Legal

‘Remorseless’ childcare operator fined almost $20,000 for underpaying staff and not complying with employer watchdog

Broede Carmody /

The owner of a Melbourne childcare business has been fined almost $20,000 for underpaying five employees and allegedly showing no remorse for their actions.

Vivien Mahomet, the owner and operator of Academy for Kids, was fined $19,980 in the Federal Circuit Court following legal action by the Fair Work Ombudsman.

The employees in question were casual childcare workers aged in their 30s and 40s who each held a Certificate III in Children’s Services. They were underpaid their minimum hourly rate as well as casual loadings and broken shift allowances.

According to Fair Work, Mahomet contravened workplace pay slip obligations and failed to comply with a notice to produce documents issued by Fair Work inspectors. The ombudsman had previously warned Mahomet of the need to comply with workplace laws.

The ombudsman attempted to contact the business owner at least 15 times, but says on the majority of attempts they did not receive a response. In addition, Fair Work says Mahomet did not reply to an invitation to participate in a recorded interview regarding the allegations.

Handing down the penalty, Judge John O’Sullivan said the business owner had shown no remorse for underpaying five employees.

“There is no evidence that the respondent is remorseful or contrite; nor is there any evidence the respondent has taken steps to mitigate the seriousness of the conduct,” he said.

Employment lawyer Peter Vitale told SmartCompany the judge’s comments demonstrate there are a series of considerations the court will take into account when determining a penalty.

“Whether or not they have acted quickly to remedy the underpayment, whether they have shown remorse and whether or not they’ve been previously guilty of similar conduct are all matters which are taken into account,” says Vitale.

“There’s no doubt that the ombudsman has a pretty clear view that some industries are more prone to underpayment than others and those industries are specifically targeted.”

“But whether you are in one of those industries or not, the clear lesson is you should comply with your obligations. If you are unclear about what they are or you have discovered that you have not been complying, then don’t bury your head in the sand.”

Fair Work Ombudsman Natalie James said Mahomet’s lack of cooperation with inspectors was a major factor in the watchdog’s decision to take the matter to court.

“We made extensive efforts to resolve this matter but were left with no option but to pursue this matter in Court to recover employee entitlements and enforce workplace laws,” James said.

“Successful litigations such as this benefit employers who are complying with workplace laws, because it helps them to compete on a level playing field.”

The underpayments were not rectified until earlier this month.

SmartCompany contacted Academy for Kids but did not receive a response prior to publication.

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Broede Carmody

Broede Carmody is a former senior reporter at SmartCompany. Previously, he was a co-editor of RMIT University's student magazine Catalyst.

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