Annual Leave Entitlements

Federal Court Decision on Employer’s Failure to Pay Annual Leave Entitlements

The Federal Court of Australia recently ruled on a case involving an employer’s failure to pay a worker’s accrued annual leave entitlements upon termination, underscoring the importance of compliance with the Fair Work Act 2009 (Cth) and the severe repercussions of non-compliance.

Case Background

The case focused on the worker’s claims that the employer had dismissed him for exercising his “workplace rights,” imposed unreasonable working hours, and failed to pay his accrued entitlements upon termination. The court found the employer in breach of section 90(2) of the Fair Work Act for not paying the worker the amount equivalent to his accrued but untaken annual leave when his employment ended on December 9, 2021. The owed amount of $8,022.82 was paid only on March 30, 2022, nearly three months after the termination.

Seriousness of Breaching the NES

The court emphasized the seriousness of breaching the National Employment Standards (NES), stating that “any breach of the NES is objectively serious.” Section 90(2) is designed to prevent employers from avoiding their obligation to provide employees with their entitlements upon termination.

Penalty Assessment

In determining the penalty, the court considered various factors including the nature of the breach, the extent of the loss or damage, and the size of the employer. The worker argued for a penalty of 40–55% of the maximum, citing the loss suffered and the need for deterrence. The employer sought a lower penalty, citing the chief operating officer’s unfamiliarity with Australian law, the worker’s modest loss, and the employer’s contrition and lack of prior violations.

The court noted that deliberate contraventions include actions taken with knowledge of the facts leading to the breach, as well as factors like recklessness or negligence.

Balancing the Factors

While the court acknowledged the employer’s ignorance of Australian law, it also recognized the steps taken to rectify the underpayment and the employer’s early admission of the contravention. The chief operating officer had apologized to the worker, and the court did not question the sincerity of the apology.

Need for Deterrence

The court stressed the importance of both specific and general deterrence, stating, “a clear message needs to be sent to [the employer] and the community that ignorance (including mistaken belief) is no excuse.” Employers must understand the law and seek legal advice if uncertain about entitlements.

Court’s Order

The court ordered the employer to pay the worker $17,000, representing approximately 25% of the maximum penalty.

Key Takeaways

– **Compliance with the Fair Work Act**: Essential to avoid significant penalties and maintain employee trust.

– **Ignorance is No Excuse**: Employers must be proactive in understanding and complying with legal requirements.

– **Deterrence**: The court aims to deter both specific and general non-compliance through substantial penalties.

This case underscores the importance of rigorous adherence to employment laws and the severe consequences of non-compliance. It highlights the need for employers to stay informed and seek guidance to ensure compliance with legal obligations.



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