2025 WAIRC 00223
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00223



CORAM
:
INDUSTRIAL MAGISTRATE C. TSANG



HEARD
:
TUESDAY, 4 FEBRUARY 2025



DELIVERED
:
TUESDAY, 8 APRIL 2025



FILE NO.
:
M 143 OF 2023



BETWEEN
:
JULIE MAIOLO


CLAIMANT





AND





DRU MARTIN DANIELS


RESPONDENT

CatchWords : INDUSTRIAL LAW – Application to join a second respondent to proceedings against the employer for a contravention of s 49DA(1) of the Industrial Relations Act 1979 (WA) – Whether claimant has an arguable case that employer’s bookkeeper ‘involved in’ the contravention – Whether joining a second respondent in circumstances where the proceedings against the employer is programmed for a penalty hearing is consistent with reg 5 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Legislation : Industrial Relations Act 1979 (WA), ss 49DA(1), 49F, 83E(1)(b), 83E(1A), 83E(1B)(a), 83E(1B)(c), 83EA(1), 83EA(2), 83EA(6)
Industrial Relations Legislation Amendment Act 2021 (WA), s 21
Industrial Relations Legislation Amendment Act 2024 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA), reg 5
Result : Application dismissed
Representation:
Claimant : Mr J Raftos (of counsel)
Respondent : Ms M Girgis (of counsel)



REASONS FOR DECISION
1 On 25 November 2024, the claimant (Ms Maiolo) filed an application seeking leave to join the respondent’s (Dr Daniels’) bookkeeper, Patricia Atkinson (Ms Atkinson) as the second respondent (Application).
2 Dr Daniels opposed the Application, and it was heard on 4 February 2025.
3 For the reasons that will follow, an order will be issued to dismiss the Application.
Background
4 On 1 December 2023, Ms Maiolo filed an Originating Claim against her former employer, Dr Daniels, claiming pecuniary penalties and costs due to a contravention of s 49DA(1) of the Industrial Relations Act 1979 (WA) (Act).
5 Section 49DA(1) of the Act states:
49DA. Employer obligations in relation to pay slips
(1) An employer must, in accordance with this section, give a pay slip (in hard copy or electronic form) to each employee within 1 working day after paying an amount to the employee in relation to the performance of work.
6 The Originating Claim [3]–[4] and the Response filed on 12 February 2024 [2]–‍[3] state:
Originating Claim
Response to Originating Claim
3. The First Respondent has an obligation to give pay slips to the claimant within one working day after paying the claimant in relation to the performance of work.
2. The First Respondent accepts paragraph 3.
4. The First Respondent contravened a civil remedy provision of the IR Act by failing in its obligation to give a pay slip to the claimant within one working day after paying the claimant in relation to the performance of work.
3. The First Respondent does not accept or deny paragraph 4.
7 The Originating Claim was amended on 6 May 2024. The Amended Originating Claim [4]–‍[5] and the Response to Amended Originating Claim filed on 27 May 2024 [3]–[7] state:
Amended Originating Claim
Response to Amended Originating Claim
4. The Claimant was employed by the Respondent from April 2022 – October 2023 (40 pay slips in all) and was paid on the following dates in relation to the performance of work for the Respondent:
a. 29/4/22;
b. 13/5/22;
c. 27/5/22;
d. 10/6/22;
e. 24/6/22;
f. 8/7/22;
g. 22/7/22;
h. 5/8/22;
i. 19/8/22;
j. 2/9/22;
k. 16/9/22;
l. 30/9/22;
m. 14/10/22;
n. 28/10/22;
o. 11/11/22;
p. 25/11/22
q. 9/12/22;
r. 22/12/22
s. 23/12/22;
t. 6/1/23;
u. 20/1/23;
v. 3/2/23;
w. 17/2/23;
x. 3/3/23;
y. 17/3/23;
z. 31/3/23;
aa. 14/4/23;
bb. 28/4/23;
cc. 12/5/23;
dd. 26/5/23;
ee. 9/6/23;
ff. 23/6/23;
gg. 7/7/23;
hh. 21/7/23;
ii. 4/8/23;
jj. 18/8/23;
kk. 1/9/23;
ll. 15/9/23;
mm. 29/9/23;
nn. 12/10/23; and
oo. 12/10/23 (two payments at this date).
3. The Respondent accepts that the Claimant was employed by the Respondent between 27 April 2022 – October 2023.
4. The Claimant does not accept all payment made was for the performance of work.
5. Between the dates 10 July 2023 and 3 August 2023, the Claimant received payment for annual leave notwithstanding the Claimant did not have accrued leave. The Respondent allowed the Claimant to take leave in advance.
6. During their employment the Claimant took leave between:
a. 1st, 3rd, 4th August 2022 – one week leave.
b. 22nd, 28th, 29th December 2022 – one week leave.
c. 4th, 11th, 16th January 2023 – one week leave.
d. 27th February, 1st, 2nd March – one week leave.
e. 10th July - 3rd August – 4 weeks leave.
f. Worked additional days: 14th April and 8th September 2023.

5. At no time did the Respondent provide the Claimant with a payslip within 1 working day after paying the Claimant as referred to above or at all.
7. The Respondent does not deny paragraph 5, however s 49DA(1) was introduced on 30 June 2022. The [Respondent] did not breach that provision in relation to the pay periods identified prior to that date.
8 At the directions hearing on 5 July 2024, counsel for Dr Daniels stated that Dr Daniels did not dispute contravening s 49DA(1) of the Act after it came into effect. As a result, the matter could proceed to be listed for the court to determine penalties.
9 Consequently, the matter was listed for a PreTrial Conference before a Clerk of the Court. The conference took place on 16 August 2024. On 29 August 2024, the Clerk issued orders in the following terms:
1. THAT the respondent provide to the claimant the list of documents or communications provided to the respondent by UHY Norton Haines (accountants) for payslips or related information concerning the period 1 July 2022 to 30 November 2023.
2. THAT the parties have liberty to apply at short notice.
10 At the directions hearing on 25 November 2024, counsel for the parties confirmed compliance with the Clerk’s orders. Furthermore, in addition to programming the Application for hearing, the proceedings against Dr Daniels were programmed for a 2day penalty hearing.
Consideration
11 As outlined at [5] above, the obligation under s 49DA(1) of the Act lies with the employer. As outlined at [7]–‍[8] above, Dr Daniels admits to contravening s 49DA(1), and the proceedings are programmed for a penalty hearing to determine any penalties that should be imposed on him.
12 Section 49F of the Act states that a contravention of s 49DA(1) is not an offence but is a civil penalty provision for the purposes of s 83E of the Act.
13 Ms Maiolo is seeking the payment to her of pecuniary penalties to be imposed on Dr Daniels pursuant to ss 83E(1) and 83EA(2) Amended Originating Claim [1], [7], [9].
.
14 Counsel for Ms Maiolo clarified at the hearing on 4 February 2025 that if Ms Atkinson were to be joined to the proceedings, Ms Maiolo would be seeking penalties to be imposed on Ms Atkinson pursuant to ss 83E(1A), 83E(1B)(a) and (c), and 83EA(6) of the Act.
15 The Act has recently been amended by the Industrial Relations Legislation Amendment Act 2024 (WA) (amending legislation). It is the version of the Act immediately prior to the amendments arising from the amending legislation that applies to these proceedings.
16 Sections 83E(1)(b), (1A), (1B)(a) and (c) and 83EA(1), (2) and (6) of the Act state:
83E. Civil penalty provision, proceedings for contravening
(1) If a person contravenes a civil penalty provision, the industrial magistrate’s court may, on an application to the court, make an order imposing a pecuniary penalty on the person, not exceeding –
…
(b) in the case of an individual –
(i) if the contravention is a serious contravention – $130 000; or
(ii) if the contravention is not a serious contravention – $13 000.
(1A) A person who is involved in a contravention of a civil penalty provision is taken to contravene that provision.
(1B) A person is involved in a contravention of a civil penalty provision if, and only if, the person –
(a) aids, abets, counsels or procures the contravention; or
…
(c) is in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention;
…
83EA. Serious contravention of entitlement provision or civil penalty provision
(1) In this section –
contravention means a contravention of or failure to comply with –
(a) a civil penalty provision; or
(b) an entitlement provision.
(2) A contravention by a person is a serious contravention if –
(a) the person knowingly commits the contravention; and
(b) the person’s conduct constituting the contravention is part of a systematic pattern of conduct relating to 1 or more other persons.
…
(6) A person (the involved person) who is involved in a contravention by another person (the principal) commits a serious contravention only if –
(a) the principal’s contravention is a serious contravention; and
(b) the involved person knows that the principal’s contravention is a serious contravention.
17 While the Response to Amended Originating Claim states that s 49DA(1) of the Act was introduced on 30 June 2022, it actually came into operation on 20 June 2022 upon proclamation of the Industrial Relations Legislation Amendment Act 2021 (WA), s 21.
18 In the Amended Originating Claim [4] (at [7] above), Ms Maiolo outlines the dates that she claims she received payment from Dr Daniels. Dr Daniels disputes that all payments were made for the performance of work Response to Amended Originating Claim [4].
. Under cross-examination, Ms Maiolo agreed she received a Christmas bonus of $5,000. This appears to align with the payment Ms Maiolo claims she received on 22 December 2022 Amended Originating Claim [4(r)].
. In 2022, 22 December fell on a Thursday. Analysing the stated dates of payment, excluding those at Amended Originating Claim [4(r), (nn) and (oo)], indicates that Ms Maiolo was paid on a fortnightly basis, each Friday.
19 As the first amount paid to Ms Maiolo in relation to the performance of work following the introduction of s 49DA(1) on 20 June 2022 was paid on Friday, 24 June 2022 Amended Originating Claim [4(e)].
, the obligation imposed by s 49DA(1) first applied to Ms Maiolo’s employment on Monday, 27 June 2022, being ‘1 working day after paying an amount in relation to the performance of work’.
20 There is no dispute that Ms Atkinson was at all material times Dr Daniels’ bookkeeper. In opposing the Application, Dr Daniels filed an affidavit of Ms Atkinson on 14 January 2025. In relation to her role and the generation of payslips, Ms Atkinson deposes Exhibit 6 [1]–‍[6], [16]–‍[17].
:
1. I commenced working with Dr Douglas Candy, an Ophthalmologist in 1975. In approximately 2007, Dr Candy retired and Dr Dru Daniels took over his Ophthalmology practice including his patients. Dr Daniels offered the current staff employment with [sic]. I accepted this offer and continued to work in the same practice with Dr Daniels. I have continued to work in the practice to date.
2. I am 79 years old, and I have been working in the Ophthalmology practice now for 50 years including with Dr Dru Daniels for 18 years.
3. I am employed with Dr Daniels as a bookkeeper not an accountant.
4. My responsibilities at work include: paying accounts, pay runs, superannuation, handling any queries in relation to payments or invoices, end of month group tax including PAYG and quarterly BAS.
5. I record all pay related information. For permanent staff, I ensure bank payment transfers are paid into the staff nominated accounts at the end of each month. I keep a record of what has been paid (gross tax and net) and give that to the accountants. This includes a record of:
a. Gross payments, tax and net pay,
b. leave days taken,
c. sick leave,
d. public holidays.
e. breakdown of the hours worked by each staff member during the month, and
f. I provide this information to UHY Norton.
6. I keep a handwritten record of all staff sick leave and annual leave and other leave entitlements taken during their employment.
…
16. I never generated payslips for permanent staff as their pay was the same every week. If anyone asked for proof of employment for banking reasons I would provide them with a letter.
17. I was not aware of the amendment to the law that made it a legal requirement to provide payslips as I have never been required to do so in my 50 years with the Ophthalmology practice. Since this has been brought to my attention, I ensure I provide payslips. We have also commenced consulting for new accounting programmes such as Xero, MYOB and other programmes to keep electronic records of staff pay.
21 As such, it is reasonable to say that, as Dr Daniels’ bookkeeper, Ms Atkinson is involved in (as those words are used in their ordinary sense) the generation of payslips for Dr Daniels’ staff. It is trite to say that whether Ms Atkinson was ‘involved in’ a contravention of s 49DA(1) pursuant to ss 83E(1A) and (1B) of the Act is a different matter.
22 For joinder, Ms Maiolo must present an arguable case that Ms Atkinson was ‘involved in’ the contravention of s 49DA(1), meaning she aided, abetted, counselled or procured the contravention (s 83E(1B)(a)) or was in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention (s 83E(1B)(c)).
23 If Ms Maiolo is unable to present an arguable case that Ms Atkinson was ‘involved in’ the contravention of s 49DA(1), it becomes unnecessary to consider whether Ms Maiolo has presented an arguable case that Ms Atkinson has committed a serious contravention of s 49DA(1) pursuant to s 83EA(6).
24 In Ms Maiolo’s written submissions filed on 13 January 2025 [3]–‍[4], Ms Maiolo relies on [4]–‍[6] and [16] of Ms Atkinson’s affidavit (at [20] above) to argue that Ms Atkinson was ‘involved in’ the contravention of s 49DA(1) of the Act: (original emphasis)
3. Indeed, Ms Atkinson in her purported affidavit admits to her substantial involvement in the Respondent’s payroll activities and the wrongdoing in question at paragraphs 4 – 6 and 16.
4. Accordingly, there is a prima facie case that Ms Atkinson was ‘involved’ in the contravention in terms of [the Act]. At the very least it can be found, based on her own evidence, that she ‘aided’ the contraventions.
25 At the hearing, counsel for Ms Maiolo argued that Ms Atkinson was ‘involved in’ the contravention of s 49DA(1) because:
(a) Ms Atkinson was responsible for administering the pay, and she interacted with the accountants; and
(b) Ms Atkinson apologised during the hearing, which should be deemed an admission of the contravention.
Requests for payslips
26 In particularising the claim that Dr Daniels’ contravention of s 49DA(1) of the Act constituted a serious contravention, the Amended Originating Claim [7(a)(III)]–[7(c)(II)] and the Response to Amended Originating Claim [11(v)–(ix)] state:
Amended Originating Claim
Response to Amended Originating Claim
III. At all material times the Respondent employed 5 staff (part time and casual employees) including a qualified certified practicing accountant as his bookkeeper, Ms Patricia Atkinson; and
IV. At all material times the Respondent retained the services of a firm of accountants UHY Haines Norton to assist with his payroll. The Respondent was advised by his accountants of his obligation in relation to pay slips and failed or refused to act on that advice.
(b) the breaches occurred for at least 18 months being the period April 2022 –‍ October 2023 when the Claimant’s employment had come to an end; and
(c) the Respondent was asked for payslips by the Claimant and another employee.
Particulars
I. In or around June 2022 the Claimant made two oral requests for payslips from Ms Patricia Atkinson and was refused.
II. In or around June 2022 Gemma Grover made at least one oral request for payslips from Ms Patricia Atkinson and was refused.
v. The Respondent denies paragraph 7(a)(iii). Ms Patricia Atkinson is employed as a bookkeeper and not an accountant. She holds a Diploma in accounting.
vi. During the Claimant’s employment, the Respondent employed 5 individual employees totalling 2.8 FTE.
vii. The Respondent disputes paragraph 7(a)(iv).
viii. The Respondent disputes paragraph 7(b), no breaches occurred between the period of April 2022 to 30 June 2022.
ix. The Respondent wholly disputes paragraph 7(c).
27 In support of the Application, Ms Maiolo filed an affidavit of her partner, Peter John Speechley (Mr Speechley). Regarding Ms Maiolo’s request for a payslip, Mr Speechley deposes [12], [15]:
12. The Claimant and I are in a de facto relationship. At the time that she was employed by the Respondent, we were looking to refinance some bank loans. As part of that process we engaged the services of a Mortgage Broker – Ms Sarah Wells. Ms Wells asked the Claimant to contact the Respondent to obtain payslips, as part of the process of applying to refinance our loans. The Claimant has informed me, and I verily believe it to be true, that she contacted Patricia Atkinson from the Respondent’s business and asked her to provide 3 payslips for herself so that she could use this as part of her refinancing application.
…
15. The Claimant has told me, which I verily believe to be true, that Patricia Atkinson gave to her a letter, which letter was dated 23 June 2022 and signed by Patricia Atkinson as the Accountant for Dr Dru Daniels and that letter stated, inter alia, the last Gross Fortnightly Wage that the Claimant had received, along with the PAYG tax that had been deducted. I have seen the letter and the letter was not a payslip.
28 Mr Speechley’s affidavit attaches the letter referenced at [15] of his affidavit:
23rd June 2022
TO WHOM IT MAY CONCERN
Julie Ann Maiolo is employed by Dr Dru Daniels on a permanent part time basis.
Her Gross Wage is $2538.47 per fortnight. $512.00 tax has been taken out of this amount leaving a net figure of $2026.47 per fortnight.
Yours faithfully
T Atkinson
Accountant
29 In support of the Application, Ms Maiolo filed three affidavits that she deposed to on 10 April 2024, 18 November 2024 and 10 January 2025. In relation to her request for a payslip, she deposes Exhibit 1 [7]–[8].
: (original emphasis)
7. In or around June 2022 I asked Ms Atkinson for payslips for my wages.
8. In reply to my request Ms Atkinson said ‘we do not provide payslips. I will provide you with a letter indicating your salary.’
30 At the hearing, Ms Maiolo stated that she had asked Ms Atkinson for payslips on two occasions. The first time was on 8 June 2022, and following from her second request, Ms Atkinson provided her with the letter of employment, around 22 June 2022. I take this to refer to the letter attached to Mr Speechley’s affidavit, which is dated 23 June 2022.
31 In relation to the requests for payslips, Ms Atkinson deposes Exhibit 6 [13]–[15].
:
13. During my employment with Dr Daniels, I do not recall anyone ever asking me for a payslip. If someone asked me for a payslip I would give it to them. Staff usually ask me for a letter for the bank or finance company. They usually ask for pay particulars on a letter. I usually provide a letter that identifies the gross, tax and net pay as well as length of service. If someone asked me for a payslip I would provide it.
14. To the best of my knowledge and recollection the Claimant never asked me for a payslip, if she had I would have provided her a payslip.
15. I created a payslip for Ms Shelley Krasenstein. I automatically provided payslips to Ms Krasenstein as her pay was different every week. She was employed on a casual basis and for this reason I always generated payslips for her. Ms Krasenstein passed away recently.
32 Ms Atkinson’s evidence at [31] above was challenged but not disturbed under crossexamination. Under crossexamination, Ms Atkinson stated that Ms Maiolo asked her for a letter of employment in support of a loan application. She emphatically denied that Ms Maiolo asked her twice for payslips. She says that she knows it is incorrect that Ms Maiolo asked her for payslips because, if Ms Maiolo had asked her for payslips, she would have provided them. This is because, if Dr Daniels knew that she had been asked to provide payslips but had refused, then she ‘wouldn’t even be there a week later, I would have been dismissed if I wouldn’t do it’ Transcript, Maiolo v Daniels, Industrial Magistrates Court of Western Australia, 4 February 2025, 32.
.
33 In the Amended Originating Claim [7(c)] (at [26] above), Ms Maiolo claims that in or around June 2022, both she and Gemma Grover (Ms Grover) asked Dr Daniels for payslips through requests made of Ms Atkinson.
34 In opposing the Application, and in addition to the affidavit of Ms Atkinson, Dr Daniels filed an affidavit of Ms Grover on 9 January 2025. Ms Grover deposes:
1. I commenced employment with Dr Dru Daniels on or about April 2022. During my employment I did not receive a payslip until approximately December 2023. At no time did I ask for a payslip.
2. Sometime on November 2022 I asked Patricia Atkinson for a letter of employment for the purpose of applying for car finance. I needed this letter to prove I work full time.
3. Patricia Atkinson provided me this letter in approximately 5 minutes. The finance company accepted my letter of employment without requesting any further documentation and my finance application was approved. Any time I have requested employment related documents, these have been provided by Patricia Atkinson.
35 Ms Grover’s evidence was challenged but not disturbed under cross-examination. Under crossexamination, Ms Grover emphatically stated that she never asked for a payslip. Ms Grover clarified that she has only requested employment related documents on the one occasion, when she needed a letter of employment for applying for car finance.
36 For the reasons at [34]–‍[35] above, I accept Ms Grover’s evidence that she never asked for a payslip.
37 Mr Speechley deposes to Ms Maiolo telling him that she asked Ms Atkinson for three payslips to support his and Ms Maiolo’s refinancing application. Ms Maiolo deposes that she asked Ms Atkinson for payslips. Ms Atkinson’s evidence concerning Ms Maiolo’s request is outlined at [31]–‍[32] above.
38 Consequently, there is a divergence of evidence regarding whether Ms Maiolo asked Ms Atkinson for payslips. However, I do not consider that I need to resolve this divergence for the purposes of determining the Application, as I do not consider whether Ms Maiolo asked Ms Atkinson for payslips on two occasions, each prior to 23 June 2022, to be relevant. This is because, based on Ms Maiolo’s own evidence, any requests for payslips were made before 27 June 2022.
39 As outlined at [19] above, Dr Daniels first became obliged to provide Ms Maiolo with a payslip in accordance with s 49DA(1) on 27 June 2022. As there was no obligation on Dr Daniels to provide Ms Maiolo with a payslip prior to 27 June 2022, any request for a payslip before this time is not relevant to the Application. This is because, if there cannot be a contravention of s 49DA(1) of the Act prior to 27 June 2022, then it cannot be argued that Ms Atkinson was ‘involved in’ the contravention of s 49DA(1) arising from her alleged refusal of Ms Maiolo’s payslip request prior to 27 June 2022.
40 There is no evidence that Ms Atkinson refused a payslip request after 27 June 2022.
41 There is no evidence that Ms Atkinson was aware of the obligation created by s 49DA(1) for Dr Daniels to provide Ms Maiolo with payslips from 27 June 2022, before September 2023.
42 Ms Grover’s evidence, which I accept, is that on Ms Maiolo’s last day in the office, which was in the week beginning Monday, 18 September 2023, Ms Maiolo used the word ‘illegal’ in reference to Dr Daniels not issuing payslips. Consequently, on Wednesday, 20 September 2023, Ms Grover said to Dr Daniels ‘Just so you know that if you’re not giving out payslips, I think it’s illegal’ Ibid, 16.
.
43 Ms Atkinson’s evidence, which I accept, is that she was first made aware of the obligation to provide payslips when she ‘went in’ to the office on 21 September 2023 and was informed that Ms Maiolo had raised the issue on 18 September 2023. After this, she has been generating and issuing payslips ‘through the office’ Ibid, 25, 29, 30.
.
Accountants
44 As outlined at [25(a)] above, counsel for Ms Maiolo submitted that Ms Atkinson was ‘involved in’ the contravention of s 49DA(1) because Ms Atkinson interacted with the accountants.
45 At the hearing, Ms Atkinson stated that her interactions with the accountants consisted of:
(a) Providing them with information for the wages for the Single Touch Payroll.
(b) Meeting with them once a year to provide them with the information for them to prepare the annual tax return.
(c) Receiving emails from them.
46 Under cross-examination, Ms Atkinson emphatically stated that at no time did she have a discussion with the accountants regarding the obligation to provide payslips. Ms Atkinson stated that the accountants are not involved in the issuance of payslips.
47 As outlined at [9]–[10] above, by the directions hearing on 25 November 2024 when the Application was programmed for hearing, Dr Daniels had complied with the Clerk of the Court’s order and provided to Ms Maiolo a list of documents or communications from the accountants ‘for payslips or related information concerning the period 1 July 2022 to 30 November 2023.’ As such, it can be inferred that given Ms Maiolo did not rely on any document or communication from the accountants in support of the Application, the disclosure required by the Clerk’s order did not produce any material relevant to the Application.
48 In all the circumstances, I accept Ms Atkinson’s evidence that her interactions with the accountants did not involve Dr Daniels’ payslip obligations.
49 There is no evidence that the accountants advised Ms Atkinson of Dr Daniels’ obligations under s 49DA(1) or that she disregarded such advice.
50 In the absence of any evidence, the submission that Ms Atkinson was ‘involved in’ the contravention of s 49DA(1) of the Act pursuant to ss 83E(1A) and (1B) because she interacted with the accountants, must be rejected.
Apologies
51 As outlined at [25(b)] above, counsel for Ms Maiolo submitted that Ms Atkinson’s apologies during cross-examination should be deemed her admission that she was ‘involved in’ the contravention of s 49DA(1) of the Act.
52 Ms Atkinson apologised twice during the hearing. The first time in response to questions regarding being kept informed of changes to legislation Ibid, 28.
:
[N]ow, you’ve been in this role a long time, you’d agree with me that pay rates change?Yes.
Super changes?Yes.
Legislation changes?Yes.
You’ve been in that role a long time, and you know that?Yes.
So over the years, how have you kept informed and up to date with changes?Um, well, obviously, in this case, to do with the pay, I didn’t, and I apologise for that. It was an error on my part. I assumed that if everyone was, um, getting the same pay each week, um, I did not need to give them a payslip. This is not an excuse, but this was my reasoning for people who - there was a person who did not get a regular pay every week, and I did give them a payslip. So yes, I’m - I apologise for the fact   
53 The second time Ms Atkinson apologised was in response to questions regarding her stating ‘Accountant’ under her name in the letter at [28] above Ibid, 35.
:
You’ve actually - you - the letter that you wrote for Ms Maiolo, you’ve actually put yourself - your title as an accountant?Mm hmm.
That’s correct, isn’t it?That’s correct.
And that’s not true, is it?Well, I am an accountant.
So you’re a qualified accountant?Yes.
But yet you describe yourself as a bookkeeper?Um, when, um, Julie, um, contacted us, she called me a book - bookkeeper.
Okay. As a qualified   ?So I’m quite happy to be - I only do bookkeeping work.
But as a qualified accountant, you know the importance of keeping up with changes in the law?Yes, and I’ve apologised for that because, um, it was an oversight on my part and, um, the fact that people had the same pay each week, that was my reasoning, but it’s certainly not an excuse, but I’ve, um, you know, I’ve remedied that as quickly as I can.
Now, Ms - so Ms Atkinson, you take blame - some degree of blame for what’s occurred?I take complete blame for that.
Thank you?I made a mistake, but I’ve remedied it as quickly as I can.
54 At the hearing, Ms Grover stated:
(a) She is employed as a Secretary and was interviewed for the role by Dr Daniels. At this interview, she was informed that leave is not calculated; she could take as much or as little leave as she likes because ‘what goes around comes around’.
(b) When she commenced employment, Ms Atkinson provided her with a contract that stated her yearly salary. Ms Atkinson also gave her an exact figure that would be paid into her bank account every fortnight. ‘There was no talk about payslips or no communication’.
(c) She has received pay increases during her employment. Dr Daniels informs her of the pay increases. Afterwards, Ms Atkinson informs her of the exact figure that is going to be paid into her bank account fortnightly.
(d) On the day that she mentioned the requirement to provide payslips to Dr Daniels, she was present and overheard Dr Daniels telephoning a fellow doctor to ask whether it is illegal not to give your staff payslips. Within that week, Dr Daniels told her that he had also spoken to the AMA about issuing payslips.
55 Relevantly, Ms Grover agreed with counsel for Ms Maiolo’s questions under cross-examination that Ms Atkinson is the ‘go to’ person when it comes to pay, and that Ms Atkinson’s involvement with pay is under the direction of Dr Daniels.
56 Relevantly, Ms Grover gave evidence that when Dr Daniels became aware he should have provided payslips, he informed Ms Atkinson that ‘she needs to start doing payslips and straightaway she’d started working out what people’s annual leave had taken, hours, and started generating payslips, but her first instinct was to do [Ms Maiolo’s] payslips before everyone else’s’ Ibid, 22.
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57 As outlined in Ms Atkinson’s affidavit at [20] above, and Ms Grover’s evidence at [54]–‍[56] above, Ms Atkinson was (and remains) employed as Dr Daniels’ bookkeeper, and in that role her responsibilities include managing Dr Daniels’ payroll, under his direction.
58 I agree with the submissions made by counsel for Dr Daniels that ‘there is a big difference between an admission and an apology’ Ibid, 49.
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59 It is also trite to say that there is a difference between vicarious liability and accessorial liability. As outlined at [2] above, the Application is opposed. It is trite to observe that the Application is unlikely to have been opposed if Ms Atkinson did in fact admit to accessorial liability.
60 In all the circumstances, I find Ms Atkinson’s apologies to be in reference to the former form of liability (vicarious) and not the latter (accessorial). I find that Ms Atkinson’s apologies during crossexamination express her regret for not issuing payslips, consistent with her bookkeeping duties under Dr Daniels’ direction. They do not indicate she was ‘involved in’ the contravention of s 49DA(1) pursuant to ss 83E(1A) and (1B) of the Act.
Regulation 5
61 Regulation 5 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) (reg 5) states:
5. Court’s duties in dealing with cases
(1) The court must ensure that cases are dealt with justly.
(2) Ensuring that cases are dealt with justly includes ensuring –
(a) that cases are dealt with efficiently, economically and expeditiously;
(b) so far as is practicable, that the parties are on an equal footing; and
(c) that the court’s judicial and administrative resources are used as efficiently as possible.
[Regulation 5 amended: SL 2022/100 r. 7.]
62 As the Application is Ms Maiolo’s application, she bears the onus of establishing that the court should grant her leave to join Ms Atkinson as the second respondent to the proceedings.
63 Ms Maiolo seeks to have her claim against Ms Atkinson heard and remedies ordered without initiating separate proceedings against Ms Atkinson, which she argues would be inefficient and cause additional unnecessary costs Ms Maiolo’s written submissions filed on 13 January 2025 [5], [15].
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64 However, and as outlined at [39]–‍[43], [50] and [60] above, I am not convinced that Ms Maiolo has provided any evidence of an arguable case that Ms Atkinson has any accessorial liability for Dr Daniels’ contravention of s 49DA(1) of the Act.
65 As outlined at [7]–‍[8] and [11] above, Dr Daniels has admitted to contravening s 49DA(1) of the Act and the proceedings against him are programmed for a penalty hearing.
66 Counsel for Ms Maiolo accepts that joining Ms Atkinson as the second respondent would ‘add some more delay’ Transcript, Maiolo v Daniels, Industrial Magistrates Court of Western Australia, 4 February 2025, 39.
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67 Where, as I have found, that Ms Atkinson does not admit to accessorial liability, the penalty hearing against Dr Daniels would need to be adjourned pending the outcome of a hearing to determine Ms Atkinson’s alleged accessorial liability.
68 In the absence of an arguable case against Ms Atkinson, I do not consider the joinder of Ms Atkinson to the proceedings, necessitating the adjournment of the penalty hearing against Dr Daniels, would be consistent with reg 5.
69 For all the preceding reasons, the Application will be dismissed.



C. TSANG
INDUSTRIAL MAGISTRATE