Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 26 October 2019.

Dianne owns and operates Coastview Lodge, a bed and breakfast with ten rooms. On 15 December 2018, Dianne meets with husband and wife, Bonnie and Clyde, to discuss a potential employment opportunity. It is agreed that Bonnie and Clyde will commence working at the Lodge on a trial basis with a view to move into permanent positions pending their performance over the next month. Clyde is employed as a Chef and Bonnie in Guest Services.

By mid-January 2019, Dianne is not satisfied with Bonnie and Clyde’s performance and, as the busy period had now ended, Dianne informs Bonnie and Clyde that they will not be made permanent. Dianne pays them each $2,000 in cash.

Bonnie and Clyde commence proceedings in the Federal Circuit Court claiming underpayment of wages. They provide a schedule of hours they worked over a 30-day period, which averages 10 hours per day. They also give evidence that the schedule was transposed from handwritten records they kept while working.

Dianne admits she employed Bonnie and Clyde during the period but denies that Bonnie and Clyde worked the alleged hours. She claims they worked approximately 4 hours per day and were paid correctly. Dianne admits she did not keep records of the hours Bonnie and Clyde worked.

Initially, the Court finds that while Dianne has breached her obligation to keep appropriate records of the hours worked by her employees, Bonnie and Clyde’s evidence lacks credibility.

Bonnie and Clyde appeal the decision. The Federal Court finds that the credibility of the evidence of Bonnie and Clyde is irrelevant. Because Dianne failed to keep records of the hours they worked, the onus is on Dianne to prove that Bonnie and Clyde did not work the hours they claimed.

Having failed to disprove Bonnie and Clyde’s claim, Dianne is ordered to pay Bonnie and Clyde for all hours claimed.

If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.