The Fair Work Ombudsman is prosecuting a Sydney-based printing and publishing company, alleging it underpaid a journalist more than $90,000 – and threatened, coerced and sacked him after he lodged a complaint.
FL Press is facing court alongside company manager and sole director Theodore Skalkos.
The Mascot-based company prints and publishes foreign and ethnic newspapers, magazines and other publications, including the Novosti newspaper.
The Ombudsman claims FL Press underpaid the journalist a total of $90,723 between 2003 and 2011, mainly as a result of paying him a flat rate of $14.58 an hour, when he was entitled to receive up to $24.72 an hour.
The employee, aged in his 50s, reported for the Novosti newspaper on matters relating to the Serbian community in Australia.
The employee first lodged a complaint with the Fair Work Ombudsman in April, 2010 after FL Press allegedly told him his position was being changed from full-time to part-time.
The Ombudsman says FL Press threatened not to pay the employee’s outstanding entitlements unless he signed a statement saying he agreed to the change.
It alleges that on one occasion following the complaint, Skalkos told the employee he would be dismissed if he did not complete his own duties, as well as the duties of another employee who was on leave, within his usual hours.
On another occasion, the Ombudsman says Skalkos used an intimidating and threatening tone when telling the employee he would not be dismissed if he withdrew his complaint.
The Ombudsman claims as a result of the employee refusing to withdraw his complaint, he was ultimately dismissed in January, 2011.
Fair Work Ombudsman Nicholas Wilson says a decision to prosecute was made because of the seriousness of the alleged conduct, which breaches provisions of workplace laws relating to adverse action and coercion.
FL Press and Skalkos face maximum penalties per breach of up to $33,000 and $6,600 respectively along with a court order to rectify the alleged underpayment.
Skalkos is looking to defend the Ombudsman’s claims and told SmartCompany the FWO’s case was based on fabrications.
“Nothing happened here, all what they say is a lie,” he says.
“When the case finished you will know the result, I can’t tell you anything.”
Charles Power, partner at law firm Holding Redlich, told SmartCompany the case appeared to be a “strategic prosecution” by the FWO to explore the aspect of the general protection scheme which is designed to prevent employees from victimisation as a result of raising complaints or queries about their employee entitlements.
“To date there has not been much law about this in terms of rulings by the courts and tribunals and the FWO is, by this action, seeking to give this provision a bit of life,” he says.
Power says the extent to which the case provides a meaningful guide to employers and employees as to the scope of protection depends on whether or not the employer defends the claim and forces the matter to a contested hearing.
“It is an area which is a bit unclear. If people are sacked or disciplined for exercising their workplace rights in the area of entitlements, like putting in a request for annual leave, it is pretty straightforward.”
“But what is less straightforward is the extent to which you have protection if you make a complaint or query like ‘Am I being paid enough?’ or ‘I’m concerned about your treatment of me’, that’s an area where clarification is welcome,” he says.