‘Deliberate’ failure to reimburse underpaid worker leads to $41k fine

A Perth-based IT company has received a maximum penalty from the Fair Work Ombudsman (FWO) for failing to comply with a compliance notice.

Perth-based company My IT Partner received a compliance notice from the FWO back in May 2023 after the regulator formed a belief that the business had underpaid the worker’s minimum wages during his employment as a full-time IT helpdesk support role worker between August 2019 and August 2022.

The FWO claimed that the company also failed to pay him any wages for the final three weeks of work he performed.

Despite the compliance notice being imposed on the company to back pay the affected worker, the Federal Circuit and Family Court found that My IT Partner carried out a “deliberate and intentional defiance of the notice”, leading to a $41,250 penalty.

On top of the penalty, the court also ordered My IT Partner to calculate and back pay the entitlements still owed to the worker under the compliance notice, plus interest and superannuation.

“When compliance notices are not followed, we will continue to take legal action to protect employees,” said Fair Work Ombudsman Anna Booth.

“The case highlights that employers who fail to act on these notices – including those who deliberately seek to defy them – risk substantial penalties in addition to being ordered to back pay workers.”

The FWO investigated after receiving a request for assistance from the affected worker.

In the original investigation, which began after the FWO received a request from the affected worker, the inspector also formed a belief that the worker was not paid accrued but untaken annual leave entitlements at the end of his employment.

Judge Sandy Street of the Federal Circuit and Family Court described the non-compliance as deliberate due to its sole director and shareholder, Aaron Fisher, threatening to commence a lawsuit against the FWO if it continued to seek to enforce the back payments.

Street claimed that the “deliberate and defiant refusal” to comply reflected “conduct of a kind that shows there is a very real need for subjective deterrence”.

“The evidence as to continued existence of [My IT Partner] and [its] engaging employees and the absence of any culture conducive to compliance and the role of senior management in the deliberate and intentional contravention in the present case warrants the court imposing the maximum penalty on [the company],” said Street.