Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 2) [2019] FCA 670

Ahmed v Al-Hussain Pty Ltd t/as The Cheesecake Shop (No 2) [2019] FCA 670

The employer contravened s 323(1) by failing to pay the applicant his wages in full and by failing to pay superannuation, and contravened s 325(1) by unreasonably requiring cashback payments for the benefit of persons related to the employer under threats to terminate employment and jeopardise the applicant's visa. Mr Zahid, and after 8 June 2017 Mr Bhatti, were involved in those contraventions under s 550 because they controlled or managed the employer, knew the applicant's contractual entitlements and actual payments, and induced or were knowingly concerned in the contraventions by making the cashback demands and threats.

Jurisdiction
Australia
Judgment Date
18 April 2019
Procedural Posture
Fair Work Proceeding Alleging Contraventions of Ss 323 and 325 of the Fair Work Act 2009 (cth) / Liability Determined; Parties Directed to Provide Draft Orders and Written Submissions as to Penalty
Outcome
The applicant established contraventions of ss 323(1) and 325(1) of the Fair Work Act 2009 (Cth). The Court indicated judgment should be entered against the employer and Mr Zahid jointly and severally for identified underpayments, cashback payments and unpaid superannuation, and against the employer and Mr Bhatti...
Legal Topics
['underpayment of Wages' 'unpaid Superannuation' 'cashback Payments' 'visa Sponsored Employee Vulnerability' 'involvement in Contraventions of Civil Remedy Provisions' 'pecuniary Penalties']
['industrial Law' 'employment Law'] ['underpayment of Wages' 'unpaid Superannuation' 'cashback Payments' 'visa Sponsored Employee Vulnerability' 'involvement in Contraventions of Civil Remedy Provisions' 'pecuniary Penalties']

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Procedural Posture

Fair Work Proceeding Alleging Contraventions of Ss 323 and 325 of the Fair Work Act 2009 (cth) / Liability Determined; Parties Directed to Provide Draft Orders and Written Submissions as to Penalty

Legal Issues

  1. 1 ['Whether the employer failed to pay the applicant wages and superannuation in full contrary to s 323(1) of the Fair Work Act 2009 (Cth).' 'Whether the employer unreasonably required the applicant to make cashback payments out of wages contrary to s 325(1) of the Fair Work Act 2009 (Cth).' "Whether the second and third respondents were involved in the employer's contraventions within the meaning of s 550 of the Fair Work Act 2009 (Cth)." "Whether the applicant's evidence about underpayments and cashback payments should be accepted having regard to s 140 of the Evidence Act 1995 (Cth)."]

Ratio Decidendi

The employer contravened s 323(1) by failing to pay the applicant his wages in full and by failing to pay superannuation, and contravened s 325(1) by unreasonably requiring cashback payments for the benefit of persons related to the employer under threats to terminate employment and jeopardise the applicant's visa. Mr Zahid, and after 8 June 2017 Mr Bhatti, were involved in those contraventions under s 550 because they controlled or managed the employer, knew the applicant's contractual entitlements and actual payments, and induced or were knowingly concerned in the contraventions by making the cashback demands and threats.

Court Disposition

The applicant established contraventions of ss 323(1) and 325(1) of the Fair Work Act 2009 (Cth). The Court indicated judgment should be entered against the employer and Mr Zahid jointly and severally for identified underpayments, cashback payments and unpaid superannuation, and against the employer and Mr Bhatti...

Orders

  • ['The parties provide agreed orders to give effect to the reasons delivered orally today and, in default of agreement, each party file and serve the draft orders it proposes be made on or before 17 May 2019.' 'The applicant file and serve written submissions as to penalty (limited to 5 pages) on or before 10 May...