Former fish and chip shop operator grilled by judge, fined $95,000

The former operator of a fish and chip shop in regional NSW has been fined a total $94,990 for underpaying three staff members.

Ian Andrews, the former manager of Thurgoona Takeaway – which has ceased trading – was handed down a $15,048 fine in the Federal Circuit Court in Sydney after proceedings were initiated by the Fair Work Ombudsman.

In addition, Andrews’ company Barry Scott Distributors Pty Ltd has been penalised to the tune of $79,942.

The business has also been ordered to back-pay three former employees almost $70,000 in unpaid wages and superannuation.

The former employees were paid a flat rate of $1000 a week, despite normally working more than 50 hours a week. The underpayments occurred between July 2011 and May 2012.

Handing down the penalties, Judge Tom Altobelli said the underpayments were “deliberate, or at the very least reckless”.

“Penalties in this case should be imposed on a meaningful level so as to deter other employers from committing similar contraventions,” he said.

Judge Altobelli said the Fair Work Ombudsman had been requesting Andrews back-pay his three employees for more than 18 months and it was “extraordinary” the underpayments had still not been rectified. He also pointed out that the failure to make any superannuation contributions was particularly serious.

“Superannuation payments are designed to provide employees with security when they retire and are no longer able to earn an income.”

Judge Altobelli said there was no evidence of remorse from Andrews. In addition, the Fair Work Ombudsman has received five new underpayment complaints since 2012 relating to the company – which operates a number of enterprises in the Albury area.

Two of the five new complaints have been resolved by way of back-payments. The Fair Work Ombudsman has commenced further legal action in relation to the remaining three.

Workplace lawyer Peter Vitale told SmartCompany the matter went to court because of “persistent delays” by the employer when responding to demands to pay employees their entitlements.

“Furthermore, the Fair Work Ombudsman took the view that the breaches were deliberate or at least reckless,” he says.

“The underpayments were significant amounts for the employees concerned.”

Vitale says the business operator was fined in addition to the company because he is “effectively the directing mind and will of the company” and was personally responsible for the breaches of the Fair Work Act.

“The Ombudsman now routinely litigates against directors who have a personal involvement in the breach,” he says.

SmartCompany attempted to contact Barry Scott Distributors for comment. However, the company’s phone number was disconnected.

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