Thangasamy v First Penny Investments (in liq) (No 2)
[2025] FedCFamC2G 1517
•18 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thangasamy v First Penny Investments (in liq) (No 2) [2025] FedCFamC2G 1517
File number(s): SYG 658 of 2023 Judgment of: JUDGE LAING Date of judgment: 18 September 2025 Catchwords: INDUSTRIAL LAW – alleged underpayments – finding that the applicant was underpaid certain entitlements – identity of employer – finding of accessorial liability – penalties to be determined Legislation: Fair Work Act2009 (Cth) ss 44, 87, 90, 323, 547 & 550
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 9.04
Cases cited: Kearney v Accrue Property Pty Ltd [2023] FedCFamC2G 1078 Division: Fair Work Number of paragraphs: 64 Date of hearing: 16 April, 17 April & 20 June 2025 Place: Sydney Solicitor for the Applicant: Mr S Barry of Thurlow Fisher Lawyers First Respondent: No appearance Second Respondent: No appearance Third Respondent: In person via AVL Fourth Respondent: In person via AVL ORDERS
SYG 658 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOSES SUJIT THANGASAMY
Applicant
AND: FIRST PENNY INVESTMENTS PTY LTD (IN LIQ) ACN 621 436 735
First Respondent
TRUE ALTITUDE PTY LTD ACN 660 865 912
Second Respondent
MICHAEL JONATHAN GALE (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
18 SEPTEMBER 2025
THE COURT DECLARES THAT:
1.The third respondent was involved, within the meaning of s 550 of the Fair Work Act2009 (Cth) (FW Act), in the first respondent’s contravention of s 44 of the FW Act by not paying the applicant for untaken and accrued annual leave in accordance with s 90(2) of the FW Act.
2.The fourth respondent was involved, within the meaning of s 550 of the FW Act, in the first respondent’s contravention of s 44 of the FW Act by not paying the applicant for untaken and accrued annual leave in accordance with s 90(2) of the FW Act.
3.The third respondent was involved, within the meaning of s 550 of the FW Act, in the first respondent’s contravention of s 323 of the FW Act by failing to pay the applicant amounts payable to him for the performance of work in full and at least monthly.
4.The fourth respondent was involved, within the meaning of s 550 of the FW Act, in the first respondent’s contravention of s 323 of the FW Act in failing to pay the applicant amounts payable to him for the performance of work in full and at least monthly.
THE COURT ORDERS THAT:
5.The third respondent and fourth respondent, jointly and severally, pay to the applicant the sum of $54,433.24.
6.The third respondent and fourth respondent, jointly and severally, pay interest to the applicant pursuant to s 547 of the FW Act on the amount of $54,433.24 for the period from 9 January 2023 to the date of judgment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant (Mr Thangasamy) seeks compensation under the Fair Work Act 2009 (Cth) (FW Act) in respect of alleged contraventions of ss 44, 90(2) and 323 of the FW Act. Mr Thangasamy also seeks declarations, interest and the imposition of pecuniary penalties.
As the first respondent (First Penny) is in liquidation and Mr Thangasamy understands that the second respondent (True Altitude) has been deregistered, he does not press any claim for relief against the companies. Mr Thangasamy instead seeks relief against the third respondent, Michael Gale (Mr Gale), and the fourth respondent, Amy Swartz (Ms Swartz), by reference to s 550 of the FW Act.
EVIDENCE RELIED UPON
Mr Thangasamy relied upon the following evidence:
(a)An affidavit sworn by him on 24 January 2025 (Thangasamy Affidavit), together with an associated exhibit MST-2 (MST-2);
(b)Exhibit A, being an ASIC search in relation to True Altitude;
(c)Exhibits 1, 2 and 3, being email chains that were relied upon by Mr Thangasamy.
Certain parts of Mr Thangasamy’s evidence were rejected as inadmissible. Mr Thangasamy gave supplementary oral evidence in the matter and was cross-examined by Mr Gale.
No material was placed into evidence by Mr Gale or Ms Swartz. Rather, the approach taken by those respondents was to put Mr Thangasamy to proof and, in some instances, to test the evidence relied upon by Mr Thangasamy.
GENERAL BACKGROUND
First Penny was incorporated on 1 September 2017. Mr Gale was appointed as a director from the date of its inception. Ms Swartz was appointed as a director on 15 January 2018: pp 55-56 of MST-2.
Mr Thangasamy signed an employment agreement with First Penny on 14 March 2022, whereby Mr Thangasamy was employed on a full-time basis in the position of Principal: pp 2-15 of MST-2.
True Altitude was incorporated on 9 July 2022. Mr Gale was appointed as its sole director and secretary from 9 July 2022: Exhibit A. Employment documentation was sent to Mr Thangasamy for the purpose of transferring his employment to True Altitude on 2 September 2022. That documentation was not signed by Mr Thangasamy: pp 16-31 of MST-2.
Mr Thangasamy resigned from his employment, effective from 9 December 2023: Thangasamy Affidavit at [13].
Mr Thangasamy commenced the current proceeding on 19 April 2023.
PROCEDURAL BACKGROUND
This matter has a somewhat unfortunate procedural background, characterised by what appears to have been, at times, a universal disinclination on the part of the parties towards progression. This, I understand, has been influenced by events external to the current proceeding (including proceedings in the Supreme Court as well as other developments affecting entities in the corporate group). However, it has meant that this matter has taken far longer to be resolved than seems to have been desirable or proportionate to the matter’s significance or complexity.
Shortly before the first court date in the matter, Mr Gale and Ms Swartz purported to file responses on their own behalf and on behalf of the companies. The responses indicated consent to the companies paying certain money sought to Mr Thangasamy, albeit disputed that joint liability should be imposed regarding the compensation sought. Instead, an order was proposed allowing compensation to be contributed according to the agreement of the respondents. The responses objected to Mr Gale and Ms Swartz’s personal liability. They objected to the payment of any interest and the imposition of pecuniary penalties by or on any party.
The matter was first listed for directions on 19 May 2023. There was no appearance for First Penny or True Altitude, apparently because of a misunderstanding on the part of Mr Gale regarding his ability to represent the companies without leave. Orders were made requiring First Penny and True Altitude to appoint legal representatives in accordance with (the then applicable) r 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and to file notices of address for service and responses by 9 June 2023. The matter was also referred for mediation. At the directions, some background to the matter was given indicating that resolution of the matter was tied to external negotiations amongst shareholders in holding companies, including Mr Thangasamy. There was also said to be some complexity regarding funding, having regard to the structure of related companies. There were said to be multiple companies involved. Issues of insolvency were raised.
On 13 June 2023, a law firm came on the record for all respondents. On 5 July 2023, responses were filed in similar terms to those that had been filed earlier. The law firm withdrew from the record on 4 September 2023.
Mediation did not occur. Difficulties in this regard may have included the withdrawal of legal representation and the residence of Mr Gale and Ms Swartz overseas. The matter was listed for case management on 8 November 2023.
At the listing, Mr Gale expressed that related proceedings in the Supreme Court had complicated the situation regarding mediation. He advised that negotiations were being conducted in that context, which may bear upon resolution of this proceeding. Mr Thangasamy sought adjournment of the matter until mid-February 2024, following important developments expected to occur in relation to the Supreme Court proceedings. It was suggested that orders requiring the preparation of evidence prior to that time would result in wasted costs and would impede the ability of the parties to reach settlement in this matter. Mr Gale and Ms Swartz similarly sought adjournment. Mr Gale additionally cited developments expected to occur in relation to the administration of the parent company in the United Kingdom. The matter was accordingly adjourned to 16 February 2024.
On 16 February 2024, Mr Thangasamy’s representative advised that a pending application for winding up of First Penny had been adjourned to 27 February 2024. Mr Gale advised that there was a settlement in that matter concerning First Penny and Mr Thangasamy. However, this required a payment to be made and the proceeding had adjourned until that occurred. Mr Gale suggested that if First Penny were wound up, there were “a whole bunch of linked personal guarantees” with the result that he and Ms Swartz would become bankrupt “fairly shortly after that”. Mr Thangasamy’s representative indicated that if this occurred, this proceeding would be “effectively over” from his client’s perspective “apart from True Altitude” which was said to have “no money”. Mr Thangasamy sought an adjournment to allow further developments impacting upon forensic choices in the present proceeding to occur. No objection was taken by Mr Gale or Ms Swartz. The proceeding was therefore adjourned to a date to be advised administratively. This was on the basis that the parties would notify the Court once the situation had sufficiently developed, by reference to what had been raised in relation to the related Supreme Court proceedings, such that this matter could progress (or Mr Thangasamy could make an informed decision regarding its pursuit).
Unfortunately, this did not occur in a timely fashion (whether due to external developments by reference to the Supreme Court proceedings or otherwise). On 26 July 2024, the parties were therefore notified of further listing of the matter on 2 August 2024.
At the directions, there was no appearance for any of the respondents. Mr Thangasamy’s representative advised that there was a pending winding up application scheduled to be heard on 21 August 2024 in relation to First Penny. He advised that his client had hoped that the issues between the parties may have been able to be resolved in the months subsequent to the last directions hearing but that, although negotiations had been ongoing, they had not borne fruit. Mr Thangasamy’s representative reminded the Court of previous indications that the companies involved in the matter were insolvent and for the potential for Mr Gale and Ms Swartz to enter into bankruptcy if refinancing of the UK parent company were unable to be achieved. Mr Thangasamy’s representative expressed reluctance to incur fees in this context and sought for the matter to be stood over for 6-8 weeks. It was expressed that developments regarding First Penny were likely to be a “crystalising factor” in the matter. However, a timetable was nonetheless set for the filing and service of evidence. This was in circumstances where, it was communicated, the Court was disinclined to allow the matter to drift further without progress being made.
The matter was next listed for directions on 12 December 2024, at which further timetabling orders were made and the matter was set down for two half days of hearing in April 2025 (with afternoon starting times, to accommodate Mr Gale and Ms Swartz). The issues raised during the listings required a further half day of hearing in the matter, which occurred on 20 June 2025. Some allowance was also made for post-hearing submissions.
DETERMINING THE RELEVANT EMPLOYER
First Penny, clearly enough, employed Mr Thangasamy between 14 March 2022 and 30 July 2022. A signed employment contract is in evidence confirming Mr Thangasamy’s employment from 14 March 2022: pp 2, 11 and 27 of MST-2. Payslips over this period were issued indicating that payments were made to Mr Thangasamy by First Penny: pp 33-42 of MST-2.
The position becomes somewhat less clear for the period between 31 July 2022 and 9 December 2023. Correspondence sent from Mr Gale to Mr Thangasamy in August 2022 as an “Fyi” communicated discussions between Mr Gale and an accounting firm regarding the potential for entitlements to be transferred to True Altitude (Exhibit 2). On 2 September 2022, Ms Swartz sent an email to Mr Thangasamy at an email address apparently connected to True Altitude: p 16 of MST-2. The email expressed:
Please find attached the employment letter from True Altitude Pty Ltd. My intention was really just to move your employment officially to the new entity. If there is any discrepancy, it was certainly not intentional, I had to glean from the HR file which draft was used for the final PDF. If there are any discrepancies please point them out and I'll be happy to correct them.
Attached to the email was a letter dated 31 July 2022 containing an “Offer of Employment”. The email was expressed in prospective terms, attached an “employment agreement” and requested that Mr Thangasamy “acknowledge acceptance” through initialling, signing and returning the document. The annexed contract stated that employment was “for the term set out in Item 4 of Schedule 1”. Item 4 referred to a commencement date with First Penny as of 14 March 2022 and a “Commencement Date of Confirmed True Altutide Employment” of “31 July, 2022”. Payslips in evidence indicate that True Altitude was the entity that paid Mr Thangasamy from 31 July 2022: pp 33-52 of MST-2.
In his affidavit, Mr Thangasamy noted that he did not execute the “draft employment contract” and suggested that he “remained employed with First Penny until 9 December 2023 when [he] resigned”. At the hearing, it was explained that this was Mr Thangasamy’s primary position. According to that position, Mr Thangasamy was only employed by First Penny. If this were found, no claim was made against True Altitude. Mr Thangasamy did not, in that event, press his claim regarding outstanding superannuation as this was not relied upon in his case against Mr Gale or Ms Swartz and First Penny was in liquidation.
If Mr Thangasamy’s primary position were not accepted, then he contended in the alternative that he was employed by True Altitude from 31 July 2022 to 9 December 2023. Determination of the relevant employer for that period, therefore, has some consequence for the current proceeding.
Having regard to the evidence before me in its totality, I accept Mr Thangasamy’s primary position. Although the payslips for the period from 31 July 2022 identified True Altitude as the payer, this is not sufficient to demonstrate acceptance on the part of Mr Thangasamy of his employment contractually moving to True Altitude. The evidence does not establish that an offer of this nature was even made to Mr Thangasamy until 2 September 2022, some time after the date that True Altitude started appearing as the payer on the payslips.
Although Mr Thangasamy appears to have been using an email address associated with True Altitude in at least September 2022, this is not determinative. As was submitted by Mr Thangasamy, this is consistent with Mr Thangasamy acting for what he may have understood to have been members of a corporate group, without necessarily agreeing to a transfer of his employment. This would also, at least potentially, explain Mr Thangasamy’s resignation email being sent to Mr Darko Atijas (Mr Atijas) (his “Supervisor” under both the First Penny employment contract and the proposed True Altitude contract) at an email address associated with True Altitude on 23 November 2022.
Mr Thangasamy did not sign the proposed employment contract with True Altitude that had been sent in September 2022. He resigned in November 2022. There is no clear evidence that Mr Thangasamy otherwise accepted the offer of employment with True Altitude, whether in writing, orally or by conduct.
Having regard to the above, I accept Mr Thangasamy’s primary position that he was employed by First Penny for the entirety of the relevant period.
CONTENDED ANNUAL LEAVE CONTRAVENTIONS
Mr Thangasamy was entitled to 4 weeks of annual leave each year of his employment: s 87 of the FW Act, pp 5 and 21 of MST-2 (cl 3.5.1).
Mr Thangasamy’s evidence is that he only took 24 hours of annual leave, in respect of the fortnight ending 24 September 2022. He contended that at termination, he was owed $7,559.10 (gross) in annual leave.
This is supported by the final payslip in evidence: p 52 of MST-2. The payslip refers to the payer as True Altitude and the circumstances of its creation and receipt have not been the subject of clear evidence. The evidence before the Court does not clearly set out the relationships between the various corporate entities involved in this matter. However, the evidence does indicate a certain level of fluidity regarding use of the insignia of the companies involved. Mr Gale and Ms Swartz identified themselves in various documents as acting on behalf of First Penny and/or True Altitude at various times (pp 10, 16, 26, 92-93, 105-121, 123, 125, 130 and 132 of MST-2). An email sent by Ms Swartz on 2 September 2022 contained a signature area referencing (inter alia) “First Penny Investments Pty Ltd, doing business as True Altitude” (p 16 of MST-2). The fluidity of insignia used is also demonstrated by Mr Thangasamy’s use of an email address ostensibly connected with True Altitude despite his ongoing employment with First Penny (p 103 of MST-2).
There therefore appears to have been commonality between the people acting on behalf of the two companies. There was also commonality of location, with payslips identifying the same address associated with each company (pp 33-52 of MST-2). Considering the evidence in its totality, I am persuaded that the final payslip issued by True Altitude may be interpreted as action taken on behalf of both companies (noting my finding above that the relevant employer with liability for payment was, in fact, First Penny and there appears to have been substantial connection between the two companies, including actions taken by relevant people on behalf of the two companies).
The final payslip in evidence acknowledging Mr Thangasamy’s entitlements indicates that it was paid, on 19 December 2022, by True Altitude. This was expressed to have included $7,559.10 in relation to the balance of his remaining leave entitlements. However, Mr Thangasamy’s unchallenged evidence is that it was not paid.
Having regard to the above, I accept Mr Thangasamy’s contention that s 90(2) and therefore s 44 of the FW Act were breached.
CONTENDED CONTRAVENTIONS OF SECTION 323 OF THE FW ACT
Mr Thangasamy contended that there were various other payments that First Penny was obliged to pay him but did not pay him. These were said to include the following:
(a)outstanding salary owed;
(b)a sign on bonus of $40,000;
(c)a Quarterly Performance Bonus of $9,000; and
(d)a further “Elladex Bonus” of $333.
By reference to the above, the applicant contended that he was underpaid a total amount of $54,433.24 (including the annual leave underpayment considered above). This figure was reached by calculating what was said to have been the applicant’s salary entitlement, annual leave entitlement and bonus entitlement and subtracting from the total amounts that had been paid to Mr Thangasamy and certain PAYG withholding amounts. The Court was taken through the calculations in some detail during the hearing and persuaded that the relevant figures ultimately added up (after revision following issues raised at an earlier hearing date and subject to liability being established).
The contract between First Penny and Mr Thangasamy required First Penny to pay to Mr Thangasamy a “Sign on bonus of AUD $40,000 to be paid before 30 June 2022”: pp 4 and 11 MST-2 (cl 3.1 and Item 5 of Schedule 1). I accept that First Penny was liable to pay Mr Thangasamy the sign on bonus.
The evidence in relation to the two smaller bonuses is somewhat less clear. It is apparent from Mr Thangasamy’s contract that he was entitled to further bonuses in certain circumstances. The evidence does not demonstrate in precise detail how those preconditions were met. Although Mr Thangasamy gave some oral evidence regarding bonuses, much of this was inadmissible assertion. It was not made clear through submissions how Mr Thangasamy’s oral evidence was said to demonstrate the requisite entitlement to the bonuses.
In any event, correspondence been Mr Thangasamy and others in August 2022 (including Mr Gale and Mr Atijas) appears to confirm Mr Thangasamy’s entitlement to the $9,000 bonus (Exhibit 3).
The evidence also includes correspondence dated 23 November 2022 in which Mr Thangasamy had expressed to Mr Atijas on resignation that he understood various amounts to be outstanding, including a “Q1 bonus of $9,000” and a “$333 placement bonus for investor funds raised for Elladex (aka The Remarkable Woman)”: pp 103-104 of MST-2. Correspondence from Mr Atijas and Ms Swartz (which will be considered further below) indicated that the relevant calculations would be checked. Mr Thangasamy’s unchallenged evidence is that he subsequently received a payslip “from True Altitude Pty Ltd” acknowledging the amount of $49,333 being payable in relation to bonuses (Thangasamy Affidavit at [19], p 52 of MST-2). That amount adds up to the total amount of the 3 bonuses claimed by Mr Thangasamy. I have found above that, given the fluidity in use of names, staff and insignia between the two companies, the final payslip issued after Ms Swartz’s correspondence is capable of being regarded as an admission on the part of those acting for both companies as to the amounts payable to Mr Thangasamy. I have also found that First Penny was the relevant employer and liable to pay Mr Thangasamy amounts owing under his contract of employment.
Based upon the above evidence, I accept that First Penny was liable to pay the bonuses claimed by Mr Thangasamy. Mr Thangasamy’s unchallenged evidence is that they were not paid.
The balance of the amounts claimed were salary amounts payable under Mr Thangasamy’s employment contract that, on his unchallenged evidence, were also not paid.
On the basis of the above, I accept that Mr Thangasamy was not paid the claimed amounts in relation to his salary and bonuses. This was in contravention of s 323 of the FW Act.
WERE MR GALE AND MS SWARTZ RELEVANTLY INVOLVED IN THE CONTRAVENTIONS?
Mr Thangasamy contended that Mr Gale and Ms Swartz were relevantly involved in the contraventions and therefore taken to have contravened the relevant provisions by reference to s 550 of the FW Act. That provision was as follows:
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note:If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Mr Thangasamy relied upon Kearney v Accrue Property Pty Ltd [2023] FedCFamC2G 1078 (Judge Taglieri), in which it was stated at [94]-[95] (footnotes omitted):
94 The meaning of “involved in” for the purpose of s 550(1) is provided for in s 550(2) of the Act and has also been the subject of much case law. The Second Respondent’s written closing submissions dated 16 June 2023 extensively address the interpretation of the provisions and the principles which have emerged. The Applicant’s written submissions demonstrate that there is no real controversy about the legal principles.
95 Collectively, the parties’ submissions show no controversy about the application of the following relevant but not exhaustive principles:
•In respect of being involved in a contravention by aiding, abetting, counselling or procuring a contravention as referred to in s 550(2)(a) of the Act:
(i)the ordinary meaning of those phrases attributed to them by criminal law equally apply;57 and
(ii) Aiding, abetting, counselling or procuring thus requires a person to intentionally participate in the offence. That is, knowing of the essential matters going to make up the offence, but not necessarily that they amount to a contravention of a civil remedy provision, in the context relevant to the Act;58
•Being knowingly concerned in or party to a contravention in any way by act or omission directly or indirectly as referred to in ss 550(2)(c):
(i) requires proof that a person had knowledge of the essential facts constituting the contravention and intentionally participated in it;59 but
(ii) does not require knowledge that the essential facts or matters constitute a contravention;60
(iii)Alternatively, requires evidence of some act or conduct that implicates or involves the person in the contravention so there is a practical connection between the person and the contravention.61
•Proof of knowledge of the essential facts or matters constituting the contravention may be established by direct evidence, but will commonly be a matter of inference from all the circumstances found to be proved;62
•A person may be accessorily liable in circumstances where they are aware of the entitlements due to an employee, but not necessarily that those entitlements are not being met;63 and
•Knowledge that an Award applied to a person’s employment is not identical to knowledge there is a failure to pay according to the applicable Award, although it is undeniable that difference is a small one.64 However, actual knowledge may be established on the basis of findings of fact or inferred findings of fact based on the evidence before the Court.
Mr Thangasamy relied upon various evidence in support of his contention that Mr Gale and Ms Swartz were relevantly involved in the contraventions.
Mr Thangasamy observed that the ASIC search for First Penny demonstrated that Mr Gale and Ms Swartz were both directors of First Penny (pp 55-56 of MST-2). They were also directors of True Altitude Ltd, the 100% shareholder of First Penny (pp 56 and 100 of MST-2).
Mr Gale and Ms Swartz appear to have played active roles in relation to First Penny and True Altitude. Mr Gale’s LinkedIn profile referred to his having been the Chief Executive Officer (CEO) of “First Penny Investments”. He was also a Director of True Altitude (p 26 of MST-2). Ms Swartz’s LinkedIn profile referred to her being “Co-Founder & Executive Director” of “First Penny Investments” (p 106 of MST-2).
Both Mr Gale and Ms Swartz were aware of and had involvement with Mr Thangasamy’s employment contract and associated entitlements. Mr Gale, as CEO, was the signatory to the covering correspondence as well as the signatory on the document that was Mr Thangasamy’s employment contract (pp 1-10 of MST-2). Ms Swartz, in an email sent to Mr Thangasamy including in the signature block (inter alia) reference to “First Penny Investments Pty Ltd, doing business as True Altitude”, attached what was said to be “an employment letter from True Altitude Pty Ltd”. Ms Swartz expressed her “intention” as being “really just to move [Mr Thangasamy’s] employment officially to the new entity”. A proposed employment contract was attached, which was substantially similar in most respects to Mr Thangasamy’s existing contract. Ms Swartz expressed that she had “glean[ed] from the HR file which draft was used for the final PDF” and invited Mr Thangasamy to identify “any discrepancies”.
Both Mr Gale and Ms Swartz also appear to have been aware of and had involvement with the situation of entitlements being outstanding.
In an email sent on 1 August 2022 to Mr Gale, Mr Thangasamy suggested using certain monies “to catch up on the pay for the Advisory team”. Mr Gale replied: “Two sides of same coin, need the receivables to come in to pay people. Vicious cycle”. This demonstrates awareness on the part of Mr Gale that entitlements were outstanding and not being paid as required. Mr Gale appears to have been waiting for “receivables to come in” (Exhibit 1).
On 22 August 2022, Mr Gale sent an email to Mr Thangasamy and others (p 53 of MST-2). The email expressed:
As you are aware we are not where we would like to be with the treatment of bonuses across the team. In the first half of the year we missed our revenue target by over half placing severe strain on the business but we still generated a six figure bonus liability. Clearly there is a lack of alignment in that which we need to fix. We ask for your forbearance while we address this in an equitable manner that allows for better stakeholder alignment.
Some of you have not yet received the bonus due to you for Q1 due to cash requirements. We are committed to paying this to you as soon as cashflow permits and immediately after we have brought regular salaries current. This is an ASAP priority for us.
With regard to Q2 and Q3 bonuses we are proposing to roll these all into a larger Q4 bonus allocation. More on this to come. We do want to focus, in the advisory team, on bonuses related to closing transactions for our clients and generating success fees. The 20% placement bonus that comes out of those will continue to be treated the same as external placement fees and paid off the top immediately.
Please know that all of this is not said lightly by myself and I am very aware of the implicit trust between each member of the team and the leadership as we navigate this.
As Mr Thangasamy submitted, this email demonstrates knowledge on the part of Mr Gale that entitlements were not being paid. This was at a time when his sign on bonus of $40,000 had not been paid by the required date under his contract (30 June 2022). Mr Gale suggested that certain bonuses would be paid when “cashflow permit[ed]” and it was unilaterally indicated that other bonuses would be rolled into a later allocation. The email was copied, amongst others, to Ms Swartz.
In another email from Mr Gale on the same date, bonus liabilities to Mr Thangasamy and others were requested to be communicated. Mr Thangasamy’s bonus accruals were expressed as being “60% Q1 as contracted against KPI/contract”. In relation to “Q2” the words “bonus freeze” were expressed. It was said that the “sign on bonus” was “an accrual from prior work done”. The requirement to pay $40,000 before 30 June 2022 was referenced. Some further correspondence subsequently occurred, with Mr Thangasamy expressing a desire for his entitlements accrued for him to be allocated in the “FY23 financial year”. Mr Gale explained that tax was deducted upon payment not accrual and would therefore be paid that financial year (ending in 2023) – assuming that they were paid. Mr Thangasamy responded, asking some further questions regarding the tax implications. Ms Swartz was not copied to this correspondence.
However, Ms Swartz was copied to correspondence responding to Mr Thangasamy’s emailed resignation and assertion of outstanding entitlements. That email expressed that “Amy Swartz will process [Mr Thangasamy’s] documentation on behalf of the Group”. Ms Swartz responded to that email on 28 November 2022, expressing:
Hi Moses,
It has been a pleasure working with you and I hope we cross paths often in the future.
I will work with Ewa and Michael to ensure your requests below are completed. Please allow me a few days to check our calculations and get back to you. In the meantime, can you please provide a personal email address for me to contact you on?
Thanks and speak soon,
Amy
Ms Swartz’s response was copied to (inter alia) Mr Gale. As set out above, after that email was sent a final payslip was produced showing that payments had been made to Mr Thangasamy that were not made.
On the basis of the above, I accept that it has been demonstrated that Mr Gale and Ms Swartz were relevantly involved in the contraventions. Both were aware that employee entitlements were not being met and that, despite this, First Penny was continuing to trade with a view to paying outstanding entitlements if or when “cashflow permit[ed]”. Mr Gale was involved in the communication of this strategy to employees. Both Mr Gale and Ms Swartz were aware of Mr Thangasamy’s entitlements, having had roles in his contract or contractual renegotiation. Both Mr Gale and Ms Swartz were on notice that Mr Thangasamy’s entitlements, specifically, had not been met. Whilst Ms Swartz undertook to work with Mr Gale to remedy this, all that appears to have resulted was a payslip being issued showing the payment of entitlements that, on the unchallenged evidence, were not paid. Considering the circumstances of this case in their totality, I am persuaded that both Mr Gale and Ms Swartz were knowingly concerned in or party to the contraventions.
I am not persuaded that a different outcome is warranted from Mr Gale’s submissions to the effect that others may have had some involvement in what occurred (whether or not that involvement was capable of being involvement for the purposes of s 550 of the FW Act). Although I accept that Mr Thangasamy acknowledged under cross-examination that he reported, at least to some extent, to another person, this does not preclude a finding that Mr Gale and Ms Swartz were relevantly involved in the contraventions.
I accept, as was submitted by Mr Gale, that there are limitations in the evidence that has been produced by Mr Thangasamy. The evidence does not demonstrate in perfect detail all communications that may have occurred in relation to the issues in question. However, Mr Gale and Ms Swartz have been given the opportunity to produce evidence, if they had wished, providing any context that they considered necessary. For the reasons given above, I consider that the evidence that has been produced by Mr Thangasamy is sufficient to demonstrate involvement on the part of Mr Gale and Ms Swartz within the meaning of s 550 of the FW Act.
By virtue of s 550 of the FW Act, Mr Gale and Ms Swartz are therefore taken to have contravened ss 44, 90(2) and 323 of the FW Act.
CONCLUSION
For the foregoing reasons, I will make declarations that are substantially in accordance with those sought by Mr Thangasamy. I will also order that the third and fourth respondents pay compensation to Mr Thangasamy in the amount of $54,433.24, in respect of which they will be jointly and severally liable.
Mr Thangasamy has also sought interest up to judgment under s 547 of the FW Act. In orders proposed after the hearing of the matter, he has limited the period over which this is sought to the period from 9 January 2023. No response was provided by the respondents objecting to this approach. As it seems that interest over this period, at least, would be appropriate, I am willing to make an order in this regard that is substantially in the form that has been sought by Mr Thangasamy.
I will hear from the parties regarding the timetable proposed for determining the question of penalties (and costs, if sought).
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 18 September 2025
SCHEDULE OF PARTIES
SYG 658 of 2023 Respondents
Fourth Respondent:
AMY LYNN SWARTZ
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