By Andrew Gray, Partner, of King & Wood Mallesons.
The Federal Circuit Court of Australia imposed significant penalties on an employer for, among other things, failing to pay an employee parental leave and providing false documents to the Fair Work Ombudsman (FWO).
- The decision shows that an employer must ensure they are complying with their obligations and providing their employees with the correct statutory entitlements.
- Employers should never provide false documents to the FWO.
Ms Brar was employed by Noorpreet Pty Ltd (Noorpreet) as a chef under a subclass 187 permanent visa that was sponsored by Noorpreet. On 30 April 2015, the Department of Human Services (DHS) transferred $11,538.90 of parental leave pay for Ms Brar to Noorpreet’s bank account. On 16 June 2015, Ms Brar reported to the DHS that she had not received the parental leave payments. DHS referred the matter to the FWO. During the FWO investigation, Mr Singh, the director of Noorpreet, falsely claimed that the parental leave payments had been made to Ms Brar and provided false documents to the FWO. Noorpreet did not pay Ms Brar her parental leave pay until 13 October 2015, which was more than five months after DHS had transferred the payment to Noorpreet.
Noorpreet and Mr Singh agreed that they had contravened provisions of the Fair Work Act 2009 (Cth), Fair Work Regulations 2009 (Cth) and Paid Parental Leave Act 2010 (Cth) by, among other things failing to pay Ms Brar her Commonwealth-funded parental leave pay, and providing false or misleading documents to the FWO. The Court had to then determine the appropriate penalty that should be imposed on Noorpreet and Mr Singh.
The Court imposed a penalty of $98,700.00 on Noorpreet and $19,740.00 on Mr Singh, after finding that while early admission warranted a small discount, the breaches overall were serious and Mr Singh’s conduct did not show any true acknowledgement of wrongdoing. Ms Brar was vulnerable, as her visa status was dependent on Noorpreet. The parental leave payment was only made to Ms Brar by Noorpreet following intervention by the DHS and the FWO. Mr Singh also created and produced false documents in an attempt to conceal the non-payment. Mr Singh had the money to pay Ms Brar as at 30 April 2015, which was considerably earlier than when the payment was actually made to her. Although Noorpreet was a small business that was no longer operating, and Mr Singh claimed that he could not pay a significant penalty, Mr Singh’s conduct in concealing the breaches stood more significantly. No weight was given to Mr Singh’s expressions of contrition, as the Court held they were self-serving statements and there was no evidence that he had given any apology to Ms Brar.
This article originally appeared on the King & Wood Mallesons website and has been reproduced with permission.