Quarter of a million dollar payday for teenage worker!

February 26, 2020

A teenager just five months out of school who was underpaid around $8,000 stands to receive a further $240,000 in penalties from his employer.

The employer had failed to pay the teenager for absence from work on a public holiday, penalty rates for when he did work on a public holiday, his entitlement in lieu of untaken annual leave and superannuation.

The employer, Centre Court Care Pty Ltd, is a company trading as Rhino Grass which supplies and installs artificial grass.  It’s a small business and the claim was made not only against the employer but also the sole director and secretary of the company Mr Hastings.

The young man commenced work at Rhino Grass on 15 May 2018 and resigned on 15 January 2019.   He was employed as a warehouse worker and although he wasn’t qualified to operate a forklift, as part of his work he was directed by the employer to do so.

Underpayment of Wages

The teen was engaged on a full time basis to work Monday to Friday from 8.30 am to 5.00 pm with a one hour lunch break.  As would be expected, he didn’t work on Christmas Day or Boxing Day 2018 however he wasn’t paid for those days.  The underpayment which amounted to $311.32 was a breach of the National Employment Standard that an employee is to be paid when absent from work on a public holiday.

The young man resigned from his employment on 15 January 2019 at which time he was owed 10 days of annual leave.  He received his termination pay of $2,633.68 but there was no payslip to show how the amount was calculated.   After going through some complicated calculations the Court determined that overall he had been underpaid $2,983.08 in addition to the unpaid annual leave of $1,458.80 after tax.

The director of the employer Company Mr Hastings was seen as a ‘hands-on boss who was involved in the day to day running of the business.  The Fair Work Act states that a person who is involved in a contravention by the employer is also taken to have contravened that provision.  The Court concluded there was no doubt that Mr Hastings was involved in the contraventions as he was knowingly concerned in them.

The young man had regularly asked Mr Hastings about his outstanding wages as well as emailing him a letter on the issue and attending a meeting with him and his father.  The father had also specifically raised the fact that his son had worked on a Public Holiday in a text message to Mr Hastings.  The Court concluded that Mr Hastings was well aware of the details of the underpayments and therefore was involved in the breaches.

A further breach by the employer was held to be the fact that the young man was not provided with any payslips in the whole of the time he worked there.  This was a breach of the requirement under the Fair Work Act that an employer must give a pay slip to an employee within one working day of their being paid.

Constructive Dismissal

To make matters worse, the Court found that the teen had been forced to resign because of the behaviour of his employer.

From time to time he was asked to drive a forklift in the warehouse even though he didn’t ever have a licence to drive a forklift.

The young man’s evidence was that he arrived at work on 15 January 2019 at 8.15 am before anyone else.  When his Manager Ms Wang arrived about 10.30 am he asked her if she knew about his previous fortnight’s pay which he hadn’t received.  He said that in response Ms Wang raised her voice and shouted at him words along the lines of ‘is that all I cared about’.  He told her that his father was going to take the matter to Fair Work because he was tired of working and not being paid properly.  She told him to get to work using the forklift.  When he said that he wasn’t allowed to use the forklift she said that he had used it before so use it now.

Later, Ms Wang came up to him and asked about some change from a purchase he had made from petty cash the week before.  When he said that there was $9 change from the $60 she had given him she claimed she had given him $80 and said that he had stolen from the company.  She then said that he was irresponsible and pointed at things around the factory asking why they hadn’t been done. He became upset and she told him there was no point crying.

The young man sent a text message to his mother saying that he couldn’t take it anymore.  Later when he was driving to a delivery his father called and said that he had been in contact with Ms Wang who said that she would call the police over the missing money.  When the young man heard that he became upset again and after returning to the warehouse in order to leave the ute keys he walked out.  Ms Wang ran after him screaming that he couldn’t leave because of the stolen money and his father gave her $30 stating that his son would be taking the rest of the day off as stress leave and would be sending a resignation letter.

The same day the young man sent Mr Hastings a letter of resignation.  His evidence was that he felt he had no choice but to resign because of the behaviour of Mr Hastings and Ms Wang towards him.

The Fair Work Act states that a person is dismissed if their employment is terminated on the employer’s initiative or if they have resigned but were forced to do so because of the conduct of their employer.  After underpaying the young man about 20% of his proper net salary, and failing to pay superannuation on his behalf, as well as requiring him to drive a forklift when he didn’t have a licence, he had been put in the position of having no choice but to resign.

Civil Remedy Provisions

A civil remedy provision under the Fair Work Act is a provision that if breached means that the person who is adversely affected can seek an order of the Court for a financial penalty against the wrong-doer.  Any person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision, not just the company or direct employer.  These provisions include situations where an employer takes adverse action against an employee because the employee exercised a workplace right.  In this case, the young man had a right, for example, to inquire about his outstanding pay.

The Court accepted the submissions made on behalf of the young man that while the dollar amounts underpaid were not large, the conduct of the employer should be viewed seriously and be the subject of condemnation.  It was said that this was a case of ‘flagrant and deliberate wage theft’.  The employer’s conduct was made worse by the fact that this was a young worker who was relatively naïve in matters of workplace rights and more vulnerable to exploitation by an unscrupulous employer.

The Court concluded that it was important for employers to understand that if they are caught, it is very expensive to not properly pay employees.  It ordered the business to pay $200,000 and the director Mr Hastings to pay $40,000 on top of the young man’s unpaid wages.

The case highlights just how serious it is for an employer to deny an employee’s workplace rights.  If you are an employee who believes they are being underpaid you can speak to a specialist industrial and workplace at Websters Lawyers to arrange a free initial interview by calling 8231 1363 or request a call by sending through a contact form.

Boyson v Centre Court Care Pty Ltd & Anor [2020] FCCA 229