New v Edition Coffee Roasters Pty Ltd [2021] FCCA 777
Headnote
Voice Lawyers represented the Applicant, in an industrial law matter in the Federal Circuit Court of Australia. It concerned various breaches of the Fair Work Act 2009 (Cth) (‘the Act’) by the Applicant’s former employer, the First and Second Respondents. The Court held that Edition Coffee failed to give notice for the termination of employment, did not pay weekend penalty rates for work on weekends and public holidays, did not pay overtime rates, and did not ensure the Applicant performed ordinary hours of work under the Award. It also ruled that Edition Coffee took adverse action against the Applicant.
Catchwords
INDUSTRIAL LAW – Default judgment application against Second Respondent – Second Respondent aware of proceeding and had previously participated - default judgment ordered against Second Respondent – application for joinder of proposed Sixth Respondent – no arguable case against the Proposed Sixth Respondent – joinder refused – removal application of Third, Fourth and Fifth Respondents – removal application granted.
COSTS – costs application brought by the Third, Fourth, and Fifth Respondents – Respondents bear their own costs.
ACCESSORIAL LIABILITY – Second respondent – was recognised as a person involved in each of the above contraventions of the Act by the First Respondent pursuant to 550(2) of the Act.
Background
The Applicant, Jack New, was represented by Voice Lawyers against the First Respondent, Edition Coffee Roasters Pty Ltd and the Second Respondent, Daniel Jackson.
The Applicant was a chef for the First Respondent but suffered a deteriorating relationship with the First Respondent and his employer, the principal of which was the Second Respondent.
The second respondent was recognised as a person involved in each of the contraventions that the first respondent was involved in under s550(2) of the Act. Highlighting the importance and severity of accessorial liability.
The Applicant was demoted from executive chef to head chef with a reduction of wages and was ultimately terminated for serious misconduct. The Applicant recounted instances of inappropriate conduct such as unreasonable demands and threats made against him by the Respondents.
The Applicant claimed compensation and pecuniary penalties for adverse action against Edition Coffee and sought compensation for underpayment of wages and other entitlements.
Key Arguments and Outcome
The Court ruled unambiguously in favour of the Applicant.
The Court held that Edition Coffee failed to give two weeks of notice for the termination of employment, did not pay weekend penalty rates to the Applicant for work on weekends and public holidays, did not pay overtime rates, failed to provide adequate meal breaks, and did not ensure the Applicant performed ordinary hours of work under the Award.
Moreover, the Court held that Edition Coffee took adverse action against the Applicant, such as demotion, removal of responsibilities, and harassment, failed to keep employee records as required, and did not provide adequate payslips.
The court determined that the respondent had breached the following applications of the Fair Works Act,
s.44 of the Fair Work Act 2009 (Cth)
s.45 of the Act by contravening the Restaurant Industry Award 2010
s.340(1) of the Act by taking adverse action against the applicant.
s.535 of the Act by failing to make and keep employee records as required.
s.536 of the Act by failing to provide payslips containing the information required by reg. 3.46 of the Fair Work Regulations 2009.
Based on the above, the courts provided the following ruling for compensation for the aforementioned breaches
(a) by reason of the contravention of s.44 of the Act, in relation to the payment in lieu of notice, a loss in the amount of $2,249.50;
(b) by reason of the contravention of s.45 of the Act:
(i) in relation to weekend penalty rate entitlements under cl 34 of the Award, a loss of entitlements in the amount of $8,393.00;
(ii) in relation to overtime entitlements under cl 33 of the Award, a loss of entitlements in the amount of $28,340.60;
(iii) in relation to paid meal breaks entitlements under cl 32 of the Award, a loss of entitlements in the amount of $8,277.90; and being a total loss suffered of $47,261.00 (2,249.50 + 45,011.50).