2019 for a particular condition. Ms Mathieson says that on “each occasion” she was off work, Mr Matteson did not pay her wages “and would make comments” to Ms Mathieson such as “I need to run a business, I can’t do it on my own”; “you’re going to ruin my business”; “I can’t be at your fucking mercy every time that you are tired or your kids are sick, suck it up”; and “people like you are the fucking reason I am going broke. You are all happy to hold your hand out for money but want to do nothing for it”.[66]
[66] Affidavit of K Mathieson, [247]-[249]
Specific recollections
In addition to the “frequent complaints”, Ms Mathieson says she recalls “specific incidents and events where she complained either orally or in writing via text messages”.[67]
[67] Affidavit of K Mathieson, [250]
Text message sent 22 April 2019
Ms Mathieson annexes the following text messages she exchanged with Mr Matteson on 22 April 2019.[68]
[68] Affidavit of K Mathieson, [251]; annexure “KM3”
[From Ms Mathieson] Hey lovely, just checking pay. Did 44 hrs this week taking out 1 hr break, Thursday, sat, sun, Just checking as u gave me 272.50 cash
[From Mr Matteson] Wednesday 4-9
Thursday 4-9
Saturday 12-3am
Sunday 11.30 – 2 am
I make that 40 hours less 3 for breaks
How did you get 44
[From Ms Mathieson] We did late night Thursday
Complaint about public holiday pay
Ms Mathieson says that on Thursday 25 April 2019 she asked Mr Matteson whether “we get holidays”. Mr Matteson responded: “Not if you want to work here”.[69]
[69] Affidavit of K Mathieson, [253]
1 July 2019 - Complaint about late pay
Ms Mathieson annexes the following text messages she exchanged with Mr Matteson on 3 July 2019.[70]
[From Ms Mathieson] Hey Scotty, just looked at my pay I thought u put 700 a week in? Just checking if it’s changes as I thought I got the same each week
[From Mr Matteson] I increased the cash part. But if you need more we’ll talk about it tomorrow
[From Ms Mathieson] Ok will do. Must admit finding it a little hard on 800 a week my rent is 660 lol. Chat tomorrow
[From Mr Matteson] No worries Pub biz on this Friday So a 3pm start. They will be there from 4pm Is Ritchie available
[From Ms Mathieson] I’ll ask
[70] Affidavit of K Mathieson, [255]; annexure “KM4”
July 2019 Group Certificate issues
Ms Mathieson says that in or about July 2019 she “received a PAYG group certificate from the company “which has [Ms Mathieson’s] incorrect pay on it”.[71] Ms Mathieson annexes what she says is the group certificate she received from Mr Matteson.[72] The document Ms Mathieson has annexed appears to be a document issued by the Australian Taxation Office titled “Income statements and payment summaries”. Under the heading the document states: “The way you get your end-of-year payment summaries is changing. Visit income statements to learn more”. The document requests the reader to “Check the information below and add any missing income statements/payment summaries”, and suggests that if “the income statement/payment summary type is not listed, go back to Personalise return screen and choose the relevant type”. The document then records the following information:
[71] Affidavit of K Mathieson, [256]
[72] Affidavit of K Mathieson, [257]; annexure “KM-5”
Occupation where you earned most income
FAST FOOD MANAGER
Salary, wages, allowances, tips, bonuses etc.
Payer’s name Income Tax withheld
OJ FOODS PTY LTD $75.00 $0.00
$75.00 $0.00
Ms Mathieson says she approached Mr Matteson and complained that her PAYG group certificate was incorrect, and that Mr Matteson should have provided Ms Mathieson and the ATO with an accurate record.[73]
[73] Affidavit of K Mathieson, [258]
Three absences
Ms Mathieson refers to four occasions on which she took or sought leave of absence. It appears Ms Mathieson has included these examples because they were the subject of text exchanges with Mr Matteson.
(a)The first text message exchange begins with a text message Ms Mathieson sent to Mr Matteson at 6:40 am on 23 August 2019, in which Ms Mathieson said she was heading back to hospital because she had started to get back pain overnight. [74] At 1:02 pm Mr Matteson requested Ms Mathieson call him straight away. At 2:45 pm Ms Mathieson sent a text stating that she had “jazz bringing in a certificate from hospital for u for my sick pay”, and asked that Mr Matteson let her known if he “needed anything else for it”.
[74] Affidavit of K Mathieson, [264]; annexure “KM-7”
(b)The second text message exchange begins with a text message Ms Mathieson sent to Mr Matteson on 8 September 2019.[75] Ms Mathieson said she was “running a little late as trying to sort out . . . and her asthma out before I leave”. Ms Mathieson said she would be there at “about 11.30-12”, and is if that was OK. Mr Matteson responded at 10:33 am “11.30 I can’t run this business on my own”. Ms Mathieson responded at 10:33 am noting that she will be there “by then”; and at 11:15 am she texted that she was “leaving now, will catch cab [and] be there in 10”.
[75] Affidavit of K Mathieson, [264]; annexure “KM-8”
(c)The third is a text Ms Mathieson sent to Mr Matteson on 23 September 2019.[76] Ms Mathieson stated (errors in original):
[76] Affidavit of K Mathieson, [266]; annexure “KM-9”
Hey lovely, wanted to know if we cold re discuss my wage now we have picked up in our restaurant side. I’ve been working about average of 50 hrs a w
Sorry message sent before finished. I’m on average of 18 to 20 dollars an hr which is less than staff under me at work. If I could get back to my 30 dollars as my hourly rate or possibly 27 now we are picking up I would very much appreciate it. I haven’t wanted to ask as I do understand money th
Ella isn’t a
Available sat or Sunday this weekend, she can work Friday late night
Mr Matteson appears to have responded by having cut and pasted an extremely negative customer review of the restaurant, which begins with the words “Don’t eat here!”
(d)The fourth exchange is as follows (errors in original):[77]
[From Ms Mathieson] Scotty I’m in extreme amounts of pain again so I might end up back in emergency so I won’t come in toda7. I’ve texted Ella asking her to come in
[From Mr Matteson] Let me know straight away I cannot be at your mercy every time you can’t make it in I am not going close another day
[From Ms Mathieson] Ella isn’t able to as she has been drinking
[From Mr Matteson] Did you send the roster out
[From Ms Mathieson] Yes
[77] Affidavit of K Mathieson, [271]; annexure “KM-11”
April and 7 October 2019 public holiday complaints
According to Ms Mathieson, on 25 April 2019, Anzac Day, she approached Mr Matteson and asked whether “we get public holidays”, in answer to which Mr Matteson said “Not if you want to work here”.[78] Also according to Ms Mathieson, on 7 October 2019, being the Labour Day public holiday, she approached Mr Matteson and asked whether “we get public holidays”. Mr Matteson responded “Not if you want to work here”.[79]
[78] Affidavit of K Mathieson, [253]
[79] Affidavit of K Mathieson, [272]
27 October 2019 absence
According to Ms Mathieson, on 27 October 2019 her daughter went to hospital, and Ms Mathieson had to take time off to go with her daughter. Ms Mathieson says she approached Mr Matteson to tell him she needed time off. Ms Mathieson says she had a conversation with Mr Matteson to the following effect:[80]
Ms Mathieson: I just got a call from my mother, [T] has been taken to emergency, she’s had seizures and I’ve gotta go.
Mr Matteson: You’ll have to wait. You can’t go. Otherwise I’ll be at your mercy every time your daughter has a drug problem. You’re a moron and need to suck it up. You’re a piece of shit, you’re going to ruin my business.
[80] Affidavit of K Mathieson, [275]
Ms Mathieson says that it was not until 10 pm that she left work to be with her daughter, because she was scared of Mr Matteson; and by that point Mr Mathieson was in tears and was able to leave only because “Kane” gave her his car keys and told Ms Mathieson to go.[81]
[81] Affidavit of K Mathieson, [276]
Early November 2019 death threat complaint
According to Ms Mathieson, in early November 2019 “one of her colleagues”, Ms Foustellis told Ms Mathieson that SG “tried to kill her”.[82] Earlier in her affidavit, Ms Mathieson deposed that in around the middle of October 2019 Ms Matteson appointed Ms Foustellis “in the position of food and beverage supervisor”.[83] Ms Mathieson says she “was immediately concerned about the safety and risk” to her and to her colleagues.[84] Ms Mathieson then approached Mr Matteson, and she had a conversation with him to the following effect:[85]
Ms Mathieson: Rochelle told me and Kane that the security guard, Scott made an attempt on her life while she was working and managing another bard. She told me that Scott put a hit on her and that she had to be with someone at all times. I am very worried about our safety. He needs to be fired and banned from the venue.
Mr Matteson: (Laughing) I’ll sort it out.
[82] Affidavit of K Mathieson, [277]
[83] Affidavit of K Mathieson, [273]
[84] Affidavit of K Mathieson, [278]
[85] Affidavit of K Mathieson, [279]
November 2019 bullying and privacy complaints
According to Ms Mathieson, throughout her employment Mr Matteson “would always bully me and say words to the effect of “you’re useless”; “you’re going to send me broke”, “you’re so bad at your job and your food is shit because your daughter is on drugs”; “your daughter is a druggo and did this to herself”; “what type of employer am I to have a druggo’s mum working here? It looks bad for my business”; “you look ugly when you cry. You’re pathetic”.[86]
[86] Affidavit of K Mathieson, [281]
Ms Mathieson says that in early November 2019 she approached Mr Matteson “at least twice” and complained about Mr Matteson bullying her, and not protecting her privacy. Although Ms Mathieson does not remember when she complained, she remembers saying “you always bully me, calling me stupid and an imbecile”; Mr Matteson needed to stop “telling others about [her] daughter”; and “that information is private”.[87]
[87] Affidavit of K Mathieson, [282]
10 November 2019 absence
According to Ms Mathieson, on about 10 November 2019 her daughter had to go to hospital to get a cast; and she called and texted Mr Matteson to let him know she would be late.[88] Ms Mathieson annexes the following two text messages, one sent to Mr Matteson at 11:52 am, and the other to some other person at 12:00 pm:
Hey, I’m on my way in I tried to call I’ve been in hospital with bay as she had to have a cast
I do apologise I’ve tried to call Scotty from shack not u to say I was going to be late hence why u didn’t answer. I’m on my way in, I can apologise enough
[88] Affidavit of K Mathieson, [283]; annexure “KM12”
10 November 2019 work health and safety incident and complaint
According to Ms Mathieson, at around 10 pm on 10 November 2019 another employee cut her wrist in the kitchen, and she was bleeding profusely. Ms Mathieson immediately approached Mr Matteson and said that the employee had cut her wrist;[89] Ms Mathieson was going to drive her to the hospital because the employee clearly needed stiches. Ms Mathieson continues as follows:[90]
[89] Affidavit of K Mathieson, [285], [286]
[90] Affidavit of K Mathieson, [286]-[290]
I immediately approached Scott and said words to the effect as follows:
Ms Mathieson: Gabby has slit her wrist by accident. I'm going to drive her to the hospital because it clearly needs stitches.
Mr Matteson: No it doesn’t.
Ms Mathieson: Yes, it does.
Mr Matteson: Tell her not to put it on Work Cover because I will get fucked over. It cost me a bomb last time. Just tell me what it costs.
I went with Gabby to Sutherland Hospital where she remained for a short period and was unfit for work for a period of 2 weeks.
I told Gabby words to the effect: “You need to tell the hospital what happened. If you have long-term problems, you need to be on Work Cover and tell the appropriate people”.
Gabby said to me, words to the effect: “No, Scott will fire me.”
13 November 2019 absence
According to Ms Mathieson, on 13 November 2019 her daughter was not feeling well, so Ms Mathieson had to stay at home to take care of her. The following text messages were exchanged between Ms Mathieson and Mr Matteson (errors in original):[91]
[From Ms Mathieson] Hey Scotty, Bailey is not n a great way today sorry to Let you down but I won’t be able to work as I need to stay with here. But I have my mum coming up today to be with her over weekend
[From Mr Matteson] Well how about starting at 6 pm Your mum will be tere before then I imagine
[From Ms Mathieson] If my mum is here by 5 in happy to come in but Im not sure what time she is as the fires have been bad and not sure of road closures ect so all I can do is keep u posted as don’t want to say yea if she isn’t
[From Ms Mathieson] Hey my mum has turned back [only part of text message forms part of annexure]
[91] Affidavit of K Mathieson, [291], [292]; annexure “KM13”
15 November 2019 – RSA Complaint
According to Ms Mathieson on 15 November 2019 she observed an employee working behind the bar serving alcohol without the required RSA certificate. Ms Mathieson approached Mr Matteson and said to him the employee did not have the relevant certification, and it is unlawful for her to serve alcohol to patrons. Mr Matteson responded: “don’t worry, it’s all good”.[92]
[92] Affidavit of K Mathieson, [293]-[295]
21 November 2019 “Fatigue Complaint”
Ms Mathieson says that on or about 20 November 2019 she sent a text message requesting that she finish earlier “to make sure I get a 10 hour break between my shifts”.[93] Ms Mathieson annexes a copy of a text message (which does not record the date on which it was sent) which states (errors in original):[94]
Is there any possibility that I finish at 12 on Saturday night? I find it really hard to get up in the morning at 10am finishing so late on Saturday.
[93] Affidavit of K Mathieson, [313], [314]]; annexure “KM 16”
[94] Affidavit of K Mathieson, [313], [314]]; annexure “KM 16”
16 November 2019 - text exchange in relation to free drinks
At 11:40 am on 16 November 2019 Mr Matteson sent the following text to staff members, including to Ms Mathieson:[95]
Hi everyone,
It has come to my attention that free drinks are going across the bar at Drift.
If I can confirm this, then you will no longer be working with us.
No one has authority to give away free drinks without my approval.
Plain and simple it is considered theft and will not be tolerated.
I want everyone to acknowledge the above by return text.
Regards,
Scott
[95] Affidavit of K Mathieson, [298]; annexure “KM14”
At 1:11 pm on 16 November 2019, Ms Mathieson responded with the following text message to Mr Matteson (errors in original):[96]
Hey Scott, if are talking about the Jamison from last night I had put on table and the guy way to come and pay as they sat on bar for age bit he didn’t I’m more than happy to pay for those
[96] Affidavit of K Mathieson, [298]; annexure “KM14”
Ms Mathieson has given the following evidence that appears to relate to this email:[97]
On or about Friday, the 15th of November 2019, whilst I was at work, I was serving a customer a Jameson drink and I forgot to charge them. It was extremely busy that night and it was genuinely an accident. Otherwise, the only time that we give out cheap or free drinks is under Scott’s instructions. I then paid for the drinks out of my own pocket and sent a text-message to Scott with the receipt.
[97] Affidavit of K Mathieson, [296]
17 November 2019 – alleged theft
According to Ms Mathieson, on Sunday 17 November 2019 “at approximately 3:30 am”, she “noticed that there had been a theft at the [Drift Bar] because [her] personal possession[s] including cash, keycard and charms were missing”; and Ms Hill’s “cash wages had been stolen too”.[98] Ms Mathieson does not identify the facts or matters that led her to notice the theft. Nor does Ms Mathieson identify the amount of the cash belonging to her that was stolen, or the amount of the cash belonging to Ms Hill that was stolen. Ms Mathieson also does not identify the “charms” she says were missing.
[98] Affidavit of K Mathieson, [299]
According to Ms Mathieson, at approximately 11.00 am on 17 November 2019, she rang Mr Matteson, and she and Mr Matteson had a conversation to the following effect (errors in original):
Ms Mathieson: Last night my stuff was stolen. It was stolen out of the office. They stole my charms, they stole money from my wallet and my credit card pouch, but it wasn’t just my stuff, Liz’s pay was also stolen from my bag and Sam Baraket had his wallet had been stolen out of the back room, including a bottle of vodka from his bag.
Mr Matteson: I’ll be there soon, we’ll talk about it when I get there
Ms Mathieson: Yes, it does.
Ms Hill, in her affidavit, says that at approximately 3:30 am she “noticed” there had been “a theft” at the Drift Bar “of my wages and Kate’s personal belongings”.[99] Ms Hill says that at 11:00 am on 18 November 2019 Ms Mathieson called Mr Matteson, and she heard Ms Mathieson say that “Sam’s wallet and things from my bag and Lizzie’s wage was stolen last night”, and “I don’t know what time or how”.[100]
[99] Affidavit of E A Hill, [144]
[100] Affidavit of E A Hill, [145]
According to Ms Mathieson, later on 17 November 2019 Mr Matteson came to the Drift Bar, and Ms Mathieson and Mr Matteson had a conversation to the following effect (errors in original):[101]
Mr Matteson: What happened?
Ms Mathieson: Last night my stuff was stolen. It was stolen out of the office. They stole my charms, they stole money from my wallet and my credit card pouch, but it wasn’t just my stuff, Liz’s pay was also stolen from my bag and Sam Baraket had his wallet had been stolen out of the back room, including a bottle of vodka from his bag.
Mr Matteson When did you figure all this out?
Ms Mathieson: 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 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.
Mr Matteson: I’ll have a look at the cameras.
Ms Mathieson: Okay, should I call the police?
Mr Mathieson: No, don’t call the police. I’ll start an internal investigation.
[101] Affidavit of K Mathieson, [302]
This evidence must be viewed with the exchange of text messages between Ms Hill and Mr Matteson that occurred on 12 and 14 November 2019. (I will consider the significance of this evidence later.) Ms Hill, in her affidavit, described the text message she sent to Mr Matteson on 12 November 2019 as a text message in which she requested her pay. The text exchange relevantly is as follows:[102]
[102] Affidavit of E A Hill, [145], [143]; annexure “EAH3”
Ms Hill: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. 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.
Thanks again Scotty
Mr Matteson: I apologise for that Send me through your hours and I’ll have that for you today
Ms Hill:Nah all good Scotty Shit happens
Hope this makes sense
Hours
. . . .
$400 out of this $950 arrears was paid on 9/11
. . . .
Total = 60 hours - $1200
Minus $400 already paid
Remainder = $800
The text exchanges that occurred on 14 November 2019 begin with the following text Ms Hill sent to Mr Matteson at 2:38 pm:
Hey Scotty can you please forward my pay on to Kate tonight and I will grab it from her.
Mr Scott responded by stating “No worries”.
This text exchange suggests that on 14 November 2019 Ms Hill requested Mr Matteson to give her pay to Ms Hill, so that Ms Hill could collect her pay from Ms Mathieson. Ms Mathieson’s evidence of her conversation assumes she had Ms Hill’s wages in her bag at the time of the alleged theft. Ms Mathieson has not given evidence about when or the circumstances in which she received Ms Hill’s wages. In those circumstances, I may with some confidence draw the inferences that are available to be drawn from the text exchanges between Ms Hill and Mr Matteson on 12 and 14 November 2019; and that is that by 14 November 2019 Mr Matteson had arranged to give to Ms Mathieson Ms Hill’s pay; and the amount of Ms Hill’s pay was the $800 Ms Hill, in her text message of 14 November 2019, stated was owing to her. I am satisfied that such inferences should be drawn.
According to Ms Mathieson, on Monday 18 November 2019 she “filed a police complaint about the theft with event number E7168006800”. Ms Mathieson said she did this because she was “worried about the theft”, and she “was not confident that [Mr Matteson] would find out who did this”.[103] Ms Mathieson’s evidence suggests that she made the police report by completing and submitting some document, and, on doing so, her complaint was given a particular identification number. Alternatively, it may be that Ms Mathieson was given an event number which she recorded somewhere. Ms Mathieson, however, has not annexed any document, and she says nothing about whether any document was created in the course of her making the complaint. If, on the other hand, Ms Mathieson did not make the police complaint in writing, but instead went to a police station to make the complaint, Ms Mathieson says nothing about that.
[103] Affidavit of K Mathieson, [304]
Ms Mathieson further says the “police then came to” her house and met with her, Ms Mathieson’s “friend”, and Mr Matteson “about the theft”; Ms Mathieson “gave them more information”. Ms Mathieson does not say what information she says she gave to the police. Ms Mathieson further says that at the end of the interview she observed “red circle and a white squiggly line” on the phone Mr Matteson was using “indicating that he had been recording the interview using an app without mine or the Police’s consent”.[104] After the police left, Ms Mathieson says she told Mr Matteson that what he did was illegal; that she did not consent to his recording the interview, and that the police would not be happy about his recording.[105]
[104] Affidavit of K Mathieson, [306]
[105] Affidavit of K Mathieson, [307]
At 2:53 pm on 18 November 2019 Mr Matteson sent the following text message (errors in original):[106]
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 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
[106] Affidavit of E A Hill, [150]; annexure “EAH4”
Again according to Ms Mathieson, from Monday 18 November 2019 “at least 3 or 4 times a day”, Mr Matteson telephoned and asked Ms Mathieson “who do you think stole your stuff?”, and asked “tell me about the theft”. In response to Mr Matteson’s questions, Ms Mathieson says she said:[107]
You’re being intrusive, I already told you and the police everything, there’s nothing more to say. I feel like you are accusing me of something. I had to call the police, as you did not want me to.
[107] Affidavit of K Mathieson, [309]
Ms Hill says that, “from Monday 18th till Wednesday 20th November 2019”, Mr Matteson rang Ms Hill “at least 3 or 4 times a day”, and asked her whether she suspected anyone, why she did not get her pay earlier, whether she knew there are cameras on the safe at the bar, and “tell me your thoughts”.[108] Ms Hill responded by complaining that Mr Matteson was being intrusive; noting that she had “already provided information”, she had “no further information to provide”, and it was “now a NSW Police matter”.[109] She demanded that Mr Matteson stop calling her; and his calling her was making her anxious. Ms Hill also says she told Mr Matteson: “I didn’t get my pay earlier because you didn’t give it to me Scott”.[110] Ms Hill does not say in her evidence what information she had “already provided” to Mr Matteson about the alleged theft.
[108] Affidavit of E A Hill, [151]
[109] Affidavit of E A Hill, [152]
[110] Affidavit of E A Hill, [153]
At 12.43 pm on 19 November 2019 Mr Matteson sent the following text message to Ms Mathieson and all other staff (errors in original):[111]
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.
[111] Affidavit of K Mathieson, [311]; annexure “KM15”
24 November 2019 – discussion between Ms Mathieson and Mr Matteson
According to Ms Mathieson, on the evening of Sunday 24 November 2019 she approached Mr Matteson at the Drift Bar “and complained about my weekly pay being late”. Ms Mathieson further says that the following conversation occurred:[112]
Ms Mathieson: My pay is late again.
Mr Matteson: You’ve [not] been charging customers for alcohol without authority.
Ms Mathieson: You authorised me to give free alcohol to customers before.
Mr Mathieson: You can’t supervise anymore. We will see if you survive this. Rochelle is taking over as manager.
[112] Affidavit of K Mathieson, [315]
It appears that Ms Mathieson intended to include “not” where I have included “[not]”. That is so because Ms Mathieson’s statement that “you authorised me to give free alcohol to customers before” implies Ms Mathieson’s understanding that Mr Matteson had accused Ms Mathieson of not charging customers for alcohol. Such an accusation would be consistent with what Dr Lim recorded Ms Mathieson stated about the reasons for which Mr Matteson had decided to terminate her employment, namely, that Ms Mathieson “had given away free drinks”. On Ms Mathieson’s account of the conversation, she did not deny Mr Matteson’s statement that she had not “been charging customers for alcohol without authority”; Ms Mathieson only responded by stating that Mr Matteson had authorised Ms Matteson “before” to give free alcohol to customers. That implies Ms Mathieson admitted Mr Matteson’s statement that she had given free alcohol to customers.
Ms Mathieson gives the following evidence in relation to her providing alcohol to patrons for free or at reduced prices:[113]
In the past, Scott had authorised me and other workers to provide free or cheaper alcoholic beverages to various customers, including but not limited to: Michael Ray, the employees and directors of Low & Lofties, employees of Zinc, NRL footballers, including but not limited to Paul Gallen and other players of the Cronulla Sharks National Rugby League team.
[113] Affidavit of K Mathieson, [316]
Ms Mathieson does not identify when or how, or in what circumstances Mr Matteson had authorised her “to provide free or cheaper alcoholic beverages to various customers”.
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”.[114] 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.[115] That is a reference to the following text message:[116]
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
[114] Affidavit of K Mathieson, [317]
[115] Affidavit of K Mathieson, [318]
[116] 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 he 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 were exchanged between Ms Mathieson and Mr Matteson.[117]
[117] Affidavit of K Mathieson, [324]; annexure “KM18”
(a)At 11:59 am on 27 November 2019 Mr Matteson sent a text to Ms Mathieson asking whether she is able to come and see Mr Matteson “if not tonight then tomorrow morning”.
(b)At 4:53 pm on 27 November 2019 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 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 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 on Friday morning
Further text messages passed between Mr Matteson and Ms Mathieson, the end result of which was Ms Mathieson and Mr Matteson agreeing to meet at 12:30 pm at “old Joe’s at northies”, in Cronulla.
The text message Mr Matteson sent to Ms Mathieson at 7:07 pm on 27 November 2019 refers to Ms Mathieson having denied an accusation. Ms Mathieson does not say in her affidavit what she understood Mr Matteson was referring to. It is open to find that the accusation related to Ms Mathieson’s report was about the alleged theft; and that the evidence to which Mr Matteson referred is the video he refers to in the text message he had sent to staff at 12:43 pm on 19 November 2019.
29 November 2019 - meeting at “Old Joe’s”
According to Ms Mathieson, she attended a meeting at Old Joe’s located in Northies Cronulla Hotel with Mr Matteson, Ms Hill, and Ms Hill’s mother, Ms Catherine Mercer. Ms Mathieson does not say whether she knew before the meeting that she had scheduled with Mr Matteson that Ms Hill and her mother would be there. According to Ms Mathieson, the following occurred:[118]
[118] Affidavit of K Mathieson, [325]-[331]
(a)As soon Mr Matteson “walked in”, he said “You, me. In there. By ourselves”, while pointing at the room inside.
(b)Ms Hill and her mother interrupted and said: “No, whatever you want to say, you can say in front of us”.
(c)A conversation to the following effect took place
Mr Matteson:Kate, I can’t believe you would do this to me. I can’t believe you won’t talk to me by yourself.
Ms Mathieson: All I want are the wages you owe me and I'm happy to just go away.
Mr Matteson: I don’t owe you shit, we’re not giving you anything. 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.
Ms Mathieson: I’m the one that called the police, Scott. You refused. Why would I steal my own items and then call the police? You knew that I talked to the police, you turned up at my place uninvited when they were there.
(d)Ms Mathieson had brought with her to the meeting “my hand-written notes about some of my issues that I had complained about” (KM Notes). Ms Hill on “behalf” of Ms Mathieson showed the notes to Mr Matteson. The notes record the following:[119]
Kate:
Start March 13th 2019
- never more than $500 into acc when working on average 50 hrs per wk
- from 26th 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
(e)Mr Matteson then sat down, read the notes, handed them back to Ms Hill, and said: “You’re fired. Good luck getting a job in the Shire”.
[119] Affidavit of K Mathieson, [329]; annexure “KM19”
A possible third reason is suggested by the text message Ms Mathieson sent to Mr Matteson at 6:08 pm on 25 November 2019. Ms Mathieson referred to its being Mr Matteson’s “choice if” he felt Ms Mathieson was “not working as part of the team”. That may suggest that Mr Matteson did not consider Ms Mathieson was working well in the team that managed MMPL’s businesses.
I am satisfied that Mr Matteson decided to terminate Ms Mathieson’s employment because he believed that, without his authority, Ms Mathieson provided alcohol to patrons without charging for it; and because Mr Matteson believed or suspected that Ms Mathieson had lied about the theft she reported to him on 17 November 2019. It is also possible that, in addition to these reasons for deciding to terminate Ms Mathieson’s employment, Mr Matteson believed Ms Mathieson was not working as part of the team.
For these reasons, Ms Mathieson’s claim based on s 340(1) of the FW Act fails.
Claims based on contraventions of s 351(1) of the FW Act
An employer contravenes s 351(1) of the FW Act if the employer takes adverse action for the reasons specified in that subsection. I have made findings concerning the reason or reasons for which Mr Matteson decided to terminate Ms Mathieson’s employment; and those reasons do not include the reasons specified in s 351(1) of the FW Act. For that reason alone, Ms Mathieson’s claims based on contraventions of s 351(1) and s 352 fails.
Relief (other than penalty)
Ms Mathieson is entitled to an order under s 545(2)(b) of the FW Act that MMPL and Mr Matteson pay her $17,402.22, being the amounts Ms Mathieson had become entitled to under the Award and which MMPL failed to pay her, together with interest under s 547(2) of the FW Act. Ms Mathieson is also entitled to an order under s 545(1) of the FW Act that MMPL and Mr Mathieson pay $4,169.57, together with interest under s 547(2) on that amount, to a superannuation fund nominated by Ms Mathieson.
Pecuniary Penalty
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 Mathieson’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 Mathieson’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[169]
[169] I repeat here 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”;[170] 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”;[171] 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”;[172] 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””.[173] 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”.[174]
[170] 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].
[171] 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].
[172] 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.
[173] 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].
[174] 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”.[175] 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”;[176] 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”.[177]
[175] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [46]
[176] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [10] (my emphasis)
[177] 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,[178] with approval, to the following passage from the judgment of French J in Trade Practices Commission v CSR Ltd:[179]
[178] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [18]
[179] 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”,[180] further noting the following:[181]
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.
[180] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13, at [18]
[181] 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):[182]
(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 . . .
[182] 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.[183] After reviewing a number of cases, I said:[184]
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.[185] 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”.[186]
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.
[183] Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626
[184] Fair Work Ombudsman v Australian Wild Tuna Pty Ltd & Anor [2016] FCCA 2626, at [32]-[34]
[185] Berlyn v Brouskos (2002) 134 A Crim R 111
[186] Berlyn v Brouskos (2002) 134 A Crim R 111, at [20], [24]
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”.[187] That is also what the Full Federal Court held in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union:[188]
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.
[187] Fair Work Ombudsman v Lohr [2018] FCA 5, at [33]
[188] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [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:[189]
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.
[189] 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:[190]
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 . . .
[190] 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:[191]
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.
[191] 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.[192] 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”.[193]
[192] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113, at [114], [148] (Dowsett, Greenwood, and Wigney JJ)
[193] 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”.[194] In R v Holder Street CJ described the principle as follows:[195]
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.
[194] Contin v The Queen [2012] VSCA 247, at [38]
[195] R v Holder (1983) 3 NSWLR 245, at page 260
The totality principle has been held to apply to the assessment of pecuniary penalties.[196]
Application
[196] 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:
Contravention 1: Failing to pay Ms Mathieson 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 Contravention 2: Failing to pay Ms 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 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 payslips Subsection 536(1) of the FW Act Contravention 5: Failing to pay Ms Mathieson overtime rates for work performed between midnight Saturday and midnight Sunday Clause 33.2(c) of the Award, and therefore s 45 of the FW Act Contravention 6: Failing to give Ms Mathieson a minimum break of 10 hours between the finish of ordinary hours on one week day and the commencement of ordinary hours of work on the next day Clause 31.2(d) of the Award, and therefore s 45 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 multiple times. 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 separate reasons for judgment,[197] however, I have also found that, in relation to Ms Hill, MMPL and Mr Matteson (as a person involved) engaged in multiple contraventions of cl 20.1, cl 34.1, cl 30.2(a) of the Award, and therefore of s 45 of the FW Act, and also of s 536(1) of the FW Act. Subsection 557(1) applies to MMPL’s multiple contraventions of these clauses of the Award and of s 536 even though MMPL contravened them in relation to two different employees.[198] That means the one pecuniary penalty must be assessed in relation to each of Contraventions 1, 2, 3, and 4 as they related to both Ms Mathieson and Ms Hill.[199]
[197] Hill v McKenzie Matteson Pty Ltd as Trustee for McKenzie Matteson Family Trust [2023] FedCFamC2G 343
[198] 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”.
[199] 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.”
Assessment of penalties before adjustment
It would be convenient if identify the relevant factors in relation to the contraventions collectively.
In relation to Contraventions 1, 2, 3, and 4:
(a)MMPL’s contraventions occurred from 13 March 2019 to 27 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 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 the Mathieson Hours and Payments Schedule.
These same considerations apply to Contraventions 5, and 6 except they relate only to conduct that affected Ms Mathieson.
I therefore assess the penalties for MMPL (and Mr Matteson), before adjustment, 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 payslips Subsection 536(1) of the FW Act $44,100 ($8,820) (70%) Contravention 5: Failing to pay Ms Mathieson overtime rates for work performed between midnight Saturday and midnight Sunday Clause 33.2(c) of the Award, and therefore s 45 of the FW Act $44,100 ($8,820) (70%) Contravention 6: Failing to give Ms Mathieson a minimum break of 10 hours between the finish of ordinary hours on one week day and the commencement of ordinary hours of work on the next day Clause 31.2(d) of the Award, and therefore s 45 of the FW Act $44,100 ($8,820) (70%) TOTAL $239,400 ($47,880)
Adjustments?
No adjustment is required under the one transaction principle. I am satisfied, however, that the penalties as a whole overstate the MMPL’s contravening conduct, viewed as a whole. I propose, therefore, to adjust the overall amount to $200,000 for MMPL, and $40,000 for Mr Matteson, which is approximately 83.54% of the total amount assessed. 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 payslips to Ms Mathieson and Ms Hill Subsection 536(1) of the FW Act $36,842 ($7,368.40) (70%) Contravention 5: Failing to pay Ms Mathieson overtime rates for work performed between midnight Saturday and midnight Sunday Clause 33.2(c) of the Award, and therefore s 45 of the FW Act $36,842 ($7,368.40) (70%) Contravention 6: Failing to give Ms Mathieson a minimum break of 10 hours between the finish of ordinary hours on one week day and the commencement of ordinary hours of work on the next day Clause 31.2(d) of the Award, and therefore s 45 of the FW Act $36,842 ($7,368.40) (70%) TOTAL $200,000 ($40,000)
I propose, therefore, to order that MMPL and Mr Matteson pay a pecuniary penalties in the sum of $200,000 and $40,000 respectively.
To whom penalties should be paid
Subsection 546(3)(c) of the FW Act provides that the Court may order that a pecuniary penaltybe paid to a “particular person”. Mathieson is in the position of the applicant in Sayed v Construction, Forestry, Mining and Energy Union:[200]
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.
[200] 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 around 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. I propose to order that MMPL and Mr Matteson pay to Ms Mathieson 100% of the penalties I have assessed in relation to Contraventions 5 and 6. This translates to MMPL and Mr Matteson paying the penalties I propose to impose as follows:
(a) MMPL:
Contravention Penalty Payable to applicant 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 5 $36,842 $36,842 - 6 $36,842 $36,842 - Total $200,000 $168,421 $31,579 (b) Mr Matteson:
Contravention Penalty Payable to applicant 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 $7,368.402 $5,526.30 $1,842.10 5 $7,368.40 $7,368.40 - 6 $7,368.40 $7,368.40 - Total $40,000 $33,684.20 $6,315.80
SD PROCEEDING
Given I have not accepted Ms Mathieson’s evidence in relation to the alleged sexual harassment incidents, it follows that Ms Mathieson’s claims under s 46PO of the AHRC Act.
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 Ms Matteson was involved in those contraventions. I also propose to order:
(a)pursuant to s 545(2)(b) of the FW Act, that MMPL and Mr Matteson pay to Ms Mathieson $20,188.52 , being the sum of $17,402.22 and interest from 27 November 2019 (the date on which MMPL terminated Ms Mathieson’s employment ) up to 5 May 2023, (the date on which I propose to pronounce orders) as calculated in paragraph 236 below;
(b)pursuant to s 545(1) of the FW Act, that, within 21 days from the day on which I pronounce orders, MMPL and Mr Matteson, pay $4,837.27, being the sum of the $4,169.57 superannuation contribution MMPL failed to make and interest from 27 November 2019 (the date on which MMPL terminated Ms Mathieson’s employment ) up to 5 May 2023 (the date on which I propose to pronounce orders) as calculated in paragraph 237 below;
(c)pursuant to s 546(1) of the FW Act that MMPL and Mr Matteson pay pecuniary penalties of $200,000 and $40,000 respectively; and
(d)pursuant to s 546(3)(c) of the FW Act, within 28 days after the day I pronounce orders:
(i)MMPL pay $168,421 of the pecuniary penalties to Ms Mathieson, and $31,579 of the pecuniary penalties to Ms Hill; and
(ii)Mr Mathieson pay $33,684.20 of the pecuniary penalties to Ms Mathieson and $6,315.80 of the pecuniary penalties to Ms Hill.
I have calculated interest on $17,402.22 as follows:
Period Start Period end Days Interest rate Amount 27.11.2019 31.12.2019 35 5.25% $87.60 1.01.2020 30.06.2020 182 4.75% $411 1.07.2020 31.12.2020 184 4.25% $371.80 1.01.2021 30.06.2021 181 4.10% $353.80 1.07.2021 31.12.2021 184 4.10% $359.70 1.01.2022 30.06.2022 181 4.10% $353.80 1.07.2022 31.12.2022 184 4.85% $425.50 1.01.2023 05.05.2023 125 7.10% $423.10 TOTAL $2786.30
I have calculated interest on $4,169.57 as follows:
Period Start Period end Days Interest rate Amount 27.11.2019 31.12.2019 35 5.25% $21 1.01.2020 30.06.2020 182 4.75% $98.50 1.07.2020 31.12.2020 184 4.25% $89.10 1.01.2021 30.06.2021 181 4.10% $84.80 1.07.2021 31.12.2021 184 4.10% $86.20 1.01.2022 30.06.2022 181 4.10% $84.80 1.07.2022 31.12.2022 184 4.85% $101.90 1.01.2023 05.05.2023 125 7.10% $101.40 TOTAL $667.70
As for the SD proceeding, I propose to make an order dismissing it.
I certify that the preceding two hundred and thirty-four (234) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 5 May 2023
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