The Industrial Magistrate has imposed penalties on a restaurant owner (respondent), after he notified the Department of Mines, Industry Regulation and Safety (claimant) that an underpayment of an employee’s entitlements had been settled, before proceeding to ask the employee to return the payment.

Background

The claimant carried out an investigation to ascertain whether the respondent had observed the provisions of the Industrial Relations Act 1979 (WA) (the Act) and the Restaurant, Tearoom and Catering Workers’ Award 1979 (WA) (the Award). The investigation indicated that payments to a salaried employee were not sufficient to cover his minimum award entitlements.

The respondent notified the claimant advising that an agreement had been reached with the employee and that half of the identified underpayment would be paid to him. In March 2021, the respondent notified the claimant when payment was made. In April 2021, however, the employee contacted the claimant to indicate that the respondent had requested the settled sum be repaid.

Contentions

The claimant alleged that the respondent wilfully misled the claimant. The claimant alleged that this conduct amounted to an obstruction pursuant to s 102(2)(a) of the Act and sought penalties.

The respondent acknowledged the seriousness of the contravention. The respondent indicated that the employee owed the partnership more than the amount of his entitlements due to a separate board and lodging agreement.

Findings

Her Honour, Industrial Magistrate Hawkins, considered the non-exhaustive range of factors to determine whether the conduct calls for the imposition of the penalty and if so, the amount, these being: 

• The nature and extent of the conduct which led to the breaches;
• Circumstances in which the conduct took place;
• The nature and extent of any loss or damage sustained because of the breaches;
• Whether there has been any similar previous conduct by the respondent;
• Whether the breaches are properly distinct or arose out of one course of conduct;
• The size of the business involved;
• Whether or not the breaches were deliberate;
• Whether senior management was involved in the breaches;
• Whether the party committing the breach had exhibited contrition;
• Whether the party committing the breach has taken corrective action;
• Whether the party committing the breach had cooperated with enforcement authorities; and
• The need for specific and general deterrence. 

Her Honour noted that the maximum penalty pursuant to s 83E(1)(a) of the Act for a contravention under s 102 is $5,000. Considering the above factors, her Honour found that a penalty of $2,800 should be applied. Her Honour also found that costs sought by the claimant of $187 by way of disbursements, should be awarded.

The decision can be read here.