Court penalises Yes Insurance after workplace laws breach

The Federal Circuit Court has hit broker Yes Insurance Group and its director with penalties totalling around $28,000 following a workplace laws breach arising from a failure to pay an employee’s wages.

Judge Karl Blake imposed the penalties after the Fair Work Ombudsman pursued legal action over non-compliance with a notice requiring payment of the worker’s entitlements.

“I agree with the submission of the ombudsman that recipients of compliance notices must be under no misapprehension about their obligations to comply with those notices, or to quickly take steps to initiate a review of such notices,” Judge Blake said.

“There is a need to send a message that minimum entitlements must be paid in accordance with law by all employers.”

The ombudsman’s investigation was triggered by a request for assistance from Taaef Hazari, who worked for the brokerage as a full-time insurance salesman between August and October 2020. The Banking, Finance and Insurance Award applied to his employment, the court was told.

A compliance notice dated October 9 was issued to Yes Insurance requiring it to calculate wages and superannuation that Mr Hazari should have received and to show payment had been made by November 16.

On November 9 sole director and shareholder Emma Rita Kimonides emailed the Fair Work Inspector an assessment for $4263.37 for 174.8 hours worked. The calculation didn’t include superannuation owed and the court said Yes Insurance didn’t make a payment to Mr Hazari by the required date.

The judgment says between October 9 and March 3 the following year various communications passed between the ombudsman and the respondents, but the compliance notice was not complied with during the period.

After the start of the legal proceedings, around April 24 last year, South Melbourne-based Yes Insurance paid Mr Hazari $5299.47 for hours worked and annual leave owed, and paid a superannuation contribution of $503.45.

The Fair Work Ombudsman asked the court to impose a penalty set at 70-80% of the maximum that could be imposed for the breach.

Judge Blake agreed to a level set at 70%, penalising Yes Insurance $23,310 and Ms Kimonides $4662, reflecting “the deliberate nature of the breach”, “the lack of contrition” and previous issues.

The business argued it had not immediately complied with the Fair Work notice as the employee had left the firm but failed to return information and/or equipment.

But the decision says a failure to return equipment “does not provide a basis for Yes Insurance to ignore either the terms of the Act, or the compliance notice”.

“There were other options available to the respondents to obtain their equipment,” it says.

The decision also says that while the business and director had never previously had a civil penalty imposed upon them, there had been previous interactions with the ombudsman over employee underpayments, and non-compliance with the terms of another notice.

The court heard that the respondents had entered into a Statement of Agreed Facts, while later disputing if they were covered by the award.

“While this might be a first offence by the respondents, there are aggravating features to which weight must be given,” Judge Blake said.

The decision is available here.