Made part-time after injury – worker awarded $470k

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Made part-time after injury – worker awarded $470k

A games room worker whose hours were slashed when he claimed workers compensation for an injury has been awarded almost $470,000 to compensate him for six years of lost wages and penalty payments.

A games room worker whose hours were slashed when he claimed workers compensation for an injury has been awarded almost $470,000 to compensate him for six years of lost wages and penalty payments. 

[Full text of this case: C v Tiy Loy & Co Ltd (No 3) [2016] FCCA 675 (31 March 2016)]

Resigned after 18 years in the job


A man employed as a mahjong room attendant worked up to 90 hours a week. He  fractured his ankle while taking a bin out and successfully claimed workers compensation. After his injury, he worked only 40 hours a week according to an injury management plan. 

The employer reduced the worker’s status to part time instead of full time because he was receiving workers compensation benefits. In late 2012, after having worked for the employer for 18 years, the worker resigned. 

The worker instituted proceedings against the employer because changing his working hours and making him lose wages constituted dismissal and amounted to prohibited action according to s 340 of the Fair Work Act 2009.

The proceedings also covered the employer’s failure to pay entitlements, such as annual leave loading, overtime, and penalty rates for working on weekends and public holidays. 

The employer’s contraventions also included failure to maintain records and issue pay slips, pay the worker in lieu of notice, display a notice to inform employees of the starting and ceasing times of ordinary hours of work, and failure to display the award and the National Employment Standards at the workplace.

Federal Circuit Court of Australia


The Federal Circuit Court of Australia noted there was no evidence the employer’s breach of s 340 of the Act, or indeed the failure to pay the leave loading and penalty rates, had been carried out with any awareness it was in breach of the law. Also, there was no evidence the company had committed similar breaches in relation to other employees.

The provisions the employer had contravened included: 
  • provisions of the Miscellaneous Workers General Services (State) Award according to s 719(1) of the Workplace Relations Act 1996, applicable for the period from 26 July 2007 to 1 July 2009
  • other provisions of the State Award according to Pt 16 of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendment) Act 2009, applicable to the period from 1 July 2009 to 31 December 2009 
  • provisions of the Miscellaneous Award 2010 according to s 45 of the Fair Work Act 2009, applicable to the period from 1 January 2010 to 1 July 2012
  • regulation 2.03 of the Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009, applicable to the period from 26 July 2007 to 1 July 2009. 
The court enumerated all the contraventions and the monetary values of the penalties and took into account the need for them to reflect general deterrence.

It said: “The amount of the penalty should signal to the community that the failure to pay employees their proper entitlements is a serious matter, even where such failure may be due to ignorance of the law”. 

After assessing the penalties, the court applied the totality principle to arrive at an overall assessment. The order to pay the employee came to a total amount of $469,198.

C v Tiy Loy & Co Ltd (No 3) [2016] FCCA 675 (31 March 2016)
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