The Federal Circuit Court imposed penalties totalling $54,000 against the former director of Victorian building company, SWAT Building Systems.
The penalties were ordered against Mr Ilias Lymberatos following an ABCC investigation into allegations a labourer employed by SWAT was dismissed when he complained to Mr Lymberatos about not being paid.
The labourer had not been paid for five weeks, including his minimum entitlements, overtime, public holiday pay and superannuation.
When the labourer asked Mr Lymberatos when his wages would be paid, Mr Lymberatos told him he was “disrespectful” and “not loyal” and terminated his employment.
Mr Lymberatos subsequently refused to pay the worker his unpaid wages and other minimum entitlements, including notice pay, accrued annual leave and superannuation contributions. Mr Lymberatos also refused to provide the worker with pay slips.
As a result of the ABCC’s successful court action to recover the worker’s minimum entitlements, in addition to being penalised $54,000, Mr Lymbertos was ordered to pay the victim $13,673 in unpaid wages and entitlements and $906.55 in interest.
ABCC Commissioner Stephen McBurney said today’s decision sends a strong message to employers about the rights of any employee to raise issues about their pay and conditions without fearing reprisals from their boss.
“Deliberately underpaying workers is unacceptable as is punishing employees who do nothing more than try and make sure they are being paid correctly. I will not hesitate to enforce the law against employers who seek to rip off their workers,” Mr McBurney said.
“Mr Lymberatos’ actions were deliberate and unconscionable. He now has 28 days to make good on the payments that have been outstanding for three years.
“We will use all enforcement avenues available to recover the outstanding penalty, ensure the victim is compensated for his lost wages, and that Mr Lymberatos pays the appropriate price for his actions as determined by the Federal Circuit Court.”
Judge Riley in her decision said: “This case involves the modern day scourge of wage theft.”
“Mr Lymberatos told the court that he was very remorseful. However, he has done nothing to demonstrate that. He did not give (the labourer) a written apology. He did not arrange for SWAT to pay (the labourer) the underpaid amounts, which have been outstanding for over three years.”
In determining penalty, Judge Riley identified the following reasons:
In my view, the appropriate penalty for each contravention in this case is $5,400. The principal reasons for this are that:
a. neither SWAT nor Mr Lymberatos have apologised to (the labourer);
b. on the contrary, Mr Lymberatos was abusive towards (the labourer) and his wife and sought to humiliate them;
c. neither SWAT nor Mr Lymberatos have paid (the labourer) the amount he was owed, notwithstanding ample opportunity to do so;
d. although there were some admissions in the respondents’ defence, meaningful admissions were only made in the hours before the ABCC’s application for default judgment was due to be heard;
e. Mr Lymberatos has not demonstrated any genuine remorse;
f. this case involves the modern day scourge of wage theft;
g. Mr Lymberatos is still working as a builder, and consequently, there is a need for specific deterrence;
h. there is a need for general deterrence in the building industry and amongst employers more broadly;
i. the contraventions were the result of deliberate actions by Mr Lymberatos; and
j. SWAT and Mr Lymberatos had a previously unblemished record.
Mr McBurney said the ABCC had recouped $954,000 for 1,333 workers so far this financial year.
“Since the ABCC was re-established in December 2016 we have recovered more than $2 million for 2,904 workers,” Mr McBurney said.
“As the full service regulator for the building and construction industry, the ABCC stands ready to assist any building and construction worker who believes they have been underpaid.”