Western Australian Industrial Relations Commission

Pecuniary penalties ordered for failure to pay wages and long service leave

The Industrial Magistrate has ordered that pecuniary penalties be paid to the claimant, a property manager, in relation to her claim for long service leave entitlement (LSL Entitlement) and wages owed for her last week of employment.  

The claimant was employed by the respondent from December 1996 to March 2016. In May 2016, the claimant made a claim for statutory entitlements totalling $51,848.76 on account of her LSL Entitlement and wages of $1,885.41 owed for her last week of employment.

After the respondent failed to comply with directions to lodge witness statements, a default judgment was entered. In March 2020, orders were made that the respondent pay the amounts claimed by the claimant together with pre-judgment interest.

The claimant’s case also included a claim for pecuniary penalties for contravention of the Fair Work Act 2009 (Cth) (FW Act) against the respondent.

In determining the appropriate pecuniary penalties against the respondent, Industrial Magistrate Flynn considered relevant legal principle, the nature and extent of the contravening conduct, the relatively large size of the entitlement, and the length of delay in payment.

However, Flynn IM also gave significant weight to the fact that approximately two-thirds of the entitlement had already been paid to the claimant, and an amount equating to the balance had been remitted to the ATO.

Flynn IM determined that a penalty fixed in the sum of $13,500 (25% of the maximum penalty) in respect to the LSL Entitlement, and $1,000 for the unpaid wages entitlement, was a proportionate reflection of the gravity of the contravening conduct.

His Honour dismissed the claimant’s applications for pecuniary penalties against the respondent’s director and that he be held to be jointly and severally liable for costs in his individual capacity.

Flynn IM also considered whether the respondent ought to pay costs under the FW Act on the basis that the respondent’s defence of the claim was an ‘unreasonable act that caused the claimant to incur the costs’.

His Honour found that the respondent had demonstrated an unwillingness to consent to an order for payment of the claimant’s entitlements after the determination of a related Supreme Court proceeding in November 2019, which subsequently caused the claimant to incur costs to continue to prosecute the proceedings.

An order was made that the respondent pay the pecuniary penalties and costs totalling $21,043 to the claimant.

The decision can be read here.

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