Readdie v People Shop Pty Ltd

[2024] VMC 16

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

INDUSTRIAL DIVISION

Case No. N11679381

LAUREN READDIE	Plaintiff
and
PEOPLE SHOP PTY LTD T/AS ERUDITE LEGAL	Defendant

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MAGISTRATE:	K Fawcett
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3 and 5 September 2024, written submissions 9 September 2024
DATE OF DECISION:	27 November 2024
CASE MAY BE CITED AS:	Readdie v People Shop Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VMC 16

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INDUSTRIAL LAW – Fair Work Act 2009 (Cth) ss 41, 62, 104, 107, 323(1), 535, 536, 557C – Fair Work Regulations 2009 (Cth) rr 3.33, 3.34, 3.37, 3.46 – contravention of s 323(1) – presumption where records not provided – maximum weekly hours – where additional hours are unreasonable.

APPEARANCES:
For the Plaintiff	Lauren Readdie	Litigant in person
For the Defendant	Shivesh Kuksal Peter Ansell Lulu Xu	Sole Shareholder Director Director

TABLE OF CONTENTS

INTRODUCTION

PROCEDURAL HISTORY

Adjournment of the First Hearing Dates

The Conspiracy Application and related matters

The separate issue and strike out of parts of People Shop’s defence

The VLSB/Rapke Application

The Di Gregorio Subpoenas

Directions for final hearing

People Shop’s participation in the final hearing

THE EVIDENCE

Ms Readdie’s evidence

Ms Xu’s evidence

CONSIDERATION OF MS READDIE’S CLAIMS

The claims

The applicable burden of proof

The Record keeping claim

The Underpayment claim

Section 557C – presumption where records not provided

Which version of the contract applies?

What activities is Ms Readdie entitled to payment for?

Findings as to hours and days worked by Ms Readdie

Ms Readdie’s payment entitlements under the Contract

Conclusion as to Underpayment claim

Superannuation

The $1000 Payment

Other issues

The Maximum hours claim

The Compassionate leave claim

The claim for reimbursement of expenses

Damages claim

Penalties claim

Interest

ORDERS

APPENDIX A – HOURS OF WORK CLAIMED AND FINDINGS

APPENDIX B – ENTITLEMENT TO PAYMENT

HER HONOUR:

INTRODUCTION

1The Plaintiff, Ms Lauren Readdie, was employed as a solicitor by the Defendant, People Shop Pty Ltd, between 17 February 2022 and 13 March 2022. Ms Readdie claims that in contravention of the Fair Work Act 2009 (the Act), People Shop failed to pay her at all for her work during this period, breached its record-keeping obligations, required her to work unreasonable hours, failed to grant her compassionate leave and failed to reimburse her for expenses incurred. Ms Readdie seeks that the underpayment be remedied, that penalties be imposed for contravention of civil remedy provisions in the Act and seeks general damages.

2The proceeding was brought in the Court’s Industrial Division. Section 4(3B) of the Magistrates Court Act 1989 (Vic) (MC Act) provides that ‘despite anything to the contrary in this Act, a party to a proceeding in the Industrial Division may appear by a person who is not a legal practitioner if that person is authorised in writing by the party to appear for the party.’ Mr Shivesh Kuksal, sole shareholder, Mr Peter Ansell, Director and Ms Lulu Xu, Director, each appeared for People Shop pursuant to this provision.

3Pursuant to s 4(3C) of the MC Act, the Court’s Industrial Division must exercise its jurisdiction with the minimum of legal form and technicality. Despite this requirement, complexities arose in the proceeding, resulting in substantial delay to the hearing of Ms Readdie’s claim, which finally took place on 2, 3 and 5 September 2024. Following multiple unsuccessful adjournment applications during the hearing, People Shop ceased participating in the hearing on 5 September 2024. I have determined Ms Readdie’s claim based on the evidence before me at that time. The following summary of key aspects of the procedural history of the matter provides context for my decision to determine the claim in this manner.[1]  Aspects of the procedural history are also relevant to findings I have made relating to Ms Readdie’s substantive claims.

[1]I have already given oral or written reasons for each interlocutory decision made in the proceeding prior to my decision to determine the claim despite People Shop ceasing to participate.

PROCEDURAL HISTORY

Adjournment of the First Hearing Dates

4Ms Readdie’s claim was initially set down for hearing on 24 and 25 July 2023 (First Hearing Dates). Directions made on 14 June 2023 permitted Ms Readdie to file an amended Claim and particulars, permitted People Shop to file an Amended Defence and required People Shop to file all documents it sought to rely on at the hearing. People Shop did not file an Amended Defence nor file any documents.

5On 18 July 2023 I granted leave to People Shop to issue subpoenas to Mr Howard Rapke and the Victorian Legal Services Board (VLSB) (VLSB/Rapke Subpoenas). In 2022, the VLSB had appointed Mr Rapke to manage People Shop. People Shop submitted that employment records of Ms Readdie were in the custody of the VLSB/Mr Rapke.

6On 21 July 2023, People Shop made application to file an Amended Defence and Counterclaim, to join Mr Kuksal, Mr Ansell and Ms Xu as Plaintiffs to the Counterclaim and to join the VLSB, Mr Rapke, Ms Maria Di Gregorio (former Director of People Shop) and Mr Luke Sinclair (former employee of People Shop) as Defendants to the Counterclaim. The application alleged that Ms Readdie had engaged in an unlawful purpose conspiracy with the VLSB to make fraudulent allegations against People Shop and Mr Kuksal in the proceeding (Conspiracy Application). I vacated the First Hearing Dates to allow the Conspiracy Application to proceed. I granted leave for People Shop to issue a subpoena to Ms Di Gregorio, on the basis of People Shop’s contention that employment records of Ms Readdie were in her custody (Di Gregorio Subpoena).

The Conspiracy Application and related matters

7The proceeding was then entirely taken up by matters associated with the Conspiracy Application, the Di Gregorio Subpoena and an application to set aside the VLSB/Rapke Subpoenas (VLSB/Rapke Application) until 7 February 2024. In an oral decision delivered that day, I recorded that since 14 June 2023 there had been ten court hearings, in the course of which I had made eleven interlocutory decisions and People Shop had raised or foreshadowed at least thirteen other applications which I had either refused to deal with or which People Shop did not press. I had refused the overwhelming majority of People Shop’s applications because they lacked merit. Further, People Shop’s conduct in the proceeding had included: regularly making applications orally without notice or without supporting material despite directions to the contrary; filing voluminous documentary material without articulating its relevance; filing material after the commencement of a hearing; filing unsworn affidavits or affidavits omitting exhibits; and filing material by way of ‘Dropbox’ links which expired after a short period. People Shop’s oral submissions were lengthy, dominated court time, required extensive intervention by the Court, and were often of no or limited relevance to matters requiring determination.

8People Shop also failed to comply with directions to progress its Conspiracy Application on numerous occasions and failed to properly articulate the basis for that application. The Conspiracy Application was struck out by a self-executing order on 15 November 2023, however People Shop nevertheless continued to press its allegations in various ways. On 7 February 2024 I prohibited the making of any further applications similar to the Conspiracy Application without leave of the Court. I also made directions including that documents were required to be filed and served before 4pm the day prior to any hearing, that filing and service by Dropbox would not be accepted and that oral submissions would be subject to reasonable time limits.  

The separate issue and strike out of parts of People Shop’s defence

9On 7 February 2024 I also determined to actively case manage the proceeding, including by considering, as a preliminary and separate issue, the effect of Part 2-9 Division 2 of the Act (Payment of Wages Provisions) on the contract between the parties. People Shop’s Defence alleged that Ms Readdie had breached her contract of employment. In submissions on 18 July 2023, People Shop had explained its Defence to be, in effect, that if Ms Readdie owed money to People Shop, People Shop could deduct that money from what People Shop owed Ms Readdie pursuant to the contract. I raised the Payment of Wages Provisions with People Shop at that time, however the proceeding was then overtaken by the Conspiracy Application. Following the disposal of the Conspiracy Application and associated applications, I made directions for the filing and service of material in respect of the separate issue, including as to whether the issue could be determined without a hearing.

10Ms Readdie filed submissions to the effect that she was entitled to be paid in full, and that the issue could be determined without a hearing. People Shop did not file any material. On 28 March 2024 I determined the separate issue without conducting a hearing. I concluded that the requirement in s 323(1) of the Act, that People Shop pay amounts payable to Ms Readdie in relation to the performance of work in full, is not displaced by the operation of the contract. I directed the filing and service of material addressing whether any part of People Shop’s Defence should be struck out in accordance with Rule 23.02 of the Magistrates’ Court General Civil Procedure Rules 2020.  Again, People Shop did not file any material. On 1 May 2024, I struck out those aspects of the Defence which alleged breach of Contract by Ms Readdie (Strike Out). People Shop did not seek to file an Amended Defence. As a result, the only remaining matters pleaded in People Shop’s Defence at the final hearing were that Ms Readdie failed to perform required duties and obligations or provide details of hours she worked. 

The VLSB/Rapke Application

11The VLSB/Rapke Application was also heard on 7 February 2024, and I reserved my decision. Because the Strike Out affected the scope of the proceeding, on 16 May 2024 I provided the parties an opportunity to make further submissions prior to delivering my decision. People Shop submitted that it had been denied procedural fairness and sought an adjournment to seek prohibition against my continuing to hear the proceeding, and to provide new evidence and submissions in the VLSB/Rapke Application. I granted the adjournment and made directions for People Shop to file further material. People Shop did not file any further material. On 2 August 2024 I granted the VLSB/Rapke Application and set aside the Subpoenas, finding that for the most part they had no legitimate forensic purpose, given the scope of the proceeding both before and after the Strike Out. Insofar as the Subpoenas captured Ms Readdie’s employment records, I held that People Shop had an unfettered right to collect or retrieve them from the VLSB but had failed to do so. 

The Di Gregorio Subpoenas

12Documents were not produced to the Court in response to the Di Gregorio Subpoena. An affidavit of Mr Ansell dated 14 September 2023 evidenced an attempt by Ms Di Gregorio to produce the documents to an incorrect email address at the Court, and stated that the documents had been forwarded directly to People Shop by Ms Di Gregorio’s legal representative. On 14 September 2023 I gave leave to People Shop to file a further subpoena directed to Ms Di Gregorio, to be returnable on 2 October 2023 (Further Di Gregorio Subpoena), in respect of the same material. People Shop accepted at a hearing on 24 October 2023 that it did not properly serve the Further Di Gregorio Subpoena. I stated it remained open to People Shop to have a further subpoena issued and to serve it in accordance with the Court rules. It did not do so. On 16 May 2024 I refused an application by People Shop that the Court find Ms Di Gregorio in contempt for her non-compliance with the Di Gregorio Subpoena. I made a direction that People Shop had leave to re-file the Di Gregorio Subpoena, in the same terms, on or before 20 May 2024. People Shop did not re-file the Di Gregorio Subpoena on or before 20 May 2024, or at all.

Directions for final hearing

13Also on 16 May 2024, I set the matter down for final hearing on 2 September 2024 and made directions for discovery and inspection of the following categories of documents (other than documents already filed and served in the proceeding): pay records, pay slips and records of hours of work; other documents evidencing Ms Readdie’s hours of work or payment by People Shop; and documents on which the parties intended to rely at the hearing. People Shop did not make discovery of any documents. I also made directions for the filing and service of outlines of evidence including documents to be relied on. People Shop did not file any outlines of evidence or documents. People Shop did not seek any extension of the timelines in the directions.

People Shop’s participation in the final hearing

14The final hearing proceeded on 2 September 2024 by way of video link. At the commencement of the hearing, Ms Xu appeared for People Shop, with Mr Ansell. People Shop made an adjournment application orally, without notice, supported by an Affidavit of Mr Ansell (2 September Ansell Affidavit) received by me at around 10.20am. I refused the application.

15The first ground was that Mr Kuksal was unwell and isolating with COVID-like symptoms. His condition had significantly worsened since 29 August 2024 and given his deteriorating health, it was impracticable for him to fully participate in the proceeding. I was not satisfied as to Mr Kuksal’s unfitness to attend the hearing as no medical evidence was produced.

16The second ground was that Mr Ansell and Ms Xu were unable to represent People Shop because the VLSB had submitted in Supreme Court proceedings that by doing so they would be engaging in unqualified legal practice. I held that Mr Ansell and Ms Xu both had capacity to appear for People Shop pursuant to s 4(3B) of the MC Act; Mr Ansell had previously represented People Shop in the proceeding; both Mr Ansell and Ms Xu had had extensive involvement with the proceeding and I did not consider there to be any barrier to them representing People Shop.

17The third ground was that People Shop was initiating Supreme Court proceedings seeking injunctive relief prohibiting me from presiding in the proceeding. I held that there was no order prohibiting the proceeding from continuing, nor had any relevant proceeding been issued. Further, none of the similar applications foreshadowed by People Shop on previous occasions in the proceeding had been subsequently made. 

18The fourth ground was that People Shop did not have access to the material held by the VLSB. I referred to my finding on 2 August 2024 that People Shop had an unfettered right to the material held by VLSB which it had failed to collect or retrieve, and there was no further evidence as to why this had not occurred.

19Following my refusal of the adjournment application, Ms Xu and Mr Ansell determined that Ms Xu would represent People Shop, and Ms Readdie commenced her evidence in chief. At the conclusion of the day’s hearing, in light of People Shop’s non-compliance with the pre-hearing directions, and Ms Xu’s submission that a list of documents could be provided by 10am the next day, I made directions for People Shop to file and serve a list of the documents it had already filed and served on which it sought to rely at the hearing.

20On Tuesday 3 September 2024, People Shop did not file any list of any documents. A further Affidavit of Mr Ansell (3 September Ansell Affidavit) was received by me at around 10.11am. At the commencement of the hearing, Ms Xu initially appeared for People Shop then Mr Ansell announced he was appearing, seeking an adjournment. 

21The 3 September Ansell Affidavit referred to five exhibits, which were described as a Victorian Government directive for people displaying COVID-19 symptoms, and various documents relating to other proceedings in the Supreme Court. The exhibits were purported to be filed by way of a Dropbox link. I determined not to have regard to the exhibits given my previous direction that documents could not be filed by Dropbox.   

22I refused this second adjournment application. Two of the grounds, being Mr Ansell’s capacity to represent People Shop, and People Shop’s intention to file an originating motion, were the same as the first adjournment application. A third ground also related to Mr Kuksal’s capacity, however the 3 September Ansell Affidavit stated that Mr Kuksal ‘tested positive for Covid-19’ on 29 August whereas the 2 September Ansell Affidavit had stated that Mr Kuksal had ‘Covid-like symptoms’ which worsened on 29 August. I noted this inconsistency and ruled there was still no proper medical evidence. 

23A further ground was that Ms Xu was unprepared and unqualified to represent People Shop due to her inadequate English, especially legal jargon. I observed that it is common for parties to be self-represented in the Industrial Division and the Court’s processes accommodate that. I had no concerns as to Ms Xu’s capacity to represent People Shop. From my observation, she spoke English competently and clearly. She had appeared previously in the proceeding for People Shop and had advised the Court that she had represented herself in Supreme Court Proceedings. I considered Ms Xu was adequately appraised of the nature of Ms Readdie’s claim, because I had observed her attendance at previous hearings, because an affidavit she made on 14 March 2023, in support of a Rehearing Application brought by People Shop, addressed the detail of Ms Readdie’s claim and because Ms Readdie’s chronology and other evidence was available to her. 

24After noting that the two adjournment applications had delayed the proceeding by half a day and an hour and 40 minutes respectively, I made an oral direction (later reflected in writing) prohibiting People Shop from making a further adjournment application that relied upon a ground already raised without leave of the Court. I directed that any application for leave would be considered ex parte in chambers unless the Court determined a hearing was necessary (Oral Direction).

25The hearing continued with Ms Xu continuing to represent People Shop. Upon Ms Readdie concluding her evidence in chief, at Ms Xu’s request, I adjourned for lunch to allow Ms Xu to prepare her cross-examination. When the hearing resumed, Mr Ansell and Ms Xu appeared together. Mr Ansell stated that he and Ms Xu had each spoken to Mr Kuksal during the break and Mr Kuksal as owner of the company had directed that Ms Xu was not to cross-examine Ms Readdie. People Shop sought instead to have the matter adjourned due to Ms Xu’s lack of capacity to cross examine, and Mr Kuksal’s inability to do so due to illness. I refused to consider this third adjournment application, including refusing to allow Mr Kuksal to give evidence in support of it, as it did not comply with my Oral Direction. After providing multiple opportunities for Ms Xu to commence cross examination of Ms Readdie, which were not taken up, I excused Ms Readdie from giving evidence. Ms Xu then commenced giving evidence for People Shop. 

26The matter was listed to resume on Thursday 5 September by agreement of the parties. At 9.41am that morning, Mr Kuksal emailed the Court Registry requesting a phone number to dial into the hearing that morning. The email stated (in part):

Unfortunately, Ms Lulu Xu, who had appeared on behalf of the company earlier this week, has developed COVID-19 symptoms and is unable to appear today. Therefore, I will appear on behalf of the company.

27When the hearing commenced, Mr Kuksal stated that he wished to raise a few matters. I allocated an initial 15 minutes for him to state what the substance of those matters were. Mr Kuksal sought to make a recusal application. I stated I would allow him until 1pm to make and complete that application, and if he sought to call evidence in support of it, I would hear that evidence. Mr Kuksal stated that was not reasonable and he would not comply with my determination nor accept my decision, and that I was obliged to either charge him with contempt or consider why he was not accepting my decision.

28Mr Kuksal then stated that his first application was that the matter be adjourned because, variously: he was not feeling well; he was not in a position to adequately represent People Shop; he did not have to hand the material and evidence he would rely on; he did not have normal office facilities at his disposal; and Mr Ansell who he would call as a witness was not available until 1.45pm. He requested that I rule on the adjournment application. I sought to limit the time for Mr Kuksal’s submissions in respect of this fourth adjournment application. Following repeated interruptions, I caused Mr Kuksal’s audio to be muted and stated I would provide him a further five minutes. Mr Kuksal left the Webex hearing. I stood down to consider the fourth adjournment application based on submissions Mr Kuksal had already made. When the hearing resumed, Mr Kuksal had rejoined the Webex. I stated I would rule on the adjournment application. Mr Kuksal stated that he had not made the application yet. After further repeated interruptions I again caused Mr Kuksal’s audio to be muted and delivered my ruling on the fourth adjournment application. Mr Kuksal again left and rejoined the Webex hearing, interrupting my ruling part way through. I again caused his audio to be muted and continued my ruling. He again left the Webex hearing.

29I refused the fourth adjournment application. It related to Mr Kuksal’s capacity, meaning leave was required pursuant to my Oral Direction. In any event there was inadequate evidence of Mr Kuksal’s claimed incapacity. Ms Xu’s unavailability due to covid-like symptoms was also not supported by any affidavit nor medical evidence and I was not satisfied she was incapacitated to attend. No explanation for Mr Ansell’s unavailability was provided. The grounds for the recusal application articulated by Mr Kuksal largely related to previous interlocutory decisions unfavourable to People Shop, a ground which had been raised by People Shop in multiple previous recusal applications, weighing against a further adjournment.

30I noted Mr Kuksal had left the hearing and asked the registrar to request he resume attendance by 11.45am to proceed with People Shop’s recusal application. Mr Kuksal rejoined the hearing at 11.55am and I invited him to make the recusal application. He continued to press the adjournment application I had already ruled on. After further interruptions, I again caused his audio connection to be muted, and Mr Kuksal again left the Webex hearing. At my request, the registry emailed Mr Kuksal at 11.58am indicating that I would continue with the recusal application at 12.15pm. 

31Mr Kuksal did not rejoin the hearing but emailed the registry at 12.17pm stating:

Unfortunately, my symptoms are making it oppressively onerous for me to continue participating in the hearing. The discomfort associated with my persistent coughing and sore throat has exacerbated considerably following my attendance at the hearing.

The resultant discomfort and irritability is also making my indignation at Magistrate Fawcett’s improper conduct more pronounced.

Not only are these circumstances especially prejudicial to the interests of the Defendant, as I had mentioned to Her Honour earlier, in subjecting me to these conditions, Magistrate Fawcett is acting in contravention of my human rights guaranteed under the Charter of Human Rights and Responsibilities 2006 (Vic) [sic]. Her behaviour, in my submission, constitutes cruel and unusual treatment as well as a violation of my right to due process and a fair hearing.

I am clearly too ill to continue. It is also a matter of common knowledge that Victoria is currently experiencing a surge in the prevalence of COVID-19.

Furthermore, Magistrate Fawcett must take judicial notice of the fact that, as a matter of policy, visits to doctors in relation to COVID-19 cases are not a viable option unless the symptoms are life-threatening or of a similar magnitude. The recommended course of action is self-isolation until the symptoms subside.

I therefore seek an adjournment of the hearing today.

32I resumed the hearing at 12.22pm. I declined to consider this fifth adjournment application as it was clearly based on grounds previously raised, and leave had not been obtained in accordance with my Oral Direction.  

33I then considered and determined the recusal application based on the grounds articulated. The first ground was that I had engaged in malicious and improper conduct in actively seeking a pre-determined outcome to the proceeding. I rejected this ground, stating that I had considered it necessary to apply proactive case management in the proceeding and had provided reasons for doing so. The second ground was that People Shop was in the process of making a complaint about my misconduct to the Independent Broad-based Anti-corruption Commission. I rejected this ground, as the making of a complaint against a judicial officer does not of itself require the judicial officer to recuse themselves. If it did, a litigant could achieve the effect of delaying a case simply by the making of an allegation. Further, the judicial system includes checks and balances, and People Shop's exercise of any such rights is a feature of  the system, not a basis for departing from it. The third ground was that in the final hearing, I had made factual findings that People Shop’s representatives were acting fraudulently and had not given reasons for decisions. I rejected this ground as my reasons for decisions had been provided orally, including relevant factual conclusions. The fourth ground was that People Shop was prevented from testing the credibility of Ms Readdie’s evidence. I rejected this ground, being uncertain as to what it meant, noting that arguments as to this issue had already been heard and considered in the course of previous decisions. Finally, Mr Kuksal had sought to give evidence about an algorithm he had written using ChatGPT as the hypothetical reasonable observer to demonstrate that I had met the apprehended bias test. As Mr Kuksal had elected not to give that evidence, I was unable to consider it. I did not consider that I had pre-judged or approached the matter with a closed mind, or that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the matter. I refused the application.

34Given People Shop’s conduct during the hearing and People Shop’s failure to comply with any pre-hearing directions, in the context of the matters I addressed in my decision of 7 February 2024, I formed the view that People Shop did not intend to participate in the hearing further and I took People Shop’s case to be closed. I made directions for the filing of written submissions. People Shop did not file written submissions.  For these reasons, I have determined Ms Readdie’s claim based on the evidence before me at that time.

THE EVIDENCE

35Ms Readdie tendered a detailed chronology of events with relevant documents attached. Most of Ms Readdie’s evidence was uncontested due to the limited evidence called by People Shop prior to ceasing to participate, and unchallenged given People Shop’s refusal to cross examine her. In some respects, I considered Ms Readdie’s account of what occurred during the employment was reflective of the benefit of hindsight, however I had no concerns with the reliability or veracity of her evidence and I considered her to be a credible witness. Further, in very many instances the documents she tendered verified her oral evidence.

36Ms Xu’s evidence covered a small number of matters before People Shop withdrew from the hearing. Ms Readdie did not cross examine her, however had already given comprehensive evidence covering the same subject matter. Accordingly, I have had regard to Ms Xu’s evidence and I considered her to be a credible witness.

Ms Readdie’s evidence

37Ms Readdie completed a virtual Graduate Diploma of Legal Practice during lockdown in around October/November 2021 and was admitted to practise on 11 February 2022. She intended to work in family law but was unemployed and receiving JobSeeker payments at the time. She applied widely for jobs as required under JobSeeker. She was surprised to receive a job offer from People Shop given her lack of experience, but was keen to get into the industry and start working.

38Ms Readdie attended People Shop’s office at 424 St Kilda Road, Melbourne (the Office) at 2pm on Thursday 17 February 2022 to sign her contract, with the intention of starting work on Saturday 19 February.  She met Ms Di Gregorio at the office, whom she assumed was a lawyer but later found out was the company accountant. Emails tendered show that she received and signed her contract (the Contract), provided to her through a document sharing platform, between 2.02pm – 3.01pm on 17 February 2022. The Contract provided for payment on the 27^th of each month. She queried this and Ms Di Gregorio told her she would be paid pro-rata for the first month. After she had arrived at the Office on Thursday 17 February, Ms Di Gregorio told her that the boss, Mr Kuksal, wanted her to start work straight away, which she agreed to do. She was not told how long she would be required to work. At 7pm that evening she learned that her mother, with whom she lives, had been taken to hospital with severe abdominal pains. She worked until approximately 11pm that evening and was then driven to the hospital by Mr Kuksal and Ms Xu. Contemporaneous text messages to Ms Readdie’s sister and mother corroborate her evidence as to her work that day. 

39In text messages sent by Ms Readdie to her sister and mother on Friday 18 February she referred to the Contract, including that ‘any excessive overtime will be paid at $57/hr.’ In response to her sister asking about breaks, Ms Readdie stated ‘[l]ike, yesterday they asked me to sort of potter around at something straight away, and I didn’t finish until really late, but he ordered Boosts and nice Asian food for dinner, so.. And he drove us home, and insisted on taking me via the hospital so I could check on mum.’ Ms Readdie said that it was usual throughout her employment that at some point during an extended shift, Mr Kuksal and Ms Xu would arrange food to be delivered by Uber. They would eat together and talk about work. It was not a personal meal break or a complete break, with her only personal breaks when she went to the bathroom.

40Ms Readdie arrived at the office at 11.17am on Friday 18 February, corroborated by an uber receipt and a text message to her sister at 10.58am stating she was ‘just heading into work.’ She worked until about midnight that night. Mr Kuksal again drove her home.

41On Saturday 19 February, Ms Readdie was advised by Mr Kuksal that they would be at the Office at 10.45am. When Ms Readdie was on her way, Ms Xu by text message said they would be a ‘bit late’. Ms Readdie continued to the Office as planned. She could not gain access, so waited outside the building on a bench. She received further texts and emails from Ms Xu and Mr Kuksal, commencing at 12.17pm, including instructing her to read various items, and suggesting she work at a nearby café. At 1.41pm Ms Readdie sent a text to Ms Xu asking how much longer they would be, and Ms Xu replied apologising. Ms Readdie can’t recall what time Mr Kuksal and Ms Xu arrived at the Office that afternoon. Ms Readdie did not go home at all that night and worked through until 12.30pm the next day, Sunday 20 February. At 10.42am on Sunday 20 February, she sent a text message to her sister stating ‘I haven’t been home yet since Saturday. We’re leaving soon but I’m literally going home to like, kip for a few hours and come back in.’ Mr Kuksal dropped her home at about 1pm, told her to rest for a few hours then call him at 6pm to see what was happening. She sent a text message to her sister at 1.09pm stating she needed 5 minutes to have a quick shower. She also referred to doing an ‘all-nighter’ the previous night in a text message to her mother.

42Whilst at home on Sunday 20 February, Ms Readdie’s sister told her that Ms Readdie’s former partner had passed away on 18 February. Ms Readdie sent a text message to Mr Kuksal (later learning that the number was in fact Ms Xu’s) at 6.13pm advising him what had occurred and stating she would try to push through and ‘I’ve made an undertaking to you that I can do this, and I don’t want to ‘wimp out’ for want of a better term.’ She arranged to work at home and by 6.40pm had begun working. Text messages and emails demonstrate that she worked until almost 1am.

43Ms Readdie arrived at work at 9.38am on Monday 21 February, corroborated by text messages and an uber receipt. The previous day, Ms Readdie had been told that they would be utilising a hotel in the city rather than going home for the next few nights. That day at 9.20am she text messaged her mother stating ‘there’s a bunch of work this week that we essentially need to work on round them [sic] clock, so Shiv has booked a few rooms for everyone so we don’t have to waste travel time...’.  Ms Readdie said Mr Kuksal explained this as though it was something that happened often and made it sound normal. At about midnight, Ms Xu revealed that she had not booked anywhere for them to stay. Ms Readdie continued to work and ultimately Ms Xu booked accommodation at the Oaks Melbourne off William Street. Upon arriving at the hotel, Ms Readdie learned that only a single two-bedroom suite had been booked. She was given the option of sharing a bed with Ms Xu or sleeping on the couch. She wasn’t happy but was too tired to cause a fuss, and it was about 1am. Mr Kuksal required her to recommence working and she was not allowed to stop and go to bed until 5.30am Tuesday 22 February.

44Ms Readdie commenced work in the Office at around midday on Tuesday 22 February, confirmed by a text message to Ms Xu. She worked until 10pm when they returned to the hotel. No steps were taken to book a second room, and work continued at the hotel until around 6.30am. A text Ms Readdie sent to her sister at 6.56am on Wednesday 23 February stated ‘So, I’m just climbing into bed for a few hours downtime, but I’m still in a hotel apartment with my boss and the office manager. She and I are sharing a room for now, so my only really, truly alone time is when I’m in the shower …’.

45Ms Readdie believes she commenced work at around 12.30pm on Wednesday 23 February, based on having sent an earlier text message to her sister. It was her mother’s birthday. She sent a message to her mother stating ‘I know youre [sic] coming home today, and that it’s your birthday, but I’m not going to get a chance to see you today. I’ve barely got enough time to write this text…’. She received a text from her sister at around 3.40pm and recalled she was at the Office at that time, as she was stressed about her mother being released from the hospital. A text message from Ms Readdie to her sister at 3.04pm indicates that Ms Readdie was trying to make arrangements for her mother as she would not be home. She continued to work through the night in the Office, until around 9.30am the following morning, Thursday 24 February, when they returned to the hotel for Mr Kuksal to attend an audio visual hearing at 10am. By this time, Ms Readdie had had enough. She had initially been keen to work and prove herself but Mr Kuksal had begun directing verbal insults, previously directed to Ms Xu, at Ms Readdie. She was tiring of his lectures about classics, history, philosophy, world religion and management style and his statements as to his superior intellect and IQ. She was no longer willing to be spoken to or treated in the way that he'd begun to treat her. She sent a text message to Ms Di Gregorio at 9.33am requesting a private conversation after the hearing.

46In the car ride between the Office and the hotel, Mr Kuksal informed Ms Readdie for the first time that she would be appearing at the upcoming hearing. Ms Readdie had understood one of the principal solicitors would be involved, she had never appeared in any capacity before and she had had no discussion with any supervising solicitor. An argument ensued, with Ms Readdie saying she did not want to work with Mr Kuksal anymore. When they arrived at the hotel, Mr Kuksal connected into the hearing. Ms Readdie was unable to compose herself so went out to the balcony and at 10.36am sent another text message to Ms Di Gregorio stating:

I’ve already blurted out now to Shivesh that I can’t do this and that I don’t want to work with him. I honestly need to just leave and go home as soon as possible.  I’m happy to speak with you about contribution to any other tasks related to the matters you have already brought me in on, because I have no intention of carelessly leaving the team ‘in the lurch.’ Once I’ve had the opportunity to just have some time to myself I will provide you with a proper outline of my reasons, but I simply cannot and will not tolerate being spoken to or treated like this anymore.

47Ms Di Gregorio replied ‘Ok are you getting some rest this morning?’ Ms Readdie replied:

I’m sitting here in the hotel while he’s doing the hearing. I’ve had no alone time in three days and I’ve shared a bed with Lulu for the last two nights. I just want to grab my bag and go. I am happy to leave all the business equipment here, I just want to leave once he’s done on this hearing.’ A very dear friend of mine died very unexpectedly on Friday. I learned of it a few days later.

48Ms Di Gregorio replied asking if Mr Kuksal was aware of this, to which Ms Readdie replied ‘I told him. He told me emotions are useless and I need to ignore them.’ She was directed by Ms Di Gregorio to go home at 12.31pm.

49Ms Readdie has a pre-existing medical condition and had an appointment with her regular psychiatrist on Friday 24 February. By that time, she was in such a state she was unable to get herself to the appointment, her mother drove her and she had a panic attack in the waiting room. Her psychiatrist provided her with medical certificates for 24 and 25 February, and for 28 February to 4 March. On Saturday 26 February, Ms Readdie sent a message to Ms Di Gregorio stating that she still wanted the job but wasn’t sure when she would be ready to work. Ms Di Gregorio replied ‘[k]eep me posted we still have a lot of work on.’ In a conversation with Ms Di Gregorio, Ms Readdie referred to the medical certificates, and Ms Di Gregorio said she had not accrued enough leave yet. Compassionate leave was not mentioned.

50Ms Readdie was not paid on 27 February. On Tuesday 1 March she sent a message to Ms Di Gregorio asking if there was a reason she had not been paid for the work she did before the 27^th, whether it was in dispute, or whether she had just forgotten to put her banking details somewhere. Ms Di Gregorio replied stating ‘[s]orry been in hearing all day. Will send you email in the morning. We just need to be clear to process.’ On Friday 4 March, Ms Readdie emailed Ms Di Gregorio stating she could resume work on Monday March 7, and included her bank details. Ms Di Gregorio replied that she would ‘get the pay sorted I am also waiting on Albert to provide his details so I can process it in one pay run.’ On Saturday 5 March Ms Xu messaged Ms Readdie asking for her bank account details which Ms Readdie again provided.  On the evening of Saturday 5 March Mr Kuksal asked Ms Readdie to return to work earlier. She agreed to go in for a few hours from lunchtime on Sunday.

51On Sunday 6 March Ms Readdie sent a message to Ms Xu asking what time she should start work, and Ms Xu replied ‘330’. Ms Readdie was approaching the Office when she received a further message from Ms Xu at 3.37pm changing the time to 5pm. Ms Readdie replied that she could occupy herself until later, stating ‘5 it is’. At 5.01pm she sent a further message stating she was out the front of the building. Mr Kuksal and Ms Xu arrived within the next hour. That day, Ms Readdie was instructed by Mr Kuksal to re-sign her contract. Mr Kuksal told her this was because one of the pages incorrectly referred to Principal Solicitor rather than Solicitor. She scanned the pages, did not identify any differences from the Contract, confirmed the salary figure and the ordinary working hours had not changed, was relatively satisfied everything was above board then e-signed the documents (the Second Contract). Mr Kuksal later checked that she had definitely re-signed the contract, then mentioned something about one of the pages referring to the hourly rate for a principal solicitor not a solicitor. This worried Ms Readdie but she put it to the back of her mind and got on with her work.  Also that day, Ms Readdie was emailed an Osko receipt for a $1000 payment from People Shop. Ms Readdie had told Mr Kuksal she was concerned that her Centrelink payment would be cut off and that she wouldn’t have been paid. He told her that the $1000 was to tide her over, and due to the complexity of the payroll system, it wouldn’t be possible to pay her until 27 March. Ms Readdie did not receive a pay slip in respect of the $1000 and considered it a gift. 

52Ms Readdie continued to work until 11.23am on Monday 7 March, confirmed by the Uber Receipt for $18.64, which Mr Kuksal agreed to reimburse her for.

53At around 8pm on the evening of 7 March 2022 (call logs show a call at 8.06pm), Mr Kuksal called Ms Readdie to ask her to come back into work. He had missed a filing date or similar and was in a panic. She did not want to work, because her former partner’s funeral was the following day, which she had organised off work. Mr Kuksal promised she would be home in time for the funeral, told her to take an Uber and said she would be reimbursed. The uber receipt, for $18.28, shows her arrival at the Office at 9.30pm. When Ms Readdie arrived, it was not clear what work was urgent. She asked several times to leave. She became distressed and eventually left the Office at 2.43am on Tuesday 8 March. Mr Kuksal told her she would be reimbursed for her Uber fare home. The Uber receipt, for $16.68, shows she left the Office at 2.43am. This is corroborated by text messages to her mother and sister at 2.54am.   

54Following the funeral on 8 March, Ms Xu text messaged Ms Readdie at 8.02pm that evening asking if she could start at 9am the next day. Ms Readdie agreed.  She woke on 9 March to several text messages and missed phone calls between 9.33pm on 8 March and 6.34am on 9 March. She arrived in the Office at 9.08am, reflected on her Uber receipt. On her arrival there was no indication of any emergency. She left the office at 11.15pm that evening, reflected on her Uber receipt.   

55Ms Readdie arrived at the Office at 10.39am on Thursday 10 March, confirmed by her Uber receipt, and left the Office at 3.33am on Friday 11 March, confirmed by her Uber receipt for $15.31. Mr Kuksal advised her that he would reimburse her Uber home.

56On Friday 11 March, Ms Readdie arrived at the Office at 10.51am, reflected in her Uber receipt. She had a prearranged medical appointment at 12 noon which Mr Kuksal had given her permission to attend. At 12.40pm she sent a text message to Ms Xu that she was on her way back and arranged to collect coffees. Mr Kuksal texted her at 1.01pm as she arrived back stating ‘where are you? We have urgent things to do?’ She left work that day at 9.30pm. However, Mr Kuksal called her from around 11pm that night, with her text messages reflecting that he called just before 11.13pm.   

57On Saturday 12 March, Ms Readdie was permitted to work from home and commenced at 11am. She had previously not been permitted to work unsupervised and had at times been required to work in Mr Kuksal’s office with her screen facing him, or required to get up and move workstations every two hours. Ms Readdie’s records show several text messages and calls between her, Ms Xu and Mr Kuksal throughout the day.  A text message she sent to Ms Xu at 7.55pm stated she was just ‘quickly eating some food and taking a breather for 5 mins’. Call logs include a 30 minute incoming call from Mr Kuksal at 11.52pm and a 27 minute outgoing call to Mr Kuksal at 12.22am on 13 March. At just before 1am, Mr Kuksal demanded Ms Readdie watch a movie and required her to have done so before she came into work later that day. She considered this to be bizarre and was incredulous. He then began sending her text messages to ensure she was watching it. It was related to a philosophical point he was trying to make, but was not otherwise work related. Her text message records show the following exchange commencing at 12.56am on 13 March 2022:

Mr Kuksal: Text me when you finish watching it

Ms Readdie: The two hour movie called The Miracle about the 1980 US Olympic Hockey Team?

Mr Kuksal: Yes

Mr Kuksal: Watch half at least. You can watch another quarter on your way to work…

Mr Kuksal: Did you watch any of it?

Ms Readdie: I’m watching it now.

Mr Kuksal: Which scene?

Ms Readdie: He’s making them do speed races on the ice – endurance training

Mr Kuksal: Gentlemen, you aren’t talented enough to win on talent alone…

Ms Readdie: I’m at 43:00

Ms Readdie (at 3.20am): I’ve just finished it. But im going to bed now.

58On Sunday 13 March, Ms Readdie estimates she started work around 4pm, as at 3.54pm she was assigned a task by Ms Xu. Mr Kuksal asked Ms Readdie to fix another employee’s work and to get the employee on Skype to watch Ms Readdie fix the work and explain what he had done wrong. Ms Readdie refused to do this. At 4.47pm she sent a message to Ms Di Gregorio stating:

I just need to vent. I’m an inch close to quitting at this point. I cant handle much more of this. I am so sick of the insults and the lectures – I honestly feel that he is treating me in a way that is completely unjustified and utterly disproportionate to the rest of the team. I also need some kind of indication of when this round-the-clock nonsense will end and when we’ll be anywhere close to a “9-6, 40h” structure. I’ve ‘worked’ 110 hours in 8 days. I can’t live like this. Especially not with the verbal abuse and personal insults on top. I know that there are some amazing opportunities that this role presents, and that’s why I’m trying so hard to stick it out. But from a cost-benefit perspective, right now, I’m really struggling to convince myself that this putting up with this bullshit is going to be worth anything meaningful to me at all.

59At 7.41pm, Mr Kuksal called Ms Readdie and joined Ms Di Gregorio on the call as well. Ms Readdie adopted as accurate an audio recording provided by People Shop of this call. Ms Readdie said that Mr Kuksal berated her for how she had dealt with the employee in question, and Ms Readdie said she didn’t want the job anymore. Mr Kuksal threatened to sue her for not providing 4 weeks’ notice and told her to read her contract. At that point she realised she did not have a copy of her contract. She said she wanted to quit right now, she had had a gutful and she wanted out, she wanted to resign, effective immediately. She referred to the expectation that work be done on an around the clock basis and the way Mr Kuksal spoke to her and treated her. Ms Readdie subsequently considered she was constructively dismissed, but did not have the language to describe that at the time.

60At 8.24pm Ms Di Gregorio sent an email stating:

We acknowledge that you have terminated your employment with immediate effect, contrary to the Terms of your Contract as well as statutory and general law obligations [See Appendix F].

61At 8.48pm Ms Readdie replied stating that she did not have a copy of either version of the contract she signed, only read-only access, and stated:

If you are able to provide me with a PDF copy of the employment contract, I would be most appreciative. Please note that there were two copies: the first one I signed apparently indicated an overtime pay rate that was applicable to a Principal’s contract. I think that’s what Shivesh said. So, there was an amended version that I signed later on. I’d appreciate a copy of both versions, if possible.

62Ms Di Gregorio sent Ms Readdie PDF copies of her contract at 9.50am on 14 March, then at 10.02am sent a further email stating ‘Sorry Lauren, this is the wrong version will send the updated version. Just realised will get the other version downloaded and sent to you.’  At 11.14 am she sent the ‘final version of the contract you signed’. 

63On Tuesday 15 March Ms Readdie sent an email to Ms Di Gregorio, Mr Kuksal and two Erudite Legal addresses enclosing a letter dated 15 March clarifying her reasons for resignation, a breakdown of her hours of engagement and four Uber receipts for pre-authorised trips, being those relating to the expenses claimed in this proceeding. The letter stated that Ms Readdie was unable and unwilling to continue to endure the treatment she was subjected to by Mr Kuksal. It attached a breakdown of the days and hours she was ‘engaged by the company’ and offered to substantiate those if they were disputed but hoped that People Shop would agree to properly remunerate her for the work she had done. Ms Readdie did not receive a response to the letter.

64Ms Readdie said the breakdown of days and hours in the letter was her very quick basic attempt at compiling the hours she thought she had worked. She had never been asked to record her hours, and had assumed People Shop were keeping a record. There was software for timing what cases were being worked on, in two different programs, which was being implemented, but Ms Di Gregorio told her she hadn’t set it up yet and they would get to it later.  

65Ms Readdie also tendered an ATO Income Statement from People Shop dated 29 March 2022 obtained by Ms Readdie through her MyGov account. She said that the amounts recorded as having been paid on that document ($1,988.16 in salary, wages and leave and $184.61 in respect of superannuation) were not paid to her. She also relied on a screenshot from her superannuation fund illustrating that no payments were made by People Shop between 17 February and 1 April 2022 (Superannuation Statement) along with a screenshot of her ANZ Access Visa account transaction search indicating that between 1 February 2022 and 31 July 2022 there was one transaction involving People Shop, being the payment of $1000 on 6 March 2022 (Bank Statement).

Ms Xu’s evidence

66Ms Xu was in the office on 17 February 2022 when Ms Readdie was called to the office to have a discussion about the Contract. Ms Readdie was given time to read and consider the Contract. There were meetings with a lot of people that day and Mr Kuksal didn’t have a chance to speak to Ms Readdie until later that day. It wouldn’t have been possible for Ms Readdie to work straight away as she didn’t have work equipment or passwords and had not been allocated a case.  Ms Xu accepted some hours of work but disputed the number of hours claimed, as Ms Readdie could have been chatting, waiting for food or applying for her practising certificate which she was required to do before she commenced work. Ms Xu also disputed Ms Readdie’s claimed hours on 18 February, stating she was free to have discussions with hospital staff and relatives and was not fully set up with a company login and computer. 

67Mr Kuksal spent a lot of time giving Ms Readdie the background information that she needed to know regarding legal proceedings, as he was the client. Ms Readdie was supportive and encouraging in terms of litigating the matters with Mr Kuksal. There were only perhaps two or three days when Ms Readdie did not seem extremely happy about what Mr Kuksal was saying. At the time, Mr Kuksal had a lot of cases going on with a high workload, including criminal proceedings, and was under a lot of pressure. There were also quite a lot of issues in the Office because the newly hired principal solicitor had a major medical incident on the second or third day of employment, requiring multiple surgeries and leave from work. This led to Ms Readdie being called upon more frequently than Ms Readdie liked.

68Ms Readdie did not provide People Shop with any supporting documents to substantiate the relationship with her ex-partner or the timing of the death, and People Shop could not be expected to know that there was an immediate family member relationship, which she understood to be a condition for compassionate leave. Whilst she and Mr Kuksal accompanied Ms Readdie to the hospital to see her mother, Ms Readdie did not tell Ms Xu or anyone else that her mother had a life threatening illness. There was no request for compassionate leave by Ms Readdie.  

CONSIDERATION OF MS READDIE’S CLAIMS

The claims

69Ms Readdie claims that People Shop had breached the following provisions of the Act:

(a) Sections 535, 536 (Record keeping claim);

(b) Section 323, with an alleged underpayment of $10,378.36 (Underpayment claim);

(c) Section 44, in respect of maximum weekly hours (Maximum weekly hours claim); and

(d) Section 44, in respect of compassionate leave, alleging underpayment of $1000 (Compassionate leave claim).

70Ms Readdie seeks the imposition of penalties in respect of the alleged contraventions of the Act (Penalties claim). She also claims $68.61 for reimbursement of approved Uber expenses (Reimbursement claim) and ‘an award of general and/or pecuniary damages, of an amount in the vicinity of $10,000 - $15,000 or another amount as awarded by the Court’ (Damages claim).  

71Ms Readdie’s Underpayment claim arises from her entitlements pursuant to the Contract. However, Ms Readdie makes the Underpayment claim pursuant to s 323(1)

The applicable burden of proof

72Ms Readdie generally bears the onus of proving her claim to the civil standard of proof, on the balance of probabilities. Whilst contravention of a civil remedy provision is not an offence,[2] s 140(2) of the Evidence Act 2008 (Vic) requires the Court to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged. I have approached the evidence about the alleged contravention of civil remedy provisions accordingly. Ms Readdie also submitted (in her final written submissions) that the reverse onus of proof in s 557C of the Act applies. People Shop did not make any submissions in response. This issue is addressed below in my consideration of the Underpayment claim.

[2]Act, s 549.

The Record keeping claim

73Ms Readdie claims that People Shop breached the record keeping provisions in ss 535 and 536 of the Act and the Regulations Pt 3-6. Section 535(1) provides that an employer is required to make and keep for 7 years employee records of the kind prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) in respect of each employee (Employee Records). Section 535(2) provides that those records must be in a form and contain the information prescribed by the Regulations. Part 3-6 Division 3 Subdivision 1 of the Regulations prescribes the required Employee Records, which relevantly include pay records (r 3.33), overtime records (r 3.34) and superannuation contribution records (3.37). Section 536(1) of the Act provides that an employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work. Section 536(2)(b) provides that the pay slip must include any information prescribed by the Regulations. Regulation 3.46 sets out in detail the required content of a pay slip.

74The obligations in r 3.33(1) relating to pay records arises only in respect of ‘remuneration paid.’ The obligation in s 536(1) relating to pay slips arises only in respect of ‘paying an amount to the employee in relation to the performance of work’. I find on Ms Readdie’s uncontested evidence that she was paid $1000 on 6 March 2022 (the $1000 Payment), but otherwise Ms Readdie received no other payment in respect of her employment with People Shop. For reasons detailed below,[3] I have concluded that the $1000 Payment was a part payment of her wages, and not a gift as Ms Readdie contended. Accordingly, the relevant obligations in r 3.33(1) to make and keep a record specifying the rate of remuneration, gross and net amounts paid and any deductions made apply to the $1000 Payment. The obligations to provide a pay slip pursuant to s 536(1) containing the information pursuant to s 536(2), as set out in r 3.46, also apply to the $1000 Payment, including information as to the period to which the pay slip relates, the gross and net amount of payment, any penalty rates, the employer’s ABN, the annual rate of pay and required superannuation contributions. The only documents in evidence relating to payments by People Shop to Ms Readdie are the ATO Income Statement and the Osko Receipt. The ATO Income Statement is on its face an ATO record. It incorrectly states the amount paid to Ms Readdie, and there is no evidence that People Shop kept the record. I conclude that it does not constitute an Employee Record pursuant to s 535(1). The Osko Receipt illustrates the gross sum of $1000 being transferred to Ms Readdie’s account, however, does not specify the other matters required of a pay slip pursuant to r 3.46. I conclude that it is not a pay slip for the purposes of s 536(1) or, alternatively, to the extent that it is, it does not contain the information required by s 536(2).

[3]See paragraph 122.

75The obligations in r 3.34 apply if ‘a penalty rate or loading (however described) must be paid for overtime hours actually worked’. For reasons set out below, I have concluded that Ms Readdie is entitled to be paid overtime pursuant to the Contract, and as such the obligations in r 3.34 are enlivened. Those obligations are to make and keep a record of the number of overtime hours worked by the employee during each day, or when the employee started and ceased working overtime hours.

76The obligations in r 3.37 apply ‘if an employer is required to make superannuation contributions’. For reasons set out below, I have concluded that People Shop was required to make superannuation contributions for Ms Readdie, meaning the obligations in r 3.37 are enlivened. Those obligations are to make and keep a record of the amount of contributions, the period over which they were made, the date they were made and the name of the fund, amongst other things. For reasons already given, I conclude that the ATO Income Statement does not constitute such a record.

77There were no such records in evidence. People Shop’s Defence did not address Ms Readdie’s Record Keeping claim. People Shop did not make discovery of, or file and serve, any employee records or pay slips in accordance with the Court’s directions. In the course of the proceeding, People Shop contended that such documents were held by the VLSB/Mr Rapke, however I have concluded that People Shop had an unfettered right to that material which it had failed to collect or retrieve.[4] In the course of the proceeding, People Shop contended that Ms Di Gregorio held such documents. However, to the extent they were not provided to People Shop following the issue of the Di Gregorio Subpoena, People Shop failed to avail itself of two further opportunities to Subpoena the records from Ms Di Gregorio.[5]

[4]See paragraph 11.

[5]See paragraph 12.

78I conclude accordingly that People Shop did not make and keep the records required by s 535(1) in respect of overtime pursuant to r 3.34 or superannuation pursuant to r 3.37. I find that People Shop:

(a)  contravened ss 535(1) and 536(1) in respect of the $1000 Payment;

(b) contravened s 535(1) in respect of the failure to keep overtime records required by r 3.34; and

(c) contravened s 535(1) in respect of the failure to keep superannuation records required by r 3.37.

The Underpayment claim

79Ms Readdie seeks payment of $10,378.36 from People Shop in respect of unpaid wages pursuant to s 323(1) of the Act. Section 323(1) provides:

323  Method and frequency of payment

 (1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a) in full (except as provided by section 324); and

 (b) in money by one, or a combination, of the methods referred to in subsection (2); and

 (c) at least monthly.

80The Magistrates’ Court of Victoria is an eligible State or Territory court pursuant to s 12 of the Act. Section 545(3) of the Act provides that:

(3) An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:

(a)     the employer was required to pay the amount under this Act …; and

(b) the employer has contravened a civil remedy provision by failing to pay the amount.

81Accordingly, for the Court to have jurisdiction under the Act to rectify an underpayment by People Shop, People Shop must have been required to pay the amount under the Act.[6] I was not referred to any authorities by either party as to whether s 323(1) imposes this requirement. However, I have had regard to Euro Car Parts Pty Ltd v Cannon[7] in which Halley J considered whether an eligible State or Territory court had jurisdiction pursuant to s 545(3) of the Act to order an employer to rectify a contractual underpayment pursuant to s 323 of the Act. After a review of relevant authorities,[8] his Honour held that ‘…whilst the source of the obligation to pay may be founded elsewhere, s 323 of the Act nonetheless imposes a further statutory obligation to pay an amount in full, in money and at least monthly…’[9] and an eligible State or Territory court thus had jurisdiction. Consistent with this decision, I have concluded that any amount payable to Ms Readdie for the performance of work pursuant to the Contract is also required to be paid pursuant to s 323 of the Act, in full, in money and at least monthly, enlivening this Court’s jurisdiction under s 545(3) of the Act.

[6]Section 323(1), on which Ms Readdie relies, is a civil remedy provision pursuant to s 539(1) of the Act, meaning the second condition is satisfied.

[7][2024] FCA 828.

[8]Ibid, [65]-[74], [78]-[84].

[9]Ibid, [85] (see also [75]).

Section 557C – presumption where records not provided

82In respect of the Underpayment claim, s 557C of the Act regulates how the Court must approach evidentiary matters.[10] Section 557C has the effect that if Ms Readdie makes an allegation in relation to a matter in the proceeding, and People Shop contravened a record keeping requirement in respect of that matter, People Shop has the burden of disproving Ms Readdie’s allegation unless People Shop provides a reasonable excuse as to the non-compliance (the Presumption).

[10]Act s 557(4)(g).

83Ms Readdie alleges that she worked and was entitled to be paid by People Shop for overtime hours and was not paid for these hours. Ms Readdie also alleges that she was entitled to payment of superannuation pursuant to the Contract which was not paid. I have already concluded that People Shop contravened the requirements of ss 535(1) and 536 in respect of the $1000 Payment along with s 535(1) in respect of overtime records and superannuation records. In light of the matters referred to in paragraph 77, I am not satisfied People Shop has provided a reasonable excuse for the contraventions. Accordingly, People Shop bears the burden of disproving the relevant allegations. Because of the nature of Ms Readdie’s overtime entitlement, considered in detail below, I consider that the total hours worked must be known in order to ascertain when Ms Readdie is entitled to be paid for overtime hours. Accordingly, the Presumption must extend to Ms Readdie’s allegations as to the total hours worked. However, I consider that if I am positively dissuaded of an allegation on Ms Readdie’s own evidence, s 557C does not require me to regard the allegation as proved. Nor do I consider s 557C requires me to regard an allegation as proved based on an incorrect construction of Ms Readdie’s legal entitlements. Given these matters, and in the context where Ms Readdie’s evidence is largely uncontested, the Presumption has only affected one of my findings.

Which version of the contract applies?

84The Contract included a letter of offer to Ms Readdie dated 17 February 2022 (Letter of Offer) which provided a commencement date of 17 February 2022. It stated:  

Terms of Employment

Your terms and conditions of employment and the essential responsibilities of your role are as set out in:

1.this document;

2.the accompanying Terms Sheet; and

3.the accompanying Schedule.

Together, these form your employment contract.

85The Contract had the following relevant express terms, in the Terms Sheet:

3. Hours of work

3.1  The Company’s standard business hours are from 9:30 am to 6:00 pm, Monday to Friday.

3.2  However, you may be required to work outside these hours on occasion in order to discharge your duties, such as by attending to urgent filing deadlines or to deal with unanticipated developments.

3.3  It is expected that you will make yourself available, at all times, when it is reasonably expected of you to serve the Company’s needs, including working extended hours, in order to satisfy and complete the requirements of your position, including all the obligations set out in this Contract

4.Remuneration

4.1  Gross Salary

(a)Your gross salary for the offered role will be $66,000 per annum [Gross Salary].

(b)Your Gross Salary is inclusive of superannuation which the Company will pay at a level required to meet the superannuation guarantee charge [SGC] contribution required under the Superannuation Guarantee (Administration) Act 1992 (Cth) in respect of your employment.

(c)The Gross Salary offered to you is in consideration of your commitment to work for the Company full-time, i.e., up to forty hours per week, and in accordance with the Terms of your Contract.

(d)In the event that the Company requires you to undertake more work in a month than would [sic] the total derived by an extrapolation of forty hours of work in a week, it agrees to pay you a gross amount of $57.00 per hour (including taxes) for every additional hour of work beyond the forty hours.

…

(f)Your Gross Salary (less any tax and superannuation contributions deductions) will be remitted to your nominated bank account monthly, on the 27^th day of every month, so long as the date does not fall on a weekend or a public holiday. If the 27^th of the month falls on the weekend or a public holiday, it will be remitted to your account on the next working day.

4.2 Superannuation

(a)    The Gross Salary is inclusive of superannuation payments.

(b)The Company will make superannuation payments to you at a level required to meet the superannuation guarantee charge [SGC] contribution required under the under the Superannuation Guarantee (Administration) Act 1992 (Cth) in respect of your employment.

86The Second Contract also comprised a Letter of Offer stating the employment commences on 18 February 2022, a Terms Sheet and Schedule. Both versions state that Ms Readdie was employed as a ‘solicitor.’ However, the Contract at cl 1.4 of the Terms Sheet referred to Ms Readdie as the ‘Principal Solicitor of the Company.’ This reference was changed to ‘solicitor’ in the Second Contract. Further, the Schedule to the Second Contract contained four changes from the Schedule in the Contract, by inserting the phrase ‘assisting the principal solicitor’ before specifying responsibilities. The Second Contract contained identical terms to those extracted above from the Contract, including the gross salary, except the rate specified for working each additional hour of work beyond the 40 hours at clause 4.1(d) (Overtime Rate) was changed from $57 per hour in the Contract to $32 per hour in the Second Contract.

87It is implicit from Ms Readdie’s claim that she considers the Overtime Rate in the Contract applies,[11] and accordingly did not regard herself as being bound by the lower Overtime Rate in the Second Contract. People Shop did not address the issue in its Defence or in evidence. However, accepting the uncontested evidence of Ms Readdie that Ms Di Gregorio sent her copies of both contracts on 14 March 2022, I infer that People Shop considered the Second Contract to be applicable. Having signed the Second Contract, it is prima facie binding on Ms Readdie. Neither party referred to any authorities as to whether a written contract is binding in comparable circumstances. However, I have had regard to following principle in Taylor v Johnson:[12]  

[A] party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or the subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension.[13]

[11]Ms Readdie further claimed this amount should be adjusted to reflect a 38 hour week. This is dealt with further below.

[12](1983) 151 CLR 422.

[13]Ibid, per Mason ACJ, Murphy and Deane JJ, [14].

88I find based on Ms Readdie’s uncontested evidence that she was unaware of the change to the Overtime Rate before she signed the Second Contract and People Shop did not inform her of it. I find that Mr Kuksal informed Ms Readdie that the reason she was required to re-sign the contract was because the Contract incorrectly referred to principal solicitor not solicitor. I find, based on the evidence of the surrounding circumstances, that contrary to the reason stated by Mr Kuksal, a substantial reason for People Shop requiring Ms Readdie to sign the Second Contract was to reduce the Overtime Rate payable to her. The change to the Overtime Rate was a significant reduction (around 44 per cent). In light of the ‘commencement date’ in the Second Contract, the change applied from 18 February 2022. At the relevant time, based on my findings set out below, Ms Readdie had already worked over 112 hours in seven days and was entitled to payment at the Overtime Rate in respect of 66.94 hours. This payment, due on 27 February 2022, had not yet been made by People Shop. Accordingly, the change to the Overtime Rate directly affected and substantially reduced the remuneration payable to Ms Readdie, including for work she had already performed. In contrast, the ‘principal solicitor’ changes were minor.

89I conclude that People Shop, through Mr Kuksal, misrepresented to Ms Readdie both the reason he was requiring Ms Readdie to re-sign her contract, and the content of the Second Contract, by referring to the minor principal solicitor changes as the only reason Ms Readdie was required to re-sign the contract, and not referring at all to the far more significant reduction in her Overtime Rate. As a consequence of this misrepresentation, Ms Readdie undertook only a cursory check of her salary and hours before signing the Second Contract and was mistaken as to the Overtime Rate.

90I find, on Ms Readdie’s uncontested evidence, that it was only after Mr Kuksal had satisfied himself that Ms Readdie had signed the Second Contract that he then mentioned the Overtime Rate in the Contract being for a principal solicitor. I infer from the timing of this disclosure that Mr Kuksal was aware that Ms Readdie may sign the Second Contract without noticing the change to the Overtime Rate, and accordingly did not draw it to her attention until after she had signed. Mr Kuksal’s misrepresentation, and the timing of his later disclosure, facilitated Ms Readdie’s mistake as to the contents of the Second Contract. In these circumstances, I conclude that Ms Readdie is entitled to have the Second Contract rescinded, and thus the Overtime Rate specified in the Contract applies. 

91I have also considered whether, notwithstanding her mistake in entering the Second Contract, Ms Readdie acquiesced to the change in the Overtime Rate after Mr Kuksal mentioned it subsequent to her signing the Second Contract, by continuing to work. However, I accept Ms Readdie’s uncontested evidence that she put what Mr Kuksal said to the back of her mind. I am satisfied based on the contents of her email to Ms Di Gregorio a week later on 13 March 2022, after her employment ended, that Ms Readdie remained unaware of the details of the change. I conclude that Ms Readdie did not accept the changed Overtime Rate by her conduct.

What activities is Ms Readdie entitled to payment for?

92Ms Readdie’s claim covers periods she spent at the Office; waiting outside the Office when she had been required to attend but could not get into the premises; working at the hotel and working from home. I am satisfied on Ms Readdie’s uncontested evidence that on each such occasion, Ms Readdie attended the relevant locations or performed the work because she was asked or required to by People Shop (either Mr Kuksal, Ms Xu or Ms Di Gregorio) to do so. The terms of Ms Readdie’s contract provide that she is paid her Gross Salary ‘in consideration of her commitment to work’ full-time for People Shop. She is entitled to payment for additional hours in the event that People Shop ‘requires her to undertake’ that work. I conclude that where Ms Readdie attended or made herself available for work or service as requested or required by People Shop in accordance with her Contract, she is entitled to payment (I will refer to this as ‘work’).

93I find based on the evidence of Ms Readdie and Ms Xu that during periods of work, Ms Readdie was permitted to undertake personal communication with her family, and also had meal breaks where work was discussed. Ms Xu contended accordingly that Ms Readdie’s time claimed was not all work, due to these personal activities being permitted. However, I find based on Ms Readdie’s evidence that meal breaks occurred at a time and in a manner directed by Mr Kuksal, during which Ms Readdie was not free to leave for a personal break but remained available for work and undertook work.  Ms Readdie’s capacity to undertake limited personal communications with her family during work hours, or her performance of work from a different location, does not alter my view that Ms Readdie was at work and is entitled to payment for that time.

94I note People Shop’s Defence that Ms Readdie failed to perform her duties and obligations as required. Leaving aside the events of 13 March 2022, which I have addressed below, there is no evidence that Ms Readdie did not work as directed.

Findings as to hours and days worked by Ms Readdie

95Other than where indicated below, I accept Ms Readdie’s evidence, including the various documents corroborating those hours, as to the hours and days that she worked, and find accordingly.

96Period 1 - Thursday 17 February 2022 (3.15pm – 11pm, 7.5 hours claimed) I accept Ms Xu’s evidence that Ms Readdie would have been waiting around for some time prior to commencing work, did not have access to People Shop’s systems, may have been chatting or applying for her practising certificate. However, Ms Readdie was nonetheless at work and is entitled to payment. I find Ms Readdie is entitled to be paid for 7 hours and 30 minutes work.   

97Period 2 - Friday 18 February 2022 (11.30am – 12 midnight next day, 12 hours claimed): Again, I accept Ms Xu’s evidence that Ms Readdie was permitted to make personal calls during this time, however Ms Readdie was nonetheless at work and entitled to payment. I find Ms Readdie is entitled to be paid for 12 hours’ work.

98Period 3 - Saturday 19 February 2022 (12 noon - 12.30pm Sunday 20 February 2022, 25.5 hours claimed): I find that Ms Readdie was at work and entitled to be paid for this period, including whilst waiting outside the office. However, the evidence establishes that Ms Readdie worked for 24.5 hours, not 25.5 hours as claimed. Ms Readdie is entitled to be paid for 24 hours and 30 minutes.

99Period 4 - Sunday 20 February 2022 (7pm – 12 midnight, 7 hours claimed): I find based on Ms Readdie’s uncontested evidence that she worked from 6.40pm until 1am the following day. Ms Readdie claims a total of 7 hours for work she describes as being between 7pm and 12am. However, the period between 7pm and 12am is only 5 hours, and the period worked between 6.40pm and 1am is 6 hours and 20 minutes. I find that Ms Readdie is entitled to be paid for 6 hours and 20 minutes.

100Period 5 - Monday 21 February 2022 (9.30am – 5.30am next day, 20 hours claimed): I find based on Ms Readdie’s uncontested evidence that she worked from approximately 9.40am until 5.30am the next morning. Ms Readdie claims a total of 20 hours for work. However her evidence establishes that she did not arrive at work until 9.38am. I find that Ms Readdie is entitled to be paid for 19 hours and 50 minutes.

101Period 6 - Tuesday 22 February 2022 (12 noon – 6.30am next day, 18.5 hours claimed): I find that Ms Readdie is entitled to be paid for 18 hours and 30 minutes.

102Period 7 - Wednesday 23 February 2022 (12pm –12.30pm next day, 24 hours claimed): I find that Ms Readdie is entitled to be paid for 24 hours.

103Period 8 - Sunday 6 March 2022 (3.30pm – 11.15am next day, 19.5 hours claimed): I find on Ms Readdie’s evidence that she agreed with People Shop that she would commence work at the Office at 5pm. The emails and phone records suggest that she re-signed her contract prior to this, however I am not satisfied that she commenced work at 3.30pm as claimed. I find that she worked and is entitled to payment for 18 hours and 15 minutes, from 5pm until 11.15am the next day.

104Period 9 - Monday 7 – Tuesday 8 March 2022 (9.30pm – 2.30am next day, 5 hours claimed): I find that Ms Readdie is entitled to be paid for 5 hours.

105Period 10 - Wednesday 9 March 2022 (9am – 11pm, 14 hours claimed): I find on Ms Readdie’s uncontested evidence that she worked and is entitled to be paid for work from shortly after 9.08am until 11.15pm that evening, a total claim of 14 hours.

106Period 11 - Thursday 10 March 2022 (11am – 3.30am next day, 16.5 hours claimed): I find that Ms Readdie is entitled to be paid for 16 hours and 30 minutes.

107Period 12 - Friday 11 March 2022 (11am - 9.45pm, 12.5 hours claimed): Based on Ms Readdie’s uncontested evidence, I find that she commenced work at 11am and ceased work at 9.30pm, a total of 10.5 hours, and took approximately an hour for her medical appointment. However, Ms Readdie’s evidence refers to further contact from Mr Kuksal that night and does not rule out further hours of work as alleged. Accordingly, the Presumption has the effect that the allegation that Ms Readdie worked 12.5 hours has not been disproved. I find that Ms Readdie is entitled to be paid for 12.5 hours.

137I have had regard to Ms Xu’s evidence that Ms Readdie rarely seemed anything other than extremely happy in respect of her role. Ms Readdie on her own evidence tried to make the best of the role. It is not surprising that she displayed the appearance described at most times. However, this does not to my mind derogate from my findings as to the actual impact of her working conditions.

138Having considered all of these matters, I conclude that the additional hours People Shop required Ms Readdie to work in the weeks beginning 14 February, 21 February and 7 March, were unreasonable. I find that People Shop contravened s 62(1) of the Act on these three occasions. The considerations I have outlined above lead me to conclude that the contraventions were particularly egregious.

The Compassionate leave claim

139Ms Readdie claims she should have been entitled to four days of compassionate leave pursuant to s 61(2)(e) and Part 2-2 Division 7 of the Act; two days to support her mother during and after emergency surgery, and two days to grieve the death of her former partner. Ms Readdie claims $1000 and also alleges contravention of the NES entitlement to compassionate leave pursuant to s 44 of the Act.

140Ms Readdie relied on her evidence, which I accept, that Ms Di Gregorio told her on 26 February that she had no entitlement to leave in respect of medical certificates she referred to having obtained, as she had not accrued leave yet. She also relied on her evidence as to her mother’s condition, and the death of her former partner, which I accept. I also accept Ms Xu’s evidence that Ms Readdie did not request compassionate leave or provide relevant information to People Shop. Ms Readdie implicitly accepted this but contended People Shop should have made her aware of her entitlement.  

141Part 2-2 Division 7 Subdivision C of the Act sets out the NES entitlement to Compassionate Leave. It also contains, at s 107, notice and evidence requirements. Section 107 requires an employee who intends to take compassionate leave to give notice to the employer and advise of the expected period of the leave. Then, if the employer requires, the employee must provide evidence that the conditions for taking compassionate leave are satisfied. Section 107(4) then provides that unless these requirements are complied with, an employee is not entitled to take the leave. I find that Ms Readdie did not provide notice of the taking of compassionate leave in accordance with s 107(1). Her failure to provide notice deprived People Shop of the opportunity to request evidence of the entitlement. In the case of Ms Readdie’s former partner, this would have needed to address whether he was a member of Ms Readdie’s immediate family, a requirement of s 104 of the Act. In the case of Ms Readdie’s mother’s illness, this evidence would have needed to address whether her personal illness posed a serious threat to her life, a requirement of s 104, and that the leave would be taken to spend time with her mother, a requirement of s 105. Section 107(4) provides that an employee is not entitled to take compassionate leave unless the employee complies with s 107. Accordingly, I find that Ms Readdie did not have a compassionate leave entitlement and the alleged contraventions are not made out.

The claim for reimbursement of expenses

142Ms Readdie claims $68.61 for reimbursement of approved Uber expenses. Ms Readdie’s Reimbursement claim arises under the Contract. This Court has jurisdiction to determine the claim as provided for in s 100(1) of the MC Act. I do not consider s 323 of the Act has application to the reimbursement of expenses, as I am not satisfied that these are payments due to Ms Readdie ‘in relation to the performance of work.’

143The Contract provides:

5. Expenses

5.1You will be reimbursed for reasonable business expenses incurred in the proper performance of your duties.

5.2However, you will only be reimbursed for expenses that are authorized in advance by the Company and supported by appropriate receipts (or other documentation required by the Company) in the manner preferred by the Company.

…

144I find on Ms Readdie’s uncontested evidence that Ms Readdie’s Uber expenses of $18.64 and $18.28 on 7 March 2022, $16.68 on Tuesday 8 March 2022 and $15.31 on 11 March 2022 were incurred by her, authorised in advance by Mr Kuksal on behalf of People Shop and supported by a receipt provided to People Shop by Ms Readdie on Tuesday 15 March 2022.  I conclude that Ms Readdie was entitled to reimbursement of these sums pursuant to cl 5, and her claim for $68.61 is made out. 

Damages claim

145Ms Readdie’s complaint initially included a claim for ‘[a]n award of damages: the category and value of which to be calculated with the assistance of the Court.’ At the Directions Hearing on 14 June 2023, People Shop sought further and better particulars of this claim. Ms Readdie had filed and served a document titled ‘Applicant’s submissions regarding the possibility of entitlement to damages’ (Damages Submissions) and provided it to People Shop. People Shop submitted that there were no details in that document as to how damages sought were calculated, or the basis for them. I ultimately directed that Ms Readdie had leave to file and serve an amended claim including particulars of her claim for general damages. Pursuant to this order, Ms Readdie filed a document headed ‘Amendment to Plaintiff’s Claim’ which in respect of damages, stated that she sought ‘[a]n award of general and/or pecuniary damages, of an amount in the vicinity of $10,000 - $15,000, or other amount as awarded by the court – outlined in the [Damages Submissions].’

146The Damages Submissions state:

I have been hesitant to either name a particular category of damages or provide a monetary estimate of any damages primarily because I genuinely don’t know what to do in these circumstances. Additionally, I am particularly mindful of making a mistake and inadvertently opening an avenue for my former employer to attack the court’s judgement on what may be perceived as an error of law. That being said, I do have some thoughts on the matter and I have conducted a little of my own research – as limited as it may be. I therefore offer these thoughts to the Court in a similar way that I imagine I may prepare a Memorandum of advice for a senior colleague or supervisor.

147I have considered whether the Damages Submissions, and the articulation of a sum of $10,000-$15,000 in Ms Readdie’s Amended Complaint, sufficiently particularise her damages claim.

148The Damages Submissions raise the questions of any entitlement to damages and exemplary damages arising from: the nature of termination; breaches of civil remedy provisions in the Act; inconvenience caused with Centrelink, the ATO, breach of criminal provisions in the Social Security (Administration) Act 1999 (Cth) s 200, and ss 6 and 7 of the Wage Theft Act 2020 (Vic); and Ms Readdie’s incapacity to seek assistance in her claim for reasons related to her work at People Shop.

149In respect of the ‘nature of the termination’ the Damages Submissions go some way to articulating the claim. They state: ‘Question: Although I am not eligible for the statutory remedy for constructive/unfair dismissal afforded by Pt 3-2 of the [Act], am I entitled to damages for contractual breach?’ They state that the termination of Ms Readdie’s employment came about by way of constructive dismissal, following People Shop’s repudiation of the Contract, citing  Mendicino v Tour Dex Pty Ltd[22] as follows:

[10] … Whether or not an employee has no choice sometimes manifests itself in quite apparent circumstances. These might include where an employer may refuse to …provide payment for work. It might also include circumstances in which an employer may threaten an employee in some particularly serious terms or otherwise harass or victimise an employee. In such circumstances the work environment would be found to have been so repugnant or oppressive that it should not have been reasonably endured by the employee.

[22][2010] FWA 9114.

150I consider that the allegation of constructive dismissal was sufficiently particularised. I find on Ms Readdie’s uncontested evidence that, as at 13 March 2022, People Shop had breached the Contract by failing to pay her wages on 27 February 2022. In addition, for the reasons set out above regarding the Maximum hours claim, I conclude that People Shop had made the work environment so ‘repugnant’ as to have not been reasonable for Ms Readdie to endure. These two matters were repudiatory breaches of the Contract. Accordingly, I find that it was People Shop, not Ms Readdie, that initiated the termination of the employment relationship by its repudiatory breach of the Contract, which Ms Readdie accepted through her ‘resignation’ on 13 March 2022. 

151The Damages Submissions then refer to extracts from Fishlock v Campaign Palace Pty Ltd[23] which are stated to be of relevance. The principles in the extracts include that where an employee is contractually entitled to pay in lieu of notice, that amount can be recovered as a debt. Where an employer has a choice as to whether to pay in lieu of notice, a failure to give notice or pay in lieu entitles the employee to damages.[24] Damages for repudiation are to put the Plaintiff in the position that they would have been in, had the contract of employment been performed.[25] However, the Damages Submissions did not articulate Ms Readdie’s claim in respect of the nature of termination any further. 

[23](2013) 234 IR 1.

[24]Ibid, [280]-[281].

[25]Ibid, [273].

152In respect of inconveniences with Centrelink and the ATO and the alleged breach of criminal provisions in the respective legislation referred to, the Damages Submissions ask whether these are analogous to torts, state that People Shop’s conduct should be described as both egregious and contumelious and cite Lamb v Cotogno[26] as authority that exemplary damages are not confined to any one Tort in particular. However, the Damages Submissions go no further in articulating which torts are relied on.   

[26](1987) 74 ALR 188.

153Regarding breaches of civil remedy provisions in the Act and matters relating to Ms Readdie’s incapacity to seek assistance in her claim due to her work at People Shop, the Damages Submissions do not articulate any cause of action.

154The Industrial Division is required to act without technicality and legal form.  However, it is a substantive matter of procedural fairness that a Defendant must be able to understand the nature of the claim being brought by a Plaintiff. Despite the informality of the material making up Ms Readdie’s claim, I consider Ms Readdie’s Complaint and associated documentation met this requirement in respect of each other aspect of her claim. However, in respect of her Damages Claim, I do not consider that Ms Readdie did so. Whilst the ‘nature of termination’ claim is partly articulated, Ms Readdie has not identified the source or quantum of her loss and damage, in circumstances where People Shop raised this specific concern at the Directions Hearing on 14 June 2023. In respect of all other aspects of the Damages Submissions it is unclear what cause of action is relied on. The Damages Submissions are posed as questions, and whilst the Court has an obligation to assist an unrepresented party, I do not consider that this extends to assisting one party formulate their claim against the other. Accordingly, I decline to award any damages.

Penalties claim

155Ms Readdie seeks the imposition of penalties for People Shop’s contravention of civil remedy provisions of the Act. Pursuant to s 546(1) of the Act, this Court has jurisdiction to order that a person pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.[27]

[27]Section 539(1) of the Act provides that each of ss 44, 323(1), 535(1), 535(2) and 536(1) are civil remedy provisions.

156I have found that People Shop contravened the following civil remedy provisions:

(a) s 44, by contravening s 62(1) in requiring Ms Readdie to work more than 38 hours in the weeks of 14 February, 21 February and 7 March 2022, with those additional hours being unreasonable;

(b) s 323(1), in respect of People Shop’s failure to pay Ms Readdie as required for the February Payment Month and the March Payment Month;

(c) s 535(1) in respect of the $1000 Payment, by failing to keep pay records required by r 3.33;

(d) s 535(1) in respect of the failure to keep overtime records required by r 3.34;

(e) s 535(1) in respect of the failure to keep superannuation records required by r 3.37; and

(f) s 536(1) in respect of the failure to provide a pay slip, containing the information set out in r 4.36, in respect of the $1000 Payment.

157Having found that People Shop contravened these provisions, I will make directions for the filing of further material by the parties in respect of the Penalties claim. To inform the parties’ submissions and evidence, I note the following:

(a) The Court’s power to impose penalties arises from s 546 of the Act.

(b) Pursuant to s 546(2)(b) of the Act, the maximum penalty in respect of a contravention of a civil remedy provision for a body corporate is five times the maximum number of penalty units set out in the table at s 539(2) in respect of the relevant provision.

(c)  In the case of each of the civil remedy provisions contravened, the table at s 539(2) provides that the maximum penalty for a serious contravention is 600 penalty units, or otherwise, 60 penalty units. Accordingly, the maximum penalty for  a serious contravention for a body corporate is 3000 penalty units, or otherwise is 300 penalty units.

(d)  The value of a penalty unit at the time of the contraventions was $222,[28] meaning the maximum penalty for a serious contravention is $666,000 and the maximum penalty is otherwise $66,600.

[28]Crimes Act 2014 (Cth), s 4AA.

158Pursuant to s 546(3), the Court may order that the penalty, or part of the penalty, be paid to the Commonwealth, a particular organisation or a particular person.

159‘Serious contravention’ is defined in s 557A of the Act. Section 557B of the Act deals with the liability of a body corporate for serious contraventions.

160In respect of each of the civil remedy provisions which I have found to have been contravened, s 557 of the Act prescribes that two or more contraventions of a provision are taken to constitute a single contravention if they are committed by the same person, and arose out of a course of conduct by the person.

161The High Court recently considered the scope of the power conferred by s 546 of the Act to impose civil pecuniary penalties in Australian Building and Construction Commissioner v Pattinson.[29]

[29][2022] HCA 13; (2022) 274 CLR 450.

Interest

162Section 547 of the Act deals with interest up to judgment. It applies to orders of the nature made in this proceeding. It provides at s 547(2) that the Court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary. It provides at s 547(3) that without limiting s 547(2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made. I will also make directions for the parties to make submissions on any appropriate order in respect of interest.

ORDERS

163I make the following orders: 

1.    The Defendant is ordered to pay the sum of $7,913.84 to the Plaintiff.

2.    The Defendant is ordered to pay the sum of $271.89 to the Plaintiff’s nominated superannuation fund.

3.    The Defendant has contravened the following provisions of the Fair Work Act 2009 (Cth) (the Act):

a. s 44 of the Act, by contravening s 62(1) of the Act by requiring the Plaintiff to work more than 38 hours in the weeks of 14 February, 21 February and 7 March 2022, with those additional hours being unreasonable;

b. s 323(1) of the Act, by failing to pay the Plaintiff as required on 27 February 2022 and 27 March 2022;

c. s 535(1) of the Act in respect of its payment to her of $1000 on 6 March 2022, by failing to keep pay records required by r 3.33 of the Fair Work Regulations 2020 (Cth) (the Regulations);

d. s 535(1) of the Act, in respect of the failure to keep overtime records required by r 3.34 of the Regulations;

e. s 535(1) of the Act, in respect of the failure to keep superannuation records required by r 3.37 of the Regulations; and

f. s 536(1) of the Act, in respect of its payment to her of $1000 on 6 March 2022, by failing to provide a pay slip containing the information set out in r 4.36 of the Regulations.

4.    The parties are directed as follows:

a. The Plaintiff is to file and serve any Affidavit/s and an outline of submissions addressing ss 546 and 547 of the Act by 4pm on 8 January 2025.

b. The Defendant is directed to file and serve any Affidavit/s and an outline of submissions addressing ss 546 and 547 of the Act by 4pm on 19 February 2025.

c.    The matter is adjourned to a date to be fixed. Unless both parties indicate otherwise, the matter will be listed for hearing on a future date for the determination of penalties and interest.

5.    Liberty to apply.

APPENDIX A – HOURS OF WORK CLAIMED AND FINDINGS

Period	Claimed Start	Claimed End	Claimed hours	Findings - hours worked
1	17.2.22 3.15pm	17.2.22 11pm	7.5	7.5
2	18.2.22 11.30am	19.2.22 12.00am	12	12
3	19.2.22 12.00pm	20.2.22 12.30pm	25.5	24.5 (start and end time as claimed)
4	20.2.22 7.00pm	21.2.22 12.00am	7	6.33 (6.40pm 20.2.22 – 1am 21.2.22)
5	21.2.22 9.30am	22.2.22 5.30am	20	19.83 (9.40am 21.2.22 – 5.30am 22.2.22)
6	22.2.22 12.00pm	23.2.22 6.30am	18.5	18.5
7	23.2.22 12.00pm	24.2.22 12.30pm	24	24
8	6.3.22 3.30pm	7.3.22 11.15am	19.5	18.25 (5pm 6.3.22 – 11.15am 7.3.22)
9	7.3.22 9.30pm	8.3.22 2.30am	5	5
10	9.3.22 9.00am	9.3.22 11.00pm	14	14
11	10.3.22 11.00am	11.3.22 3.30am	16.5	16.5
12	11.3.22 11.00am	11.3.22 9.45pm	12.5	12.5
13	12.3.22 11am	13.3.22 3.20am	16	16
14	13.3.22 4.00pm	13.3.22 8.00pm	4	4
Total	202	198.91

APPENDIX B – ENTITLEMENT TO PAYMENT

February Payment Month

Days included

27 Jan 2022 – 26 Feb 2022 – 31 days

Gross Salary Hours

Week beginning Mon 24 Jan: 27-30 Jan = 4 days  = 4/7 x 40 = 22.86

Weeks beginning Mon 31 Jan, 7 Feb, 14 Feb = 3 x 40 = 120 

Week beginning Mon 21 Feb: 21-26 Feb = 6 days = 6/7 x 40 = 34.29

TOTAL 177.15 Gross Salary Hours

Excluded Gross Salary Hours

(Days Ms Readdie did not work)

Week beginning Mon 24 Jan: 27-30 Jan = 4 days  = 4/7 x 40 = 22.86

Weeks beginning Mon 31 Jan, 7 Feb = 14 days = 2 x 40 = 80 

Week beginning 14 Feb: 14-16 Feb = 3 days = 3/7 x 40 = 17.14

Week beginning 21 Feb: 25-26 Feb = 2 days = 2/7 x 40 = 11.43

TOTAL 23 days and 131.43 Gross Salary Hours excluded

Number of Gross Salary Hours for which Ms Readdie is entitled to payment 

177.15 – 131.43 = 45.72 Gross Salary Hours

Amount Ms Readdie is entitled to be paid for Gross Salary Hours

$66,000 / 12 months = $5500 per month

$5500 per month excluding 10% superannuation = $5000 per month

45.72/177.15 x $5000 = $1,290.43

Pro rata extrapolation of Gross Salary Hours under cl 4(1)(d)

Gross salary hours for 31 days – 177.15

Days worked by Ms Readdie = 8/31

8/31 x 177.15 = 45.72 Gross Salary Hours for purpose of extrapolation 

Total Overtime Hours worked by Ms Readdie

7.5 + 12 + 24.5 + 6.33 + 19.83 + 18.5 + 24 = 112.66 Total Hours Worked

112.66 (Total Hours) – 45.72 (Gross Salary Hours) = 66.94 Overtime Hours

Amount Ms Readdie is entitled to be paid for Overtime Hours

66.94 x $57 = $3815.58

TOTAL

$1290.43 + 3815.58 = $5,106.01

March Payment Month

Days included

27 Feb 2022 – 26 Mar 2022 = 28 days

Gross Salary Hours

Week beginning Mon 21 Feb: 27 Feb = 1 day  = 1/7 x 40 = 5.71

Weeks beginning Mon 28 Feb, 7 Mar, 14 Mar – 21 days = 3 x 40 = 120 

Week beginning Mon 21 Mar: 21-26 Mar = 6 days = 6/7 x 40 = 34.29

TOTAL 160 Gross Salary Hours

Excluded Gross Salary Hours

(Days Ms Readdie did not work)

Week beginning Mon 21 Feb: 27 Feb = 1 day  = 1/7 x 40 = 5.71

Weeks beginning Mon 28 Feb: 28 Feb – 5 Mar  = 6 days = 6/7 x 40 = 34.29

Week beginning 14 Mar = 7 days = 40

Week beginning 21 Mar = 6 days = 6/7 x 40 = 34.29

TOTAL 20 days and 114.29 Gross Salary Hours excluded

Number of Gross Salary Hours for which Ms Readdie is entitled to payment 

160 – 114.29 = 45.71 Gross Salary Hours

Amount Ms Readdie is entitled to be paid for Gross Salary Hours

$66,000 / 12 months = $5500 per month

$5500 per month excluding 10% superannuation = $5000 per month

45.71/160 x $5000 = $1428.44

Pro rata extrapolation of Gross Salary Hours under cl 4(1)(d)

Gross salary hours for 28 days – 160

Days worked by Ms Readdie = 8/28

8/28 x 160 = 45.71 Gross Salary Hours for purpose of extrapolation 

Total Overtime Hours worked by Ms Readdie

18.25 + 5 + 14 + 16.5 + 12.5 + 16 + 4 = 86.25 Total Hours Worked

86.25 (Total Hours) – 45.71 (Gross Salary Hours) = 40.54 Overtime Hours

Amount Ms Readdie is entitled to be paid for Overtime Hours

40.54 x $57 = $2,310.78

TOTAL

$1428.44 + $2,310.78 = $3739.22