Employee Secures Penalty and Entitlements Against Sydney Catering Business

A former female employee of a Sydney-based catering company has secured significant penalties and unpaid entitlements against her former employer but has failed to substantiate claims of sexual harassment by a co-worker and a director of the company, nor that she was dismissed for exercising workplace rights.

The employee 'Ms H' commenced casual employment as a "Food and Beverage Attendant, grade 1" with McKenzie Matteson Pty Ltd (MMPL) on or about 28 September 2019. MMPL owned and operated various hospitality and restaurant businesses, including the Drift Restaurant and Bar (Drift Bar) and the Splash Tapas Bar (Splash Bar) at North Cronulla.

Ms H worked at both establishments, where her duties included taking food orders, liaising with customers and kitchen staff, operating registers for processing payments, and bartending duties, including taking orders and making drinks.

Soon after she commenced employment, Ms H had concerns that she had been unpaid, which she raised with her employer. Over several months, she also made complaints to him about various matters, including allegations of drug use, intoxicated patrons, lack of security, serving customers outside of their license restrictions, and unlicensed staff dispensing drinks. ?

On 17 November 2019, she claimed that her wages and a colleague's personal belongings had been stolen from the Drift bar. She reported the episode to her employer but also notified the police.

On 25 November 2019, her employer rang her and requested her "to attend a meeting about the workplace theft". Following a series of texts over the next two weeks and a further meeting, she was advised that she would not be receiving any further work shifts.

In evidence before the Federal Circuit and Family Court of Australia, Judge Nicholas Manousaridis, Ms H also claimed that a co-worker' 'Mr R' had sexually harassed her by repeatedly groping her on several occasions, stroking her leg, and making sexually offensive comments to her. She also claimed that one of the company's two directors, 'Mr M', also harassed her in various ways, including inappropriately touching her, making offensive comments of a sexual nature to her, as well as insinuating sexual behaviour amongst female staff.

However, Judge Manousaridis determined that neither harassment claims could be substantiated. As the Judge noted,

"I am therefore unwilling to give credit to anything to which Ms (H) deposes to in her affidavit unless it is corroborated by, or otherwise is consistent with, contemporaneous documents or matters about which there can be no reasonable doubt. Ms (H) has not offered any evidence that is capable of corroborating or supporting that any one or more of the incidents of sexual harassment to which she deposes occurred; and I am therefore unable to accept that any one or more of these alleged incidents occurred".

The Judge accepted that she had been underpaid significantly due to being paid a flat $20 per hour rate when the ordinary casual rate under the award was $25.07 per hour and the rate for Saturdays and Sundays was $30.08.

The Judge also noted that Ms H did not receive any superannuation contributions from MMPL during her employment, nor did she receive pay slips.

He imposed penalties of $126,316 against MMPL and an amount of $25,263.20 against the director.

The Judge determined her adverse action claim was not substantiated.

For questions about compliance with awards, enterprise agreements, adverse action claims or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to [email protected]

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.