Park v Momo Chicken Pty Ltd
[2023] FedCFamC2G 609
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Park v Momo Chicken Pty Ltd [2023] FedCFamC2G 609
File number(s): BRG 378 of 2022 Judgment of: JUDGE VASTA Date of judgment: 12 July 2023 Catchwords: INDUSTRIAL LAW – Contraventions of Fair Work Act 2009 (Cth) – pecuniary penalty – deterrence Legislation: Fair Work Act 2009 (Cth): ss 45, 323, 535, 536, 546, 550, 557 Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3
Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Fair Work Ombudsman v Design Wolf Solutions Pty Ltd [2023] FedCFamC2G 589
Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7
Ro v Momo Chicken Pty Ltd [2023] FedCFamC2G 543
Sayed v Construction Forestry Mining and Energy Union [2016] FCAFC 4
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of last submission/s: 16 June 2023 Date of hearing: In Chambers on the papers Place: Brisbane Solicitor for the Applicant: Solomons Legal Solicitor for the Fourth Respondent: Ellem Warren Napa Lawyers ORDERS
BRG 378 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SEOHYUN PARK
Applicant
AND: MOMO CHICKEN PTY LTD A.C.N. 612 552 299 AS TRUSTEE FOR MOMO CHICKEN & BEER DISCRETIONARY TRUST A.B.N. 32 236 743 318
First Respondent
MOONSOO CHOI
Fourth Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
12 JULY 2023
THE COURT ORDERS THAT:
1.Pursuant to s 546(1) of the Fair Work Act 2009 (Cth), the First Respondent pay a pecuniary penalty to the Applicant for the contraventions in declarations 1-4 in the Order of 4 April 2023 in the sum of $41,000, within 180 days of this Order.
2.Pursuant to s 546(1) of the Fair Work Act 2009 (Cth), the Fourth Respondent pay a pecuniary penalty to the Applicant for the contraventions in declarations 1-4 in the Order of 4 April 2023 in the sum of $8,200, within 180 days of this Order.
3.The Applicant have liberty to apply on seven days’ notice in the event that any of the preceding orders are not complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
Introduction
On 4 April 2023, I made declarations, by consent, that the first respondent had contravened ss. 45, 323(1)(a), 535(1) and 536(3) of the Fair Work Act 2009 (Cth) (“FW Act”).
I ordered that those sections of the statement of claim that asked for declarations, other than those declarations made by consent, be dismissed, by consent.
I ordered that the parties file a joint statement of agreed facts and that the parties file any further affidavits and submissions as to the imposition of pecuniary penalties by a certain date. By consent, I ordered that the question of the imposition of pecuniary penalties be heard “on the papers”.
Chronology
The applicant filed an application seeking declarations and pecuniary penalties, as well as underpayments, in this Court on 9 September 2022. It would seem that another employee, Mr Ro, filed a similar claim about the same time. Unfortunately, the two claims were not allocated to the same judge; I was allocated the present matter and His Honour, Judge Egan, was allocated the Ro matter.
The respondents filed a defence on 14 October 2022. The matter came before me as a first court date on 7 November 2022. The parties had already agreed to an order for discovery and for a private mediation. I made the orders because of that agreement and I did not venture into the merits of either the application or the orders agreed to by the parties.
The applicant filed another statement of claim on 22 November 2022. The solicitor for the applicant filed an affidavit of documents on 2 December 2022. The fourth respondent filed an affidavit of documents on 16 February 2023.
The matter came back before me on 6 March 2023. The parties informed me that their private mediation would now be held on 9 March 2023. Because of this, I adjourned the matter until 4 April 2023 without any further consideration.
After the mediation, the applicant filed a notice of discontinuance against the second and third respondents.
As earlier noted, I made a number of declarations by consent and further orders on 4 April 2023.
The parties filed a statement of agreed facts on 21 April 2023.
The fourth respondent filed an affidavit on 15 May 2023. His father, who had previously been the second respondent, filed an affidavit also on 15 May 2023. This latter affidavit spoke of what he and his wife (the former third respondent) could say about the circumstances.
The applicant filed her submissions on 30 May 2023. The respondents filed their submissions on 16 June 2023.
Strangely, the Court has no affidavit by the applicant herself. There is no evidence that has been given to the Court by the applicant. This means that all of the facts that can be relied upon by the applicant are those that are in the statement of agreed facts.
Admissibility
The above chronology is important because it discloses that the only “evidence” filed in this matter are the two affidavits of the fourth respondent and his father. The affidavit of documents is not “evidence”. The affidavit of documents is simply evidence that those documents exist; it is not evidence of the truth of any of those documents.
If any party wished to adduce evidence of the truth of those documents, they had to do so in the proper manner.
The factual matrix that underpins the basis for the contravention of the particular sections of the FW Act (and also for imposing the pecuniary penalty) is contained in the statement of agreed facts. The purpose of a statement of agreed facts is to allow the Court to understand the parameters upon which the parties have asked for the Court to impose pecuniary penalties.
This means that any submission, which is based upon “facts” contained in either affidavit of documents and not specifically contained in the statement of agreed facts, cannot be considered by the Court.
Factual matrix
The applicant, Seohyun Park, is a female citizen of South Korea having been born on 7 June 2001. She was employed by the first respondent, Momo Chicken Pty Ltd, during three distinct periods. These were:
·from 23 September 2018 to 22 September 2019
·from 1 July 2020 to 14 March 2021
·from 29 May 2021 to 19 June 2022
The applicant resigned on 19 June 2022.
An analysis of her wages showed that she was paid less than the minimum hourly rate during three distinct periods. She was paid above the minimum hourly rate for a period commencing at 5 October 2020 to 24 January 2021 (which was during the second period of employment) and then from 29 May 2021 until her employment ceased on 19 June 2022 (which is the whole of the third period of employment).
The applicant was not paid penalty rates for working on Saturday, Sunday, on any week day from 10 PM until midnight or for any time outside her rostered hours during three distinct periods.
The applicant was not paid the overtime rate for working on public holidays from 23 September 2018 to 17 April 2022.
The applicant was not paid annual leave loading when she ceased her employment. Her superannuation contributions were also underpaid.
When all of these underpayments were totalled, it revealed that the first respondent underpaid the applicant a total of $31,818 and underpaid her superannuation by $3,182.
It also emerged that the payslips that had been issued to the applicant were false and misleading in that they did not properly record her entitlements for the hours that she worked.
The first respondent had failed to ensure the copies of the Restaurant Industry Award 2010 and 2020 (“Award”) and of the National Employment Standards were available to all employees to whom they apply, either on a noticeboard conveniently located at the workplace or through accessible electronic means.
On 24 March 2023, the first respondent paid $36,450.45 to the applicant for her underpayment and interest. There is no outstanding claim against the first respondent for the contraventions and these proceedings are solely concerned with the setting of appropriate pecuniary penalties.
Contraventions
The first respondent contravened s. 45 of the FW Act by failing to pay the applicant the minimum hourly rate.
The first respondent contravened s. 45 of the FW Act by failing to pay penalty rates.
The first respondent contravened s. 45 of the FW Act by failing to pay overtime rates on a public holiday.
The first respondent contravened s. 45 of the FW Act by failing to pay the applicant annual leave loading.
The first respondent contravened s. 45 of the FW Act by failing to ensure copies of the Award and the National Employment Standards were available to the applicant either on a noticeboard of the workplace or through accessible electronic means.
The first respondent contravened s. 45 of the FW Act by failing to pay the required superannuation.
The first respondent contravened s. 323(1)(a) of the FW Act by failing to pay the applicant in full.
The first respondent contravened s. 536(3) of the FW Act by providing false or misleading pay slips to the applicants (I will say more about this aspect later in these reasons).
The first respondent contravened s 535(1) of the FW Act by failing to make and keep employment records pertaining to the applicant.
The first respondent contravened s. 536(3) of the FW Act by providing false or misleading pay slips to the applicant.
The maximum penalty for all of the above contraventions is $66,600 for the first respondent and $13,320 for the fourth respondent.
Liability for the fourth respondent
The evidence before the Court shows that the first respondent was an entity created by the parents of the fourth respondent, Moonsoo Choi. As noted earlier, the parents were originally the second respondent and third respondent in this matter. The evidence is that the parents slowly relinquished the management of the first respondent to the fourth respondent to the point where, during the employment of the applicant, the fourth respondent was the guiding mind of the first respondent.
Having regard to that evidence, the applicant discontinued the proceedings against the second respondent and the third respondent. The fourth respondent has admitted that he was concerned in the contraventions of the first respondent by virtue of s. 550 of the FW act.
Pecuniary penalties
The law in relation to assessment of pecuniary penalties has really been laid down quite comprehensively. The High Court, in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3, said, at paragraph 116 of that judgment:
As has been observed, the principal object of an order that a person pay a pecuniary penalty under s 546 is deterrence: specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners. According to orthodox sentencing conceptions as they apply to the imposition of civil pecuniary penalties, specific deterrence inheres in the sting or burden which the penalty imposes on the contravener. Other things being equal, it is assumed that the greater the sting or burden of the penalty, the more likely it will be that the contravener will seek to avoid the risk of subjection to further penalties and thus the more likely it will be that the contravener is deterred from further contraventions; likewise, the more potent will be the example that the penalty sets for other would-be contraveners and therefore the greater the penalty's general deterrent effect. Conversely, the less the sting or burden that a penalty imposes on a contravener, the less likely it will be that the contravener is deterred from further contraventions and the less the general deterrent effect of the penalty. Ultimately, if a penalty is devoid of sting or burden, it may not have much, if any, specific or general deterrent effect, and so it will be unlikely, or at least less likely, to achieve the specific and general deterrent effects that are the raison d'être of its imposition.
The High Court reaffirmed that principle very recently in the matter of Australian Building and Construction Commissioner v Pattinson [2022] HCA 13. The High Court said, at paragraph 46:
[46]It is important to recall that an “appropriate” penalty is one that strikes a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. …
[47]The penalty that is appropriate to protect the public interest by deterring future contraventions of the Act may also be moderated by taking into account other factors … where those responsible for a contravention of the Act express genuine remorse for the contravention, it might be considered appropriate to impose only a moderate penalty because no more would be necessary to incentivise the contravenors to remain mindful of their remorse and their public expressions of that remorse to the court. Similarly, where the occasion in which a contravention occurred is unlikely to arise in the future because of changes in the membership of an industrial organisation, a modest penalty may be appropriate having regard to the reduced risk of future contraventions.
[48]It is not necessary to multiply examples further. It is sufficient to say that a court empowered by section 546 to impose an “appropriate” penalty must act fairly and reasonably for the purpose of protecting the public interest by deterring future contraventions of the Act.
In Mason v Harrington Corporation Proprietary Limited t/as Pangaea Restaurant & Bar [2007] FMCA 7, which is known as the Pangaea case, the Court went through, in effect, a number of factors the Court should be mindful of when imposing pecuniary penalties. One must be careful, though, in looking at the Pangaea case (Supra), that one does not simply look at those matters as some form of checklist to see whether or not the facts of the case with the particular factors either aggravate or mitigate the penalty. As such, the list compiled in Pangaea (Supra) is extremely useful, but it should not be a formula used by the Court to slavishly come up with some sort of almost mathematical guide for the imposition of penalties.
Notwithstanding what has been said in Pattinson, the principles in Pangea are still apposite when looking at the circumstances of the contravention as well as the circumstances of the contavenor.
Grouping
In this case, there have been a number of contraventions. Each time the first respondent failed to pay the minimum hourly rate, or pay a penalty rate or other such entitlement, would constitute a contravention of the section of the FW Act. Section 557 of the FW Act allows the Court to group the contraventions and treat the “group” as if it were one offence.
In this case, such a grouping would mean that the Court can deal with all of the contraventions of failing to pay the minimum hourly rate as one contravention. Similarly, the Court could do the same with regards to the failure to pay penalty rates, overtime et cetera.
The respondents argue that the Court could go further and group all of the contraventions of s. 45 together and to treat them as one offence. Whilst that may be actually possible, I am not of the view that it would be appropriate to do so. The contraventions are quite separate contraventions and, it seems to me, should be dealt with separately and by looking at the circumstances of each particular form of contravention.
Having regard to the contraventions listed above, it seems to me that each contravention should be looked at separately. This does mean that the maximum penalty faced by the first respondent and the fourth respondent is a far greater penalty, but this is only one factor that the Court has to look at in determining the appropriate deterrent penalty.
The practical consequence of the way in which I will look at the contraventions is that the maximum penalty faced by the first respondent is a total of $732,600 whilst the maximum penalty faced by the fourth respondent is a total of $146,520. The question the Court must ask itself is, within the parameters of those maximum sums, what should the appropriate penalty be, using the principles which I have enunciated earlier in these reasons?
Submissions of the parties
Both parties provided written submissions in accordance with the orders made on 4 April 2023. The submissions are “light years” apart. The applicant has argued for maximum penalties to be imposed, whilst the respondents have argued for minor penalties to be imposed.
The applicant bases her submission on six aspects. I will discuss each one accordingly.
Firstly, the applicant says that the last pay slip issued by the first respondent was fabricated as the amount was not transferred to the applicant’s bank account. This “fact” is not contained in the statement of agreed facts and there is no evidence of this “fact” before the Court. The Court cannot use this “fact” to justify the penalty that will be imposed.
Secondly, the applicant says that the respondents had knowledge of their obligations under the Award because there had been previous complaints made to the Fair Work Ombudsman (“FWO”). There is no evidence of this before the Court.
The affidavit of documents discloses that a freedom of information request by the applicants to the Office of the FWO resulted in them being given documents relating to the respondents. As I have previously remarked, this is only evidence that the documents exist; it is not evidence of the truth contained in those documents. The previous dealings of the respondents with the FWO is not contained in the statement of agreed facts. If the applicant wished to put this matter before the Court, she should have done so in the proper way. The Court cannot use this “fact” to justify the penalty that will be imposed.
Thirdly, the applicant says that the amount underpaid by the first respondent is not insubstantial. This is a matter that can be used to justify the penalty that will be imposed.
Fourthly, the applicant says that the business of the first respondent is not small. The size of the business is a matter for the Court to decide, but realistically, it is only a factor that the Court must consider in deciding whether the penalty is not one which is “oppressively severe”.
Fifthly, the applicant says that neither of the respondents has proffered any apology to the applicant, nor have they shown any contrition to date. The affidavits of the fourth respondent and the parents do exhibit contrition. Whether the contrition is genuine or merely contrition born out of the fact that their contraventions have been discovered, is a matter for the Court.
Lastly, the applicant says that she was a vulnerable individual who was susceptible to exploitation by the respondents and that the first respondent continues to employ young overseas workers who are oblivious to their entitlements. The evidence is that the first respondent is no longer trading. Even if the first respondent were still trading, there is no evidence that there are “young overseas workers” employed there, let alone that those workers are oblivious to their entitlements.
The respondents have based their submissions on different aspects. I will discuss each one accordingly.
Firstly, the first respondent was a small business employer as defined in the FW Act and employed up to 12 employees at any one time. This is the uncontradicted evidence that is before me.
Secondly, throughout the contravention period, there had been no adverse finding against the first respondent for contraventions of the FW Act and the FWO had not issued any compliance notice under the FW Act. On the evidence before me, this is correct.
Thirdly, the respondents submit that the underpayments arose out of the fourth respondent incorrectly paying a flat rate of pay for all hours worked. The underpayment has now been remedied.
Fourthly, the respondents claim that their contrition has been demonstrated by paying the applicant the amount of her claim, together with interest, at an early stage in the proceeding before the parties were required to file evidence. The respondents say that they admitted their liability very early in the proceedings and made the statement of agreed facts early in the proceedings.
Factors taken into consideration
According to the statement of agreed facts, the applicant began working for the first respondent when she was 17 years old. Her first period of work was for 12 months. After a break of over nine months, she then began her second period of work which lasted for almost 9 months. After a break of about 10 weeks, the applicant commenced her third period of work which lasted for almost 13 months. The applicant was 21 years of age when she finished working with the first respondent.
I do note that the applicant was paid less than the minimum hourly rate during her first two periods of employment (though, for some part of that time, she was paid above the minimum hourly rate) but was paid above the minimum hourly rate for the whole of her third period of employment.
I note that the applicant was underpaid by nearly $32,000. Whilst this is a figure that is arrived at over the course of nearly 4 years, it is still a sum that would have affected her as a minimum wage earner.
The evidence of the fourth respondent is that his family home was broken into and ransacked in August 2020. His evidence is that items were left in a damaged state including paperwork which had been tipped out of boxes and trampled on by the intruders. A cleaner came to the house to throw out damaged items and may have thrown out damaged paperwork including employment records.
I can safely infer that the applicant was a young person from a non-English speaking background who would have trusted her employer to “do the right thing” by her. There is a hint of “exploitation” about the employment of the applicant, but without further evidence, the Court cannot make any positive conclusions about this aspect.
The evidence is that the first respondent was only ever running one restaurant. There may have been other restaurants that used the term “Momo Chicken” but they were not businesses run by the first respondent (though they were operated by the parents of the fourth respondent).
The uncontradicted evidence is that the first respondent no longer trades. The uncontradicted evidence is that the fourth respondent is still “in the business” and is working for his parents once again. The fourth respondent says that he has “learnt his lesson” and ensures that he is paying his employees, what they are due, by reference to the FWO website.
The respondents have admitted their liability very early on in the proceedings. The parties entered into a private mediation, which meant that the public purse did not have to fund such a venture. The applicant has been paid in full with interest.
Deterrence looms large in this matter for obvious reasons.
Other considerations
I am cognisant that His Honour, Judge Egan, has imposed penalties in the Ro matter. That matter is reported at Ro v Momo Chicken Pty Ltd [2023] FedCFamC2G 543. His Honour imposed penalties for the respondents failing to ensure that copies of the Award were available. This is the same contravention about which I have made a declaration in this matter. The respondents cannot be twice punished for the same contravention and so there will be no penalty imposed for this particular contravention.
The statement of agreed facts spoke of the provision of false or misleading pay slips to the “applicants” which is a plural term. It would seem that there is an argument that this contravention is also the contravention for which penalty has been imposed by His Honour Judge Egan. However, His Honour did not impose a separate penalty for that contravention (mainly because His Honour took a different approach to the “grouping” of contraventions). I am not of the view that the approach made by His Honour Judge Egan precludes me from imposing penalty for this particular contravention.
I also note that His Honour grouped the contravention of s. 323(1) with the contraventions of s. 45. I am of the view that it must necessarily follow that if a person is underpaid (and therefore a contravention of s. 45 occurs), necessarily there will be a contravention of s. 323(1). For that reason, I will not be imposing a penalty for contravention of that section.
Discussion
There are many aspects of this matter that are somewhat disquieting. There are questions that are unanswered, and because the parties asked for this matter to be conducted on the papers, there is no opportunity for the Court to have these questions answered.
It is the experience of the Court that the FWO assists employees to recover any entitlements that have not been paid to them. Once a request for assistance is made to the FWO, an inspector commences an investigation. If it is that the investigation reveals that there is a probability that an employee has been underpaid, the FWO would usually proceed under the “compliance notice regime” as opposed to the litigation route.
Recently in Fair Work Ombudsman v Design Wolf Solutions Pty Ltd [2023] FedCFamC2G 589, I said this about the compliance notice regime:-
Whilst it was in the purview of the applicant to begin litigation against the first respondent for that failure to pay the proper entitlements to the employee, the applicant instead took advantage of the compliance notice provisions of the FW Act. This is a proper alternative to litigation.
By issuing a compliance notice, the applicant informs an employer that there is a reasonable belief that the employer has breached their duty to properly pay their employee/s. The notice gives the employer the opportunity to rectify that breach and, if the employer does so, there are no lasting consequences.
This means that there are no declarations made by Court and it also means that there can be no action taken against the employer for the contravention of the National Employment Standards. It also means that the employee is properly remunerated.
If an employer wishes to dispute the substance of the compliance notice, there are remedies available to that employer.
The applicant in this matter did not ask the FWO for assistance. Instead, I infer, the applicant went to her lawyers. From the material before me, the applicant ceased her employment with the first respondent on 19 June 2022. According to the statement of claim filed on 9 September 2022 (at paragraph 30), the lawyers for the applicant sent a request for employment records to the lawyers for the first respondent on 28 June 2022, which was nine days after the employment of the applicant ceased.
The applicant then sought resolution via litigation. Whilst the applicant has every right to pursue her entitlements in this fashion, she was paying for lawyers to do what the FWO would have done for free.
As has been already noted, the parties consented to mutual discovery and the filing of an affidavit of documents. Mediation took place soon after and the matter was resolved. The respondents paid the applicant all of the underpayments plus interest.
It would seem to me that if the FWO had begun an investigation, they would have proceeded under the compliance notice regime. Given the manner in which the respondents acted in the present matter, it would seem to me that the respondents would have fully complied with the compliance notice regime.
The result of that still would have been that the applicant would have been paid what it was that she was owed but that the respondents would have had the opportunity to rectify their errors without further penalty.
However, because the applicant chose the litigation route, rather than seeking assistance from the FWO, the respondents now have the ignominy of the Court making declarations against them as well as the spectre of pecuniary penalties.
Since the decision in Sayed v Construction Forestry Mining and Energy Union [2016] FCAFC 4, it will be a very rare case in which pecuniary penalties are not ordered to be paid to the applicant. This decision seems to have taken away any true discretion a Court has in deciding to whom a pecuniary penalty should be paid.
However, that decision did not mean that applicants could now use the pecuniary penalty regime to enjoy a financial bonanza. It is obvious that the applicant has incurred the costs of a lawyer in pursuing this action, but that was her choice; there does not seem to be any reason why the applicant did not seek the assistance of the FWO.
Whilst it is that the respondents contravened sections of the FW Act relating to the keeping of records, the provision of proper pay slips and the displaying of appropriate information, those are matters that are usually for the FWO to police rather than an individual. None of those matters affects an individual employee if it is that the employee is paid properly, but it does affect the overall industrial relations regime and, for this reason, those areas are of great concern to the FWO.
I considered whether the pecuniary penalties to be awarded for those latter contraventions should be paid to the Commonwealth whilst the penalties for the former contraventions be paid to the applicant. In the end, I have decided that all of the pecuniary penalties should be paid to the applicant.
Penalties to be imposed
I award the following penalties:-
(1)For failing to pay the minimum hourly rate, I also take into account that the respondents paid above the minimum hourly rate for a significant part of the employment of the applicant. For this contravention, I would award a pecuniary penalty of $5000 for the first respondent and $1000 for the fourth respondent.
(2)For failing to pay penalty rates, I would award a pecuniary penalty of $6000 for the first respondent and $1200 for the fourth respondent.
(3)For failing to pay the overtime rate for working on a public holiday, I would award a pecuniary penalty of $3000 for the first respondent and $600 for the fourth respondent.
(4)For failing to pay the applicant annual leave loading, I would award a pecuniary penalty of $1000 for the first respondent and $200 for the fourth respondent.
(5)For failing to ensure copies of the Award were available, I make no pecuniary penalty for the reasons I have already given.
(6)For failing to make the required superannuation contributions, I would award a pecuniary penalty of $6000 for the first respondent and $1200 for the fourth respondent.
(7)For failing to pay the applicant in full, I make no pecuniary penalty for the reasons I have already given.
(8)For failing to make and keep records of the applicant’s employment records, I have taken into account the excuse that the fourth respondent has given. However, these records should have been electronically stored. I award a pecuniary penalty of $10,000 for the first respondent and $2000 for the fourth respondent.
(9)For failing to provide proper pay slips to the applicant, I award a pecuniary penalty of $10,000 for the first respondent and $2000 for the fourth respondent.
This gives a total of $41,000 for the first respondent and $8200 for the fourth respondent. I am of the view that these penalties are appropriate and that they strike the balance “between oppressive severity and the need for deterrence” in respect of the all the circumstances of this particular case.
Orders
I order that, for the contraventions numbered one, two, three and four contained in the Order of 4 April 2023, the first respondent pay a pecuniary penalty of $41,000.
I order that, for the contraventions numbered one, two, three and four contained in the Order of 4 April 2023, the fourth respondent pay a pecuniary penalty of $8,200.
I order that those sums be paid to the applicant within 180 days of this order.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 12 July 2023
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