By Charles Power

The Federal Circuit Court has accepted that a restaurant chain director’s non-compliance with the Fair Work Act’s record-keeping requirements was not deliberate.

In Fair Work Ombudsman v The Meatball and Wine Bar Pty Ltd (2018), the director provided evidence that the restaurant chain’s Point of Sale (PoS) system was damaged after a break-in.

When the PoS systems across all restaurants were replaced, time records were lost.

The Court also took into account the harm caused to the employer’s business by a media release issued by the Fair Work Ombudsman (FWO) about its decision to pursue legal action against the employer and its director.

Subsequent reports in The Age newspaper and hospitality publications resulted in adverse social media comment.

The day after the publication of the FWO’s media release, the front window of one of the restaurants was smashed. Pot plants at another restaurant were destroyed and the walls of a different outlet were graffitied.

Listings for the restaurants were also removed from the Good Food Guide and other publications.

Additionally, the business lost the opportunity to partner with Tennis Australia and open an outlet at the Australian Open.

The Court noted that the FWO issued the media release before any hearing, named the director and stated that the breaches showed “deliberate disregard for worker’s entitlements, including those of vulnerable young and migrant workers”.

Ultimately, the proceedings against the director were discontinued when the Court found that the breaches were not deliberate.

Because of the adverse publicity the business had suffered, the Court reduced the penalty to 20% of what was sought by the FWO.

Initially, the restaurant would have faced a fine of around $150,000. This was reduced to $31,320.