Moteki v Legnor Pty Ltd

The applicant, a full-time permanent employee and food and beverage supervisor, brought proceedings against her employer, the first respondent, and the second respondent, who was the owner and controller of the employer. The dispute concerned alleged breaches of general protections under the *Fair Work Act 2009* (Cth), including underpayments, failure to provide employment contract and records, and non-payment of superannuation and accrued entitlements. The applicant contended that these complaints constituted the exercise of a workplace right, and that her subsequent termination was a contravention of the Act. Default judgment had been entered against the first respondent, which was now in liquidation. The applicant sought relief solely against the second respondent.

The court was required to determine whether the second respondent was liable as an accessory to the contraventions committed by the first respondent, notwithstanding the first respondent's liquidation. Specifically, the court had to consider if the second respondent was knowingly concerned in the first respondent's actions, and whether the second respondent's own conduct warranted a finding of contravention. The court also needed to assess the appropriate relief to be granted against the second respondent, given the applicant's claims and the second respondent's conduct.

His Honour Judge Wilson found that the second respondent was the controlling mind of the first respondent and was knowingly concerned in all the acts done by the first respondent. The court reasoned that the second respondent's actions in underpaying the applicant and failing to provide entitlements were deliberate, driven by a desire for profitability, and not a result of oversight. The second respondent's argumentative, defiant, and confrontational stance, coupled with a lack of contrition or corrective measures, demonstrated a wilful refusal to pay amounts legitimately owed to the applicant. The court concluded that the second respondent was an accessory to the contraventions and that his liability was not contingent upon the solvency of the first respondent.

The court ordered that the second respondent pay pecuniary penalties for his contraventions of sections 44, 45, 340(1)(a)(iii), and 535(3) of the *Fair Work Act 2009* (Cth). The specific amount of the penalties was to be determined at a later hearing.