test | Phi Finney McDonald

I’m having trouble understanding because English is not my first language – do you have translation or interpreting services?

Please let us know if you need translation services for information about the Domino’s class action, and we will arrange it for you.

My question hasn’t been answered. Can I speak to a lawyer?

If you have a question that is not addressed above, please email dominosclassaction@phifinneymcdonald.com.

If there is anything of which you are unsure and you don’t want to speak with Phi Finney McDonald (or you want to understand their involvement or the funding agreements or retainer better), you should get independent legal advice.

Where can I get copies of the pleadings and court documents?

You can download the pleadings and key court documents from the Phi Finney McDonald webpage https://phifinneymcdonald.com/action/dominos-class-action/. This includes:

Amended Originating Application dated 14 October 2021;
Second Further Amended Statement of Claim dated 24 August 2021;
Domino’s Amended Defence dated 24 August 2021; and
Further Amended Reply dated 20 December 2021.

What are the funder and lawyers paid?

In return for funding the class action litigation and absorbing the costs risks, Therium is paid a “funding commission” of 15-20% of any successful outcome (whether it is 15% or 20% depends on the amount of settlement or judgment).

The funding commission and other costs are payable out of each group member’s monetary compensation.

For example, if the award amount is $1,000,000, and your underpayment loss is calculated to be $1,000:

a) Phi Finney McDonalds professional fees (for e.g. $50,000) are deducted from the award amount, that would leave $950,000 remaining for distribution; then

b) Other costs in the sum of $50,000 incurred by the funder are also taken out of the settlement amount (such as amounts paid for posting security for costs), leaving $900,000 for distribution to group members;

c) This is a 10% reduction to the overall settlement sum;

d) The 10% reduction is applied pro-rata across group members’ losses and thus reduces your share from $1000 to $900;

e) the 15% funding commission is then applied to your net amount, leaving you with $765 in hand.

Whilst at this stage it is not possible to estimate what the costs will be, if the class action is successful then the combined total of any amounts deducted from the compensation payable to group members will never exceed the amount group members receive.

What does it cost me to participate?

You will not be liable for any out-of-pocket costs.

Litigation funding takes the risk out of participating in the class action, because:

a) You will not have to pay any money upfront for legal fees or any other expenses;

b) You will not be responsible for paying Domino’s costs in the event the case is unsuccessful.

In exchange, the litigation funder will be paid an amount from any successful outcome you receive.

If the class action is successful (that is, if compensation is recovered for group members), Mr Gall and/or Therium will ask the Court to make orders for the legal costs, litigation expenses and the funding costs to be deducted from any monetary compensation obtained by group members. In particular, Mr Gall and/or Therium will seek an order for all group members to equally share the funding costs payable to Therium.

Please be assured that any costs are you asked to pay will be deducted from any compensation you receive – but will still leave you with compensation in hand.

Exactly how much will be deducted will be a matter that the Court determines, if the class action is successful, the amount of legal costs, litigation expenses and funding costs that it considers are ‘fair and reasonable’ for all group members.

If the class action does not result in a judgment or settlement payable by Domino’s, you will not be liable to pay any amount.

I was subject to underpayments or breaches that are not part of the claim, such as worked time which was not recorded or paid.

Where a worker was underpaid by reference to the Agreement, these amounts will not form part of the claim (including for things such as under recording time or intentionally paying rates below the Agreement). Rather, underpayments made by reference to the Award are recoverable for eligible group members.

If you have already recovered compensation for underpayment by reference to the Agreement, you may still have a claim as part of the class action given we are looking to compensate those individuals for the difference between what was owed under the Award and what was owed under the Agreement. In this instance, any compensation will not include any component of wages or entitlements that were less than the Agreement.

Will I be entitled to compensation, and if so, how much?

What we are claiming on behalf of individual group members is the difference between what they were paid under the Agreements and what they should have been paid under the Award, which provided for superior rates of pay and entitlements.

Assuming you are an eligible group member, the amount of compensation you might be entitled to will depend on things like your classification of employment and how long you worked for. We will be able to provide you with an indication of your entitlement if you register for updates about the case.

If the class action concludes in a judgment against Domino’s, your entitlement to compensation will be determined by the Court. If the class action concludes in a settlement, your entitlement will be determined as part of the settlement.

Class action settlements must be approved by the Court as fair and reasonable, including as to any amounts payable to the litigation funder and for legal costs.

Am I a group member?

You may be a group member and able to claim compensation from Domino’s if you:

a) were employed in Australia as a Domino’s delivery driver or an in-store worker; and

b) were employed at any time between 24 June 2013 and 24 January 2018 (claim period); and

c) worked at a franchised store where the franchise operator:

was not a named party to an enterprise agreement or otherwise bound by an enterprise agreement at the relevant times;
and was covered by the Award.

If you meet each one of (a), (b) and (c) above, then you may be a group member, but this will ultimately depend on the Court’s determination of the question as to whether the particular Domino’s franchisee you worked for was covered by the Award.

I do not want to be contacted by the class action again.

If you want to participate in the class action but do not want to receive update emails from Phi Finney McDonald, please let us know and we will do our best to update your email preferences. However, you may still receive formal Notices from the Court. If you continue to receive emails from Phi Finney McDonald after indicating your preference not to, you can contact us by reply email requesting to be removed from the distribution list.

What if I do nothing?

If you do nothing, you will remain a potential or actual group member (and have an opportunity at a later date to participate in any compensation ordered by the Court) but your claim will not be used to inform any part of any mediation or settlement that occurs prior to the trial of the class action.

In the event of a settlement (subject to Court approval) or a judgment in the Applicant’s favour where you have not registered your claim, you are likely to be asked to register formally to seek any benefit of the class action.

Will my opt out be kept confidential from Domino’s?

No. The Court requires us to provide Domino’s with a full list of persons who have opted out of the class action. However, this information must be kept confidential and cannot be used for any other purpose by Domino’s.

What if I don’t want to participate in the Domino’s class action?

If you do not wish to participate in the class action, you need to ‘opt out’ during what is called the ‘opt out period’.

The opt-out deadline in the Domino’s class action was 17 May 2022 and has now passed. However, if the matter is settled before a final judgment is reached, there will likely be another opportunity to opt out at later date.

Opting out of a class action means that an individual may bring their own claim against the Defendant. However, because much of the conduct of Domino’s occurred a long time ago, you may have a very short period of time remaining in which to bring your own individual claim or no time remaining at all. The time since the class action was commenced in June 2019 does not count towards your time limit. However, the time remaining for you to bring your claim will start ‘ticking’ once you opt out from the class action. You should seek your own legal advice about your claim and the applicable time limit remaining to bring your claim if you still wish to opt out.

Can I register for someone else?

Yes, provided you have their permission to do so. As registration at the moment is not a Court ordered process, you may register for someone else to receive updates and information about the class action.

Will my registration be kept confidential from Domino’s?

There is no requirement to provide Domino’s with the details of individual group member registrations and we would not do so unless it was part of a settlement process. If we decide to disclose information about group members that have registered with us for the purpose of facilitating a settlement, it will only be provided on a de-identified basis. That means that:

a) your name, contact details and other personal details will not be provided; and

b) any data that is provided will not be traceable to you (for example, number of hours worked, deliveries made, amount claimed in compensation).

We also do not expect that the Court would require us to hand over identifiable data.

However, if there is a successful outcome in the class action, then we will likely have to share a list of the individuals participating in any settlement with the Court and Domino’s to facilitate distribution of compensation. However, Domino’s will not be able to use it for any purpose unrelated to the class action.

The registration form says that I have to agree that Phi Finney McDonald will obtain/request/store my employment information or data from Domino’s – what does this mean?

Phi Finney McDonald may make a request to Domino’s on behalf of group members for employment data held by Domino’s.

If you authorise Phi Finney McDonald to obtain your data, we may request all your employment data such as the stores that you worked at, shifts that you worked, amount you were paid, deliveries that you made, etc. This will enable the lawyers to advise you how much your claim may be worth. That is also critical information for working out whether any settlement offer is reasonable.

All data is stored by Phi Finney McDonald and its retained experts securely and it will (and can) only be used for the purposes of this class action.

Why should I register for the class action?

Registration is not compulsory at this stage, but you there are a number of reasons you should consider registering for the class action now:

a) those who register will receive regular updates about the case and the trial, and can communicate with the legal team running the claim;

b) by registering now, the details about your claim can be considered as part of any settlement; and

c) in the absence of sufficient numbers of group members registering, it may be more difficult to settle the class action for the right amount or it may complicate things if a whole lot of group members only come forward after a settlement is reached.

Do I need to provide any materials or evidence?

You are not required to provide any materials or evidence at this stage. We may request further information from you at a later date.

I want to participate. What do I need to do?

If you would like to participate in the Domino’s class action, you can register your interest by completing the online form on the Phi Finney McDonald website here: https://phifinneymcdonald.com/dominos-registration

Why did I get an email/SMS about the class action earlier in the year?

You may have received a ‘Notice’ from Phi Finney McDonald earlier in the year. This Notice was sent out to all people who may be a group member in the class action against Domino’s. We are required to issue the Notice to group members because it contains important information about your rights and participation in the class action.

Class actions are usually brought on behalf of all people who might have a claim against the same Defendant for their alleged wrongdoing. These people are called ‘group members’. Giving people an opportunity to ‘opt out’ or register for a class action is very important. As a result, judges want to ensure that everyone who is affected by a class action knows about their rights and obligations to participate in the case.

In this case, Justice Murphy of the Federal Court of Australia ordered that Domino’s provide employee contact details held on its central databases to Mr Gall so that his lawyers could contact other similarly affected persons with the Notice. Your details were in that list.

When will I get my money?

Group members will only be entitled to compensation if:

a) there is a settlement or judgment in our favour (see answer at 6 above for answer on trial and mediation timetable); and

b) you are eligible based on your employment history (see answer at 23 below for response regarding group member eligibility).

If you are eligible, distribution of funds generally occurs a couple of months after the final settlement or judgment.

How long will the case take?

The case is scheduled for trial in November 2022. If it runs to trial, we anticipate that it will be some months before a final judgment is delivered.

However, the case is scheduled to go to mediation in October 2022 where the parties will see if a settlement can be negotiated.

What is RAFFWU’s role?

The alleged misconduct was uncovered through a detailed forensic investigation spearheaded by the Retail and Fast Food Workers’ Union (RAFFWU). RAFFWU has continued to help Phi Finney McDonald as a consultant for the Domino’s class action, by providing expert advice on industrial matters.

What is the claim?

This class action was commenced on 24 June 2019 in the Federal Court of Australia by Mr Riley Gall (the Applicant), a former Domino’s delivery driver, against Domino’s Pizza Enterprises Limited (Domino’s).

The class action alleges underpayment of delivery drivers and in-store workers employed by Domino’s Australian franchisees between 24 June 2013 and 23 January 2018.

Mr Gall alleges that during 2013 to 2018, Domino’s told its Australian franchisees to pay their delivery drivers and in-store workers under old enterprise bargaining agreements.

Mr Gall alleges that many of those workers were instead covered by the Fast Food Industry Award, and were not paid in accordance with the better terms and conditions of the Award.

Mr Gall therefore argues that he and eligible workers are entitled to compensation from Domino’s for loss and damage, being the difference between the wages under the old enterprise bargaining agreements and the Award.

What is being claimed?

If the claim is successful, eligible group members will be entitled to make a claim for instances where they were not paid part or all of the following entitlements:

Hourly rates under the Award;
Casual loading;
Evening work penalty;
Saturday penalty;
Sunday penalty;
Public holiday penalty;
Meal allowance;
Special clothing allowance;
Delivery allowance; and
Laundry allowance.

If you are an eligible group member, the exact amounts that could be claimed will depend on being able to calculate the difference between what you were paid, and what you should have been paid. It will also depend on things like where you worked and what your classification was.

Phi Finney McDonald cannot provide an estimate of your loss at this stage.

Which lawyers are conducting the claim?

The solicitors running the case are from the law firm, Phi Finney McDonald.

Phi Finney McDonald is a specialist litigation law firm with offices in Melbourne, Sydney, and London. The firm practices in complex and large-scale litigation, with a focus on class actions and group litigation.

Who is funding the claim?

Therium Litigation Finance is funding the class action against Domino’s. Therium is a litigation funder that has funded claims across the world including Australian class actions.