Xie v Ecot Pty Ltd - [2022] FedCFamC2G 104

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Xie v ECOT Pty Ltd [2022] FedCFamC2G 104

File number(s): MLG 2511 of 2018

Judgment of: JUDGE A KELLY

Date of judgment: 22 February 2022

Catchwords: INDUSTRIAL LAW – general protections claims – adverse action – constructive dismissal – claims for wages and entitlements – claims for accrued employee entitlements paid on eve of trial – claims for compensation and penalties – applicant constructively dismissed from employment – contraventions of Fair Work Act 2009 (Cth) established – individual respondents held liable as accessories – applicable principles – compensation awarded for the period from dismissal until obtained new employment – penalties awarded for contraventions – where applicant party to scheme involving payment of one half of fortnightly net pay in order to provide evidence to meet criterion for graduate program and funding via Commonwealth government grant – penalties ordered to be paid to the Commonwealth.

Legislation:
Fair Work Act 2009 (Cth) ss 3, 44, 45, 323, 325, 336, 340, 341, 342, 344, 360, 361, 386, 392, 536, 545, 546, 547, 550

Professional Employees Award 2010 cll 1, 4, 15, 17, Sch B, cl B.1

Cases cited:
A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466
Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Grivell (1999) 74 SASR 240
Alam v National Bank of Australia Ltd [2021] FCAFC 178
Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union(No 2) (2010) 199 IR 373
Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Australian Securities and Investments Commission v Allianz Australia Insurance Limited [2021] FCA 1062
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Boyd v Glenvill Pty Ltd (No 2) [2021] FedCFamC2G 164
Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993
Comcare v Australian Postal Corporation [2011] FCA 530
Commonwealth Bank of Australia v Barker (2013) 214 FCR 450
Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd(2014) 314 ALR 1
Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299
Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166
Construction, Forestry, Mining and Energy Union vEndeavour Coal Pty Ltd (2015) 231 FCR 150
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 281 FCR 365
Dalfallah v Fair Work Commission (2014) 225 FCR 559
Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 126
EZY Accounting 123 Pty v Fair Work Ombudsman (2018) 360 ALR 236
Fair Work Ombudsman v Devine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Dosanjh [2016] FCCA 923
Fair Work Ombudsman v IE Enterprises Pty Ltd [2021] FCA 60
Fair Work Ombudsman v Kleen Group Pty Ltd & Anor [2016] FCCA 278
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor (No. 3) [2012] FMCA 891
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (2017) 275 IR 148
Fair Work Ombudsman v Priority Matters Pty Ltd[2017] FCA 833
Fair Work Ombudsman v Sakuraya Warrigal Pty Ltd [2016] FCCA 2033
General-Motors Holden Ltd v Bowling (1976) 51 ALJR 235
Gore v Australian Securities and Investment Commission (2017) 249 FCR 167
Kelly v Fitzpatrick (2007) 166 IR 14
Kennewell v MG & CG Atkins T/as Cardinia Waste & Recyclers [2015] FCA 716
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Kilcran, in the matter of Allco Finance Group Limited (Receivers and Managers Appointed) (In Liquidation) v Gothard [2014] FCAFC 6
Markarian v The Queen (2005) 228 CLR 357
Maroney v The Queen (2003) 216 CLR 31
Mornington InnPty Ltd v Jordan (2008) 168 FCR 383
Nelson v Nelson (1995) 184 CLR 538
Pattinson v Australian Building and Construction Commissioner (2020) 384 ALR 75
PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503
Rafferty v Madgwicks (2012) 287 ALR 437
Rumble v Partnership (t/as HWL Ebsworths) (2020) 275 FCR 423
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550
Shea v TRU Energy Services Pty Ltd (No 6) (2014) 314 ALR 346
Sperandio v Lynch (No 2) [2006] FCA 1838
State of Victoria (Office of Public Prosecution) v Grant (2014) 67 ALR 102-122
Thomson v Orica Australia Pty Ltd (2002) 116 IR 186
Trade Practices Commission v CSR Ltd (1991) 13 ATPR ¶41–076
Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 151 ACSR 407
Western Excavating (ECC) Ltd Sharp [1978] QB 761
Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547
Yorke v Lucas (1985) 158 CLR 661

Andrew Stewart et al, Creighton & Stewart’s Labour Law (The Federation Press, 5^th ed, 2016)
Carolyn Sappideen et al, Macken’s Law of Employment (Thomas Reuters, 8^th ed, 2016)

James Edelman, McGregor on Damages (Sweet & Maxwell, 21^st ed, 2021)

Division: Division 2 General Federal Law

Number of paragraphs: 292

Date of last submission/s: 26 March 2021

Date of hearing: 22, 23 March 2021

Place: Melbourne

Counsel for the applicant: Mr R. Ternes

Solicitor for the applicant: Hall & Wilcox

Respondents: In person
ORDERS

MLG 2511 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
TIANYU XIE

Applicant

AND:
ECOT PTY LTD ACN 137 839 644

First Respondent

BRUCE TIAN

Second Respondent

KATE TRIEU

Third Respondent

ORDER MADE BY:

JUDGE A KELLY

DATE OF ORDER:

22 FEBRUARY 2022

THE COURT ORDERS THAT:
1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the court by video and audio link.

DECLARATIONS:
2.Declare that the first respondent, Ecot Pty Ltd, contravened s 325 of the Fair Work Act 2009 Cth (Act), in that it directly required the applicant to execute a Direct Debit Authority in favour of TL Rentals and to pay it an aggregate sum of $6,900.
3.Declare that in breach of s 340 of the Act, on 6 June 2018, the first respondent, Ecot Pty Ltd, constructively dismissed the applicant in circumstances where it informed him that the role in his employment was to be moved from that of IT project manager upon a fixed term of 12 months at an annual salary of $60,000 to a role in sales and marketing for an indefinite term and upon a commission of 2%-3% upon sales achieved.
4.Declare the first respondent, Ecot Pty Ltd, contravened s 340 of the Act in that it took adverse action against the applicant because he had workplace rights and by:
(a)constructively dismissing the applicant from his employment;
(b)injuring the applicant in his employment; or
(c)altering the position of the applicant to his prejudice.

5.Declare the first respondent, Ecot Pty Ltd:
(a)contrary to s 44 of the Act, contravened a provision of the National Employment Standards, in failing to pay the applicant his annual leave entitlements within seven days of the conclusion of his employment;
(b)engaged in a course of conduct involving, contrary to s 45 of the Act:
(i)by contravening a term of a modern award by failing to pay the applicant his minimum wage entitlements;
(ii)by failing to pay superannuation on behalf of the applicant;

(c)contrary to s 536(1) of the Act, by failing on eight occasions to provide payslips to the applicant within one day of the payment of his salary; and
(d)contrary to s 536(3) of the Act, by providing payslips on two occasions to the applicant that were known to be false and misleading in material respects.

6.Declare that the second respondent, Bruce Tian, was involved, within the meaning of s 550 of the Act, in the contraventions of the Act as declared above (Contraventions), save for those declared in paragraphs 5(a), 5(b)(ii), 5(c) and 5(d) of this Order.
7.Declare that the third respondent, Kate Trieu, was involved within the meaning of s 550 of the Act, in each of the Contraventions.
8.The application for a declaration that the first respondent contravened s 344 of the Act by exerting undue influence or undue pressure upon the applicant be dismissed.

THE COURT ORDERS THAT:
9.Pursuant to ss 545, 547 and 550 of the Act, the respondents pay the applicant compensation in the sum of $20,000 together with pre-judgment interest on the said sum of $20,000, fixed in the sum of $3,500, in all the sum of $23,500.
10.The payments of compensation and interest as ordered above be paid within 28 days.
11.Pursuant to ss 44, 45, 325, 340, 536 and 546(1) of the Act, the first respondent, Ecot Pty Ltd, pay pecuniary penalties amounting in aggregate to the sum of $60,000 in respect of the several contraventions as declared above.
12.Pursuant to ss 45, 325, 340, 546(1) and 550 of the Act, the second respondent, Bruce Tian, pay pecuniary penalties amounting in aggregate to the sum of $10,000 in respect of the several contraventions as declared above.
13.Pursuant to ss 44, 45, 325, 340, 536, 546(1) and 550 of the Act, the third respondent, Kate Trieu, pay pecuniary penalties amounting in aggregate to the sum of $10,000 in respect of the several contraventions as declared above.
14.Pursuant to par 546(3)(c) of the Act, the said penalties set out above be paid to the Commonwealth.
15.The penalties as ordered above be paid within 28 days.

COSTS
16.Within 14 days of the date of this Order, the applicant file and serve any submissions with respect to the costs of this proceeding.
17.Within 14 days of the date of service of the applicant’s submissions on costs, the respondents file and serve any submissions with respect to the costs of this proceeding.
18.Any application for costs be determined on the papers.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
KELLY A, J
Introduction

These reasons for judgment explain my conclusions respecting the applicant’s claims for compensation and pecuniary penalties in consequence of the termination of his employment, together with certain declaratory relief under the Fair Work Act 2009 (Cth) (Act).
In summary, on 8 January 2018 the applicant began employment with the first respondent (Ecot) as an IT project manager. On 18 May 2018, the second respondent notified the applicant of an intention to terminate his role as IT project manager while offering him what was described as an opportunity to transition to a commission-only sales position. In consequence of the applicant’s refusal to accept this offer, his employment was terminated on 6 June 2018.
The facts of the case were somewhat curious and difficult to unravel. Upon commencement of his one-year employment contract, an arrangement was proposed whereby the applicant would be paid his salary on a fortnightly basis with the expectation that, in turn, one half would be repaid to, or at the direction of, Ecot. A further incident of this so-called arrangement was that once the respondent obtained approval for a graduate government grant at the end of 2018, Ecot would repay the applicant from those monies. In truth, when the applicant was paid his net fortnightly salary, the applicant did not pay a half of his net salary to Ecot. Instead, on two occasions, the applicant made certain payments to a company with whom Ecot was in a contractual relationship, TL Rentals Pty Ltd (TL Rentals). The first of those payments was effected by TL Rentals having recourse to the applicant’s credit card facility via a Direct Debit Authority which he executed in favour of that company at the request of Mr Tian. Less clear is whether the second payment was effected via that credit card facility or otherwise.
Issues which fall for determination arise from allegations of unpaid wages, related entitlements and compensation for lost wages following the applicant’s termination together with recovery of monies (which the applicant contends constitute his ‘forced’ obligation to make the salary repayments) and claims for penalties. Many such claims have now been paid.
I have concluded the applicant is entitled to compensation of $20,000 together with interest and ancillary declaratory relief. The respondents should also pay penalties amounting in aggregate to $80,000. Those penalties will be payable to the Commonwealth.
Procedural history
The proceeding has had a protracted procedural history. During the course of the proceeding the respondents have at times been legally represented while at others they have been self-represented (as they were at the hearing). On the occasions when the respondents have been legally represented, including by counsel, they have variously filed a response to the applicant’s amended claim and their outlines of evidence, each of such documents having been signed by their solicitors and/or counsel. In those circumstances, I have treated those documents as having been prepared by those legal practitioners based upon the instructions provided by the respondents. The proceeding was listed for trial on a number of occasions, only to be adjourned, including by reason of the outbreak of the Covid-19 pandemic and on another occasion as a result of the third respondent (Ms Trieu) being pregnant, suffering morning sickness, and expecting to deliver a child in the course of one hearing.
Following the filing of a certificate confirming that the parties had participated in a conciliation conference convened by the Fair Work Commission, on 22 August 2018, the applicant filed in the fair work division of the then Federal Circuit Court of Australia an application together with a statement of claim in which was sought orders for compensation and pecuniary penalties.
On 20 September 2018, the respondents filed a response, opposing each of the claims made, and all of the relief sought, by the applicant, doing so in bare terms and which did not illuminate in any way the substantive basis for their defences.
At the first directions hearing on 30 October 2018, orders were made by consent including that the matter be set down for trial on 18 November 2019. Directions were given with respect to the filing of any amended claim and responses, discovery, outlines of evidence and the preparation of a court book. The parties’ consent order provided that except with leave of the court no party could rely upon any document that had not been contained in it. Arrangements were made to facilitate a mediation by a registrar of the court (albeit to no avail).
On 31 October 2018, the applicant filed and served an amended claim. On 16 November 2018, the respondents filed and served their defences responding to the allegations made in the applicant’s amended claim. While Ecot’s response to the amended claim provided a relatively detailed response, the responses of the second and third respondents again provided a bare denial to the matters alleged, doing so on the stated basis they were entitled to maintain privilege against exposure to a penalty.
On 28 November 2018 and again on 22 March 2019, orders were made by consent extending the times for filing outlines of evidence. Further directions were made by consent on 25 November 2018, including for the provision of translations of any relevant documents (it being apparent that the respondent’s former lawyers had insisted upon all such translations).
On 15 March 2019, Mr Tian, in his capacity as director of Ecot, filed an application in a case seeking leave to appear on behalf of that company. By his affidavit made on that date he deposed that he was the sole director of the company which no longer had legal representation. He also deposed that he intended to engage lawyers to act on behalf of the company and that “I will engage a solicitor to act on behalf of the company prior to mediation”. In the event, the respondents were not legally represented at the final hearing and no objection was raised to them being represented by Mr Tian.
The hearing proposed to occur on 18 November 2019 was adjourned and refixed for hearing on 27 July 2020. Shortly before the new hearing date, a number of substantial payments were made by or on behalf of the respondents said to be in satisfaction of the applicant’s claim. Mr Tian also said that his wife, Ms Trieu, was affected by morning sickness and due to deliver his child imminently such that she could not participate in the hearing. In light of those developments, the matter was adjourned to be refixed with priority and orders made to facilitate a mediation. The respondents were ordered to file an affidavit detailing all payments that had been made to the applicant in relation to his claim. They did not comply with that order.
Pursuant to directions given in the course of the proceeding, each of the applicant and respondent, on behalf of the second and third respondents, filed detailed outlines of evidence on 3 December 2018 and 10 January 2018, respectively.
On Saturday, 27 June 2020, the second respondent transmitted an email to the applicant’s solicitors requesting the applicant’s bank account details advising that he planned “to transfer the personal loan of $6,700 back to him.” On 30 June 2020, the applicant’s lawyers responded to that email advising the applicant denied any such personal loan and restated the claim being advanced. For the avoidance of doubt, the letter expressly reserved the applicant’s rights and advised that the payment of monies would not be accepted in full satisfaction of his claims. Otherwise the bank account details were provided.
On 1 July 2020, the second respondent advised that a payment of $6,700 had been made to the applicant’s account and asked the applicant’s solicitors if they would agree to arrange a meeting for a discussion. At about this date, a number of other payments were made and bore descriptions including “annual leave $2,273”, “personal loan $200” and “first payment $127”.
The matter was re-fixed for hearing on 22 March 2021.
On Sunday, 21 March 2021, the respondents filed a deluge of further material. Counsel for the applicant confirmed having received copies of those documents late that evening and indicated that the relevance of the documents was not immediately apparent. Counsel further confirmed the applicant’s desire for the matter to proceed to its conclusion. In the course of the hearing, Mr Tian agreed none of the documents had been discovered (despite an order being made for discovery), and the respondents having filed an affidavit of documents. He expressed the respondents desire to rely upon them. They were permitted to do so, without objection.

At the commencement of the trial, counsel for the applicant advised that in light of the payment made shortly before the first hearing, the relief now sought was for compensation of $25,000 together with penalties. A brief written outline was provided identifying the penalties sought.
The trial was conducted by audio and video link. Each of the parties provided an outline of case. In particular, each of the second and third respondents filed separate outlines. Notably, each expressed their outline as being filed both on behalf of Ecot and his or her self.
Mr Tian advised that a request had been made for the provision of an interpreter. No similar request had been made at any earlier stage. The commencement of the hearing was delayed so that an interpreter could be obtained. Once they became available, the trial resumed. The applicant gave evidence without the assistance of an interpreter and Mr Tian conducted his cross-examination largely without any use of his interpreter. Further, at some points in the cross-examination of Mr Tian, it appeared that the dialogue between the witness and the interpreter continued for a period far longer than seemed necessary to translate a brief question. I also agreed in the observation of counsel for the applicant that throughout his own cross- examination of the applicant, Mr Tian appeared to have little difficulty speaking in English.
The applicant adopted his outline of evidence as his evidence in chief at the hearing.
When the applicant came to give his evidence it emerged that he was doing so from Beijing, P.R.C. As the applicant’s evidence progressed in cross-examination it became increasingly difficult to accept the plausibility of some of the matters which he was suggesting.
The evidence of Mr Tian and Ms Trieu was often unpersuasive. As dealt with in further detail below, the respondents sought to challenge the accuracy of the translations of a mass of WeChat conversations being the media employed by the parties to discuss the prospect of the applicant being employed by Ecot, his employment and the issues the subject of this proceeding. It was more than a little surprising that this issue emerged for the first time, particularly on the second day of the hearing in circumstances where: the respondent’s solicitors had insisted some years earlier that the applicant prepare, at his cost, a full translation of all of these communications; Mr Tian and Ms Trieu were each fluent in Mandarin: each demonstrated a better than reasonable command of English (both spoken and written); no earlier suggestion was contained in any of the respondents’ written materials alluding to this supposed difficulty. The extent of the problem was compounded by the respondent’s failure to distinctly identify the particular WeChat communications which were said to have been inaccurately translated.
A further, somewhat troubling aspect of the matter was that Mr Tian seemed to have prepared extensive notes on a whiteboard to which he made reference during his cross-examination.
On 23 March 2021, an order was made that the respondents file and serve a submission identifying all references on which they seek to rely in support of their allegations of criticism of the applicant’s work performance, any WeChat references which they contend to have been inaccurately translated and any email transmitting the Confidentiality Agreement which was to be signed by the applicant in relation to his employment. They did so. To the extent their submissions sought to identify particular translation errors, they were of little significance.
Claims, defences & evidence
Although the issues had narrowed somewhat by the time of the commencement of the trial and again by closing addresses, it is convenient to summarise the pleaded case and defence, doing so with recognition that the responses of the second and third respondents to the applicant’s amended claim (and as settled by their solicitors who had also filed the defence to the General Protections Claim before the Fair Work Commission) merely advanced a bare denial of the applicant’s claims, thereby putting him to proof on contested issues. Ecot’s defence to the claim as originally pleaded and as amended was settled by counsel. Collectively, those matters, including that they provide a reflex of the respondents’ instructions upon all relevant event, are of some significance in relation to the question of penalty. Beyond recognising that the applicant sued for compensation, pecuniary penalties, interest and declaratory relief, it is convenient to trace in further detail below the manner in which, and reasons why, the relief sought by the applicant had evolved up to the point of closing addresses.
Having regard to the whole of the evidence adduced at the hearing, it is also convenient to set out my findings upon the evidence as it relates to each of the topics addressed. My findings are drawn from the parties’ respective outlines of evidence together with their viva voce evidence as given in chief and in cross examination together with the documentary evidence upon which they relied and the inferences which I consider may properly be drawn upon the whole of the facts and circumstances of the case.
Parties & background
The applicant is fluent in English but his native language is Chinese Mandarin. The applicant obtained a Bachelor of Economics from the University of Macau in 2014, and a Master of Information Systems from the University of Melbourne in 2016. He first came to Australia in 2015 to commence his master’s degree. After completing this study, the applicant undertook a Professional Year Program with Navitas Professional, which he completed on 30 November 2017. As a part of that program, he completed an internship with Action OHS Consulting, working as a business analyst.
Ecot, which develops and sells inventory management software, conducted its business activities from premises situated in Clayton South. It was common ground Mr Tian and Ms Trieu also conducted other business activities through a series of other companies including KCrown Pty Ltd and F&G Pty Ltd and that those companies also carried on their businesses from the same premises. There were perhaps 4-5 employees working in these businesses.
It was common ground Mr Tian had been Ecot’s general manager at all material times (Ecot contended this title had not actually been employed for Mr Tian). By their opening statement, the respondents agreed Mr Tian had been Ecot’s sole director and secretary until 8 November 2017 and that thereafter, Ms Trieu had been the companies’ sole director and secretary from that date until 19 October 2018. Since that date, Mr Tian has resumed is holding the office of sole director and Company secretary. It was also agreed that Mr Tian and Ms Trieu were husband and wife and that Ms Trieu made all final decisions in relation to Ecot’s business.
Each of Mr Tian and Ms Trieu (who also uses the name Kate Ttian), held email addresses styled [name]@KCrown.com.au and did not use an Ecot email address. While the applicant maintained he was not supplied a work email address until mid-January 2018, one of the WeChat communications from Mr Tian on 9 January 2018 confirms he had been supplied a work email address by 6:22 p.m. on that date (the day after he commenced work).
There was some evidence that a shareholder dispute had arisen in either KCrown or F&G, as a result of which it was said that Mr Tian and Ms Trieu had experienced significant financial hardship, being left some $900,000 out-of-pocket as a result of the departure of another shareholder. Such was the scale of this dispute that when he commenced employment in January 2018, the applicant was instructed to call the police in the event of any intrusion at the premises by the now departed shareholder.
In this regard, the applicant agreed in cross examination that before commencing employment with Ecot he had been told by Mr Tian that the company was short of money and there were difficulties in cash flow. While accepting he was generally aware of the shareholder dispute, the applicant said that he did not know the respondents had been left $900,000 out-of-pocket. He also denied knowledge that the shareholder had left the company. Whether the departure of that person had any bearing upon Ecot’s need for, or decision to employ, a project manager was not explored.
Contract of employment
In around June 2017, the applicant was first introduced to Mr Tian. This introduction was effected by Yiyi Tao, who was the applicant’s housemate at the time. Mr Tian was introduced to the applicant as being a friend of Peter Pan, who was Yiyi Tao’s work supervisor.
I accept the applicant met with Mr Tian once around June 2017 and again in July 2017, with Peter Pan also present on the earlier occasion. They met at the Artisan Eatery Café in Melbourne. During those meetings, Mr Tian informed the applicant that he was looking to hire a graduate developer. The applicant told Mr Tian he was not a developer and could not fulfil that role. The applicant told Mr Tian he was looking for a business analyst role, but was also open to learning about programming. At some point, the applicant completed a questionnaire which bore the letterhead of Ecot and KCrown and by which he answered a series of standard questions relating to his qualifications, strengths, character, etc.
Mr Tian’s evidence was that by mid-2017, Ecot had in prospect that it might win a contract from a media group (S&J) which would require Ecot to employ a business analyst for up to 12 months. Mr Tian spoke to the applicant about the role and, on his case, said it would pay a maximum of $60,000 and that “Ecot could only pay half the salary itself, and would need to get a government grant of $30,000 to cover the other half.”
Thereafter, the applicant regularly communicated with Mr Tian and Ms Trieu. The parties communicated in Mandarin using a mobile messaging app commonly known as WeChat. From the WeChat communications tendered in evidence it is clear the applicant and Mr Tian were in frequent communication over the period 1 July 2017 to 21 June 2018 (no less than 1,453 such communications occurred in that time). By contrast, there were only 242 such WeChat exchanges between the applicant and Ms Trieu.
The applicant alleged that in about November 2017 he had entered into a contract of employment with Ecot, which contract was comprised partly in writing (via certain WeChat messages), partly oral and partly to be implied. As noted, the parties were in dispute in relation to the terms of the applicant’s employment. Although the precise position varied from time to time, the respondent’s substantive position was that the applicant had been employed on a casual, and not a full-time, basis. The applicant’s precise remuneration was also in issue.
The applicant’s evidence was that on about 17 November 2017, Mr Tian contacted the applicant by WeChat and asked if the applicant would be interested in a project manager role. Mr Tian and the applicant arranged a time to meet to discuss Mr Tian’s proposal. At this meeting between the applicant and Mr Tian, which took place on around 23 November 2017, at Artisan Eatery Café, I accept that the following was discussed:
(a) Mr Tian invited the applicant to work for Ecot as an IT project manager;
(b) Mr Tian said it would be a full time role with a salary of $60,000 per annum;
(c)the applicant asked what project he would be managing. Mr Tian said there would be multiple projects, including:
(i)a project to develop smart sensors for warehouses for two of his other companies (KCrown and F&G);
(ii)a software development project for Peter Pan (who Mr Tian said was also his customer), and other potential (but unspecified) projects.
(d)Mr Tian explained that he had a company KCrown, which was in the business of supplying bathroom paper products (e.g. toilet paper and paper towels). He said he also had another company, F&G, whose business supplied packaging products;
(e)the applicant stated he would be interested in the role, as he was about to complete his Professional Year Program on 30 November 2017.
At the end of this meeting, Mr Tian said that his company had some difficulty with cash flow, so his company would only be able to pay half the salary on a fortnightly basis. Mr Tian said that his company was applying for a government funding program and expected to receive funding at the end of the year. Mr Tian said that the applicant would be paid the balance of his salary on receiving that funding. Mr Tian said that the purpose of the government funding program was to provide funding for hiring graduates. The applicant asked if Mr Tian was confident he could obtain such funding. Mr Tian said words to the effect that it should be ‘okay’. The applicant said he would need some time to consider Mr Tian’s offer because of the proposed salary payment arrangements.
Amongst the WeChat communications between the parties was a large number of exchanges that occurred on 17 November 2017. Indeed, no less than 27 such communications occurred on that date in the period between 9:00 a.m. and 12:30 p.m. The applicant placed particular emphasis on a WeChat exchange (Entry No 75) in which Mr Tian stated “I need a project manager.” Although this precise exchange contained no reference to IT, from the surrounding conversations I am prepared to infer that the applicant told him that he was completing his “professional year practicum” in a week and that he was interested in the project manager role which, as he was informed by Mr Tian, involved working on computer software.
On 24 November 2017, the applicant contacted Mr Tian by WeChat and accepted the offer of employment. The applicant said that he signed a confidentiality agreement, and sent WeChat messages to Mr Tian in which he informed him that he had signed that agreement. As concerned the proposal for repaying one half of his salary, the applicant stated “And as to first paying me half my salary, I am also okay with it.” Nothing in the applicant’s outline of evidence contained a suggestion of any kind that he was in any way opposed to the arrangement respecting repayment of one half of his salary. During his evidence in chief, the applicant stated that when discussing this arrangement, Mr Tian told the applicant that he should not disclose it to anyone and that “it should be only – only between us.”
On 25 November 2017, the applicant told Mr Tian by WeChat that he planned to go back to China from 7 to 29 December 2017, to visit his family. He proposed to commence working for Ecot from 2 January 2018 and Mr Tian agreed to this proposal.
On 3 December 2017, the applicant had a meeting with Mr Tian at a café in the Chadstone Shopping Centre. During this conversation the applicant was told that Mr Tian’s business partner was his wife Ms Trieu. He was also told that the commencement of the smart sensor project for S&J had been delayed and would not start until 2019 but that there were other tasks he wanted the applicant to work on, including the development of the information systems (CRM and e-commerce systems) used by F&G and KCrown.
On 6 December 2017, the applicant had a further meeting with Ms Trieu in Clayton South (being the warehouse for the businesses of KCrown, F&G and Ecot) where Ms Trieu explained further details of the tasks that the applicant would be performing. Near the end of this meeting, Mr Tian also joined in. Ms Trieu agreed in cross-examination that the applicant was employed by Ecot for a one-year term. The WeChat messages confirm that Ms Trieu also made arrangements to meet, and otherwise communicated with the applicant including in the period December 2017 – January 2018.
On 1 January 2018, the applicant and Mr Tian had a further conversation by WeChat during which the parties discussed the applicant commencing work on 8 January 2018 whereafter Mr Tian said words to the following effect “This week you’ll come over to understand our business’s circumstances.” From 2 January to 5 January 2018, the applicant attended the respondents’ warehouse in Clayton South, to familiarise himself with the information systems.
By contrast, by way of its further and better particulars, Ecot contended the matters relied upon to establish the employment agreement, were that in about November-December 2017, Mr Tian had offered the applicant employment “as a project manager, working on the S&J project, at a wage of $60,000” and although “the S&J project did not proceed”, the applicant commenced working for Ecot “anyway, five days per week, from 8 January 2018” being paid “at the rate of $60,000 per annum.” Mr Tian’s opening statement contended that in November 2017 he had been looking for a project manager for a project designated the S&J project and as the applicant had been referred to him by his friend (Peter Pan), Mr Tian believed there was a high chance the applicant might prove to be a suitable appointment, subject to his being taught and trained in the skills required to do so.
Ecot further contended the only documents relating to the employment contract were the payslips that were issued and that there were no other documents. This was common ground. Mr Tian’s opening statement contended that when the applicant commenced employment he did not start as a project manager but only as an assistant. He also contended the applicant had been appointed for a term of 12 months. The evidence undermined these contentions.
By their opening statement, the respondents maintained it was in issue that, as the applicant contended, he had been employed on a full-time basis. What was not distinctly disputed was that the applicant’s remuneration was to be calculated at the rate of $60,000 per annum. Rather, the respondents introduced, for the first time, a suggestion the applicant had been “hired on casual full-time” and that his employment was subject to a three month probationary period. While it may have been concluded that it was not open to the respondents to plead or raise an assertion of casual and probationary employment in light of their earlier response to the amended claim is augmented by the further and better particulars, I preferred to determine the issue on the evidence. As to this, the parties remained in contention whether the applicant had been employed by Ecot as an IT project manager or in some other capacity (on the pleaded positions, the applicant had been employed in a project management role).
When cross-examined upon the topic, the applicant maintained he had the skill set to be an IT project manager and that he had been engaged in that role. The respondents’ case that the applicant had not been engaged as its IT project manager was undermined by a letter written by Mr Tian on Ecot letterhead dated 30 May 2018 addressed to the Australian Research Council concerning the subject, Supporting Letter of ARC Linkage Grant Application, in which the author twice described the applicant (one of the four subjects of the grant) as Ecot’s project manager and that he would be employed on a full-time basis. Insofar as this letter described Ecot as being in a very strong financial position, Mr Tian accepted that description was untrue. In the context of the statements contained in this letter, Mr Tian was pressed in cross-examination to explain why a $30,000 grant could properly be applied in repayment of what he had described as a personal loan by the applicant. He agreed there was no contemporaneous record supporting his contention that the monies paid by the applicant to TL Rentals were made by way of loan.
Insofar as the respondent sought to challenge the applicant’s case that there had been agreement for him to be paid an annual salary of $60,000 and that his contract would be for a term of 12 months, the applicant’s evidence was that there had been no mention of a maximum salary of $60,000 and that the discussion had only been “just a flat 60,000, not a maximum? Yes” The contemporaneous payslips issued by Ms Trieu on behalf of Ecot (to the extent any such payslips were prepared), contained an entry “Employment Details: Pay Frequency: Fortnightly – Annual Salary: $60,000.00” and I accept this as evidence of the true agreement. It is notable that, even in relation to the payslips which were transmitted by Ecot to the applicant well after his employment had ceased, those further pay slips continued to record those same details confirming, relevantly, the applicant’s salary was $60,000 per annum.

Taken to Ecot’s defence dated 16 November 2018, Mr Tian accepted the defence had been prepared on instructions provided to the respondent’s lawyers. In the context of the foregoing matters, the statement in Ecot’s defence at [5] confirmed that the applicant “would be employed full-time earning a wage of $60,000 per annum (equivalent to $2307.69 per fortnight) less applicable tax.” Putting aside the parties’ dispute as to the term of the contract, it was Mr Tian’s evidence that on 1 January 2018 he told the applicant he could start work on 8 January 2018, that he did so and “He was paid $60,000 per annum, less tax.”
On the whole of the evidence I accept the applicant was employed for a term of 12 months and do so having regard, in particular, to Ms Trieu’s outline of evidence in which she stated that in about December 2018 she gave her husband permission to hire the applicant “for 12 months, to work on the proposed S&J Media job, at a salary of $60,000.” Later in her outline of case, Ms Trieu stated that the applicant “was entitled to $60,000 per annum, or $2,307.69 per fortnight. After tax, the net amount was $1,835.69 per fortnight.”
Insofar as her outline of evidence expressed her subjective views respecting entitlements to dismiss the applicant at any time and for any reason it was irrelevant. Equally, her witness statement was notable for the absence of any reference to the applicant being employed on a casual basis or on probation. Particularly is that so where the respondents’ case was that Ms Trieu “made all final decisions” and that her husband “worked for Ecot under her direction.” During her evidence, she asserted the applicant was a casual employee. Ms Trieu reiterated her insistent position that the applicant was a casual employee in closing submission.
Government grant & loan
Although there was a degree of imprecision about the matter, it was common ground Ecot intended to apply for a government grant in respect of the role for which the applicant would be employed. As best I understood it, under this government graduate program, where an employer satisfied the criteria for the grant, an eligible employer would qualify for a payment, representing one half of the graduate’s annual wage, capped at a maximum of $30,000.
Mr Tian’s opening statement contended that he had been confused about how to deal with the applicant’s employment and in particular how to qualify for the grant, however, it is clear that both the applicant and Mr Tian proceeded on the basis it would be necessary for Ecot to have evidence of his employment for a period of 12 months in order to qualify for the grant.
The respondents relied upon an offer which had been made to Ecot in March 2016 by the Commonwealth Department of Industry, Innovation and Science to provide funding of ~$50,000 on the basis that Ecot would likewise provide a similar contribution. This earlier grant related to a research project to be conducted at Deakin University. Mr Tian relied upon the document as evidence of his prior experience with obtaining such government grants on graduate programs.
Afforded a final opportunity to clarify his evidence as to the government grant, Mr Tian stated that he had discussed with his friend, Peter Pan, the availability of such grants for graduates and in turn, Peter Pan had told him that one of his own employees had a roommate (i.e. the applicant) who had recently graduated and who may be a suitable person to qualify for the grant. Consequently, Peter Pan had referred the applicant to Mr Tian. Once the prospect of the applicant being employed by Ecot took root, so too did the eventual application made for such a grant. In the event, in May 2018, Ecot applied for a total of four grants in relation to each of Mr Tian, the applicant and another employee (Juan). In total, Ecot applied for no less than $495,000 to fund the activities to be undertaken by himself and the two employees.
One difficulty attending this evidence is that, upon the respondent’s primary case, by mid-March 2018, Ms Trieu had already decided the applicant should be dismissed. Why an application for the government grant was made some months later was not entirely clear.
Although the evidence was less than clear as to whether the parties were ad idem in relation to any obligation or requirement on the part of the applicant to repay one half of the net salary or some other proportion thereof, in the event, these monies have now been repaid to him.
In opening the respondent’s case, Mr Tian stated with reference to the applicant’s WeChat message on 24 November 2017 that he was “okay too with half salary [being] paid first” that he did not accept this offer but instead, “then what’s happened is that 5 February 2018, I come to him. I say, I’m short on money, can I borrow the money, which is – because before you offer me this half of your paper. Can I borrow half your money? I give you the money back at the end of the year or when we get the government grant. And that’s what’s this half - - -.” As Mr Tian opened his case he accepted it was somewhat extraordinary and difficult to believe that the applicant, a person whom he barely knew was suddenly prepared to lend him thousands of dollars within a few weeks of starting work for Ecot. Taken to contemporaneous WeChat conversations, Mr Tian accepted he had not bluntly rejected the suggestion that half of the applicant’s salary would be paid in the manner discussed on 24 November 2017.
The substantive effect of the parties’ arrangement or understanding was that there would be some sort of round-robin transaction whereby Ecot would pay the applicant fortnightly a sum equivalent to 1/26^th of $60,000 net of PAYG tax whereupon the applicant would return one half of that sum to Ecot or otherwise pay that amount at Ecot’s direction. The arrangement was not strictly adhered to each fortnight, including by reason of the applicant’s impecuniosity. At trial, the applicant’s evidence was that he had little more than $200 – $500 in his bank account when he commenced employment with Ecot. In practice, the parties adopted the latter course inasmuch as, after receiving his fortnightly salary, the applicant would pay monies at the direction of Ecot to the company, TL Rentals. The applicant stated that discussions in relation to the government grant did not take place on WeChat but were face-to-face. To some extent this evidence was undermined by other evidence which he gave inasmuch as it was put by Mr Tian and accepted by the applicant that he had told him he would “help find the link and then send to him” and that the first link so provided was, for some reason, inaccessible. Entries in the WeChat translations as at 6:00 p.m. on 24 November 2017 support an inference that Mr Tian supplied the applicant with two links in relation to this grant.
Award
Save it was agreed the applicant’s employment was covered by the Professional Employees Award 2010 (Award), it was denied Ecot was principally engaged in the information technology industry as covered by cl 4.2 of that award or that being “an experienced professional with a bachelor’s and master’s degree, conducting work without detailed supervision, [the applicant’s] employment fell within the classification of a Level 2 Professional pursuant to the Award”: Award, Sch B, cl B.1.7. It is convenient to note that three feature of this award classification were that the professional: (1) was ‘experienced’; (2) held a bachelors and master’s degree, and; (3) conducted his or her work without detailed supervision. The level of experience necessary to fall within this classification was not described in the Award in any detail.
Ecot contended the applicant was not covered by it “as his role did not fall within any classification contained in the Award.” Although maintaining the applicant was not qualified to perform the role of an IT project manager, by their opening statement, the respondents changed their position asserting that the applicant might well “belong to Professional Employees Award” on the stated basis that, as they said, the applicant had no “qualification and working experiences (sic).”
I am satisfied that the applicant’s employment was covered by this Award.
The operative Award was that as amended to 29 July 2017. The Award was arranged in five parts comprising 22 clauses and Schedules A-D. There was no serious contest that the Award applied to the applicant’s employment. Within Part 1, Application and Operation, cl 4, Coverage, provided by sub-cl 4.2 that the Award covered employers throughout Australia who were principally engaged, relevantly, in the information technology industry.
Part 3 of the Award addresses the subjects, Minimum Wages and Related Matters, and comprised cll 14-17. Clause 15 dealt with the subject Minimum wages and provided that the minimum annual wages payable to full-time employees were as described in a series of classifications. Schedule B of the award addressed Professional responsibility levels, and provided by cl B.1.7 for a classification, Level 2 – Experienced Professional, and described such persons as being those who, following development, “plans and conducts professional work without detailed supervision but with guidance on unusual features and is usually engaged on more responsible assignments requiring substantial professional experience.”
Upon the evidence, the applicant fell comfortably within this classification. By cl 15 of the Award and upon the applicable classification, the applicant’s minimum annual wage was $56,989 being a sum lower than that which was payable to the applicant under his contract.
Further, by cl 17 of the Award, an employer covered by the award was obliged to pay superannuation contributions for the benefit of its employees. The rights and obligations in cl 17 supplemented those otherwise provided by superannuation legislation.
Commencement of employment
Ecot contended such contract of employment was formed on 8 January 2018 when the applicant commenced work. I accept the applicant’s evidence that when he commenced work on 8 January 2018, Mr Tian told him that he would not be paid for his time spent at the warehouse from 2 – 5 January 2018 and that his work with Ecot would be taken to have commenced on 8 January 2018. It was not in issue that during the whole of his employment, the applicant worked from the warehouse at Clayton South, which was both Ecot’s and F&G’s warehouse.
It was the respondent’s position that the applicant was not qualified to work in the role of an IT project manager. This contention was undermined by the applicant’s evidence as to his qualifications and limited work experience. It was also undermined by the respondent’s opening statements that in November 2017 Ecot was looking for a project manager (on the stated basis that the demands on Mr Tian’s time including in relation to both the management of the businesses of Ecot and F&G, and its software development activities were excessive) and that thereafter Mr Tian had offered the applicant the project management role. Nonetheless, in the course of the respondents’ opening, Mr Tian maintained that he had offered the applicant’s employment on the basis that he would teach and train him as a project manager.
As to the pleaded terms of the contract, the applicant alleged and Ecot essentially denied that he had been employed as an IT project manager on a full-time basis for a term of one year commencing January 2018 upon a salary of $60,000 per annum plus superannuation. Curiously, it was further alleged (and denied) that “Tyler would only be paid pay (sic) half of the Salary on a fortnightly basis at the commencement of his employment, with payment of the second half of his salary deferred until Ecot obtained funding from a government funding program.” Insofar as Ecot advanced an affirmative plea, it contended the only term of the contract was that the applicant “would be employed full-time earning a wage of $60,000 per annum (equivalent to $2307.69 per fortnight) less applicable tax.
Mr Tian’s opening statement ‘admitted’ that at all material times the applicant had worked under the directions of Ms Trieu. Further, Mr Tian ‘admitted’ it was his wife, Ms Trieu, who made all final decisions in relation to Ecot’s business activities, however, he made no reference to his own responsibility as Ecot’s general manager or his role and authority vis-à-vis the applicant as project manager. The applicant accepted he took instructions and directions from each of those persons but said he was otherwise not subject to any direction. The applicant was subject to direction or instruction by Mr Tian far more than by Ms Trieu. So much was confirmed by the plethora of WeChat communications between them and the relative dearth of such communications between the applicant and Ms Trieu.
Underpayment of wages
As concerned this claim, it was agreed the applicant commenced employment on 8 January 2018, but otherwise, this claim involved a most convoluted set of facts. On the applicant’s case, Ms Trieu was responsible for Ecot paying his fortnightly salary, which payments were effected directly by bank transfer to his account. This was common ground.
By way of overview, the parties were in dispute: whether the applicant had been engaged as Ecot’s IT project manager; as to the precise sums paid to him from time to time; as to the circumstances of a supposed agreement whereby the applicant would repay half of his net salary each fortnight; why such repayments were to be made to a company, TL Rentals; when the applicant signed a direct debit authority in favour of TL Rentals, doing so at the request of Ecot (a request made by Mr Tian on its behalf), authorising it to direct monies from the applicant’s personal bank account; of a complaint made to the applicant by Mr Tian when TL Rentals had been unable to deduct certain monies from his personal account (by reason of his impecuniosity); of the applicant’s protests made to Mr Tian as to the inherent unfairness of deductions being made by TL Rentals from his personal account each month.
All of the salary payments that the applicant received from Ecot were by way of bank transfer. According to the applicant, on 1 February 2018, he and Mr Tian had a conversation at work to the following effect:
(a)the applicant told Mr Tian that he noticed he had been paid his full salary on 1 February 2018, instead of the agreed half salary. The applicant asked why this was the case;
(b)Mr Tian informed the applicant that, on the books, Ecot was required to pay his full net salary each fortnight (i.e. not half) in order to be eligible to apply for the government funding program;
(c)Mr Tian informed the applicant that moving forward, Ecot would be paying his full net salary each fortnight, but the applicant would be required to repay half that net salary back to Ecot;
(d)Mr Tian requested that the salary repayments be made to an account belonging to TL Rentals. The applicant did not know who TL Rentals was. Mr Tian did not explain to the applicant why the payments were to be made to this account.
It was the applicant’s evidence that on 5 February 2018:
(a)Mr Tian demanded that the applicant sign a direct debit authority form, authorising TL Rentals to debit funds directly from the applicant’s personal bank account;
(b)the applicant signed the form at Mr Tian’s request. The applicant felt that he had no choice but to sign the form. The applicant assumed that the payment was to be made to TL Rentals because it had something to do with paying for rent for the businesses;
(c)Mr Tian took the original signed form and the applicant did not retain a copy.
Self-evidently, these events occurred well after the contract of employment was made.
As the evidence progressed, Mr Tian sought to explain that the ‘loan’ which the applicant had agreed to make by way of monthly payments (via TL Rentals), was to assist his friend, Wong. It was the applicant’s evidence that during his conversations with Mr Tian on 1 and 5 February 2018, Mr Tian made no mention of any person named Wong. I accept the applicant does not know a person named Wong. When cross-examined as to the plausibility of this evidence, it appeared Mr Tian was at somewhat of a loss to explain why such a new employee whom he had known for a matter of months would agree to make a loan so as to assist his friend, Mr Wong, a person whom the applicant did not know.
Ecot contended that on 5 February 2018, the applicant had agreed to ‘repay’ TL Rentals the sum of $2,200 per month and that Mr Tian had in turn agreed to repay the applicant the amount of such repayments “at the end of the year”. By its response, Ecot defined this so-called agreement as a “Loan Agreement.” By its further and better particulars, Ecot contended the matters relied upon to establish the subject agreement was that it was wholly oral, constituted, perhaps, by one or more discussions between the applicant and Mr Tian.
The applicant and Ecot respectively alleged as to this issue, that on various occasions between February – May 2018:
(a)the applicant had complained to Mr Tian that it was unfair to make salary repayments to Ecot but that Mr Tian had replied, in effect, that the applicant did not have a choice if he wished to continue working with Ecot as it did not have the cash flow to continue paying his full salary unless such salary repayments were made;
(b)the applicant had, as Ecot contended, agreed on 5 February 2018 to pay $2,200 per month in favour of TL Rentals contingent upon Mr Tian repaying those monies to the applicant “at the end of the year”;
(c)when, in March 2018, Mr Tian had informed the applicant of the unsuccessful attempt by TL Rentals to deduct monies from his account, he had replied that he did not have enough money to meet such payment but had, instead, paid the sum of $4,700 to TL Rentals (first repayment).
It was difficult to ascertain the precise circumstances in which the applicant transferred monies to TL Rentals. While it was not in issue that he had transferred a total of $6,900 to that company, it is clear that the applicant did not transfer half of his net fortnightly pay to TL Rentals upon receipt of that pay. Instead, two relatively large sums were paid to the company. Why the applicant agreed to do so was far from clear. Amongst the documents in the court book was one entitled Acknowledgement of Delivery & Authority to Pay Supplier in which TL Rentals was described as Owner, another company, OZNZ Pty Ltd (OZNZ), was identified as the Client and Ecot was identified both as Manufacturer and Supplier. This document, dated 14 November 2017, was accompanied by a further document dated 11 January 2018 on the letterhead of TL Rentals and addressed to OZNZ, being a second demand for an overdue payment, the arrears being said to total $2,250. These documents were not the subject of any further evidence by way of cross examination.
However, a document which was the subject of further evidence was a Direct Debit Request and Credit Card Payment Authority that it was agreed was given by the applicant in favour of TL Rentals dated 21 February 2018, which had been completed in hand by him and by which he requested and authorised that company “to arrange for any amount TL Rentals Pty Ltd may debit or charge you to be debited through the Bulk Electronic Clearing System.” The applicant had provided his credit card details on this form and thereby authorised TL Rentals to deduct monies due by the Client, OZNZ, pursuant to the transaction described above.
Extraordinarily, the Credit Card Payment Authority given by the applicant authorised TL Rentals to debit to his credit card “for any amount” apparently due by OZNZ. Asked to explain why on earth he had agreed to give this payment authority in favour of TL Rentals, the applicant variously stated that he had been forced to do so by Mr Tian and that he felt he had no other choice and stated “Because part of the reason was we agreed that I would have to repay half of my wages and that was the method of the – the repayment and – but when – when I – when this form was given to me to sign it there is no – no information about when and how and how much would be deducted. So I was not happy to sign our – this form.” Given an opportunity to explain why he would give TL Rentals control to debit any amount from his credit card, the applicant replied, unconvincingly, “I didn’t think of that”.

As Mr Tian sought to demonstrate during cross-examination, the applicant did not complain about the arrangement whereby he transferred monies to TL Rentals. In the same vein, he pointed to a WeChat communication (Entry No 1287) on 22 May 2018 which, he said was the first occasion on which the applicant had said he did not have enough money to pay TL Rentals. From Mr Tian’s perspective the arrangement between himself and the applicant was a loan.
Insofar as the applicant sought to explain why he had been ‘forced’ to sign the document, he replied that he knew the need for funds was urgent. Asked why he would transfer more than half of his net wages back to his employer he answered that he had done so “Because it was demanded me to do that.” To the extent the applicant gave evidence in essentially conclusory terms as having been forced and demanded to pay monies to TL Rentals, his evidence ignored the email that he transmitted on 24 November 2017 that he was quite “okay too with half salary [being] paid first.” I do not accept the applicant was ‘forced’ to make the payments but rather that, for whatever reason, he had agreed to this arrangement. This conclusion does not displace consideration of the claim for adverse action, albeit that it effectively disposes of the final claims respecting undue influence and undue pressure under s 344 of the Act.
When it was put to him by the court that in circumstances where he was not an investor in the company the arrangement made no sense, the applicant replied:
Yes. So perhaps – I think two reasons. Firstly, is I agreed to – to repay that so I – I say – honour the – the payment arrangement and also I believed that Bruce would do the maths like properly next time. So this time because it is urgent so I paid like more than the half.
Let me ask you a different question?‑‑‑Yes.
If I’m being paid $2,000 a fortnight and if I have agreed with an employer that after I’ve been paid $2000 I will give back half of that, $1,000, because of a government funding arrangement, if the employer then says, “Give me back $4,000,” one answer is no?‑‑‑Yes.
Why on earth would you give so much money back to your employer if it was more than half of your wage? Why would you ever have done that?‑‑‑Yes. I think my mind was not that clear back then.
Mr Xie, I’ve said this to you before: you’re a person not with just a tertiary qualification, you have a Master’s Degree in Information Systems from the University of Melbourne?‑‑‑Yes.
You are a very clever person. Now, I will give you one more opportunity. I want you to explain to me why it made any sense to agree to do this?‑‑‑Yes, as you say now, like it doesn’t make sense I did that before.
How long had you known Mr Tian before you commenced work in January 2018?‑‑‑Probably five or six months.
So you are agreeing to give a substantial amount of your savings for an amount far in excess of half of your fortnightly wage to a person you have known for less than six months. Is that the position?‑‑‑Yes
I also regarded his evidence in relation to this issue as quite unconvincing.
From the parties’ opening statements it was not in issue that the applicant had made two payments to TL Rentals; namely (a) on 13 March 2018, of $4,700, and (b) on 22 May 2018, of $2,200. Somewhat confusingly, by their opening statement when addressing this issue, Ecot and Ms Trieu did not distinctly contest that such payments had been made by the applicant pursuant to request by Mr Tian but instead stated “I denied this request as a business purpose, as same as my personal.” By his outline of evidence, Mr Tian maintained that in February 2018 he asked the applicant “to borrow $2,200 per month to help a friend pay a debt” and that he would repay the applicant the total sum to be advanced by the applicant at the end of 2018 as he expected Ecot would receive a government grant of $30,000 as they had discussed. It was Mr Tian’s evidence that the applicant agreed to make this loan and to that end “signed a direct debit form authorising the deduction of $2200 per month from his account, in favour of TL Rentals.” Contrary to this evidence, the direct debit authority signed by the applicant in favour of TL Rentals authorised it to deduct any amount that it chose from his designated credit card. Further, despite that unlimited authority, TL Rentals was unable to draw down much in the way of funds from his credit card as the applicant was impecunious.
Moreover, by their opening statement, Ecot and Ms Trieu sought to distance themselves from the arrangement whereby the applicant had agreed to the request of Mr Tian for him to repay via TL Rentals half of his fortnightly pay. They seemed to suggest that they were not parties to this arrangement and contended that Ecot had paid the applicant his full wage and that the repayment arrangement did not involve repayment to Ecot or Ms Trieu. Contrastingly, Mr Tian’s opening statement ‘admitted’ that on 13 March and 22 May 2018 respectively, the applicant had made each of two payments amounting to $6,900 and sought to characterise these payments as representing a loan which he had personally taken from the applicant. Mr Tian also sought to characterise the loan as being personal on the basis that “I never asked in being (sic) any money to Ecot, and never mention half of his wage to Ecot.”
I do not accept Mr Tian’s evidence that the arrangement struck with the applicant whereby certain payments were made to TL Rentals was one of loan. On the whole of the evidence the arrangement was more consistent with that described by the applicant whereby monies amounting to one half of his annual salary would be repaid to, or at the direction of, Ecot and repaid to him from the said government grant. Apparently no consideration was given to whether and how the applicant would be reimbursed in the event that Ecot’s application for the government grant was unsuccessful. It is unnecessary to explore that issue any further.
Although Ms Trieu eschewed any knowledge of the arrangement that had been struck between her husband and the applicant, maintaining it was “definitely illegal, because you can’t pay someone and then you took (sic) it back”, I was completely unconvinced by this evidence. To similar effect, Ms Trieu also denied ever being aware the applicant had been asked to make any such payments of the kind as were made to TL Rentals. Insofar as the respondents bore the onus of proof, I was not persuaded by her evidence as to this either. The documentary evidence confirms Ecot had contracted with TL Rentals to supply the customer, OZNZ, with certain software. It was beyond question that Ms Trieu had the final say on all business decisions and on that basis it is at least probable she well knew of this contract. There is, however, no evidence she knew of the transaction whereby the applicant agreed to sign the direct debit authority in favour of TL Rentals authorising it to deduct any amount from the applicant’s credit card facility in relation to the liability of OZNZ under the supply contract.
In this connection, I note that on 4 March 2018, Ms Trieu sent the applicant two WeChat messages in terms apologising for the manner in which she had discussed salary issues with him variously stating: “Tyler, today I have said the wrong thing. I shouldn’t have mentioned the salary payment issue. I will be more careful when I joke in the future” and a minute later “Ah I can’t remember salary was mentioned.” More fundamentally, I am not persuaded by the respondents that Ms Trieu knew nothing of the arrangement whereby one half of the applicant’s salary was to be paid to, or at the direction of, Ecot and to be reimbursed to him if and when the application for the graduate program government grant was successful.
Repayments via TL Rentals
On 13 March 2018, Mr Tian and the applicant had conversations by telephone and WeChat:
(a)Mr Tian said to the applicant that TL Rentals had attempted to direct debit $6,700 from the applicant’s account, and that the direct debit had been unsuccessful due to insufficient funds;
(b)Mr Tian said to the applicant that he had to make a salary repayment of $6,700 by transferring $6,700 to TL Rentals;
(c)the applicant said to Mr Tian that he did not have enough money to pay $6,700, and that it was unfair he was being asked to pay back more than half his salary;
(d) the applicant said the most he could afford to transfer to TL Rentals was $4,700;
(e)Mr Tian said he would transfer $2,000 to the applicant’s account so that the applicant could in turn transfer $6,700 to TL Rentals.
It was Mr Tian’s evidence that on 12 March 2018 he was informed the applicant was $6,700 behind in payments to TL Rentals and in those circumstances he contacted the applicant asking him to pay that sum to that company. He stated the applicant replied he could only afford $4,700 and accordingly, Mr Tian located a further sum of $2,000. Instead, on about 13 March 2018, a total of $6,700 was transferred to TL Rentals, $4,700 of which comprised the applicant’s funds with the remaining $2,000 being the funds obtained by Mr Tian. While certain funds had been obtained by TL Rentals via the Direct Debit Authority given by the applicant to that company at the request of Mr Tian so as to secure performance by OZNZ of its obligations under the supply contract, the evidence was unclear as to whether the other monies provided by the applicant to that company were obtained from that credit card facility or paid by some other means. As it has been repaid, it is unnecessary to explore this further.
An essential theme in the applicant’s evidence was that he complained to Mr Tian about the need to make repayments of half his net salary as he could not afford to do so. I accept his evidence that on about 23 March 2018, Mr Tian and the applicant had a conversation to the following effect:
(a)the applicant complained to Mr Tian that he had repaid much more than half his salary, and that his effective salary, after the salary repayment, was “too low”;
(b)Mr Tian stated that the applicant did not have a choice if he wished to continue working with Ecot. Mr Tian further stated that Ecot did not have the cash flow to continue paying the applicant’s full salary unless the applicant made the salary repayments;
(c)Mr Tian said he did not consider the applicant was being paid unfairly, but said he would discuss this issue with Ms Trieu and get back to him.
I also accept the applicant’s evidence that he followed up with Mr Tian on at least two occasions after 23 March 2018 as to whether he had discussed the matter with Ms Trieu but that he received no clear response from him in relation to the matter. Unbeknown to him, by this date, Ms Trieu had instructed her husband to dismiss the applicant.
In around mid-April 2018, the applicant asked Mr Tian when and what exact amount would be debited directly from his account under the TL Rentals direct debit authority. The applicant’s evidence was that Mr Tian said a little over $2,000 would be direct debited on the 20^th of each month. The applicant said he objected, stating that this was too much, because it was more than half his salary. Mr Tian again said he would discuss with Ms Trieu and get back to him.
The applicant also relied upon a conversation occurring on 22 May 2018. Save as to agreement upon the date of a further discussion on 22 May 2018, the parties were likewise in dispute as to the content of the discussion. The applicant alleged a demand was made of him by Mr Tian to make “a further salary repayment of $6,600 by making a payment to TL Rentals” but that he replied he did not have enough money to do so. In response, it was said, Mr Tian had stated, in substance, “look at the total amount of salary I have paid you before saying you don’t have enough money, the amount you must pay is half your salary.” Upon his case, the applicant replied he had received salary payments amounting to ~$13,700 of which he had paid $4,700 on 13 March 2018 and should be required to pay no more than a further $2,200, which payment he duly made to TL Rentals (second repayment).
Ecot denied these allegations and contended that when, on 22 May 2018, Mr Tian had asked the applicant to pay $6,600 to TL Rentals, he had replied that he did not have the available funds to do so. By its response, Ecot further contended that Mr Tian had effectively challenged the applicant’s assertion that he did not have available funds, doing so on the basis that he must have such funds as he “was only being asked to pay a sum equivalent to half his salary.”
Ecot agreed that the applicant stated he would pay TL Rentals $2,200 and it is common ground that he did so. By his outline of evidence, Mr Tian said only that on 22 May 2018, he checked with the applicant whether he had made a further payment of $2,200 to TL Rentals and, upon finding that a further monthly instalment of $2,200 was owing to that company, he asked the applicant to pay it. By his outline of case, the only sum in issue was $2,200 and no mention was made in the outline of any other sum including $6,600.
The applicant’s evidence in relation to a subsequent conversation with Mr Tian on 22 May 2018 via the WeChat platform was as follows. Mr Tian asked the applicant to send him the account details he held for the direct debit from his account that had been given to TL Rentals. To this the applicant responded that there had been only one transfer of $6,700 and after that transfer there was no further deduction record. I am prepared to infer Mr Tian thereby sought to obtain from the applicant his personal account details as provided for the purposes of the direct debit arrangement that had been given in favour of TL Rentals. When he was then told there was “no deduction record” it appears Mr Tian changed tack and instead asked the applicant how much money he had in his account. To this the applicant responded that as at the 20^th of each month he would have in the order of $2,000. Upon being provided that information Mr Tian then asked the applicant how many direct debit deductions had occurred and to this the applicant replied “None”. When Mr Tian then stated “You must transfer again $6,600”, the applicant replied he did not have enough money to do so. It appears Mr Tian challenged the applicant upon that assertion stating any effect “Look at the total amount of salary I have paid you before saying you don’t have enough money. I told you before, half of your salary must be paid to that TL Rentals account for me.” Following this dialogue, the following exchange occurred:
The applicant:            My total salary is $13,767.68. The first time I transferred $4,700 ($6,700 less the $2,000 you transferred to me at the time)
So if its half, I can still transfer over $2,000. Oh my mistake, including 17 May, the total [salary paid to date] is $15,603.37.
Mr Tian: That salary amount also has tax on it, because there is still some tax [which you need to take into account]. I’ll ask Ms Trieu to do the math again. How much money do you have in your account right now? Whatever you are short, I’ll transfer the rest.
The applicant:            I can manage to transfer $2,600 now, so that I have enough money to survive until this Friday or next Monday when the next pay arrives.
Mr Tian:   First pay $2,200.
The applicant:            [Screenshot of an email containing TL Rentals banking details]
It’s this account right?
Mr Tian:   Is this is your own personal email? Or is this the company’s email?
The applicant:            This is just the screenshot you sent to me last time.
I don’t have any emails [from TL Rentals].
Following this exchange, the applicant transferred a further sum of $2,200 to TL Rentals.
Unilateral variation
On 4 April 2018, while at work, Mr Tian introduced the applicant to Situ Juan and Juan’s husband. Mr Tian informed him that Juan would be joining their team as a software developer. Mr Tian said Juan would first need 1-2 months to learn by herself, after which she would formally join the team. At the time, the applicant was not told that Juan would be taking over his role. As would later emerge, although Ms Trieu had by this time decided the applicant should be dismissed from his employment she had yielded to the request of Mr Tian that any such dismissal should be deferred for the time being. On 5 April 2018, Mr Tian formed a ‘group chat’ on WeChat that included Mr Tian, Ms Trieu, the applicant, Juan, Juan’s husband, and Liu Wei on WeChat. Throughout April, the applicant and Liu Wei helped Juan learn about the relevant software and information systems in the WeChat group chat.
By their opening statements, it was put in issue whether discussions had occurred in May 2018 between Mr Tian and the applicant of his being transferred into a sales role. For her part, Ms Trieu advanced a position not disclosed by any response to the amended claim that in March 2018 she had concluded the applicant was not suitable to Ecot’s needs and that he should be dismissed. In addition, by her opening statement Ms Trieu contended that another person, Situ Juan, should be employed to take over the applicant’s role but that contrary to her decision respecting his dismissal, she had been convinced by her husband, Mr Tian, that the applicant should be given “a second chance on [a] marketing role which is probation casual position, and I agreed [to] his proposals.”
On the respondent’s case, by mid-March 2018, Ms Trieu had decided the applicant was spending most of his time performing administrative tasks for F&G rather than fixing software errors in Ecot’s database and for that reason, having decided he should be dismissed, told her husband to inform the applicant of his dismissal. For a variety of reasons, Mr Tian did not immediately dismiss the applicant as, on his case, he felt sorry for the applicant and further, he considered he needed time to train an ‘existing’ employee (i.e., Juan) to take over that role.
It may be that the proposal to transfer the applicant to a marketing role originated in his participation with Mr Tian in mid-April 2018 at some sort of technology Expo. WeChat communications as at 13 April 2018 suggest the applicant had received some praise from Mr Tian for the manner in which he had secured Ecot’s registration for participation in this event. By his opening statement, Mr Tian contended that in April 2018 the applicant had agreed to undertake a marketing role at a time when Ecot “was doing the Expo” and that during this period he had discovered the applicant’s marketing skills, adding that on “14 May 2018 [the applicant] start (sic) doing the marketing work, 24 May 2018 [the applicant] complete set up F&G packaging, Facebook page & Google business page. Start doing the marketing plan.” Upon the case to be run by Mr Tian, all relevant communications in relation to this issue were said to have occurred upon the WeChat platform. Whether or not that was the case, it seems at least possible that matters of this kind were also discussed in the course of a working day at Ecot’s business premises in Clayton South and also on the occasions that the parties joined together for lunch or coffee at a nearby café.
As concerned this claim, the parties were agreed upon a discussion occurring between the applicant and Mr Tian on 18 May 2018, but were in dispute upon the content of the discussion:
(a)for the applicant, it was contended that on this date he had been informed by Mr Tian that Ecot intended to terminate his employment and requested to “start handing over his role to another Ecot employee in anticipation of [his] employment coming to an end.” The applicant further contended: he had been told on this date by Mr Tian he would be moved to “a commission-only sales role with no base salary in another company controlled by [Mr Tian] called F&G Packaging Pty Ltd ” (F&G); he had told Mr Tian he did not want to move to another company on the proposed terms but instead “wanted to keep his current position” but that Mr Tian had replied the applicant “had no choice, and Ecot was going to stop paying his salary by mid-June 2018” and further, Mr Tian had responded if the applicant “did not want the sales role there would be no job for him at all.”
(b)for Ecot, it was contended Mr Tian had told the applicant Ecot was considering dismissing him for poor performance in his role and, responding to that statement, the applicant had “agreed to transfer to a sales role, with an agreed base salary of $60,000 and with the possibility of additional commission (to be negotiated).” By way of its further and better particulars, Ecot contended the matters relied upon to establish the applicant’s poor performance were threefold; namely, the applicant’s: (i) dedication of his work related to “the F&G office, rather than the work which [Ecot] directed him to do, which was correcting data in its IT system”; (ii) propensity to chat excessively to other staff; (iii) failure to complete tasks on time.
Nothing in the parties’ WeChat messages supports a conclusion there was any discussion between Mr Tian and the applicant to the effect that Ecot was considering dismissing him from his employment, whether on the basis of poor performance or otherwise.

The liability of Ecot as principal has been established. In those circumstances it becomes open to make findings that other persons are liable as accessories. It must be established that they were involved, in the requisite sense, in any such contravention. I have considered separately the position of each of Mr Tian and Ms Trieu for the purposes of the determination of accessorial liability. Save as to the concession made in favour of Mr Tian above, upon the findings made, I am satisfied each of them had actual knowledge of the essential facts necessary to establish each of the contraventions alleged against Ecot. It is irrelevant whether either participant knew Ecot’s conduct (by act or omission) constituted a contravention of the Act.
I am satisfied, subject to the concession made in favour of Mr Tian, that each of Mr Tian and Ms Trieu were knowingly involved in Ecot’s contraventions of the Act. Each of Mr Tian and Ms Trieu are themselves taken to have contravened the provisions in question and are accordingly liable as accessories: Act, s 550(1). Declarations to that effect will be made.
Relief – compensation
The applicant claimed compensation arising from his constructive dismissal. Section 545(2)(b) of the Act, read with s 545(1), authorises this court to make an order awarding compensation where it is satisfied that a person has contravened a civil remedy provision and that another person has suffered loss because of such contravention. On the evidence, there is no difficulty in concluding the applicant suffered loss because of Ecot’s contravening conduct.
Fixing damages under s 545 is a statutory task which must not involve substitution of the approaches derived from the general law: Dalfallah v Fair Work Commission (2014) 225 FCR 559, [149]. In Dalfallah (2014) 225 FCR 559 at [153], Mortimer J observed that under the Act, ‘compensation’ was a remedy to be granted in lieu of reinstatement. Her Honour’s observations were not made in relation to a claim for adverse action but rather in the context of an application for judicial review of a decision by the Fair Work Commission for unfair dismissal under Div 4 of Ch 3 of the Act. Her Honour drew attention to the criteria in s 392(2) which are to be applied for the purposes of deciding the amount of compensation, concluding it was appropriate to give consideration to factors similar to those set out in s 392(2) in the exercise of discretion under s 545. One of those factors is the longevity of the employee’s period of employment. In addition, her Honour noted the cap placed on compensation by s 392(6) of the Act, being for the total amount of remuneration to which an employee would have received, or been entitled during the 26 weeks immediately before dismissal. While no equivalent criteria as contained in s 392 are found in s 545 of the Act, Mortimer J considered the criteria to be instructive for the purposes of relief under s 545 but did not specifically consider that the 26 week cap established by s 392(6) must be applied.
In Dalfallah (2014) 225 FCR 559 at [158], Mortimer J also held that that the court should have regard to what was reasonable in all the circumstances and “look at what would have been likely to occur had the Act not been contravened” and further, give consideration to the “detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such circumstances.” Her Honour also endorsed as a principal task to be undertaken by the court to ensure that there was an appropriate causal connection between the contravention and the loss claimed.
The assessment of compensation should be made on the basis that a respondent would have discharged its contractual obligations in a way which would have been least burdensome to it; such an approach is also taken to the measure of compensation under s 545 of the Act: Dalfallah (2014) 225 FCR 559, [161]; PIA Mortgages, (2020) 274 FCR 225, [50], cf [182]. Nonetheless, there will be cases in which, on the facts, it should not be assumed that an employer would have adopted the least burdensome method of terminating an employment. And in such cases, the ‘least burdensome’ principle may not be invoked because it has no role to play: Commonwealth Bank of Australia v Barker (2013) 214 FCR 450, [353]-[354]. Expressed in somewhat different terms, compensation for pecuniary loss should be assessed by reference to how long the employment was likely to have continued if the contravention had not occurred: Dafallah (2014) 225 FCR 559, [159]-[161]; Kennewell v Atkins T/as Cardinia Waste & Recyclers [2015] FCA 716, [88]-[91]. By contrast, where the employment has terminated as a result of a breach by the employer of its contractual obligations, the court may be more inclined to consider that it would have been some time before an employer would terminate the employment by giving notice: Macken’s Law of Employment 8^th Ed, (2016) 422 [10.100]. By parity of reasoning, it may be that an employer which has acted in contravention of the Act should be taken as being likely to adopt a more reflective approach in relation to the lawful termination of the contract of employment (alternatively, in the giving of reasonable notice, having regard to the longevity of the particular employment).
While the court must make an attempt to assess what is a reasonable sum to award by way of general damages having regard to prevailing community standards, weight must be given both to general ideas of fairness and moderation rather than by some ad hoc “process of considering particular cases and endeavouring, . . ., to allow for differences between the circumstances of those cases and the circumstances of the case in hand”: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125. The assessment of compensation is a fact intensive task turning upon the unique circumstances of each case and is not dictated by results in other cases.
As to the principles which govern mitigation of loss it was accepted that the onus of establishing facts relevant to the question of mitigation lies upon the respondent employer (see, Sperandio v Lynch (No 2) [2006] FCA 1838, [6]-[7] (Jessup J)) and that in mitigating their loss, claimants are only required to act reasonably where the standard of reasonableness is not high in view of the fact that the respondent is an admitted, or proven, wrongdoer (McGregor on Damages, 21^st Ed, (2021) [9.079]. Thus, proof of a failure to mitigate may fall short where, for example, it is not established that there was in fact a realistic prospect other alternative employment would have been obtained. The onus falls on the person alleging a failure to mitigate.
Resolution
Remedies as sought by the applicant in his general protections claim were stated to comprise: (a) wages of $9,286.40; (b) annual leave entitlements of $1,497.54; (c) superannuation of $2,367.68 and; (d) damages for general protections dismissal, being up to 6 month’s pay. As the case evolved, all other payments being made, it was reduced to the claim for damages.
Upon the findings made that the applicant was employed on a full-time basis for a one-year term on a fixed salary of $60,000 and in the circumstances that his employment terminated on 6 June 2018, counsel correctly submitted that the duration of the term was of only marginal relevance except as to consideration of the cap, or ceiling, which those facts would place upon quantification of his client’s claim for compensation. Counsel put that issue entirely to one side in the circumstance that the applicant did not seek compensation for the balance of the term, but only for the period June – November 2018.
At the point of filing a response to the amended claim, Ecot denied the applicant was entitled to any relief save that it consented to judgment against it for $2,273.52 in respect of unpaid annual leave together with interest on that sum to the date of its defence. This has been paid.
I do not accept the applicant failed to mitigate.
Counsel identified that the compensation sought was for a period from 6 June – 18 November 2018: a period of 23.5 weeks. Upon that basis and having regard to the applicant’s entitlement to annual remuneration of $60,000 (or $900 net per week), compensation was sought on an after-tax basis of $21,569.48. However, upon his evidence the applicant began his work operating an Air B&B business in August 2018. Upon a broad assessment of his entitlement, the applicant will be awarded compensation of $20,000.
The applicant is also awarded interest, such award being made upon the conventional basis.
The court is authorised, and indeed required, by s 547(2) of the Act to include an amount of interest on a sum ordered to be paid unless good cause is shown to the contrary. The usual practice is that interest will be allowed at a rate that is 4% above the cash rate last published by the Reserve Bank of Australia: Interest on Judgments Practice Note (GPN-INT), cl 2.3. In doing so, the court must take into account the period between the day on which the relevant cause of action arose and the day that the order is made. The applicant’s cause of action arose on 6 June 2018 and the proceeding was initiated on 22 August 2018. Having regard to the procedural history of the matter and the drip feed approach that was adopted by respondents in paying the applicant his accrued employee entitlements, no good cause is shown to the contrary for not awarding interest upon compensation which is awarded to the applicant.
Applying the Interest on Judgments Practice Note (GPN-INT) and prevailing applicable interest rates in the period August 2018 – March 2022 (44 months), the applicant is to be allowed interest on such compensation at a rate of 4.75%. On a broad evaluation of the claim for compensation, the applicant will be awarded $3,500 by way of interest on $20,000.
Relief – declarations & penalties
I agree the applicant is entitled to declaratory relief in relation to the several contraventions which are established and involving contraventions of the following provisions: (1) the making of unreasonable requirements in relation to the repayment of one half of the applicant’s salary and the execution of the Direct Debit Authority in favour of TL Rentals: Act, s 325; (2) Ecot’s constructive dismissal of the applicant from his employment; further, its having injured the applicant in his employment and having altered his position to his prejudice: Act, s 340; (3) Ecot’s breach of cll 15 and 17 of the Award for underpayment of the applicant’s minimum wage entitlements; further, for failing to pay superannuation during his employment: Act, s 45; (4) Ecot’s breach of the National Employment Standards by failing to pay the applicant his annual leave within seven days of the conclusion of his employment: Act, s 44; (5) Ecot’s failure, on eight occasions, to give the applicant payslips within one day of payment: Act, s 536(1); Ecot’s having given the applicant to payslips which were false or misleading: Act, s 536(3). Although I have condensed the contraventions under six headings, I do not ignore that in several cases they involved separate contraventions. I have addressed accessorial liability.
The applicant also applies for penalties rising from the proven contraventions of the Act. Chapter 4, Compliance and Enforcement, is arranged in two parts comprising ss 537 – 572 of the Act. Part 4-1, Civil Remedies, comprises ss 537 – 559. The Act entitles a person to apply for an order of a kind provided by Div 2 of Pt 4-1 of Ch 4. However, he or she may do so only if they are a person affected by a contravention of a civil remedy provision: Act, s 540(1).
Within Pt 4-1, Div 2 concerns Orders and by Sub-div A provides for Applications for orders. Sub-div B concerns Orders and comprises ss 545-547. Section 546 provides for the making of Pecuniary penalty orders. The power conferred by s 546 is to make an order that a person pay a pecuniary penalty. The power so conferred is not engaged unless the court is satisfied a person has contravened a civil remedy provision. Upon being so satisfied, where application has been made, power is conferred on this court to order a person to pay a pecuniary penalty that the court considers ‘appropriate’: Act, s 546(1). The conferral of power to quantify the penalty is also framed in terms which require the court to be satisfied that it is ‘appropriate’ to do so. As employed in each of ss 545 and 546, the term ‘appropriate’ constrains the exercise of power in the determination whether to award compensation, impose a penalty and in quantifying those respective amounts: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408. Upon being satisfied it is appropriate a contravener pay a penalty, the scope of the liability for the debt created by the making of the order is to be such sum as the court considers ‘appropriate’ having regard to the particular type of civil remedy provision that was contravened and the unique facts and circumstances of the particular case.
Section 546(2) constrains the imposition of a penalty beyond stipulated maximums, both in relation to an individual and a body corporate in the manner that is there described.
As applied to this case, each of ss 44, 45, 323, 340 and 536, that maximum is 60 penalty units (i.e., in this case, no issue arises as to a contravention being serious in the requisite sense).
In the determination of appropriate relief, regard must be had to the facts and circumstances giving rise to the contravention and of the need to sustain public confidence in the legislative regime by which the relevant obligations are imposed: Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560, [91] (Buchanan J). The court is to adopt a process of instinctive synthesis which evaluates all factors that are considered relevant to the penalty, and make a value judgment as to an appropriate penalty in all the circumstances. In Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (2017) 275 IR 148 at [36], Bromwich J identified the steps to be considered in the determination of penalty and quantification of the relief as requiring identification and consideration of:
(a)the separate contraventions, with each breach of each statutory and award-based obligation being treated as a separate contravention;
(b)whether each separate contravention should be dealt with independently or upon some degree of aggregation for those contraventions arising out of a course of conduct;
(c)whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response, where necessary, to what each respondent did;
(d)the appropriate penalty in respect of each final individual group of contraventions, taken in isolation;
(e)the overall penalties arrived at, including by reference to those which may be proposed by the parties or each of them (in this proceeding, both being the same jointly agreed amount), and apply a principle of ‘totality’, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary.
In stating those propositions, his Honour essentially adopted the submissions advanced in that proceeding on behalf of the Fair Work Ombudsman. The approach, commended by Bromwich J has been followed on numerous occasions: see, e.g, Fair Work Ombudsman v IE Enterprises Pty Ltd [2021] FCA 60, [11] (Anderson J); Australian Securities and Investments Commission v Allianz Australia Insurance Limited [2021] FCA 1062, [126] (Allsop CJ).
The necessity for reflecting upon the maximum available penalty arises for a number of reasons. Identification of the applicable penalty: reflects the legislature’s view of the seriousness of the prescribed conduct; enables comparison of the case at hand with the worst possible case; allows for its use as a yardstick to be taken and balanced with all other relevant factors and thereby to locate the instant case at a point on the spectrum of the least to most serious of the particular type of contravention, and; serves to avoid a result of imposing a penalty that is oppressively high: Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, [106] (Dowsett, Greenwood and Wigney JJ); citing Markarian v The Queen (2005) 228 CLR 357, [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Mornington InnPty Ltd v Jordan (2008) 168 FCR 383, [88], [107] (Stone and Buchanan JJ); Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993, [58] (Murphy J).
The primary purpose of civil penalties is to promote the public interest in compliance and to attempt to put a price on a contravention that is sufficiently high to deter repetition by the contravener and by others who are in a position to contravene legislation: Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, [55] citing Trade Practices Commission v CSR Ltd (1991) 13 ATPR ¶41–076, [40]. Upon a contravention being established, both specific and general deterrence are the principal (and perhaps only) object of civil penalties under the Act. In amplification of the primary purpose of deterrence, the High Court has underscored that the achievement of that purpose necessarily depends upon a penalty having the required ‘sting or burden’ to secure ‘the specific and general deterrent effects that are the raison d’être of its imposition’: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, [116] (Keane, Nettle and Gordon JJ). Courts now regard more seriously the contravention of industrial laws than may previously have been the case: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union(No 2) (2010) 199 IR 373, [12]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 126, [38].
Beyond those important statements of principle, a non-exhaustive and non-rigid list of other factors have been repeatedly adopted and are recognised as being of potential relevance in providing assistance when setting a penalty which properly reflects an appropriate deterrent value. These factors were endorsed in Kelly v Fitzpatrick (2007) 166 IR 14 [14] by Tracey J:
(a)       the nature and extent of the conduct which led to the breaches;
(b)       the circumstances in which that conduct took place;
(c)       the nature and extent of any loss sustained as a result of those breaches;
(d)      whether there has been similar previous conduct by the respondent;
(e)       whether the breaches were distinct or arose out of one course of conduct;
(f)       the size of the business and the enterprise involved;
(g)       whether or not the breaches were deliberate;
(h)whether senior management was involved in the contraventions;
(i)whether the party committing the contravention exhibited contrition, has taken or will be taking corrective action and/or cooperated with enforcement authorities;
(j)the need to ensure compliance with minimum standards by provision of effective means of investigation and for specific deterrence.
These factors should not be employed in a restrictive manner but instead provide guidance as considerations which may be useful in exercising the statutory discretion when determining a penalty: Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550, [11], (Gyles J); Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151, [74] (Mansfield J). The discretion is to be exercised judicially upon those settled principles: Comcare v Australian Postal Corporation [2011] FCA 530, [62] (Kenny J); Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 151 ACSR 407, [124], [134], (Wigney, Beach and O’Bryan JJ).

The reason for caution against treating these factors as a rigid catalogue was explained in Pattinson v Australian Building and Construction Commissioner (2020) 384 ALR 75, [99]. Allsop CJ, Besanko, White, Wigney and Bromwich JJ, stated that “the task of the Court is to fix a penalty that pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.” The Full Court endorsed the view that such “factors are not mandatory criteria and can lead to over-elaborate reasoning for a task that is a discretion at large as to what is appropriate to the object concerned”: citing A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6] (Gyles J). I address them in turn.
Resolution
Each of the provisions relied upon by the applicant was a civil penalty provision. The applicant is a person affected by a contravention of a civil remedy provision and so is entitled to apply for orders imposing a penalty upon Ecot, Mr Tian and Ms Trieu for the proven contraventions.
The subject contraventions have been identified above. It was correctly submitted that, as concerned the contraventions arising from the salary repayment scheme, it was appropriate to group those contraventions as concerned ss 45, 325 and 344 of the Act (in the event, the applicant has not established a contravention of s 344). Counsel for the applicant furnished a detailed table respecting the maximum penalties as applicable for the individual contraventions and, in summary, identified the aggregate maximum penalty is as follows: (1) Ecot – $378,000; (2) Mr Tian and Ms Trieu – $75,600. I agree in those submissions and calculations. As noted, it was also properly submitted that the evidence did not support a conclusion that Mr Tian had been involved in particular contraventions. I agree therefore in the further submission that in the case of those contraventions it would not be appropriate to impose a penalty on Mr Tian in relation to annual leave, superannuation and the timely provision of payslips. However, in terms of quantum, and as the table confirmed, these concessions cancelled one another out.
The detailed table prepared by counsel addressed separately the recommended penalties sought as against each respondent, doing so on the basis that 60%-75% of the maximum penalty was appropriate in each case. At the point of providing this table, the penalties which were submitted to be appropriate in each case were as follows: (1) Ecot – $226,800 to $283,500; (2) Mr Tian and Ms Trieu – $45,600 to $ 56,700. However, by the time of closing submissions it was accepted the aggregate of those penalties was “a little high”. I agree.
I have described the conduct, loss and circumstances of the contraventions in some detail and I agree that objectively, the amount owed to the applicant may be considered to be a relatively low sum. However, counsel for the applicant was correct in the submission that the nature of the conduct in requiring repayment of salary is an extremely serious matter. Contrary to the applicant’s evidence, it cannot be ignored that initially he was, from the outset, entirely content to participate in this scheme. The applicant’s involvement in the scheme is relevant to the circumstances in which the contravening conduct occurred and to identification of the point along the spectrum where the contraventions should be placed in terms of seriousness. It is also of relevance to the relief being sought (and, in particular, in the exercise of the statutory discretion in determining to whom the penalty ought to be paid: Act, s 536(3)). The applicant’s participation does not detract in any way from the seriousness of the respondents’ conduct.
It was properly accepted that there is no evidence of previous similar conduct.
It was also properly accepted Ecot conducts a relatively small business and does so in conjunction with the other small businesses operated by Mr Tian and Ms Trieu.
Commendably, counsel for the applicant accepted that in the case of non-payment of annual leave, this had arisen from some misunderstanding as to the proper characterisation of the applicant’s employment and so should not be regarded as deliberate for the purposes of penalty. By contrast, it was submitted that in the case of all other contraventions, the court should be satisfied that they had been quite deliberate. I am less than certain that this submission should be accepted in the broad terms in which it was put. Stated another way, Mr Tian was clear in his submissions and evidence that he found the framing of the terms of the applicant’s contract of employment somewhat confusing and difficult inasmuch as he identified the need to align it with the criteria applicable to the graduate government grant program. He candidly acknowledged the means of reconciling the terms of the contract with those criteria as presenting him with a problem which he found difficult to resolve. Ecot’s decision to apply for a government grant was, in and of itself, innocuous.
Moreover, when regard is had to the means by which the arrangement was implemented, the parties effectively disregarded any requirement for rigid adherence to an arrangement whereby the applicant would repay Ecot 50% of his net fortnightly wage immediately upon receipt. Having reflected upon this issue, I have concluded the respondents were not actuated by a desire or motive to engage in conduct which entailed contraventions of the Act. Although it may readily be accepted the parties formulated their arrangement with an eye to meeting the criteria applicable to the graduate government grant program, in my view it is important not to conflate the deliberateness of that conduct with the question whether the conduct, insofar as it involved contraventions of the Act, was itself deliberate. The distinction is of some importance in determination of the appropriate penalty. It is also of importance in consideration of what order is appropriate to be made in the proper exercise of discretion as to payment of the penalty.
There is no doubt Ecot’s senior management were involved in the contraventions that have been proven. At one time or another, each of Mr Tian and Ms Trieu was Ecot’s sole director. Mr Tian was its general manager and responsible for its day-to-day activities. Equally, Ms Trieu was clearly responsible for all final decisions in Ecot’s business.
I do not accept the respondents have shown no contrition for the conduct, but to the extent it has occurred, it occurred slowly. Payments of contractual entitlements were resisted from the outset, then denied in the course of the proceeding and ultimately paid over a course of years (and indeed on the night before the trial began). In the course of the trial, Mr Tian was clearly remorseful (whether it was remorse or regret at being caught was less clear) but by contrast Ms Trieu did not impress me as being particularly remorseful in any way. These matters also inform the respondents’ general reluctance (or perhaps, inability) to effect corrective action. Each of the respondents made closing submissions which I have considered. In particular, as to the issue of penalties, Mr Tian stated:
MR TIAN: Yes. Thank you, your Honour. I will be saying, like, this: I didn’t handle Tyler’s employment really well which is I shouldn’t disclose too much government grant to him. And, also, I’m not sure if I can borrow the money from the employee or not, but I did. And if I caused that trouble, I’m sorry for that and I tried to do everything in the right ways and also I should give Tyler contract before he start which is I didn’t. I tried to back it up but it didn’t happen and then this all caused these issues. And then what I did wrong, I accept for that and then if the court want to give me the penalty, I will be accept for that
I unhesitatingly accept that specific and general deterrence is important in this case.
As to instinctive synthesis, I have had regard to the totality of the penalties in the determination of what some I consider is appropriate to order the respondents to pay. Undertaking this synthesis is necessary as part of the process of considering that the proposed penalty is proportionate when all contraventions are viewed collectively. Stated in other terms, an overall evaluation is needed to assess the proportionality of the proposed penalty to the gravity of the contraventions in issue and to secure the need of sustaining public confidence in the regime pursuant to which adherence to statutory obligations are observed and enforced.
I have reflected upon the applicable principles and each of the matters upon which submissions were made and conclude it is appropriate to order that each respondent pay a penalty for each contravention. Upon my reconsideration of the aggregate of the applicable penalties, and the several factors addressed above, an appropriate response is to order as follows:
(a)       Ecot should pay penalties of:  $60,000
(b)       Mr Tian should pay penalties of:  $10,000
(c)       Ms Trieu should pay penalties of:  $10,000
Penalties of this magnitude will operate both by way of specific deterrence on the respondent and as general deterrence in this industry. I do not consider that such penalties could be seen as merely a cost of doing business. Nor are they crushing or oppressive. I have little doubt that, as concerns Ecot, Mr Tian and Ms Trieu, these penalties will carry the sting and burden that is intended to achieve the aims of both specific and general deterrence. They will.
To whom should the penalty be paid? Section 546 confers a discretionary power on this, and other, courts to order the person pay a pecuniary penalty in the circumstances for which it provides. In this case application was made for orders that the respondents pay such penalties and the court has been satisfied it is appropriate the respondents should do so.
By s 546(3) of the Act, “The court may order that the pecuniary penalty, or a part of the penalty, be paid to” the Commonwealth, or a particular organisation or a particular person.
Upon this question penalties, I made clear during the course of the proceeding that I was very much concerned in all the circumstances of the case whether penalties should be paid to the Commonwealth as distinct from the applicant or any other person. In light of that observation, the parties were afforded an opportunity to provide a post-hearing submission that might inform the proper exercise of discretion. Counsel for the applicant provided a submission that helpfully identified the relevant authorities. It was correctly submitted that the usual order is for penalties to be paid to an applicant. The issue of concern was examined in an unrelated decision of Boyd v Glenvill Pty Ltd (No 2) [2021] FedCFamC2G 164 at [56]-[161]. Upon my review of authority, the text and context of s 546(3) and its history, I concluded at [140]:
Since the manner in which the power conferred by s 546(3) is not indicated, its proper exercise is to be determined from the section, having regard to the objects of the Act and the general scope and purpose of Pt 4-1 of Div 2, including the contraventions being alleged. To adapt Klein v Domus, the real objects of s 546(1) and (3) are to leave scope to the court who is investigating the facts and considering the general purpose of the Act to give effect to his or her view of the justice of the case. By extension, the rigid adoption of the making of a ‘usual’ order may unduly narrow the scope of s 546(3); once the ‘usual’ order is employed for the purposes of s 546(3) as a settled principle, no other recipient arises for consideration and so the exercise of the broad power conferred by the section is stripped of discretion and content.
I adhere to the views expressed in that decision.
Further, and accepting that very different policy considerations will be derived from the purposes of particular statutes, even where questions of illegality do not arise, it would, in my opinion, be quite wrong for the otherwise broad statutory discretion conferred by s 536(3) to be hedged about by limitations or qualifications that do not appear from the express text of the provision as informed by its context and the Act as a whole. It has been long accepted that a fundamental principle of the common law is that a court will not lend its aid to a party who founds a cause of action upon an immoral or illegal act “particularly where both parties are equally at fault”: see, e.g., considerations which informed Nelson v Nelson (1995) 184 CLR 538, 554, 561-564 (Deane and Gummow JJ). Considerations of this kind apply here.
Although I accept the authorities provide the usual order is for the penalty to be paid to a successful applicant, I do not accept that this is a usual type of case. In particular, I am in no doubt that upon the case advanced by the applicant he was actively involved in the arrangement of which he now complains. In those circumstances, I am not prepared to exercise the statutory discretion confirmed on the court to order that the penalty, or any part thereof, be awarded in his favour. To the extent relevant, no other party or organisation is suggested as being a fitting recipient. Each of the penalties will be ordered to be payable to the Commonwealth.
Conclusion
On 24 March 2021, the applicant’s counsel provided a draft of the orders sought. I have paid regard to those proposed orders in moulding the relief that I consider appropriate to the case. The court records its gratitude to counsel for the manner in which the hearing was conducted, particularly in the circumstance that the respondents were self-represented at trial.

I certify that the preceding two hundred and ninety-two (292) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly.
Associate:
Dated: 22 February 2022

File number(s):	MLG 2511 of 2018
Judgment of:	JUDGE A KELLY
Date of judgment:	22 February 2022
Catchwords:	INDUSTRIAL LAW – general protections claims – adverse action – constructive dismissal – claims for wages and entitlements – claims for accrued employee entitlements paid on eve of trial – claims for compensation and penalties – applicant constructively dismissed from employment – contraventions of Fair Work Act 2009 (Cth) established – individual respondents held liable as accessories – applicable principles – compensation awarded for the period from dismissal until obtained new employment – penalties awarded for contraventions – where applicant party to scheme involving payment of one half of fortnightly net pay in order to provide evidence to meet criterion for graduate program and funding via Commonwealth government grant – penalties ordered to be paid to the Commonwealth.
Legislation:	Fair Work Act 2009 (Cth) ss 3, 44, 45, 323, 325, 336, 340, 341, 342, 344, 360, 361, 386, 392, 536, 545, 546, 547, 550 Professional Employees Award 2010 cll 1, 4, 15, 17, Sch B, cl B.1
Cases cited:	A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Grivell (1999) 74 SASR 240 Alam v National Bank of Australia Ltd [2021] FCAFC 178 Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union(No 2) (2010) 199 IR 373 Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 Australian Securities and Investments Commission v Allianz Australia Insurance Limited [2021] FCA 1062 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Boyd v Glenvill Pty Ltd (No 2) [2021] FedCFamC2G 164 Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993 Comcare v Australian Postal Corporation [2011] FCA 530 Commonwealth Bank of Australia v Barker (2013) 214 FCR 450 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd(2014) 314 ALR 1 Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166 Construction, Forestry, Mining and Energy Union vEndeavour Coal Pty Ltd (2015) 231 FCR 150 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bruce Highway Caloundra to Sunshine Upgrade Case) (2020) 281 FCR 365 Dalfallah v Fair Work Commission (2014) 225 FCR 559 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 126 EZY Accounting 123 Pty v Fair Work Ombudsman (2018) 360 ALR 236 Fair Work Ombudsman v Devine Group Pty Ltd [2014] FCA 1365 Fair Work Ombudsman v Dosanjh [2016] FCCA 923 Fair Work Ombudsman v IE Enterprises Pty Ltd [2021] FCA 60 Fair Work Ombudsman v Kleen Group Pty Ltd & Anor [2016] FCCA 278 Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151 Fair Work Ombudsman v Nerd Group Australia Pty Ltd & Anor (No. 3) [2012] FMCA 891 Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown (2017) 275 IR 148 Fair Work Ombudsman v Priority Matters Pty Ltd[2017] FCA 833 Fair Work Ombudsman v Sakuraya Warrigal Pty Ltd [2016] FCCA 2033 General-Motors Holden Ltd v Bowling (1976) 51 ALJR 235 Gore v Australian Securities and Investment Commission (2017) 249 FCR 167 Kelly v Fitzpatrick (2007) 166 IR 14 Kennewell v MG & CG Atkins T/as Cardinia Waste & Recyclers [2015] FCA 716 Khiani v Australian Bureau of Statistics [2011] FCAFC 109 Kilcran, in the matter of Allco Finance Group Limited (Receivers and Managers Appointed) (In Liquidation) v Gothard [2014] FCAFC 6 Markarian v The Queen (2005) 228 CLR 357 Maroney v The Queen (2003) 216 CLR 31 Mornington InnPty Ltd v Jordan (2008) 168 FCR 383 Nelson v Nelson (1995) 184 CLR 538 Pattinson v Australian Building and Construction Commissioner (2020) 384 ALR 75 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 Rafferty v Madgwicks (2012) 287 ALR 437 Rumble v Partnership (t/as HWL Ebsworths) (2020) 275 FCR 423 Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550 Shea v TRU Energy Services Pty Ltd (No 6) (2014) 314 ALR 346 Sperandio v Lynch (No 2) [2006] FCA 1838 State of Victoria (Office of Public Prosecution) v Grant (2014) 67 ALR 102-122 Thomson v Orica Australia Pty Ltd (2002) 116 IR 186 Trade Practices Commission v CSR Ltd (1991) 13 ATPR ¶41–076 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 151 ACSR 407 Western Excavating (ECC) Ltd Sharp [1978] QB 761 Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547 Yorke v Lucas (1985) 158 CLR 661 Andrew Stewart et al, Creighton & Stewart’s Labour Law (The Federation Press, 5^th ed, 2016) Carolyn Sappideen et al, Macken’s Law of Employment (Thomas Reuters, 8^th ed, 2016) James Edelman, McGregor on Damages (Sweet & Maxwell, 21^st ed, 2021)
Division:	Division 2 General Federal Law
Number of paragraphs:	292
Date of last submission/s:	26 March 2021
Date of hearing:	22, 23 March 2021
Place:	Melbourne
Counsel for the applicant:	Mr R. Ternes
Solicitor for the applicant:	Hall & Wilcox
Respondents:	In person

MLG 2511 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	TIANYU XIE Applicant
AND:	ECOT PTY LTD ACN 137 839 644 First Respondent BRUCE TIAN Second Respondent KATE TRIEU Third Respondent

ORDER MADE BY:	JUDGE A KELLY
DATE OF ORDER:	22 FEBRUARY 2022