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Business news, business advice and information for Australian SMEs | SmartCompany

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    A salesman who brought an unfair dismissal case against his employer after he took carer’s leave following his wife’s emergency C-section has been awarded compensation by the Fair Work Commission.

    David Johnston was awarded 20 weeks’ pay from employer Macquarie Technology Group International (which is not related to Macquarie Group Australia) after he was found to have been unfairly dismissed for taking a leave of absence in January this year.

    Johnston had been employed with the company for five-and-a-half years when his wife gave birth to a son by an emergency caesarean operation, 10 weeks premature.

    The family had four other young children at home, including three pre-schoolers, and Johnston had applied for and received an approval for leave to stay at home to care for them until January 3, 2014.

    When Johnston didn’t return to work until January 16, Macquarie Technology argued Johnston had abandoned his employment by not returning to work after his approved leave entitlements.

    Questioning the grounds of unfair dismissal, Macquarie Technology managing director Paul Wallace told SmartCompany Johnston was never dismissed.

    “The Applicant did not lead any evidence whatsoever that demonstrated that he had been dismissed. The simple fact is that he failed to return to work after committing serious misconduct,” says Wallace.

    He claims Johnston had “obvious ease” to return to work given that he worked from a home office and says Johnston’s actions show he never intended to return to work. He also claims Johnston transferred over 80% of the company’s customers to a competitor.

    “The judgement deliberately fails to point to a date where the claimed dismissal occurs,” says Wallace, who believes some of the statements in the judgement are misleading and may potentially demonstrate malfeasance.

    "It's also unfair for the Judgment to completely leave out Johnston's admission to misleading the Commission in relation to income streams received, whilst under Oath."

    Macquarie Technology argued Johnston was not entitled to paid personal/carer’s leave as the circumstances relating to his wife’s hospitalisation did not amount to an “unexpected emergency” within the terms of the Fair Work Act.

    But Justice Boulton found the dismissal was “harsh, unjust or unreasonable” because Johnston’s failure to return to work 10 days after his accrued annual leave had run out “did not provide a valid reason for dismissal.”

    Boulton said Johnston was given no prior notice by Macquarie it would treat him as having “abandoned” his employment if he did not return to work soon after January 3.

    The judge also found it was unreasonable because Johnston was entitled to take some of his accrued personal/carer’s leave in the circumstances and the company had failed to provide a proper opportunity for Johnston to answer or to respond to the allegations.

    Wallace says the company will be appealing the decision and will be filing a complaint with the Attorney General’s office as well as with the President of the Fair Work Commission.

    “This is the most controversial judgement ever handed down in an unfair dismissal case,” says Wallace.

    He says the judgement sets a dangerous precedent, demonstrating that serious misconduct and an abuse of process by an employee is “utterly irrelevant” & that paid paternity leave via back door provisions have been authorised by this Judgment".

    TressCox Lawyers partner Rachel Drew told SmartCompany the judgment shows the commission has taken the view the employer has not had proper regard to their obligations under the Fair Work Act and hasn’t considered issues such as personal carer’s leave.

    “At the same time, there does appear to be a lack of communication on the employee’s part,” says Drew.

    “Through better communication on behalf of both parties, this perhaps could have been avoided.”

    “Unexpected events occur to employees frequently, so employers need to make sure they respond to the events carefully and in a very conscious way."

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    The Federal Court has issued an injunction against the former manager of a company, who launched a small business before leaving his old job, from using confidential information in his new jobs until February 2015.

    The case follows research by PwC showing one in four (23%) of new employees leave their jobs within the first year, making the issue of staff departing with company secrets a salient one for many businesses.

    Since 2011, Matthew Aladesaye served as the reliability manager for mechanical engineering consultancy business APT Australia. His duties were to identify and secure business opportunities with new and existing clients.

    In January 2013, Aladesaye began a new business directly competing with APT, called Advanced Vibration & Reliability Engineers (AVRE). By January this year, APT’s general manager, Geoff Soper, noticed business was drying up in APT’s Adelaide operations, where Aladesaye was employed.

    During February and March of this year, Aladesaye travelled to Nigeria for business. An employee at APT discovered during the trip Aladesaye allegedly conducted his own business under the name the “Vibration Institute of Nigeria”.

    In May, Aladesaye gave four weeks’ notice of his resignation and was asked to hand over his company-provided mobile phone and laptop. Redirected emails and phone calls appear to show.

    Around the same time, Soper claims he spoke to a client Aladesaye had previously worked with. When discussing work that needed to be done in the future, Soper was surprised to hear the client say “Matthew has already done it”.

    Soper wrote to Aladesaye requesting he cease dealing with APT’s clients for a period of 12 months and deliver up all of APT’s confidential information and intellectual property held by him.

    During the court case, APT argued Aladesaye had breached his employment contract, which stated he was to: “devote the whole of your time, attention and skills to the duties and must not whilst in the company’s employment take on any other employment, engage in any other business activity… unless otherwise agreed with the Directors of the company.”

    Aladesaye also signed a confidentiality agreement, which stated: “All inventions, improvements, designs, creations and other developments relating to or deriving from any of the business systems or technology used by the company at any time during your employment or within a reasonable time thereafter, shall be the property of the company.”

    Meanwhile, Aladesaye claimed he was providing services to customers who were dissatisfied with APT and that the work was his sole source of income.

    In the decision, Justice Lindsay Foster found the damage caused by Aladesaye continuing to deal with his customers would be “severe and irreparable” for APT.

    “APT has legitimate and reasonable concerns that, if the defendant is free to continue dealing with APT’s existing and former clients pending the final determination of this proceeding, the damage will be so severe and irreparable that little could be done to reverse its impact,” Foster said.

    “Against this, all that the defendant puts forward is the fact that the business which he has established and pursued in breach of his duties to APT is his only source of income at present. That is hardly a significant factor to be weighed in the balance, in the circumstances of this case.”

    Employment lawyer Peter Vitale told SmartCompany it’s important to realise no-compete clauses can extend beyond when a person’s employment with a business is terminated.

    If an employee uses confidential information to build their own business, Vitale says the courts are likely to grant an injunction for a longer period, known as a “springboard doctrine”.

    “I think it’s an example of a case that demonstrates that an employee is not entitled to engage in competition with their employer while they’re still employed,” Vitale says.

    “To use confidential information of an employer in furthering a competitor is a very serious breach of an employment contract.

    “Any employee looking to gain a head start needs to be extremely careful because the courts are alive to the threat and will make orders to prevent someone taking advantage of that if it’s a head start.”

    SmartCompany contacted APT for comment but did not receive a response prior to publication.

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    A small business operator in Darwin will face court in December for allegedly paying his young, overseas workers less than $5 an hour.

    The Fair Work Ombudsman alleges the operator of Scott’s Painting Service, Scott Davenport, paid three workers $450 for 134 days’ work, which equates to hourly rates of between $4.62 and $4.71.

    It also alleged a fourth worker was paid $300 for five days’ work, which works out to be $11.54 an hour.

    The workers were French nationals in their 20s in Australia on 457 working holiday visas. The underpayments are alleged to have occurred between December 2013 and January this year.

    The business engaged the workers to perform painting and general labouring duties at a local college. The Fair Work Ombudsman investigated the matter after the workers sought help.

    Rachel Drew, partner at TressCox Lawyers, told SmartCompany the Fair Work Ombudsman regards overseas workers as a vulnerable group.

    “Working visa holders are typically young, may not have English as a first language and have little opportunity to understand and enforce their workplace rights,” she says.

    “The ombudsman is ready and willing to investigate and commence court proceedings against businesses who exploit them.”

    Drew says it is very important that employers who use overseas labour know the correct wages and entitlements for this particular group. 

    “Overseas workers are entitled to the same wages and conditions as if they were Australian residents, and there are no exceptions because of the temporary nature of their engagement,” she says.

    Fair Work alleges that after initially cooperating with the ombudsman and agreeing to rectify the underpayments, the operator of Scott’s Painting Service ceased cooperating and did not make any back-payments to the former employees.

    In addition, the business operator also allegedly failed to respond to a notice to produce documents issued by Fair Work inspectors in March.

    Drew says the employer watchdog focuses on ensuring employers rectify underpayments where they are found. 

    “Where an employer provides full cooperation to the ombudsman, and engages reasonably with the ombudsman’s investigators in relation to the calculation of correct entitlements, the ombudsman is less likely to prosecute that employer,” she says.

    “If the only way to ensure an employer cooperates or rectifies an obvious underpayment is to commence a court claim, the ombudsman will do so. That does not mean employers need to simply agree with the ombudsman.  The employer is entitled to put its case to the ombudsman.”

    Fair Work Ombudsman Natalie James said in a statement an attempt was made to resolve the matter outside of court, but this was not successful.

    “Our inspectors attempted to engage with this business operator to try to resolve the payment matters by agreement and obtain the documents required for our investigation, but were not able to secure sufficient co-operation,” she says.

    “Young and overseas workers can be vulnerable if they are reluctant to complain or not fully aware of their workplace rights, so we place a high priority on taking action to protect their workplace rights.”

    A directions hearing will be held in the Federal Circuit Court in Darwin on December 1. The business operator faces a maximum penalty of $10,200 per breach.

    SmartCompany contacted Scott’s Painting Service this morning, but did not receive a response prior to publication.

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    Popular retail chain Toys R Us has been fined $10,200 after it was found to have sold cots that were at risk of causing serious injury or even death to infants.

    The Australian Competition and Consumer Commission issued an infringement notice to the business following an investigation into whether the ‘Nantucket 4-in-1’ household cot complied with mandatory safety standards

    Toys R Us sold the cots online and in its physical stores between February and November 2013. The business recalled the Nantucket cots after the ACCC found the products could cause injuries to young children from falls, entrapment or suffocation.

    Toys R Us has provided a court enforceable undertaking to the consumer watchdog, which states the business will continue to offer free collection, affected costs and refunds to customers. The company has also agreed to provide further notices to consumers about the recall, and enhance its product safety measures.

    More than 5000 household cots have been recalled since 2013 as a result of the ACCC’s cot surveillance program.

    Alistair Little, partner at TressCox Lawyers, told SmartCompany there are serious financial and reputational risks to a business if its products do not comply with safety standards.

    “If you don’t respond quickly, there is always the possibility of a mandatory recall being imposed – which is even more costly than a voluntary recall,” he says.

    “In addition, not responding quickly increases the risk that the ACCC will take proceedings to impose fines. Dimmeys was fined $3 million for breaching product safety laws in 2013.”

    Melissa Monks, special counsel at King & Wood Mallesons, told SmartCompany it is fortunate for Toys R Us that its failure to comply with safety standards did not result in any serious injuries – or worse – deaths.

    “Product safety is one of those areas where a business is well advised to do more than less,” she says.

    “While regulatory enforcement actions and potential class actions are significant and can end in relatively big penalties, compensation or other onerous orders, it is the huge fall out from negative PR and the loss of consumer confidence and trust in your brand that is very hard to recover from in the long term. While a product recall is a significant decision for a business to make… acting swiftly will minimise both the legal and commercial risks.”    

    In a statement, ACCC deputy chair Delia Rickard said retailers have a duty to adopt and maintain a comprehensive compliance program so they do not breach safety standards.

    “It is disappointing that the Toys R Us compliance system failed to identify this problem. Companies must have quality assurance systems that can ensure the integrity of their supply chain and that important product safety standards are complied with.”

    A number of businesses issued product recalls this year. In May, major Australian retailers including Myer and Target recalled more than 50,000 jeans and pillow cases after it was found the products were made with dyes that contained hazardous chemicals. Last month, a Cairns-based solar power company issued a product safety recall notice after it was discovered their circuit breakers had the potential to catch fire.

    SmartCompany contacted Toys R Us for comment but did not receive a response prior to publication.

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    A Melbourne-based security business is facing court action and a $51,000 penalty after it allegedly failed to co-operate with a Fair Work Ombudsman investigation into possible sham contracting activity. 

    The employment watchdog launched the investigation into Bona Group, trading as Auslink Protective Services, after a security worker lodged a complaint regarding sham contracting activity in a number of the company’s Queensland locations, including construction on the Gold Cost light rail.

    The ombudsman made a bid to secure voluntary co-operation with the security firm in April this year, but after these attempts failed, it issued Auslink Protective Services with Notice to Produce documents relating to the investigation within 17 days.

    The company allegedly did not respond to either the notice or a follow-up letter sent by the regulator in May.

    Business operators must comply with notices issued by the Fair Work Ombudsman or make a court application to challenge a notice, under the Fair Work Act.

    The ombudsman has not released any details of the sham contracting allegations, but said the company will face a penalty of up to $51,000 for not cooperating with the investigation.

    M+K Lawyers partner Andrew Douglas told SmartCompany sham contracting occurs when an employer engages a worker as contractor when they are legally seen to be an employee, paying them in a manner below their statutory entitlements.

    “It is known to be common within the security and cleaning industries,” says Douglas.

    Douglas says it is easy for an employer to misunderstand the definition of an ‘employee’, as it has different definitions under each piece of law, such as laws relating to payroll tax, the superannuation guarantee, workers compensation and safety.

    But Douglas says it is fairly easy to prove if a worker should have been deemed an ‘employee’ and managers can be found to be personally liable if it is proven they were aware of that classification.

    “People don’t think they have to consider what a person would be entitled to as an employee, but an employer creates a potential offence by choosing to pay less than that entitlement.”

    Douglas says small business owners must know that if they do not support a Fair Work Ombudsman inquiry, the watchdog has the power to compel them to.

    He also says there is less chance of prosecution if it is found an employer made a mistake not knowingly and then immediately made changes to rectify the situation.

    “But if you resist and fight it, it is more likely that will factor into a penalty.” 

    SmartCompany contacted Auslink Protective Services but did not receive a response prior to publication.

    A directions hearing is listed for the matter in the Federal Circuit Court in Brisbane on November 10.

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    New South Wales Police have launched an investigation into threats made against the Byron Bay Cookie Company over its halal-certified biscuits.

    Last month, the Byron Bay Cookie Company received a barrage of angry comments on its Facebook page for producing halal-certified Anzac biscuits.

    “What a disgrace. Halal certified Anzac biscuits?!! Seriously how disrespectful!!!”, one Facebook commenter said.

    Following the incident, the company received messages of support from many in the community, including the NSW Chamber of Business, Byron Shire Council Mayor Simon Richardson and federal MP Justine Elliott.

    Now the police are investigating the abuse received by Byron Bay Cookies staff.

    “Police were alerted to all the incidents (on Wednesday October 22) after staff became concerned about the frequent and abusive nature of the messages,” Detective Inspector Brendon Cullen said in a statement published by ninemsn.

    “Officers from Tweed/Byron Local Area Command attended and commenced inquiries.

    “An investigation is underway, and police have a number of lines of enquiry that they are following. Anyone with information is urged to contact police.”

    The Byron Bay Cookie Company declined to comment on the police investigation but a company representative said its products have been halal certified for almost 10 years.

    “Byron Bay Cookies is fortunate enough to enjoy a healthy export market that’s allowed us to become one of the larger employers in Byron Bay. This is why halal certification is important to our business,” the representative said in a statement.

    “Halal certification is an identification mark for consumers similar to the gluten free and Heart Foundation Tick symbols. All Byron Bay Cookie products are clearly labelled with the halal certification symbol.

    “Alongside this, we also hold a number of other important food manufacturing certifications including [Hazard analysis and critical control points] and [British Retail Council] – all necessary as part of operating a successful business.”

    The biscuit maker also explains it works with the Halal Certification Authority Australia, an accredited provider recognised by the Australian government, which audits its site.

    Byron Bay Cookie Company says the yearly fees are not exorbitant and are on par with fees for other certification bodies.

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    The Administrative Appeals Tribunal has affirmed an Australian Security and Investments Commission ban on former Astarra Asset Management (AAM) director Eugene Liu, as the fallout from the collapse of Trio Capital continues.

    Liu was a director and chief investment strategist of AAM from July 2006 until it was liquidated in December 2009, with the company in turn managing the Trio Capital subsidiary Astarra Strategic Fund (ASF).

    Over 90% of the assets of ASF were invested in offshore-based hedge funds. These funds were controlled by a man named Jack Flader, who allegedly used the money to purchase shares at inflated prices. Many of these investments proved to be worthless.

    As a result, Trio Capital collapsed in June 2009, taking a total $176 million from more than 6000 investors. A joint parliamentary inquiry at the time described it as the "largest superannuation fraud in Australian history".

    Following the collapse, administrators were unable to locate $118 million invested by ASF in a company based in the British Virgin Islands.

    Subsequently, AAM was one of six managed investment and superannuation funds holding $260 million wound up by Trio Capital’s administrators in 2010.

    As a result of the collapse, an ASIC investigation led to 11 people in total being jailed, banned from providing financial services, disqualified from managing companies or agreeing to remove themselves from the financial services sector.

    Among the 11 was Liu, who was handed a lifetime ban from providing financial services in March 2013.

    ASIC’s investigation found Liu allegedly engaged in:

    • dishonest conduct with respect to incorrect statements made in the ASF Product Disclosure Statement
    • dishonest conduct and conduct which was misleading or likely to mislead regarding a research report about ASF
    • dishonest conduct in receiving more than $388,041 in payments outside his salary, as a reward for his involvement in the investment of ASF assets in certain funds; and
    • dishonest conduct and conduct which was misleading or likely to mislead in hiding where ASF investment money would ultimately be placed.

    Liu appealed the decision to the Administrative Appeals tribunal, on the grounds claiming he: “Was not afforded procedural fairness, the delegate made findings which were not supported by the evidence and the delegate erred in concluding that Mr Liu intended to mislead investors and acted dishonestly.”

    AAT Senior Member Jan Redfern was scathing of Liu in her findings on the case.

    “There is no evidence to suggest that Mr Liu has reformed or that he admits and is remorseful about his conduct,” Redfern says.

    “He takes no responsibility for the significant losses of investors in ASF. Mr Liu maintained that he had done nothing wrong in his submissions before the delegate and in these proceedings.

    “In this case, I have found there is reason to believe Mr Liu is not of good fame or character. Accordingly, a permanent banning order is appropriate in the circumstances of this case.”

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    A blind woman has filed an unlawful discrimination claim against supermarket giant Coles after claiming she faced a range of difficulties ordering groceries from the retailer’s website, including the process taking up to eight hours to complete.

    If the court action is successful, it could have a broader impact on the legal obligation of companies to make their websites accessible for the blind or visually impaired.

    Gisele Mesnage, who has been legally blind since birth, has lodged the case in the Federal Court of Australia. Her lawyer, Michelle Cohen from the Public Interest Advocacy Centre, told SmartCompany the action was taken after a complaint to the Australia Human Rights Commission failed.

    “Gisele is talking legal action as the last resort,” says Cohen.

    Cohen says Mesnage has being using Coles online shopping since 2008 and has been in communication with the supermarket about its accessibility since then.

    Coles made its online shopping process accessible for the blind in 2010, but a 2013 upgrade removed some of those features from the website. Cohen says the changes subsequently made it extremely difficult for Mesnage to create an order and lodge the order independently.

    “When the site was accessible, she [Mesnage] could place and lodge an order in three hours using a screen reader. Since the change in 2013, she has either been unable to complete an order or found it extremely difficult, taking up to eight hours [on some occasions].”

    Cohen says the claim is essentially about a company’s obligation to make online shopping, an essential service for the blind, available to those with a disability.

    “The claim really is about equality,” she says. “It’s about independence and freedom for people with a disability.”

    Mesnage wants Coles to make accessibility a high priority, according to Cohen, and allow her to place an order within a three hour period.

    “We want them to comply with the Web Content Accessibility Guidelines, as set down by the Australian Human Rights Commission,” says Cohen.

    She says all companies with a commercial website offering a service should pay attention to accessibility. But while this should be kept in the forefront of a small business owner’s mind, Cohen says the Disability Act requires services to be provided on an equal basis to the extent it is reasonable, taking into account the size and resources of the company.

    “We do expect a higher standard from Coles, given they are one of the two leading supermarket chains.”

    A Coles spokesperson said the supermarket is committed to providing an outstanding service to all of its customers.

    “Coles has made a significant investment to provide a great online shopping experience for all of our customers, including many who are vision impaired or have other disabilities,” the spokesperson said in a statement.

    “Coles recognises and endorses the importance of online accessibility, and we are continually working to improve our online grocery shop, including improvements to the accessibility of the website. We work with experts in this field to make our site usable by people with disabilities.

    The supermarket said it will review the documents lodged with the court and respond in due course.

    The first hearing date is set for December.

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    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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    A court has awarded a Sydney woman $733,723 in damages after it found she was repeatedly sexually harassed, intimidated and bullied by her employer.

    New South Wales District Court Judge Leonard Levy found insurance firm WD Gelle Insurance & Finance Brokers breached its duty of care towards the employee, Janette Trolan.

    Trolan told the court her boss had put his hand up her dress and told her he wanted to have sex with her because he thought she needed a baby.

    It was also alleged her boss had turned up at her house uninvited and sought to obtain entry to her home on the day she left work on workers' compensation.

    Judge Levy found the actions of Trolan’s boss, Warren Gelle, were uninvited, unprovoked and unwelcome.

    “He was, in effect, her employer as he was the controlling mind of the defendant company which had the duty of care to provide and maintain a safe workplace,” said Levy in his judgment.

    SmartCompany contacted WD Gelle Insurance & Finance Brokers, and managing director Warren Gelle said the company would be appealing the decision.

    Emma Starkey, senior associate employment lawyer at Maurice Blackburn, told SmartCompany the message for small business employers from this case is to keep sexual harassment in the front of mind.

    “I think the message for small business owners is they have an obligation to provide a safe workplace, and that includes a workplace free from sexual harassment,” says Starkey.

    Starkey says while there is no “one-size-fits-all solution”, employers must “take proactive steps to stamp out sexual harassment”. These could include having a well-communicated sexual harassment policy, training staff and implementing mediation.

    There has been a recent jump in the compensation figure awarded to victims of workplace sexual harassment, according to Starkey, owing to a number of high profile cases in the federal court.

    “It reflects an increased awareness by the court about the impact sexual harrasment can have on an individual.”

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    The consumer watchdog has launched legal proceedings in the Federal Court against Europcar Australia claiming a number of terms in its car rental contracts are unfair.

    The Australian Competition and Consumer Commission claims Europcar has engaged in misleading or deceptive conduct about the liability cover provided to car hire customers.

    In particular the ACCC is targeting Europcar’s “Damage Liability Fee" of up to $3650 if a car is damaged or stolen, or if there is third party loss, irrespective of fault and terms making the consumer fully liable to where a consumer breaches the rental contract, no matter how trivial the breach and regardless of whether the breach caused the damage or loss.

    The ACCC also alleges Europcar engaged in misleading or deceptive conduct and made false or misleading representations on its website regarding the maximum amount a customer would be liable for if there was loss or damage to the rental vehicle or third party loss.

    The watchdog is seeking declarations that certain terms in Europcar’s rental contract are unfair and therefore void along with injunctions and penalties.

    ACCC chairman Rod Sims says consumers have little time to properly assess their rights and obligations under car rental agreements and no opportunity to negotiate.

    “The ACCC is concerned that Europcar’s standard consumer contracts contain terms that, if applied, impose unlimited liability on consumers in certain situations which the ACCC alleges is unfair,” he said in a statement.

    A spokesperson for Europcar denied the allegations made by the ACCC.

    The spokesperson said it has always been Europcar’s policy that any potential contract breach is treated seriously and occurs only after review by serious management.

    “We are disappointed that the ACCC has taken this action and it will be robustly defended,” the Europcar spokesperson said in a statement.

    This is the second unfair contracts case the ACCC has pursued since the introduction of the unfair terms regime over four years ago. 

    Melissa Monks, special counsel at law firm King & Wood Mallesons, told SmartCompany car rental providers have had some forewarning, having come under scrutiny from consumer lobby groups and regulators over the last few years for allegedly dense and complex terms that are extremely one sided. 

    “The ACCC is using the unfair terms regime strategically to challenge very broad liability clauses that impose responsibility on consumers for loss or damage including in circumstances where the consumer's breach of contract may be trivial or where loss is not related at all to their breach of contract,” she says.  “Liability and indemnity clauses are commercially important terms and ones that are at risk of being unfair terms.”

    Monks says businesses with a standard form consumer contract should take care to ensure such clauses are not framed excessively and that they have a legitimate business interest to protect in imposing such clauses.

    “Otherwise they run the risk of having a liability clause in contracts with hundreds, sometimes thousands, of customers that they cannot rely on,” she says.

    A directions hearing is listed for February 5, 2015.

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    A Tasmanian employee of Australian Tax Office has failed in her bid for compensation from workplace insurer Comcare after the Administrative Appeals Tribunal rejected claims her colleagues bullied her for being a “mainland outsider”.

    Naomi Lindoy had been employed as a lawyer by the ATO since 1995 when she requested a transfer from Canberra to Hobart for compassionate reasons in 2008. She had been treated for anxiety and depression since the late 1990s and her mental health concerns were known to her employer.

    In 2009, Lindoy suffered what she described as “a major meltdown” after an interview for a promotion, which prompted her to take a significant amount of time off work throughout 2009. At the time, she attributed her health problems to non-work factors, including members of her family contracting swine flu and financial troubles.

    But in December 2010 during a medical examination to determine if she was able to continue to work, Lindoy said she had been treated unfairly in a ‘hostile’ work environment in Hobart since February 2009.

    Lindoy said she was “treated as a mainland outsider that could not be any good because of the person who had taken her on transfer” and she “did not feel welcome or accepted”.

    She said was also exposed to “innuendo, gossip, team members complaining about each other and management” and her colleagues “were ganging up” on her because she had taken on a more senior position in the office.

    But the tribunal also heard from Lindoy’s colleagues, who said the Hobart office was “a harmonious one, devoid of gossip and exclusion and with a good culture”.

    “There was no evidence, other than Ms Lindoy’s, that indicated that Ms Lindoy was treated unfairly or unduly harshly by her colleagues or her supervisors in the ATO, not that the culture she described existed in the Hobart ATO was unusual or hostile,” said Tribunal member R Walters.

    TressCox employment, industrial relations and workplace safety solicitor Edmund Burke told SmartCompany Lindoy was faced with the challenge of both proving her illness was aggravated by her employment and that there was a hostile environment in the Hobart office, and she was unsuccessful on both accounts.

    Burke says the case highlights that disclosing a pre-existing illness can be beneficial for both employees and employers.

    In the case of psychological or psychiatric illnesses, Burke says employers must also be aware that the perception of a workplace environment can be as important as the reality. But that doesn’t mean employers do not have protection under the law. 

    “Under WorkCover provisions there is what is called a reasonable management action,” Burke says.

    “So for a psychiatric illness, if an employer can show they took a reasonable management action, it can protect them.”

    “The principle of reasonable management is quite broad and it is not onerous on employers, they just need to deal with employees in a fair way and regardless of perception, if their action is reasonable, they will be protected.”

    The ATO declined to comment on the case when contacted by SmartCompany.

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    Retail billionaire Solomon Lew has launched legal proceedings which could result in the closure of Australia’s 15 Steve Madden footwear stores.

    Lew Footwear Holdings is suing Madden International in the Victorian Supreme Court.

    The proceedings concerns a dispute between Lew, estimated to be worth more than $2 billion, and the company founded by convicted fraudster Steve Madden.

    Madden founded his shoe empire in 1990 but was sentenced to 41 months in prison for stock fraud (he served two and a half years).

    Madden is now creative and design chief of Steve Madden Limited which owns Madden International.

    The Australian reports the legal proceedings are aimed at tearing up the licensing agreement between Lew Footwear Holdings and Madden International.

    The dispute centres around an agreement which allowed Madden International to claim a markup of up to 13% on the shoes it was onselling to Lew Footwear.

    Lew alleges manufacturer invoices left inside the boxes of the shoes bought from Madden International showed some shoes were marked up by up to 35%.

    Lew claims to have lost more than $6.7 million in margins from incorrectly applied mark-ups.

    He is seeking about $7.5 million to $8 million in lost earnings according to The Australian and wants to shut down Australia’s 15 Steve Madden stores which currently employ 100 people.

    Leneen Forde of Sladen Legal, is representing Madden International in the proceedings and told SmartCompany Lew’s claims will be defended.

    “Our client's position is that there is no merit in the claims being pursued by Lew Footwear,” she says.

    “The claims will be defended and Madden International will pursue its own claims against Lew Footwear in the appropriate forum.”

    Lew purchased Steve Madden’s Australian arm after it collapsed into administration in 2009.

    He failed to respond to SmartCompany’s request for comment prior to publication.

    A directions hearing is listed for November 14.

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    A forklift driver has won an unfair dismissal case against Coca-Cola Amatil (CCA) after he was given the sack earlier this year over an incident where he told another employee to “bugger off”.

    Ian Holliday was driving a forklift when he was involved in a near-miss incident with another employee who had walked across the path of the moving vehicle.

    While the Fair Work Commission heard differing accounts over what exactly was said to the other employee during the exchange, Deputy President Gooley found at minimum, Holliday had told his co-worker to “bugger off and that what he had done was bloody stupid”.

    CCA terminated Holliday’s employment in March for unsatisfactory conduct, alleging he had engaged in inappropriate conduct by acting in an intimidatory and threatening manner, and using offensive language towards another employee.

    Holliday was also alleged to have previously been absent from work without authority for one non-production day in February.

    But Gooley found that apart from the incident with the forklift, there was no evidence Holliday had behaved inappropriately towards others during his employment.

    Gooley also found that while Holliday should have advised CCA that he was not attending work, his absence in February was a one-off event.

    “The decision to terminate his employment was disproportionate to his conduct. I find that the termination of Mr Holliday’s employment was harsh, unjust and unreasonable,” said Gooley.

    The matter is to be relisted for hearing to determine the appropriate remedy for Holliday.

    Employment, industrial relations and workplace safety solicitor at TressCox Lawyers, Elizabeth Aitken, told SmartCompany that because Holliday had no history of absenteeism, his absence from work on a scheduled non-production day was insufficient to warrant the termination of his employment.

    Aitken says while Holliday had used language that was considered “inappropriate” towards a colleague, it was “not uncommon” for a person to do so in a high-stress situation, including one in which a co-worker has closely avoided potentially serious injury.

    She says Coca Cola took the appropriate action when it gave Holliday a written warning regarding his conduct and made him subject to a performance management plan, but no further complaints had arisen with his conduct or performance and the company did not appear to have provided any further guidance or training.

    “Employers who are seeking to dismiss an employee on the basis that they’ve received previous performance or conduct warnings should first consider whether they can demonstrate that there is a pattern of similar performance or conduct,” says Aitken.

    “If the performance or conduct is unrelated, and is a single instance for which the employee has not previously been counselled, then it may be considered by the Commission to be insufficient to constitute a valid reason for the employee’s dismissal.”

    She says performance concerns can be ‘waived’ if it is not followed up with by training or ongoing review.

    “Employers should consequently schedule regular follow up meetings, and set clear targets for performance and/or conduct improvement.”

    “The decision demonstrates that an employer must consider the specific circumstances around an employee’s poor conduct or performance in determining whether it can reasonably form the basis for disciplinary action.

    “Close consideration should be given, in particular, to any potentially mitigating factors like the stressful nature of the incident, and the usual culture and/or language of the workplace.”

    CCA declined to comment when contacted by SmartCompany as the case is still in progress.

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    A well-known amusement park in regional Victoria is at risk of closure after its owner was last week sentenced to seven months in jail for the sexual assault of a former teenage employee.

    Fairfax reports County Court Judge Christopher Ryan said last week it is “questionable” whether Harvey’s Fun Park will “survive in its present form”, after he ruled owner Darren Harvey engaged in predatory behaviour towards the former employee, who was 18 and finishing high school at the time of the incident.

    The amusement park, located close to the Murray River border between Wodonga and Albury, was previously operated as Harvey’s Fish Farm by Darren Harvey and his father Garry until 2008. After a deal to sell the business locally fell through, Harvey re-opened the park as a children’s fun park in 2012.

    Harvey was originally sentenced to 15 months in prison, with a non-parole period of nine months, in the Wodonga Magistrates Court in October, but the case went to the County Court on appeal.

    Judge Ryan reduced the non-parole period to seven months last week, noting Harvey has made a significant contribution to the local community and had good prospects of rehabilitation, but said Harvey’s “absolutely disgraceful” conduct deserved punishment.

    “Young women like the complainant ought to be safe in the workplace,” said Ryan

    The court heard the employee was the victim of a number of sexual approaches in October last year by Harvey, who touched her vagina while she was in a tank in a pump room at the fun park.

    The employee left the room to get changed but Harvey later said to her: “Let’s go back to the pump room and get naked”.

    The court heard Harvey grabbed her by the hand and took her back to the room, despite her efforts to get away. He then suggested to her again that they “get naked” and get in to the tank, before he removed her clothing and hugged and kissed her.

    In a victim impact statement, the former employee said the incident adversely affected her VCE studies, which she was completing at the time. She said she is still suffering flashbacks from the incident and is undergoing counselling.

    SmartCompany contacted Harvey’s Fun Park but did not receive a response prior to publication.

    Enrico Burgio, associate at Maurice Blackburn, told SmartCompany the case is a “timely reminder to employers of their responsibilities”.

    “This is an extreme case but we still do see many cases of unlawful sexual harassment in the workplace, it goes on, it is common but it is unlawful,” Burgio says.

    “Everyone has the right to go to work and feel safe and to not be the victim of unlawful sexual harassment.”

    Despite being sentenced to jail, Burgio says this may not be the end of legal action for Harvey as all workers have the right to make a sexual harassment claim under state and federal laws that prohibit sexual harassment in the workplace.

    “Given the facts and what was heard during the court proceedings, it is likely this employee would be successful,” he says.

    Burgio says if the former employee chose to make a civil claim, both Harvey and Harvey’s Fun Park could be liable for “significant damages and compensation”, both for the economic loss she may have suffered as a result of the conduct and any hurt, humiliation or distress.

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    One of Australia’s largest funeral companies has been hit with a $102,000 penalty for misleading customers about its contracts.

    The fine is the latest in a string of penalties handed out by the Australian Consumer and Competition Commission relating to misleading representations.

    The consumer watchdog handed InvoCare the fine following the issue of an infringement notice for allegedly making false or misleading representations about its standard contracts, which the ACCC claimed required customers to purchase additional products they did not want.

    The Sydney-based company, which is a subsidiary of InvoCare Australia, is the largest private operator of funeral homes, cemeteries and crematoria in Australia.

    The ACCC alleges InvoCare changed its standard contract in January 2011 to require consumers to also purchase memorials from the company for use at burial sites.

    The watchdog received complaints from customers who had pre-purchased burial sites prior to January 2011, claiming they were now being told they were contractually required to purchase memorial plaques from InvoCare. The ACCC identified potentially misleading representations about the terms of contracts had been made to a total of four customers.

    “The ACCC was particularly concerned about these alleged misrepresentations about the obligation to purchase memorial plaques, as Invocare was dealing with consumers in circumstances where they were particularly vulnerable,” ACCC deputy chair Delia Rickard said in a statement.

    “More generally, it is important that businesses do not represent consumers are required to make an additional purchase when this is not the case under the contractual terms which bind the consumer” Rickard said.

    Sally Scott, partner at Hall & Wilcox, told SmartCompany InvoCare’s misleading conduct involved representing to customers that they were contractually required to do something when in fact they were not. 

    “The earlier contracts did not impose an obligation on customers to purchase memorial plaques from InvoCare,” says Scott. “By suggesting otherwise was misleading.”

    After raising concerns with the company following the complaints earlier this year, the ACCC said InvoCare had cooperated and voluntarily undertook internal investigations on the matter. It had also offered compensation to affected customers and has since revised its compliance policies and procedures.

    The company has also entered into a court enforceable undertaking to not require any customer to purchase a memorial for three years.

    In a statement provided to SmartCompany, InvoCare says it has since provided redress and apologised to each of the affected customers and has taken significant steps to ensure the conduct in question is not repeated. These steps included additional training for staff and the revision of the contract for the sale of burial sites, which now contains no obligation for a customer to purchase a memorial.

    “We are committed to communicating clearly with our customers and treating them fairly at all times. When we became aware that some customers had not received the care and respect they deserve we took immediate action to address their concerns,” chief executive officer Andrew Smith says.

    “Tens of thousands of families place their trust in InvoCare each year and assisting with their personal needs is the most important element in everything we do.”

    Scott says a $102,000 penalty for misleading conduct is unusual.

    “The size of the penalty is a surprise to me. It is quite conceivable that the staff were simply mistaken when making the misleading comments,” says Scott.

    Scott says whilst this is no defence to misleading conduct, it is generally taken into account when determining the size of the penalty.

    “We often see penalties in the vicinity of $20,000 for inadvertent or initial breaches,” she says.

    “It is quite possible that the fact that the customers were in a vulnerable state when being misled resulted in a higher penalty than would otherwise have been the case.”

    Scott says businesses need to ensure sales staff do not mislead customers.

    “This includes ensuring that they do not suggest to customers that they are obliged to do something – such as making additional purchases - when they are not,” she says.

    “Businesses that have ongoing dealings with customers after they sign up to a contract need to ensure that they don't mislead customers in relation to the obligations and rights under the contract.”

    “Rather than relying on staff to read and understand a legal contract, I believe businesses should educate staff by training and a simplified policy/guide document.”

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    Discount pharmacy chain Chemist Warehouse has come under fire from industry groups, which have accused the company of misleading consumers by printing a “normal price” and the amount a customer has apparently saved on store receipts.

    The ABC reports the Pharmacy Guild and National Pharmacies group are calling for the Australian Competition and Consumer Commission (ACCC) to investigate the claims as a “matter of urgency”, claiming Chemist Warehouse customers are being misled about the retailer’s pricing strategy.

    In a letter to the ACCC seen by the ABC, president of the Victorian branch of the Pharmacy Guild, Anthony Tassone said Chemist Warehouse’s practice of publishing a “normal price” and the amount the customer has saved on their purchase “creates an expectation that a ‘normal price’ could be what other pharmacies charge or [that the saving related to] a price that Chemist Warehouse were previously selling that item at, and it doesn’t appear to be the case”.

    Tassone said a Chemist Warehouse sales assistant had told the guild the “you save” value printed on the receipts related to “the price you would pay at another pharmacy if you hadn’t shopped with Chemist Warehouse” and was not “linked back to a previous price that Chemist Warehouse were selling the product for”.

    But Tassone said this is problematic as there is no set price for which Australian pharmacies must sell medicines.

    “There could be recommended retail prices in some pharmacies, but generally speaking from my experience, scheduled medicines that are over the counter don’t generally have an RRP to benchmark against,” he said.

    National Pharmacies told the ABC it has also written to the ACCC to complain about the Chemist Warehouse dockets, while consumer group CHOICE said it has concerns about the way the retailer advertises some of its “lowest” and “best price” guarantees in store.

    “What we found is if you rely on these claims, you can often end up wrapped in tricky terms and conditions and indeed end up paying a much higher price than you bargained for,” CHOICE told the ABC.

    A spokesperson for Chemist Warehouse told the ABC the retailer has done nothing wrong and said "normal price is the price normally charged at other pharmacy retailers". 

    Melissa Monks, special counsel at law firm King & Wood Mallesons, describes the allegations against Chemist Warehouse as “very interesting”.

    “The ACCC will no doubt be closely scrutinising Chemist Warehouse’s pricing representations given the multiple complaints, as well as the regulator’s recent enforcement action in relation to pricing like online drip pricing and ‘discounts off what’ in the energy sector,” Monks told SmartCompany.

    Monks says the ACCC and the courts have previously been very clear about the type of pricing representations at risk of being misleading.

    “In particular, that savings claims should be based on an RRP where goods have actually been sold at that RRP or reflect the genuine savings off the current market price for goods to avoid being misleading,” she says.

    Monks says the challenge for Chemist Warehouse is “there doesn’t seem to be a ‘market price’ for all of the goods it sells given their nature or because this may constantly fluctuate in a very competitive market”.

    “Even if there is a market price, the unqualified price that appears on dockets and sometimes in-store may lead consumers to believe that the savings is based on the price at which Chemist Warehouse previously sold the good, which doesn’t seem to be the case,” Monks says.

    While the ACCC is yet to initiate any action against Chemist Warehouse, Monks says the watchdog has many tools at its disposal to investigate complaints of this nature.

    “The ACCC has very wide powers and can easily issue Chemist Warehouse with a substantiation notice to justify its savings claims within a 28 day deadline, or rely on other powers to compel documents to be produced and questions answered,” she says.

    “So like any business making such claims, it should always have this evidence to hand before making any claims.”

    “There is also no comfort for Chemist Warehouse in the fact that these savings claims seem to have been in the market for some time without challenge. This is bar to the ACCC and competitors taking action and has certainly happened before.”

    SmartCompany contacted Chemist Warehouse but did not receive a response prior to publication.

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    Haircare products importer Dateline Imports has been fined $85,000 but has been awarded costs by the Federal Court following a long-running legal action by the Australian Competition and Consumer Commission.

    The case revolved around Keratin Complex Smoothing Therapy, a product imported by Dateline Imports and sold to local hairdressers June 2009 and November 2010.

    Back in 2010, the ACCC alleged Keratin Complex Smoothing Therapy “contained formaldehyde at concentrations greatly in excess of the level permitted by Australian State and Territory Regulations for products of this type”.

    Following a request from the ACCC, Dateline Imports voluntarily recalled Keratin Complex Smoothing Therapy from the Australian market.

    During the lengthy and largely unsuccessful prosecution, the ACCC also alleged advertised claims by Dateline Imports that Keratin Complex contained at least 35% natural keratin were false and misleading.

    In August, the Federal Court handed down a judgment on the matter. It found that while Keratin Complex Smoothing Therapy did not contain 35% natural keratin, the ACCC failed to prove it contained any dangerous or toxic chemicals, or that it contained formaldehyde.

    In the decision, Justice Rangiah stated there “was no basis for any recall of the products”, noting in his judgment that the ACCC was “largely unsuccessful in respect of [its prosecution of] the formaldehyde representations”.

    The judgment also noted the keratin issue had no bearing on the effectiveness of the product.

    However, this week Dateline Imports was ordered to pay an $85,000 penalty over the alleged misleading claims, while the ACCC was ordered to pay one-third of Dateline Imports’ legal costs.

    In a statement issued by the ACCC in August, ACCC Commissioner Sarah Court defended its action on the grounds that Dateline Imports had allegedly misled consumers over keratin levels.

    “It is important for consumers to be able to rely on representations by manufacturers about the composition and benefits of their products, especially personal products where the consumer is unable to assess these claims,” Court said.

    “The ACCC is disappointed that the court did not accept its allegations in relation to formaldehyde concerns with this product, as we commenced these proceedings due to safety concerns for consumers and hair salon workers being exposed to formaldehyde.”

    In its most recent press release on the matter, the ACCC left out the original formaldehyde accusations, highlighting only the false or misleading representations aspect of the case.

    But Dateline Import's managing director David Taylor told SmartCompany the case was more complicated than the ACCC makes out in its statement.

    “There was a case that originally concerned formaldehyde in a hair product. The ACCC prosecuted Dateline, but failed to show the product had formaldehyde in it, and failed to show it was unsafe,” Taylor says.

    “The manufacturer in the brochures claimed it contained 35-40% keratin in the brochures, which was not the case. What we did is we used their exact advertisement here. We didn’t make the claims – they were from Keratin Complex in the US.”

    “When the judgment came out, which was some months ago, we won the formaldehyde and safety issue.”

    Taylor says that while Dateline Imports has no plans to put the Keratin Complex Smoothing products back on the market in Australia, he notes the product is still readily sold in many countries throughout the world, including the US.

    Court told SmartCompany the case is the latest in a string of credence cases bought by the ACCC.

    “We were initially concerned about it being formaldehyde free, and we were concerned about safety to consumers and salon staff who used the product,” Court says.

    When asked about costs being awarded against the ACCC, Court noted that while the judgment was not in front of her, it is not surprising in the circumstances.

    “It’s court so it’s unsurprising. The court had found that the ACCC hadn’t made its case about the formaldehyde. There was a clash of scientific experts,” Court says.

    “I think we’ll review the decision about formaldehyde, but the decision about natural keratin is also important.”

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    An Adelaide business which underpaid 46 employees more than $2.5 million has been fined $196,000 in the Federal Court. 

    Lifestyle SA, which manages a network of retirement villages in South Australia, received the penalty after the Fair Work Ombudsman commenced legal action over underpayment of wages, casual loadings, various penalty rates and annual leave entitlements.

    The original litigation involved 35 employees but after media coverage of the proceedings the Fair Work Ombudsman received further complaints.

    Justice Mansfield found eight employees had been underpaid more than $100,000 and the largest individual underpayment was $264,725.

    The underpayments occurred as a result of Lifestyle SA paying the employees a flat rate of $50 per shift to be pager monitors.

    Lifestyle SA initially denied liability on the basis that the monitors were not performing “work”, except when actually responding to a call-out and that it was acting on workplace relations advice.

    However, the company ultimately admitted liability and rectified the underpayments and superannuation in March and April last year.

    Justice Mansfield accepted the contravention was not deliberate but found Lifestyle SA had “enjoyed a significant competitive advantage as a result of the contraventions”.

    “It is important to send a clear signal to the community at large, and specifically to employers, regarding the importance of complying with Australian workplace laws,” he said in his judgment.

    Employment lawyer Peter Vitale told SmartCompany the judge had found 12 separate breaches which resulted in a maximum penalty of $396,000 to Lifestyle SA.

    “The reason he decided to impose that penalty [$196,000] and not a greater penalty was I think because the employer had no prior history of this sort of conduct,” Vitale says.

    “The breaches were not deliberate and the employer had cooperated fully with the ombudsman and had rectified the underpayments quickly and had expressed contrition for its breaches of the law and, furthermore, it had taken corrective action to ensure future breaches would be avoided.”

    Vitale says the case demonstrates that employers who accept responsibility for underpayment and respond quickly and cooperatively will be more than likely helping themselves in the event of litigation by the FWO.

    SmartCompany contacted Lifestyle SA for comment but did not receive a response prior to publication. 

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    Legal action has commenced against collapsed Gold Coast-based LM Investment Management Limited founder Peter Charles Drake and other former directors, over the lending of funds for a Gold Coast development.

    Maddison Estate Pty Ltd, known as Maddison Estate, was a Gold Coast property development that LM Managed Performance Fund loaned money to. The ASIC action is specifically targeted on the conduct of the directors of LM Investment Management Limited approving a number of loans to Maddison Estate. Drake owned and controlled Maddison Estate in 2011 and 2012.

    The loan limit to Maddison was increased from $40 million to $280 million between 2008 and 2012. In 2011 and 2012 loan extensions had been approved by the former directors. This was done without independent valuations or any feasibility studies.

    No construction had begun, no plans of subdivision had been registered and none of the proposed lots had been sold by the time LM went into administration. Development approval had been obtained with some land clearing taking place.

    ASIC alleges that the decisions to extend the loan from $115 million to $180 million in September 2011, and further from $180 million to $280 million in August 2012, were inappropriate.

    It is also alleged by ASIC that a loan re-establishment fee of $9.8 million, that was payable to LM Investment Management Limited, was extended to Maddison Estate as part of a 2012 loan extension and then levied to ensure they booked a profit for the financial year.

    ASIC is seeking financial penalties and banning orders.

    Civil penalty proceedings are currently underway in the Federal Court of Australia against Drake, with allegations he used his position to gain an advantage.

    Francene Maree Mulder, Eghard van der Hoven, Simon Jeremy Tickner and Lisa Maree Darcy, as former directors, also face civil penalty proceedings for breaching director’s duties and failing to act with the proper degree or care and diligence. This is in relations to transactions involved the LM Managed Performance Fund, with various contraventions applying to different former directors.

    The maximum fine for directors breaching duties is $200,000 per contravention. ASIC also seeks disqualification for Drake and the former directors from managing companies and providing financial services in the future.

    “Investors should be able to have confidence that the people responsible for managing their investments act appropriately, take a diligent and intelligent interest in the affairs of the company, and apply an enquiring mind to the responsibilities placed upon them,” said ASIC commissioner Greg Tanzer.

    A directions hearing in the Federal Court will be in Brisbane on 25 November.

    LM Investment Management was the responsible entity for a total of seven registered managed investment schemes, managing a total of more than $800 million for 12,000 Australian and overseas investors.

    They were the trustee for MPF, an unregistered managed investment scheme with 4,500 investors, according to ASIC. More than $400 million was invested in MPF.

    There is a dedicated webpage for any investors caught up in the collapse.

    This article originally appeared on Property Observer.


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