Andre Smirnov v Stephen Blignaut - [2012] FMCA 952

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANDRE SMIRNOV v STEPHEN BLIGNAUT & ANOR

[2012] FMCA 952

INDUSTRIAL LAW – Small claims jurisdiction – approach to small claim – claim for unpaid wages, annual leave, allowances – dispute as to whether applicant an employee – evidence as to employment – orders for unpaid wages and annual leave.

Fair Work Act 2009 (Cth) s.548
Federal Magistrates Act 1999 (Cth) ss.3, 42
Federal Magistrates Court Rules 2001 (Cth) r.1.03, 16.05

McShane v Image Ballards Pty Ltd [2011] FMCA 215
Black v Young Republic [2012] FMCA729
Jones v Groovy Freighters Pty Ltd [2010] FMCA 673
Lebot v Energetic IT Pty Ltd [2011] FMCA 955
Hollis v Vabu Pty Ltd(2001) 207 CLR 21
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation(No.3) [2011] FCA 366

Applicant:

ANDRE SMIRNOV

First Respondent:

STEPHEN JACK BLIGNAUT

Second Respondent:

OZBRITE PTY LTD

File Number:

(P)MLG 1793 of 2011

Judgment of:

O’Sullivan FM

Hearing date:

4 October 2012

Date of Last Submission:

4 October 2012

Delivered at:

Melbourne

Delivered on:

19 October 2012

REPRESENTATION

The Applicant:

Appeared in person

The Respondents:

First Respondent in person for both

ORDERS

THE COURT DECLARES THAT:

The Second Respondent contravened the Fair Work Act 2009 and the Fair Work Act instrument in the terms of the Metal Engineering and Associated Industries (Professional Engineers and Scientists) Award 1998 and the Professional Employees Award 2010.

THE COURT ORDERS THAT:

Pursuant to section 545(2)(b) of the Fair Work Act 2009 the Second Respondent pay to the Applicant the sum of $9,909.60 less tax within 30 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

(P)MLG 1793 of 2011

ANDRE SMIRNOV

Applicant

And

STEPHEN JACK BLIGNAUT

First Respondent

And

OZBRITE PTY LTD

Second Respondent

REASONS FOR JUDGMENT

Before the Court is an application filed on 20 December 2011 by Mr Andre Smirnov (“the applicant”). The respondents to the application are Mr Stephen Jack Blignaut (“the first respondent”) and Ozbite Pty Ltd (“the second respondent”).
The applicant made claims of breaches of the Fair Work Act 2009 (Cth) (“the Fair Work Act”) arising from his employment with the second respondent between March and June 2010.
The application was accompanied by a form 5 as the applicant had elected for his claim against the respondents to be dealt with under the small claims process in section 548 of the Fair Work Act.

Procedural Background

The application was first listed for hearing on 9 March 2012. On that occasion the applicant was granted leave to proceed in the absence of the respondents, who had been served and failed to appear or make a proper application for an adjournment, pursuant to Rule 13.03A and 13.03B of the Federal Magistrates Court Rules 2001. There were orders made for reasons given ex tempore and the respondents were given liberty to apply to set them aside.
The first respondent filed an Affidavit on 5 April 2012 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andre Smirnov v Stephen Blignaut

Details

AGLC: ANDRE SMIRNOV v STEPHEN BLIGNAUT & ANOR [2012] FMCA 952
Case: [2012] FMCA 952
Decision Date: 19 October 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Andre Smirnov v Stephen Blignaut involved a dispute concerning alleged contraventions of the Fair Work Act 2009. The applicant, Mr Smirnov, claimed that the second respondent, his former employer, had breached specific award provisions and statutory provisions of the Fair Work Act 2009. The primary contention was that the employer had failed to pay Mr Smirnov for all hours worked, including overtime and penalty rates as stipulated in the relevant industrial awards.

The court was tasked with determining whether the employer had indeed contravened the Fair Work Act 2009 and the specific award conditions. The core issues revolved around the interpretation and application of the award provisions and whether the employer had acted in accordance with the statutory requirements in the Fair Work Act 2009. The court had to assess whether the employer's failure to pay the specified entitlements constituted a contravention of the Act and the awards.

In its decision, the court found that the employer had contravened both the Fair Work Act 2009 and the relevant industrial awards. The court held that the employer's actions in not compensating the applicant for all hours worked, including overtime and penalty rates, were in breach of the statutory and award provisions. The court detailed the specific calculations and legal grounds leading to this conclusion, highlighting the discrepancies between the payments made and the entitlements owed under the applicable awards. The court ordered the employer to compensate the applicant for the unpaid entitlements, specifying the amount due and the timeframe for payment.

Orders

Orders of the court

THE COURT DECLARES THAT:

The Second Respondent contravened the Fair Work Act 2009 and the Fair Work Act instrument in the terms of the Metal Engineering and Associated Industries (Professional Engineers and Scientists) Award 1998 and the Professional Employees Award 2010.

THE COURT ORDERS THAT:

Pursuant to section 545(2)(b) of the Fair Work Act 2009 the Second Respondent pay to the Applicant the sum of $9,909.60 less tax within 30 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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