Senga v Kolinvest Pty Ltd

[2018] FCCA 685

FEDERAL CIRCUIT COURT OF AUSTRALIA

SENGA v KOLINVEST PTY LTD [2018] FCCA 685

Catchwords:
INDUSTRIAL LAW – Small Claims – failure to pay agreed wage – no wage paid for the entire period of employment – wage slips issued but no wage paid – matter referred to Fair Work Ombudsman and the Police.

Legislation:

Fair Work Act 2009 (Cth) s.545(2)(b)

Applicant: KLEIA SENGA

Respondent: KOLINVEST PTY LTD

File Number: MLG 2579 of 2017

Judgment of: Judge McNab

Hearing date: 7 March 2018

Date of Last Submission: 7 March 2018

Delivered at: Melbourne

Delivered on: 7 March 2018

REPRESENTATION

The Applicant: Appeared in person

The Respondent: No appearance

ORDERS

THE COURT DECLARES THAT:

1. The Respondent, KOLINVEST PTY LTD (ACN 161 422 564) has contravened provisions of the Fair Work Act 2009 (Cth) by failing to pay the Applicant’s entitlements of $6,106.00.

THE COURT ORDERS THAT:

1. Pursuant to s.545(2)(b) of the Fair Work Act 2009 (Cth) the Respondent pay the Applicant the sum of $6,106.00 in addition to statutory interest in the sum of $282.72 and reimbursement of the court filing fee in the sum of $355.00 within 21 days of the date of these orders.

2. The matter be referred to the Fair Work Ombudsman and the Victoria Police.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2579 of 2017

KLEIA SENGA

Applicant

And

KOLINVEST PTY LTD

Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE

1. The applicant, Kleia Senga is a graduate in Commerce from Deakin University having graduated in February 2017. After looking for a job using her qualification, she was offered a position with the company, Kolinvest Proprietary Limited ACN 161422564 in August 2017.

   
   

   The documents appended to her application dated 25-26 July 2017 show communications between herself and Ms Ashleigh Whyte, an administrative assistance employed by Kolinvest where the details of salary were discussed and agreed at $45,000 per annum. The applicant commenced work on 9 August 2017 and worked in a role as an administrative assistant and marketing assistant on a full-time basis until 20 September 2017.

2. The applicant, Ms Senga, was provided with payslips, including one for the pay period from 9 August 2017 to 22 August 2017, which confirmed the hourly rate based on a 45,000 salary but, unfortunately, no funds were actually transmitted to the applicant.  She worked in her role doing website design and setting up social media for Kolinvest without pay through that period.

3. I find that the claim has been established and the applicant is owed wages based on her salary of $5192.31, accrued and unpaid annual leave in the sum of $420.43 and $493.26.  She is also entitled to satisfy statutory interest on that sum.

4. Given the circumstances of this case, I will be referring this matter to the Fair Work Ombudsman and sending a copy of these reasons to the Victoria Police. This seems to be a clean case of fraud on the basis of the material that I have seen. The Court will make orders for payment of that money to be made. I note that had this matter been issued in a list other than the small claims list that very substantial penalties would apply. Given that the proceeding was listed in the small claims list, I will make orders in the terms outlined above.

5. I note that an affidavit of service sworn 28 November 2017 was filed proving service on the respondent.

6. Further, the applicant forwarded an email to the Respondent on

   
   

   27 September 2017 seeking payment of unpaid wages.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 22 March 2018