Employer 'wilfully misled' government department
The Western Australia’s Industrial Magistrate (WAIM) has recently imposed penalties against an employer who asked an employee to return the payment for entitlements due to the latter for underpayment.
According to records, the employer notified a state department that the underpayment had been settled before asking for it back.
The issue started when the WA Department of Mines, Industry Regulation and Safety investigated the employer if it had followed relevant employment laws. The investigation revealed that payments to a salaried employee were not sufficient to cover his minimum award entitlements.
The employer, a restaurant operator, notified the department and said an agreement had been reached and payment was made but the employee contacted the said department and said the employer asked for repayment.
The department alleged that the employer “wilfully misled” it, saying it was conduct that “amounted to an obstruction” against the law.
The employer “acknowledged the seriousness” of the act but explained the employee “owed [them] more than the amount of his entitlements due to a separate board and lodging agreement.”
In its decision, the WAIM ruled that the violation involved the employer “deliberately advising” the department that an agreement had been reached and the agreed sum had been paid.
The WAIM found that the employer’s conduct was “intended to and did mislead” the department but said the “behaviour arose from [a] misguided understanding of an employer’s obligations.”
It also added that “although the conduct can be characterised as a form of ‘cash back' arrangement,” the WAIM found there is no evidence of “a widespread established business model seeking to circumvent employees' entitlements.” It said that the conduct occurred “once and was short-lived” but “clearly serious.”
In assessing the amount of the penalty, the WAIM noted the following factors: the nature and extent of the conduct, the circumstances of the case; the size of the business involved; and whether or not the breaches were deliberate, among others.
Considering the said factors, the WAIM imposed a $2,800-penalty against the employer. It also awarded disbursements to the department for costs.
