Former bistro restaurant operators penalised over underpayments


The former operators of a bistro restaurant business in Gosford, NSW have been penalised by the court for failure to promptly comply with the Fair Work Ombudsman’s Compliance Notice.

In its decision, the Federal Circuit and Family Court imposed a total of $9990 in penalties, with a $7992 penalty against Tolu Investors Pty Ltd, which operated Spinnakers Brasserie until 2021, and a $1998 penalty against company director Grant Christopher Goldsmith.

The court determined that Tolu Investors failed to comply with the Compliance Notice requiring it to calculate and back-pay entitlements to an employee who worked in the restaurant on a full-time basis as a cook between March 2018 and June 2021. Goldsmith was involved in the contravention.

A Fair Work Inspector originally issued the Compliance Notice to Tolu Investors in November 2021 after having found that the worker had been underpaid minimum wages and personal leave entitlements owed under the Restaurant Industry Award 2010, the Restaurant Industry Award 2020 and the Fair Work Act’s National Employment Standards.

The worker, originally from Pakistan, was eventually back paid more than $34,000 in entitlements, equivalent to almost a year’s salary, only after the FWO commenced legal action.

Acting Fair Work Ombudsman Mark Scully said that business operators that fail to act on Compliance Notices need to be aware they can face penalties in court on top of having to back-pay workers.

“When Compliance Notices are not followed, we are prepared to take legal action to ensure workers receive all their lawful entitlements,” Scully said. “Employers also need to be aware that taking action to improve compliance in the fast food, restaurant and café sector and to protect vulnerable workers are priorities for the FWO.”

In her judgment, Judge Amanda Mansini said there was evidence that the worker “experienced personal hardship on account of his low earnings for work performed” for Tolu Investors and that there was a lack of contrition from Goldsmith, thus the need to impose penalties to deter other employers and the respondents from similar conduct in the future.

“The failure to comply with a statutory notice issued by the FWO is serious and such conduct ultimately undermines the [Fair Work] Act’s enforcement framework and the safety net of entitlements it is designed to protect,” Judge Mansini said.