Court warns employer who failed to comply twice with lawful notice

An employer was cited with a stern warning against the act of deliberately failing to comply with a lawful notice for the second time. The Fair Work Ombudsman (FWO) described the employer’s conduct as “particularly disappointing.”

The court imposed penalties against the employer who the FWO consecutively charged. The said business operates a pizza outlet in the Barossa Valley region.

According to the FWO’s media release, the Federal Circuit and Family Court imposed a $4,620 penalty against Ziad Andary, who operated the takeaway business The Valley Pizza in Nuriootpa, South Australia.

Employer’s failure to comply

The FWO said that the investigation came after the agency received a request for assistance from an affected worker who claimed he was underpaid in his workplace.

“A Fair Work Inspector issued a Compliance Notice to Mr. Andary in July 2021 after forming a belief that the worker, then aged 22 to 23, had been underpaid minimum casual rates and penalty rates for late-night and weekend work entitlements under the Fast Food Industry Award 2010,” the FWO said.

The Ombudsman then imposed a penalty after Andary failed to comply with a Compliance Notice which requires him to back-pay entitlements to the worker who was employed on a casual basis at the pizza outlet, between December 2018 and August 2019, according to the FWO.

“In addition, the Court has ordered Mr. Andary to take the action required by the Compliance Notice, which includes rectifying the underpayment in full, plus interest and superannuation,” it said.

Judge Brown found that the case involved a “deliberate non-compliance” with the notice and said it significantly affected a vulnerable worker who was “largely homeless” during the employment period.

“Occasionally, as he had been kicked out of his previous accommodation, (the worker) would stay overnight at the business, in a backroom, due to him being largely homeless, otherwise he was couch surfing,” Brown said.

Double the trouble

According to the FWO, it was the second time the agency secured a penalty in court against the business operator.

“In 2021, Mr. Andary was penalised $3,500 for failing to comply with a Compliance Notice requiring him to back-pay entitlements owed to a different worker formerly employed at The Valley Pizza,” FWO said.

FWO Ombudsman Sandra Parker reminded business operators that the failure to act on Compliance Notices could equate to a court-imposed penalty, alongside having to back-pay workers.

“We have no tolerance for deliberate non-compliance as occurred in this case,” Parker said. “It is particularly disappointing to again have to take legal action against this employer – and again secure penalties – to ensure a worker receives all their lawful entitlements.”

Parker said that employers should be aware that “protecting workers” remains a priority of the FWO.