The former operators of a café and a deli store in Western Australia have been penalised more than $150,000 for deliberately underpaying eight workers, including an Indian chef that the court termed “wilful disregard” of employees.
The workers had been short-changed a total of $20,036.
WA couple Gemaa and Mark Gumley have been penalised $12,000 and $3,000 respectively and Mr Gumley’s company Koojedda Carpentry Pty Ltd which formerly operated the deli and the café business has been penalised 139,995, the Fair Work Ombudsman said in a statement.
The penalties have been imposed by the Federal Circuit Court after the Fair Work Ombudsman initiated legal proceedings in relation to the Deli and Dallyellup and the café at Bunbury in the southwest of Western Australia.
In his judgment, Judge Lucev noted the underpayment of the eight employees admitted in the proceedings was deliberate.
“This conduct has the characteristic of willful disregard, of deliberateness, rather than reckless disregard, and particularly so with respect to those of the Employees who were not paid at all for various periods,” Judge Antoni Lucev said.
As Koojedda Carpentry is no longer trading, has no known assets and is unlikely to back-pay the workers, Judge Lucev ordered that the Gumleys’ individual penalties be paid to the workers to help rectify the underpayments.
All eight underpaid workers performed work at the Hidden Gem café, with two staff, both chefs, also performing some work at the Dalycious Delicatessen. Both businesses ceased trading last year.
One of the chefs was from India and was in Australia on a 457 skilled regional sponsored work visa.
According to the FWO, the employees variously worked between two and 16 weeks between June 2013 and September 2014, and a 19-year-old employee wasn’t paid for 5 weeks’ work during her 11-week employment.
The company also failed to provide the employees with payslips regularly and failed to provide any documents when asked to respond to notices issued by the Fair Work Ombudsman.
The FWO, in its action against the company, largely relied on the employee’s own record and bank accounts to establish a case of underpayments.
Acting Fair Work Ombudsman Kristen Hannah said the agency took the Gumleys to court as this was not the first time agency had dealt with the couple, having secured in back-payments for workers previously.
Ms Hannah said the underpayment of young and overseas workers was a concerning aspect of the case.
“We treat matters involving underpayment of young and overseas workers particularly seriously because we know they can be vulnerable due to a lack of awareness of their entitlements, a reluctance to complain and language barriers,” she said.
