Siudek v Aziz

Case [2025] FedCFamC2G 1524

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Siudek v Aziz [2025] FedCFamC2G 1524

File number(s): SYG 1208 of 2023
Judgment of: JUDGE GIVEN
Date of judgment: 18 September 2025
Catchwords: INDUSTRIAL LAW – Multiple contraventions of Fair Work Act including underpayment and termination of employment for exercising workplace rights – where all but one contravention conceded during course of proceedings, including by post-hearing submissions
Legislation:

Evidence Act 1995 (NSW) ss 128, 138

Fair Work Act 2009 (Cth) ss 12, 15A, 45, 340, 345, 384, 539, 546, 557

Surveillance Devices Act 2007 (NSW) s 7

Fast Food Industry Award 2020
Cases cited:

Australia Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526

Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450

Australian Building and Construction Commissioner v Rielly (No 3) [2022] FedCFamC2G 1

Australian Competition and Consumer Commission v Employsure Pty Ltd (2023) 407 ALR 302

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (2023) 297 FCR 438

Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301

Fair Work Ombudsman v Taj Palace Tandoori Indian Restaurant Pty Ltd [2012] FMCA 258

first

In v Giri Australia Pty Ltd (No 2) [2024] FedCFamC2G 133

Jordan v Mornington Inn Pty Ltd [2007] FCA 1384

Molina v Galloway [2022] FedCFamC2G 904

Pearce v R (1998) 194 CLR 610

Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union (2008) 171 FCR 357

Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) (2014) 97 ACSR 412

Trade Practices Commission v CSR Ltd [1990] FCA 521

Transport Workers' Union of Australia v Qantas Airways Ltd (Penalty) [2025] FCA 971
Division: Fair Work
Number of paragraphs: 105
Date of last submission/s: 25 September 2024
Dates of hearing: 30 July 2024, 31 July 2025
Counsel for the Applicant: Mr L Andelman
Solicitor for the Applicant: Marrickville Legal Centre
Counsel for the Respondent: Ms L Geddes
Solicitor for the Respondent: Rosemont Partners

ORDERS

SYG 1208 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

PATRICK SIUDEK

Applicant
AND:

ATIF FOUAD AZIZ

Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

18 SEPTEMBER 2025

THE COURT DECLARES:

1.The respondent contravened s 45 of the Fair Work Act 2009 (Cth) (Act) by failing to pay the applicant the correct minimum rate of pay in full, under the Fast Food Industry Award 2020 (Award), and in accordance with s 45 of the Act with respect to minimum rates of pay under cl 11.2 of the Award.

2.The respondent contravened s 45 of the Act by failing to pay the applicant the correct minimum rate of pay in full, under the Award, and in accordance with s 45 of the Act with respect to weekend penalty rates under cl 20.6(a) of the Award.

3.The respondent contravened s 45 of the Act by failing…

Continue reading Siudek v Aziz

Sign in free to access the full text

Details
AGLC
Siudek v Aziz [2025] FedCFamC2G 1524
Case
[2025] FedCFamC2G 1524
Decision Date

CaseChat Overview and Summary

In the case of Siudek v Aziz, the applicant, Mr. Siudek, brought an action against the respondent, Mr. Aziz, for multiple contraventions of the Fair Work Act, including underpayment and termination of employment for exercising workplace rights. The proceedings were heard by a court, and the respondent conceded all but one of the alleged contraventions during the course of the proceedings, including by post-hearing submissions. The court was required to decide whether the respondent breached s 345 of the Act in the way alleged by the applicant and, if so, the appropriate penalty and compensation to be awarded. The court considered the evidence provided by the parties, including affidavits and a joint aide memoire, and found that the respondent had breached the Act. The court found that the respondent should be ordered to pay civil pecuniary penalties, economic loss compensation, and non-economic loss compensation to the applicant.

The court considered the appropriate penalty and compensation to be awarded, taking into account the totality principle and the need for specific and general deterrence. The court found that the appropriate penalty was $5,775 per contravention, with a reduction for totality resulting in a sum of $50,000 to be paid: 50% to the applicant and 50% to the consolidated revenue fund of the Commonwealth. The court also awarded $12,000 for economic loss and $4,000 for non-economic loss to the applicant. The court ordered that the aforementioned amounts be paid to their respective recipients within 28 days.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

After the hearing, I reviewed the evidence given and was ultimately satisfied that the exception in s 128(6)(b) of the Evidence Act was satisfied and, accordingly, issued the certificate in Chambers on 13 August 2024. MATERIAL BACKGROUND AND FACTS The background to these proceedings is derived from the written submissions of the parties, the Affidavit evidence and a joint aide memoire provided by the parties to the Court on 30 July 2024 (aide memoire). The following sets out the background to the issue which remains in dispute between the parties in relation to the alleged contraventions of the Act outlined at [4] above, as well as salient contextual matters which explain the Court’s acceptance of the concessions and are relevant to consider in respect of penalty and compensation. The respondent operates a pizza shop in the town of Wallerawang NSW, called ‘Wang Pizza and Diner’ (Wang Pizza). The respondent had bought Wang Pizza from Ms Bateman as a going concern. the respondent is assisted by his wife and his daughter in the day-to-day running and operation of Wang Pizza. The respondent is originally from Egypt and moved to Australia in or about 1996. The respondent’s first language is Arabic, and he claims has a limited grasp on the English language[9]. He was assisted by an interpreter in the Arabic language r to give his evidence. As noted earlier the respondent said during cross-examination that his first Affidavit had been prepared for him by his daughter.[10] [9] Second Aziz Affidavit at [20] [10] Hearing Transcript day 2 at T32.15 to T32.40 The applicant and his partner (Ms Wisnieswka) worked casually for the respondent at Wang Pizza between 10 March 2023 to 16 April 2023 (being a period of 5 weeks which coincided with the opening of that business under the respondent’s management). They had each previously worked for Ms Bateman. The contract of employment between the applicant and the respondent was based upon an oral agreement between the parties. The Award applied to the applicant, who was classified as ‘Fast-Food Employee Level 1’, prescribed minimum rates of pay, casual loading, shift penalties and overtime rates. Having worked in or operated multiple food-based businesses since his arrival in Australia, under cross-examination the respondent accepted:[11] (a)familiarity with the Award, having been subject to it himself previously, albeit at level 5 because of his chef skills; (b)specifically knowing about the Award prior to opening Wang Pizza and, therefore, prior to his employment of the applicant; (c)knowing, as at March 2023, that he had an obligation as an employer to: (i)provide payslips; and (ii)pay Award rates; and(d)that he (now) takes full responsibility for the Wang Pizza business. [11] Hearing Transcript day 2 at T20.9 to T22.45 It was common ground between each of the respondent and Ms Aziz that they experienced difficulties in the initial weeks of them assuming and establishing operation of Wang Pizza. Much was said by each of them about being in a rush to have the business open, which occurred 10 days later than they had planned, and that the respondent was sick during this period and was hospitalised during this time. The respondent gave evidence that he left Ms Aziz, and his accountant to deal with payroll and other employment matters because at this time, that he had: no idea for what the payment was going on. Because we need to [set] up the business. andI have to go back to and my daughter or my ..... because seriously, in this time, I’m focused on the kitchen. I sleep three days in the mattress to [set] up the business

Evidence

Evidence Before The Court

The questions which remain for the Court to determine are therefore: (a)in respect of liability, whether the respondent breached s 345 of the Act in the way alleged by the applicant as described at [4] above; and (b)dependent on the aforementioned liability determination, and in addition to the admitted contraventions referred to at [3] above: (i)whether penalty/ies should be imposed and, if so, the quantum of any such penalty/ies; and (ii)whether the applicant should be compensated for the dismissal contravention and, if so, the quantum of any such compensation. EVIDENCE In support of his application, the applicant relies on the following Affidavit evidence:(a)Affidavit made by him on 17 January 2025 (first Siudek Affidavit). Paragraph [16] of the first Siudek Affidavit was objected to by the respondent and not formally pressed;(b)Affidavit made by him on 25 April 2024 (second Siudek Affidavit). The respondent also objected to [5] of the second Siudek Affidavit on the basis of relevance. The paragraph was allowed subject to the question of relevance. Objection was also taken in respect of [23] of the second Siudek Affidavit, together with the entirety of Exhibit “A”, which is a USB containing what is said to be a “covert recording” made by the applicant of part of a telephone conversation between himself, the respondent and the respondent’s daughter on 15 April 2023, which is referred to in that paragraph, and [50(d)] of the same Affidavit, in respect of which evidence is given, apparently, from the same recording. The objection was taken on the basis that the recording was allegedly made contrary to s 7(1) of the Surveillance Devices Act 2007 (NSW) (SD Act). For reasons which were given at hearing, the Court was not persuaded that there was any matter arising under s 138(3) of the Evidence Act 1995 (NSW) (Evidence Act) to warrant the exercise of its discretion to admit evidence which was found to have been obtained in contravention of the SD Act. The desirability of its admission did not outweigh the undesirability of admitting evidence which the Court was satisfied, had been obtained illegally, even when regard is had to the matters in ss 138(3). Accordingly, the corresponding paragraphs of the second Siudek Affidavit ([23] and [50(d)]) were rejected. The Court did not have regard to the audio recording (the USB containing which was not in any event put before it);(c)Affidavit of Ms Wisnieswka made on 17 January 2024 (first Wisnieswka Affidavit), with the exception of [4] to [15] and [19], and noting that [21] to [26], [29] and [30] were allowed subject to the question of relevance;(d)Affidavit of Ms Wisnieswka made on 25 April 2024 (second Wisnieswka Affidavit) was also read subject to relevance; and (e)Affidavit of Joanna Bateman made on 24 April 2024. Paragraphs [6], [7], [9], [14] and [22] to [25] were not pressed by the applicant. Ms Bateman was not required for cross examination. The remainder of Ms Bateman’s Affidavit was read, again subject to relevance.

Decision

Reasons for decision

In terms of non-economic loss, I am of the view having regard to the somewhat limited evidence, that in the exercise of my discretion, an appropriate quantum of damages anxiety hurt, embarrassment and distress in this case is $4,000. CONCLUSION The applicant having succeed in establishing all the contraventions alleged, albeit all but one having been eventually conceded, I am of the view that the respondent should be ordered to pay: (a)civil pecuniary penalties in respect of each of the 10 contraventions established, in the sum of $5,775 per contravention, with a reduction for totality resulting in a sum of $50,000 to be paid: (i)50% to the applicant; and (ii)50% to the consolidated revenue fund of the Commonwealth; (b)$12,000 for economic loss to be paid to the applicant; and(c)$4,000 for non-economic loss to be paid to the applicant. It is reasonable to require that the aforementioned amounts be paid to their respective recipients within 28 days. I will so order.

Ratio Decidendi

Legal Principle Established

I am satisfied that there is a strong need to specifically deter the respondent from this view and from conduct undertaken in accordance with it. Consideration on penalty I have reviewed the positions of the parties in respect of the aggregation of contraventions, and agree that the contraventions should be treated individually. Each party respectively contends that the amount of penalty they consider to be appropriate applies to each of the contraventions (albeit they are significantly apart in terms of what they each contend would be appropriate quantum). I bear in mind that the purpose of any penalty is not punitive but largely, if not solely, to be directed to deterrence, what will be an appropriate penalty is a fact driven exercise to be determined on a case-by-case basis. The Court is considering what, if any, penalty is necessary and apposite in order to deter future contraventions “of a like kind” by the respondent and by others to achieve specific and general deterrence: see Pattinson (supra) at [9] to [10]. Having regard to all the factors assessed at [52] to [82] above, I am of the view that the following penalties should be imposed on the respondent. In terms of the quantum of that penalty, I am satisfied that taking into account all the aforementioned consideration, the appropriate penalty is $35% of the total maximum penalty, namely $5,775 per contravention, for a total of $57,750.00. The applicant says that no adjustment should be made based on the “totality principle” when viewing the respondent’s conduct as a whole, whereas the respondent says that adjustment should be made. While each is directed at avoiding duplication “course of conduct” and “totality” are distinct considerations: see Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) (2014) 97 ACSR 412 at [197] to [198] and Pearce v R (1998) 194 CLR 610 at [45] to [48]. In Australian Building and Construction Commissioner v Rielly (No 3) [2022] FedCFamC2G 1, Judge Driver said the following at [56] (footnotes omitted):Where multiple penalties are to be imposed upon a particular wrongdoer, the totality principle requires the Court to make a “final check” of the penalties to be imposed on a wrongdoer, considered as a whole. It will not necessarily result in a reduction. However, in cases where the Court believes that the cumulative total of the penalties to be imposed would be too low or too high, the Court should alter the final penalties to ensure that they are “just and appropriate”. As noted, the totality principle is quite separate from the course of conduct principle and is applied at a different stage of analysis. The application of the totality principle does not authorise a court to impose a single penalty for multiple offences. There is no dispute between the parties in respect of course of conduct, nor is there any dispute that the totality principle should be applied as a final check. The extant dispute is only as to their preferred outcomes.