Barhoum v All Districts Coating Pty Ltd & Anor (No 2)
[2008] FMCA 924
•11 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARHOUM v ALL DISTRICTS COATING PTY LTD & ANOR (No.2) | [2008] FMCA 924 |
| INDUSTRIAL LAW – Application for reinstatement – application for compensation – applicant for payment to be made to superannuation trustee – application for payment to be made to redundancy trustee – calculation of compensation – application for costs – reinstatement not practicable – order for compensation at the maximum amount allowed under the “cap” – order for payment to redundancy trust fund – order for payment to superannuation trustee – order for costs. |
| Workplace Relations Act 1996 ss.665, 659, 666 Federal Magistrates Court Rules r.13.03A(e) |
| Barhoum v All Districts Coating Pty Ltd & Ors [2008] FMCA 172 Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council [2000] FCA 1231 Greater Dandenong City Council v Australian Municipal, Clerical and Services Union [2001] FCA 349 Laz v Downer Group Pty Ltd [2000] FCA 1390 Claveria v Pilkington Australia Limited (No 2) [2007] FCA 1917 Scott Sainsbury v Pilkington (Australia) Ltd [1999] NSWCIMC 124 CFMEU (on behalf of) Justin Sutherland and Kevin Bowden [2005] NSWIRComm 220 Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120 Radha v ING Investment Management Ltd [2008] FMCA 75 Re; Ex parte Crozier [2001] FCA 1665 |
| Applicant: | EAD BARHOUM |
| First Respondent: | ALL DISTRICTS COATING PTY LTD |
| Second Respondent: | ALL DISTRICTS (AUST) PTY LTD |
| Third Respondent | CARLOS HABIBEH |
| Fourth Respondent | RITA HABIBEH |
| File Number: | SYG 1589 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 14 May 2008 |
| Date of Last Submission: | 14 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2008 |
REPRESENTATION
| Appearing for the Applicant: | Ms L Charlson |
| Counsel for the Respondents: | Mr Hodgekiss |
| Solicitors for the Respondents: | Morgan Ardino & Co (on record since 20 May 2008) |
ORDERS
There be no order as to the applicant’s reinstatement to employment by the respondents.
The first and/or second and/or third respondents pay compensation to the applicant in the amount of $26,874.81.
The first and/or second and/or third respondents make a payment in respect of the applicant to the relevant superannuation trustee in the total amount of $100 per week, as between the date of termination
(13 April 2006) and the date of this judgment (11 July 2008) (117 weeks): $11,700.
The first and/or second and/or third respondents make a payment in respect of the applicant to the ACIRT redundancy trust fund in the amount of $60 per week, as between the date of termination (13 April 2006) and the date of this judgment (11 July 2008) (117 weeks): $7,020.
The first and/or second respondents pay the applicant’s costs as incurred between at the date of the making of the application (2 June 2006) and the date that the third respondent was joined as a party in the proceeding (13 October 2006).
The first and/or second and/or third respondents pay the applicant’s legal costs as assessed from 14 October 2006 to 22 February 2008 (the date of the earlier judgement).
The first and/or second and/or third respondents pay the applicant’s costs set in the amount of $1,000 in relation to the hearing on 14 May 2008.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1589 of 2006
| EAD BARHOUM |
Applicant
And
| ALL DISTRICTS COATING PTY LTD |
First Respondent
| ALL DISTRICTS (AUST) PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
On 22 February 2008 I handed down judgment in Barhoum v All Districts Coating Pty Ltd & Ors [2008] FMCA 172, a matter in which I found that Mr Barhoum’s (“the applicant”) employment had been terminated in circumstances where the first, second and third respondents had breached the requirements of s.659(2)(a) of the Workplace Relations Act 1996 (“the Act”).
Background
The background to this matter, and to the issues currently for consideration are set out at paragraphs [4] and [5] of that judgment. The applicant sought a number of orders (see [6] of the earlier judgment). I have already made an order imposing a penalty against the first, second and third respondents.
Having found that the applicant’s employment was unlawfully terminated, and that a penalty should be paid, nonetheless, a number of issues were left outstanding as at the time of my judgment relating to the complete set of remedies sought by the applicant.
At that time, I made orders giving the parties the opportunity to file evidence and/or submissions (within 28 days) in relation to the outstanding issues, being:
1)Reinstatement of the applicant to employment.
2)The amount of compensation that may be paid to the applicant.
3)Costs.
The matter came on for further directions on 28 March 2008. By that time, the applicant had filed his (further) affidavit of 20 March 2008 with annexures, and written submissions on the issues for which leave had been granted. The respondents had not filed anything by that time. On that occasion, the applicant was again represented by Ms L Charlson, and the respondents were represented by Mr W Hodgekiss of Counsel, and while not on the record, a solicitor indicated that he was acting for the respondents (Mr Mitry).
The respondents indicated that they intended to file an appeal in relation to the earlier judgment and, given that Counsel for the respondents had only recently been briefed in the matter, the directions hearing was adjourned until 14 April 2008.
On that date, Ms Charlson again appeared for the applicant and Mr Mitry (solicitor) appeared, for the respondents. He advised that while the respondents had not yet done so, an appeal would be lodged “soon” and that the respondents probably did not intend to file any further material, but may still wish to cross-examine the applicant on his affidavit. I made orders that gave the respondents until 18 April 2008 to notify the applicant as to whether he was required for cross-examination, and that judgment on the outstanding issues would be reserved as at 18 April 2008.
The matter (in relation to the outstanding issues) was set down for further hearing which were ultimately held on 14 May 2008. Ms Charlson again appeared for the applicant. The respondents did not appear, and nor did any of the respondents’ legal representatives appear on their behalf. (A communication had been received on the morning of the hearing from a solicitor (Mr Mitry) who said he was representing the respondents and to advise that neither Counsel nor himself would be appearing for the respondents on that date.)
I was satisfied that the respondents had knowledge of the matter being heard before the Court and that they had chosen (for whatever reason) not to attend, nor send their legal representatives. In the circumstances, I considered it appropriate to proceed pursuant to r.13.03A(e) of the Federal Magistrates Court Rules. The respondents had not sought any adjournment, nor any stay in these proceedings. I note subsequently that the respondents have filed an appeal from the earlier Judgment in the Federal Court of Australia (NSD547/2008). However, I am unaware of any order of that Court staying the current proceedings before this Court.
Leave was granted for the affidavit of the applicant to be read into evidence before the Court. Submissions were made by Ms Charlson by way of clarification of a number of matters in the applicant’s latest set of written submissions.
Reinstatement
The applicant seeks an order requiring the first, and/or second, and/or third respondent to reinstate the applicant to employment. He submits that such an order is open to the Court in accordance with s.665 of the Act. Further, that such reinstatement be with “back pay” of salary from the time of termination to the time of judgment.
Relevant parts of s.665 of the Act are in the following terms:
“Application to courts in relation to alleged contravention of section 659, 660 or 661
(1) If the Court is satisfied that an employer has contravened section 659 in relation to the termination of employment of an employee, the Court may make one or more of the following orders:
(a) an order imposing on the employer a penalty of not more than $10,000;
(b) an order requiring the employer to reinstate the employee;
(c) subject to subsections (2), (3), (4) and (5), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate;
(d) any other order that the Court thinks necessary to remedy the effect of such a termination;
(e) any other consequential orders.
(2) An amount of compensation ordered by the Court under paragraph (1)(c) or (d) to be paid to an employee may not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the employee by the manner of terminating the employee’s employment.
(3) In fixing an amount under paragraph (1)(c) for an employee who was employed under award‑derived conditions immediately before the termination, the Court must not fix an amount that exceeds the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the employee; or
(ii) to which the employee was entitled;
(whichever is higher) for any period of employment with the employer during the period of 6 months immediately before the termination (other than any period of leave without full pay); and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period--the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
(4) In fixing an amount under paragraph (1)(c) for an employee who was not employed under award‑derived conditions immediately before the termination, the Court must not fix an amount that exceeds:
(a) the total of the amounts determined under subsection (3) if the employee were an employee covered by the subsection; or
(b) the amount of $32,000, as indexed from time to time in accordance with a formula prescribed by the regulations;
whichever is the lower amount.
(5) For the avoidance of doubt, an order by the Court under paragraph (1)(c) or (d) may permit the employer concerned to pay the amount required in instalments specified in the order.
(6) If the Court is satisfied that an employer has contravened section 660 in relation to a decision to terminate the employment of employees, the Court may make either or both of the following orders:
(a) an order imposing on the employer a penalty of not more than $1,000;
(b) an order requiring the employer not to terminate the employment of employees pursuant to the decision, except as permitted by the order.
…
(9) A court to which an application is made under section 663 must not grant an injunction in respect of a proposed contravention of section 659, 660 or 661.”
At the time of handing down my earlier judgement, I considered it appropriate, given the length of time that had elapsed since the making of final submissions and the date of the judgement, for an opportunity to be given to the parties to put on additional material and make further submissions in relation to the issues of reinstatement (and compensation). See [16] of my earlier judgement and see also Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong City Council [2000] FCA 1231 (“AMACSU”) at [131] to [133] and Greater Dandenong City Council v Australian Municipal, Clerical and Services Union [2001] FCA 349 (“Greater Dandenong”) at [113]:
“I agree it would have been inappropriate for the trial judge, after a lengthy reservation of judgment, to proceed immediately with an order for reinstatement of the affected employees, without affording the council an opportunity of alerting him to any situational changes that may have occurred in the meantime …”
Despite opportunity, nothing further has been received from the respondents.
I understood the applicant’s current position to be that he sought reinstatement as the appropriate and “primary” remedy. Further, that if the Court considered that it was not practicable to reinstate the applicant to employment that such reinstatement could, in any event, be ordered up to the point in time at which the applicant was fit to work. Further, compensation was sought if in the event that the Court did not order reinstatement.
In light of submissions made by Ms Charlson (on 14 May 2008), I understood these applications for orders (as to reinstatement and compensation) to be put in circumstances that would avoid “double dipping”. See AMACSU at [132]:
“In any case, there should be no ‘double-dipping.’”
Turning first to the issue of reinstatement, therefore, I note what was said in AMACSU at first instance at [27], and on appeal (Greater Dandenong) per Wilcox J at [39]:
“Finally, at para 126, Madgwick J turned to remedies. He held ‘there are plainly mitigating circumstances (so) a nominal penalty will suffice’. His Honour observed (in para 127) that, where reinstatement is sought for proven, unlawful termination of employment, ‘it should generally be regarded as the primary remedy and awarded, except where it would be impracticable so to do, or where there are other just and compelling reasons against that course’.”
In this regard, the applicant, in particular, relies on his affidavit of 20 March 2008, and annexure “B” to the affidavit, being a report of a medical specialist, Dr Clive Sun, who is a consultant in rehabilitation medicine. Relevantly, the report from Dr Sun, dated 30 July 2007, states (at page 3):
“He [the applicant] is not fit to return to his preinjury duties.
He is fit for permanent modified duties with no lifting over 8kg, no forceful pushing or pulling, no repetitive bending or twisting, no sustained use of the right hand for more than 20 minutes at a time and change of postures every 30-40 minutes. Provided suitable duties and workplace are available he may be able to manage 30 hours a week.
…
I believe his condition has stabilised.
In my opinion the nature and conditions of his employment was a substantial contributing factor to his impairment.”
The report then addresses the applicant’s various injuries:
“For the injuries sustained on 13 November 2000:
For the initial thoratic injury with T12 fracture in 2000 I refer to section 66 table s of maim and I calculate 10% permanent impairment of the back.
For the injuries sustained on 15 March 2005 and 20 February 2006:
For the work injuries sustained at work in 2005 and 2006 I refer to Workcover guides to the evaluation of permanent impairment November 2006 2nd edition and using AMA5.
I believe his condition has reached maximal medical improvement.
…”
In his evidence, the applicant asserts that this is the most recent medical report available to him (paragraph [4]). Further, the applicant (to some extent repeating evidence given earlier) asserts that at various times, he worked for the third respondent “as a foreman” (from September 2004 to January 2005, March 2005 until January 2006). His evidence is that as a foreman, he directed the work of other painters, ordered stock and materials, and “liaised” with the third respondent and builders on such matters as payment and organising work.
I note in particular the following (the applicant’s affidavit of 20 March 2008 at paragraph [6]):
“When I was working as a foreman, I also did some physical work. But it would be possible to work as a foreman without doing physical work.”
I note further at paragraph [7]:
“I could work as a foreman for [the third respondent] within the restrictions set out in Dr Sun’s report, when I am again cleared for suitable duties.”
The applicant’s submissions in this regard are that while he is currently not fit for work (see in particular, paragraph [7] of the submissions of 25 March 2008), during the period following the time of termination of his employment, he has on occasion been “certified as fit for suitable duties”. He relies on what is said to be the scheme of the workers compensation legislation that injured workers remain employed by their employer for at least six months after the injury, whether or not they are able to work, and that light duties or other suitable duties are encouraged: “where these are available and when the employee is fit in order to aid in the employee’s rehabilitation”.
In these circumstances, the applicant submits that his “current lack of fitness for work” is not a bar to his reinstatement, and that he could continue to be paid weekly benefits, and “when and if” the applicant is certified as fit to work, and given that he believes that “suitable duties” are available, he would be able to do the work of the “foreman”, a “role” which the applicant submits, is mainly administrative and supervisory in nature and “fits” within the ambit of the restrictions set out in Dr Sun’s report.
As already referred to above, the respondents have not put any further evidence before the Court in this regard, nor made any further submissions. What is relevantly known to the Court, therefore, is the material put on behalf of the respondents as at the time of the earlier judgement.
In this regard, paragraph [113] of my earlier judgement is relevant:
“The respondents submit that reinstatement is not an appropriate remedy in all the circumstances, given that the nature of the business (that is, a painting business), which requires lifting and carrying of materials and standing for long hours, would not be suitable for the applicant given the nature of his injuries. The respondents assert that the only ‘light duties’ available are those of an administrative nature, and that there was no evidence before the Court that such duties would be suitable for the applicant. Further, given that there was no evidence of his having any relevant administrative skills that could assist him to perform such duties.”
In my earlier judgement I found that the applicant’s employment was terminated for a reason which included a proscribed reason with reference to s.659(2)(a) of the Act. That is, temporary absence from work because of a work-related injury (see [88] of my earlier judgement).
I have already made an order that a penalty should be paid by the first, second and third respondents. The issue now is whether reinstatement should be ordered.
The state of the evidence before the Court as at the time of my earlier judgement, led to the view that the third respondent (Mr Habibeh) was the driving force of the painting business, largely (but not exclusively) through the use of the second respondent up until April 2006, and that he remained so since that time by running the business through the first respondent, with a somewhat greater (but not dominant) role taken by the fourth respondent, his wife (see, generally, paragraphs [58] to[65] of my earlier judgement).
For this reason, given that reinstatement should be seen as the “primary remedy” in the circumstances, and that it should be ordered except where it would be impracticable to do so, I considered (although not raised by the applicant) whether a satisfactory working relationship can be re-established between the applicant and Mr Habibeh, despite the litigation that has given rise to some criticism of each party by the other, and also arising from circumstances where both the applicant and the third respondent gave conflicting evidence about relevant events, and in particular, events relating to their communications (see, in particular, paragraphs [68] to [85] of my earlier judgment).
In this regard, however, I am mindful of what was said per Moore J in Laz v Downer Group Pty Ltd [2000] FCA 1390 at [36]:
“I accept that it is relevant to consider whether a satisfactory working relationship can be re-established. But as von Doussa J said in Ettridge v TransAdelaide (1998) 80 IR 422 at 430 (in relation to the exercise of the power conferred by s 170CR):
In considering whether the discretion to order reinstatement should be exercised, a central consideration is whether a satisfactory working relationship can be re-established between the parties. As Moore J observed in Bean v Milstern Retirement Services Pty Ltd (unreported, Industrial Relations Court of Australia, 2 June 1995) in many instances personal tensions created by litigation can be expected to lessen if not dissipate entirely with the passage of time.
See also Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 at 191 and Sherman v Peabody Coal Ltd (1998) 88 IR 408 at 424-425.”
I do note that following termination of his employment, the applicant approached Mrs Habibeh, and not Mr Habibeh, directly to ask her husband to complete certain documentation required by the applicant (see, in particular, [109] of my earlier judgement). In the absence of anything to the contrary, it can be inferred in all the circumstances that the applicant had some difficulty in approaching Mr Habibeh directly.
However, despite this, and despite the matters raised by way of this litigation, the applicant presses for reinstatement. The respondents have put nothing before the Court going to the issue of whether a satisfactory working relationship could be re-established.
However, in the absence of anything further, therefore, and being guided by what was said by Moore J and von Doussa J as set out above, there is nothing before the Court now to indicate that the tensions created by this litigation could not be “expected to lessen if not dissipate entirely with the passage of time”. In this regard, therefore, I do not see this issue as being a bar to reinstatement in the sense of a working relationship being redeveloped between the third respondent and the applicant.
As between the applicant and the fourth respondent (Mrs Habibeh – whom the respondents submitted was now the driving force, through the first respondent in the running of the painting business), it is noteworthy that even after the termination, the applicant was able to approach her to arrange for the completion of necessary documentation, and that nothing has arisen during the course of the litigation to indicate any previous tension between the fourth respondent and the applicant in this regard.
Further, as the first and second respondents, being company entities (irrespective of the role played, or control exercised, as between the third and fourth respondents) are entities at the control and direction of both the third and fourth respondents, then no further difficulty should arise in relation to those two respondents.
In all, therefore, I cannot see that this issue is a bar to reinstatement being ordered.
Notwithstanding this, I am of the view that the reinstatement is, however, otherwise impracticable in all the circumstances. The respondents’ position (as at the time of my earlier judgement) was that reinstatement was not an appropriate remedy having regard to the nature of the painting business engaged in by all the respondents, to varying degrees, and that having regard to the nature of the applicant’s injuries, the applicant would not be able to engage in the requisite activities of lifting and carrying materials, standing for long hours, and activities of the type that require physical exertion. These are all activities with which the applicant would have difficulty, given the the ongoing state of his injuries.
The applicant relies on the report of Dr Sun to submit that he is not fit for work, that is, to return to the work performed as at the time prior to his injuries, particularly of March 2005 and February 2006. That the Court should order reinstatement on the basis that the applicant could return to employment on “light duties” (consistent with his having been a foreman in the past), until such time that he can be certified as fully fit for work.
In this regard, the submissions states:
“… at various times throughout the period following Mr Barhoum’s termination of employment he has been certified as fit for suitable duties.”
However, I cannot see that evidence of this has been placed before the Court.
What the Court is therefore left with is, on the material provided by the applicant himself, that he is as at the time of the making the latest submissions “not fit to return to his preinjury duties” (see page 3 of Dr Sun’s report – annexure “B” to the applicant’s affidavit). Despite the applicant’s submission that his current lack of fitness for work is not a bar to reinstatement, the material that he has provided to the Court, by way of the relevant medical report, states that he is not fit to return to his pre-injury duties. I understood this to be at least, and relevantly, the duties engaged in as late as, and up to, 20 February 2006. (Noting that the date of termination of employment as notified to the applicant was in April 2006, at which time the applicant was absent from work because of the work-related injuries.)
The latest evidence from the applicant is that for periods in the past, he was employed as a foreman (by Mr Habibeh) and that while in the past he did some physical work, it would be possible in the future to work as a foreman “without doing physical work” (see paragraph [6] of his affidavit of 20 March 2008).
In this regard, however, there is no evidence before the Court that, since the “restructuring” of the respondents’ business arrangements in April 2006, the business could accommodate the applicant’s return to his former employment “without doing physical work”. The applicant relies on the circumstances prior to his latest injury (January 2006). Even taking into account his work after this injury (up until April 2006) he (when he did not work with Mr Ahmed Mahkfi) worked as a foreman (see paragraph [5] of his affidavit 20 March 2008).
However, there is no evidence before the Court to show that the work situation that existed even at that time continues to operate now such that it would be practicable to reinstate the applicant to employment even as a foreman. Noting, of course, that such a “position”, or capacity, was only irregularly available to the applicant in the past. Further, on the applicant’s own evidence it involved “some of the physical work”. Beyond the applicant’s mere assertion, now, that it would be possible to work as a foreman without doing physical work, there is nothing before the Court now to show that such a possibility is feasible or exists.
Further, the applicant links the possibility of his working as a foreman “within the restrictions set out in Dr Sun’s report” but qualifies this by saying “when I am again cleared for suitable duties”. In submissions the applicant plainly contemplates a situation that if he were returned to employment with the respondents that there would be periods when he would be unable to work and could, therefore, continue to be paid “weekly benefits” (see paragraph [9] of written submissions). He then submits:
“When and if the applicant is certified as fit to work, he believes that ‘suitable duties’ are available, in that he is able to do the work of the foreman. The work of the foreman is mainly administrative and supervisory, and Mr Barhoum is able to perform this work within the restrictions set out in Dr Sun’s report referred to above.”
I comprehend from relevant authorities that while reinstatement to former employment is “the primary remedy”, there is a relevant exception that it would not be granted where it would be “impracticable to do so.” Dr Sun’s report plainly states that the applicant is not fit to return to his pre-injury duties. The applicant’s submissions plainly recognize this when it is asserted that the applicant has a “current lack of fitness for work”.
As to when he may be fit to return to work, the applicant’s position, is at best, ambivalent (“when and if”) but that in any event, even in those circumstances, he would only be fit to return to “suitable duties” (as a foreman) within the restrictions set out in Dr Sun’s report.
In this regard, however, Dr Sun’s report is perfectly clear and, in my view, does not assist the applicant in this regard. The applicant’s medical condition and prognosis are such that applicant would not be able to return to anything other than suitable or “modified duties”. While Dr Sun states that “he is not fit to return to his preinjury duties”, he also states that “[h]e is fit for permanent modified duties …” [Emphasis added.]
Further, while Dr Sun gives the opinion that the applicant’s “condition has stabilised”, he further opines that “the nature and conditions of his employment was a substantial contributing factor to his impairment.” Even further, the report asserts that the injury sustained on 13 November 2000 resulted in a “10% permanent impairment of the back”. Importantly, in relation to the later set of work injuries of 2005 and 2006, the applicant’s condition is now described as having “reached maximal medical improvement.”
In all, I understand the report to assert, given the different calculations and percentages of impairment allocated to the applicant’s various injuries, that the applicant has levels of impairment which have reached “maximal medical improvement”. That is, injuries, in the doctor’s view that are not going to get any better.
In all these circumstances, in my view, it is not practicable to order the reinstatement to employment of the applicant with the respondents. The doctor’s report asserts that he is not fit to return to his pre-injury duties, being duties which included, on the applicant’s own evidence, time as a foreman, in circumstances where, again on the applicant’s evidence, required some physical exertion on his part.
At best, therefore, the applicant’s position appears to be that if he were to be reinstated to employment, for some unspecified and unknown period he would then “continue to be paid weekly benefits”, and that, even in the face of what is set out in Dr Sun’s report (in my view, with respect, refreshingly clear in expression at those relevant parts), the applicant is fit only for “permanent modified duties”.
There is nothing before the Court now to show that such “permanent modified duties” are consistent with the work performed, even as a foreman, by the applicant in the past. Nor that the work of the foreman now, in relation to that work conducted by the respondents, is similar to the work conducted by a foreman in the past, nor, importantly, that it is consistent with the “permanent modified duties” as set out by Dr Sun.
Noting, even further, that Dr Sun’s medical report makes even these permanent modified duties dependent on the provision that “suitable duties and workplace are available” in which case “he may be able to manage 30 hours a week”. There is nothing in the applicant’s own evidence to suggest that even on those occasions when he worked as a foreman in the past that only 30 hours a week were available in that capacity in the respondents’ business, let alone that it is available in the respondents’ business now.
While reinstatement should be considered as the “primary” remedy, in my view, it is not the appropriate remedy in this case because the making of such an order would be impracticable. This is not a situation of mere inconvenience, or even expense, to which the respondents would be put. If the Court were to make such an order it would be in relation to an employee who is not currently fit for the relevant duties and in respect of which there is, on the doctor’s report, no prospect for any capacity to return to anything other than “modified duties” on a “permanent basis”.
Given what is set out above there is no need to address the applicant’s request that if reinstatement is ordered it should be ordered with “back pay”.
Compensation
The applicant was subject to termination of his employment in circumstances which included a proscribed reason for the purposes of the Act. Given that I do not consider reinstatement to employment as practicable, and therefore appropriate, it is appropriate to consider whether compensation should be paid to the applicant.
Relevant to this issues as at the time of my earlier judgment I said (at paragraph [118]):
“As to compensation, it is appropriate that, in the circumstances set out above and as relevantly derived from the reasoning above, that the applicant should receive some compensation [in context in circumstances, where reinstatement to employment was not ordered]. The respondents’ submissions (see paragraph 94) appear to accept, that in circumstances where the Court finds that the termination was for a proscribed reason, that compensation should be paid, but that it should be “of a minimal nature.’”
Beyond what is referred to above, the respondents have chosen not to put anything further in relation to the issue of compensation to the Court (despite being plainly on notice that this was an issue, as a result of my earlier judgment). Given the finding that the applicant’s employment was terminated for a reason proscribed by s.659 of the Act, and given that it is impracticable in the circumstances to order reinstatement to employment of the applicant, there is, in my view, nothing before the Court now to argue against compensation being paid to the applicant for the breach of the Act, a view arrived at for reasons set out in the earlier judgment.
The issue now, therefore, is how this compensation should be calculated, noting that the applicant seeks that the maximum amount possible should be awarded to him, and the respondents (as best as they have chosen to put their position before the Court) submit that it should be “of a minimal nature” (see paragraph [94] of the respondents’ written submissions of 9 July 2007 and see paragraph [118] of the earlier judgment).
I should note that, given findings made in the earlier judgment, and applying similar reasoning as I applied to the issue of the payment of a penalty (see [110] of the earlier judgment) if payment for compensation is to be ordered, it is only to be paid in respect of the first, second, and third respondents, and not the fourth respondent, Mrs Habibeh.
The relevant orders open to the Court are set out in s.665 of the Act. In this regard, the Court is satisfied that the employer has contravened s.659 of the Act, and that it is appropriate that an order for compensation be made pursuant to s.665(1)(c).
The evidence before the Court shows that the applicant was employed “under award derived conditions immediately before the termination” (with reference to s.665(3)). That the applicant was employed under an award was not contested by the respondents. In his affidavit of 1 November 2006, the third respondent (Mr Habibeh) reports the following conversation with the applicant (at paragraph [8] of his affidavit):
“On or about September 2004, Mr. Barhoum contacted me and informed me that he was back from overseas and was looking for work.
I said to him: ‘I do have work available if you want’.
He said: ‘What would the pay be’?
I said: ‘i have an Enterprise Bargaining Agreement and you would be paid in accordance with the terms of that agreement’.
He said: ‘No problem, that’s how i was working with the other company and i will be happy to work with you on that basis.’”
[Errors in the original]
The relevant enterprise agreement, the “All Districts Coating (Aust) Pty Ltd/CFMEU Collective Bargaining Agreement 2005-2008”, expiring 31 March 2008, is at annexure “P” to the applicant’s affidavit of 19 September 2006. I note (as referred to by the applicant’s submissions) that clause 4 of that agreement provides that the “Agreement is supplementary to, and shall be read and interpreted wholly in conjunction with the National Building and Construction Industry Award 2000” which is described as the “parent award” (see page 4 of the agreement).
While s.665(1)(c) provides that the amount of compensation may be an amount “as the Court thinks appropriate” this is subject to, in this case, given the relevant circumstances, the relevant “cap” as calculated according to what is set out at s.665(3).
In Claveria v Pilkington Australia Limited (No 2) [2007] FCA 1917 (“Claveria”) per Kenny J, the Court considered how the “cap” should be applied. Relevant also to the circumstances of the case currently before the Court, Kenny J said (at[19] – [20]):
“19 The parties also disagreed as to how the cap or limit in s 665(3) should be applied. According to counsel for the respondent, s 665(1)(c) does not contemplate that ‘compensation’ be first assessed by reference to that which the employee has lost or otherwise suffered by reason of the employer’s contravention of s 659, although he conceded that it conferred a discretion on the court, which might be exercised having regard to the employee’s loss. The respondent submitted that s 665(3) operated as a jurisdictional constraint on the exercise of this discretion. The respondent argued that, if the court, in the exercise of its discretion, determined that the maximum amount of compensation payable under the cap (or some lesser amount) was appropriate, then any deductions (such as those referred to in [12] above) should be made from this amount. Finally, the respondent submitted that, to the extent that Laz v Downer Group Ltd (2000) 108 IR 244 (‘Laz’) was contrary to this suggested interpretation, it was wrongly decided or was to be reconsidered in light of the fact that s 665(3) in its present form was enacted after Laz.
20 I reject the respondent’s submissions concerning the operation of the cap. There is no warrant to accord to s 665(3) such a contrived operation. Section 665(3) operates merely to limit or cap the amount of compensation that the court may fix under s 665(1)(c), as an amount to be paid by the employer to the employee in compensation for terminating his employment in contravention of s 659 of the Act. Accordingly, I propose to approach the calculation of compensation in the way advocated by counsel for Mr Claveria. That is to say, I have calculated the amount of Mr Claveria’s lost remuneration, and deducted from this amount the amounts referred to at [12] above. Only then, once an appropriate compensatory figure is arrived at, should regard be had to the cap in s 665(3). As I have already said, approached in this way, if lost remuneration is properly dealt with in an order under s 665(1)(c), then s 665(3) does not operate to require the fixing of any sum lower than the $27,643.00 which I would otherwise award to Mr Claveria (whether or not superannuation is included in the calculation of the s 665(3) cap).”
The applicant submits that his weekly net wages in the six months prior to termination were $28,784.42. He also submits that from the time of termination until the making of submissions, there was a period of approximately one hundred and two weeks. With regard to what was said to be the “average” earnings of the applicant in the six months prior to termination (approximately $1,107.09 per week, excluding superannuation and redundancy contributions) the applicant’s net loss earnings were therefore approximately over $112,000 (a figure as at the time of submissions and not adjusted to the date of this judgement).
The applicant calculates that in the same period he had been paid weekly compensation benefits by the relevant workers compensation insurer in the sum of approximately $76,000 (with approximately $16,000 in tax), leaving a net amount of approximately $60,000. Having regard therefore to the difference between the applicant’s net lost earnings and the net amount of his weekly workers compensation benefits, the difference is approximately $52,000.
Given that this amount exceeds the total earnings for the period of six months prior to the termination date, the applicant submits that the maximum compensation (with reference to s.665(3)) is an amount equivalent to the amount earned by the applicant in the six months prior to the termination date.
First, I should note (with reference to the actual evidence put before the Court) that I have some difficulty in accepting the applicant’s submission regarding the relevant amount of earnings in the six months prior to termination ($28,784.42). The applicant has used an approximate net figure, averaged weekly, to calculate the amount. Section 665(3), in my view, does not allow for that degree of flexibility. The wording of the subsection provides that “Court must not fix an amount that exceeds the total of the following amounts”, the amounts being: “the total amount of remuneration received by the employee”; or “to which the employee was entitled” in the period of six months immediately before the termination. The termination took effect as of 13 April 2006 (see [10] of my earlier judgment).
On the best evidence provided to the Court (that is, copies of the applicant’s relevant bank statements for this period, at annexure “C” to his affidavit of 20 March 2008) the following payments are shown to have been made to the applicant’s bank account by the respondents for the relevant period (six months before 13 April 2006):
Date of Payment
Amount ($)
19 October 2005
1729.84
26 October 2005
1134.64
2 November 2005
1194.64
9 November 2005
1011.44
16 November 2005
1044.64
23 November 2005
1194.64
30 November 2005
1173.64
7 December 2005
1364.97
14 December 2005
1044.64
21 December 2005
1133.64
28 December 2005
727.95
11 January 2006
1172.71
18 January 2006
1019.44
25 January 2006
1144.64
1 February 2006
908.24
8 February 2006
1059.64
15 February 2006
1059.64
22 February 2006
791.24
1 March 2006
1349.64
8 March 2006
935.71
15 March 2006
859.64
22 March 2006
859.64
29 March 2006
966.24
5 April 2006
688.04
Payment by cheque sent to the applicant on 6 April 2006 (see [10] of the earlier judgment)
1,305.67
TOTAL
26,874.81
The conduct of the respondents’ case before the Court involved some considerable difficulty, and delay, in putting relevant documentation before the Court, including relevant pay slips (in this regard, see [41] to [44] of the earlier judgement). Further, it was also clear from the evidence before the Court that during the relevant periods of employment the applicant was not regularly provided with relevant pay advice slips (see paragraph [8] of the applicant’s affidavit of 20 March 2008, and paragraph [27] of the applicant’s affidavit of 19 September 2006. Noting also evidence given before the Court by both the applicant and the third respondent).
In these circumstances, therefore, it is understandable that for the purposes of showing the total amount of remuneration that he received in the six months prior to termination, the applicant has sought to put before the Court copies of relevant bank statements showing weekly transfers of money to his account from “ALL Disticts COA”.
I should just note that during these proceedings the respondents were at some pains to distinguish between the second respondent (“All Districts Coating (Aust) Pty Ltd”) and the first respondent (“All Districts Coating Pty Ltd”).
The reference to “All Districts COA” in relation to “electronic” payments made to the applicants account, therefore, could have been from either respondent. In any event, on the best evidence available to the Court, therefore, in this regard (that is, that the bank statements), and as best as these can be understood or discerned, the total amount of remuneration (in the absence of any evidence to the contrary) is as shown in what is reproduced above at [71]. That is, that the total amount of remuneration received by the applicant as the relevant employee for the period of six months immediately before the termination was $26,874.81.
Using the approach set out in Claveria, and based on the evidence before the Court in terms of the relevant annexures to the applicant’s affidavits of 19 September 2006, 20 December 2006, 20 March 2008, even if the applicant’s calculations were to be adjusted to show a net loss earnings calculated as $1033.61 per week (that is, $26,874.81, divided by twenty-six weeks, being six months), the applicant’s net loss earnings for the period from the termination until (even just using the date of the applicant’s submissions, being 25 March 2008, let alone the date of this judgement) is approximately $105,428.76.
On the best evidence available to the Court, that is, the annexures to the applicant’s affidavits (19 September 2006, 20 December 2006, 20 March 2008), there is no reason to doubt the amount of weekly compensation benefits that are said to have been paid to the applicant by the workers compensation insurer, less tax. That is, a net amount of approximately $60,000. The difference, therefore, between the applicant’s net loss earnings and the net amount of his weekly workers compensation benefits (there was nothing else before the Court to show any other relevant payment) is, therefore, approximately $44,000. (Noting, therefore, that even on this limited basis, it is clear that the applicant’s lost wages, less his weekly workers compensation benefits to be offset, exceed his total earnings for the period of six months prior to the termination date.)
Given the provisions of s.665(3) – and in accordance with the approach used in Claveria – the maximum amount therefore to be paid to the applicant by way of compensation is $26,874.81, being the total amount of remuneration in relation to the applicant for the period of employment with the respondents during the period six months immediately before the termination.
I should just note that in Claveria there was a dispute between the parties as to whether the superannuation contributions made by the respondent, in respect of the applicant in that case, should have been included in the calculation of the total amount of remuneration for the purposes of calculating the cap in s.665(3) (see Claveria at [15]).
However, as in Claveria and in this case, the superannuation contributions (even if they were to be treated as part of the employee’s remuneration) would provide a calculation outcome in excess of the cap on remuneration that I am minded to order. Given, therefore, that the amount is below the “cap” in s.665(3), it is not necessary to make any such calculation (noting that the applicant was “paid” one hundred dollars per week in superannuation contributions while he was employed by the respondents).
Section 665 provides for the maximum amount that a Court may order as payable to the applicant. In my view, given the circumstances of the breach of the Act, and the absence of any issue to cause the Court to order a lesser amount (noting also that despite opportunity, the respondents have put nothing before the Court beyond the mere assertion in submissions made prior to the earlier judgment, that any compensation should be minimal) it is appropriate that the order should be in the amount equivalent to the maximum allowed under the “cap”.
In all, therefore, the amount of compensation that I will order to be paid to the applicant by the first and/or second and/or third respondents is $26,874.81 pursuant to s.665(1)(c) of the Act.
Superannuation
The applicant also seeks that the Court make orders (although not expressly stated in context, I understood him to be seeking orders pursuant to s.665(1)(d) of the Act) that the first three named respondents make payment in respect of the applicant to the superannuation trustee in an equivalent amount as to what the applicant has lost in respect of superannuation payments (and subsequently benefits) by reason of the respondents’ failure to make superannuation contributions for him since the date of his termination (which, of course, the Court has found to have been in breach of the Act).
The applicant seeks that the Court make such an order for an amount equivalent (based on what the respondents had paid as superannuation contributions in the past, that is, $100 per week – see paragraph [26] of the applicant’s affidavit of 20 March 2008) up to either, the time of reinstatement if the Court is so minded to make such an order, or alternatively, up to the date of the Court’s judgement if no such order as to reinstatement is made.
Given that I am not minded to make the order for reinstatement, for the reasons set out above, I understand the applicant’s submissions therefore to be that the Court should order the first and/or second and/or third respondents to pay the total amount equivalent to $100 per week to the relevant superannuation trustee for the period since the date of termination and the date of the Court’s judgement. (That is, this judgment, and not the earlier judgement).
In this regard, the applicant again relies on Claveria, where the Court made orders in respect of “lost” superannuation contributions for an applicant who had been dismissed for a proscribed reason (noting that such orders were made pursuant to s.665(1)(d)).
At [9] and [10] the Court said:
“The parties are at odds about superannuation. At the time of termination, the respondent made superannuation contributions in respect of Mr Claveria averaging $83.10 per week. Mr Claveria lost the benefit of $3,631.47 in superannuation contributions in the period between termination and reinstatement. In this period, however, he received the benefit of an amount of $707.16 from other employers’ superannuation contributions. His counsel agreed that this latter amount should be set off against the amount of $3,631.47. Accordingly, for the reasons set out below, pursuant to s 665(1)(d) of the Act, I would order that the respondent pay $2,924.31 to the applicant’s nominated superannuation trustee for payment into a superannuation fund in respect of the applicant.
10 The respondent noted that, under the superannuation guarantee legislation, payment is made to a superannuation trustee, who receives the money on behalf of a compliant superannuation fund. It is inappropriate, therefore, to order under s 665(1)(c) that the respondent make payment to Mr Claveria by way of compensation in respect of lost superannuation. Rather, it is appropriate to order, under s 665(1)(d), that the respondent make a payment, in respect of Mr Claveria, to the superannuation trustee in an amount that represents what Mr Claveria has lost by reason of the respondent’s failure to make superannuation contributions for him between the date of his termination and his reinstatement. I accept that, as counsel for Mr Claveria submitted, an order with respect to superannuation entitlements can be characterised as one to remedy the effects of the termination, as contemplated by s 665(1)(d).”
Similarly, in the current case, the applicant’s employment was terminated in circumstances that breached the requirements of the Act. In my view it is appropriate to make the order sought by the applicant (and in the absence of anything to the contrary put forward by the respondents, despite opportunity). The remedy which the applicant seeks in relation to superannuation entitlements such as to address the consequences of the termination of employment in contravention of the Act is reasonable given that if the applicant had continued in employment (which he did not because of the breach of the Act) he would have received these entitlements.
In relying on what was said in Claveria it is appropriate that the payment not be made to the applicant directly, but rather to the superannuation trustee in respect of the applicant. In this regard, the respondents have not put anything before the Court to challenge what is set out at annexure “E” to the affidavit of the applicant of 20 March 2008 (the CBUS industry super statements), which support the applicant’s claim that superannuation payments (that is, the employer contributions of those payments) were in the order of one hundred dollars per week.
In this regard, it is appropriate that an order be made that the first and/or second and/or third respondents, having been found responsible for the termination of the applicant’s employment in circumstances which included a contravention of s.659(2)(a) of the Act, should make such payment to an amount equivalent had the payments continued for the period from the termination of employment to the date of this judgement.
The applicant was given notice of the termination of his employment by letter dated 6 April 2006. (See [10] of the earlier judgment).
The letter gave the applicant “one week notice”. The date of termination, therefore, is 13 April 2006.
The order then will be that the first and/or second and/or third respondents make a payment to the relevant superannuation trustee on behalf of the applicant.
For similar reasons, the first and/or second and/or third respondents should also pay an amount equivalent to $60 per week for the same period to the ACIRT redundancy trust fund on behalf of the applicant from the date of termination to the date of this judgment.
Such an amount represents what the applicant has lost by reason of the respondents’ failure to make these contributions for him, between the date of his termination and the date of the Court’s judgement because of the termination of his employment made in circumstances involving a breach of the Act.
As to the amount of $60 per week sought by the applicant (see applicant’s affidavit of 20 March 2008 at paragraph [11] and annexure “F”) the relevant documentation shows that the respondents did pay $60 per week to the relevant trustee between June 2005 and January 2006. It does not show that they continued to pay $60 from January 2006 until the date of termination. However, in the circumstances, there is nothing to show that the respondents ceased to pay such an amount until 13 April 2006, nor that they told the applicant that they would cease doing so. In any event the obligation to make such payment would therefore have continued until 13 April 2006.
Costs
The applicant also seeks costs in this matter in two respects.
The first is costs incurred up to, but not including, the date of the hearing on 14 May 2008. The second, costs for that day.
Relevant to this issue is the provisions of s.666 of the Act:
(1) Subject to this section, a party to a proceeding under section 663 must not be ordered to pay costs incurred by any other party to the proceeding unless the court hearing the matter is satisfied that the first‑mentioned party:
(a) instituted the proceeding vexatiously or without reasonable cause; or
(b) caused the costs to be incurred by that other party because of an unreasonable act or omission of the first‑mentioned party in connection with the conduct of the proceeding.
(2) Subsection (1) does not empower a court to award costs in circumstances specified in that subsection if the court does not have the power to do so.
(3) In this section:
‘costs’ includes all legal and professional costs and disbursements and expenses of witnesses.”
By orders made at the time of the handing down of the earlier judgement (see Order (4)), the parties were given the opportunity to make submissions as to costs in this matter (see also [122] of the earlier judgement).
The applicant submits that in the circumstances of this case the respondents caused unnecessary costs to be incurred by the applicant by unreasonable acts and omissions during the course of these proceedings. The applicant relies on the affidavit of Ms Leah Charlson affirmed on 21 December 2006 (see also, submissions of 25 March 2008). The applicant seeks that such an order be made against the first and/or second and/or third respondents in accordance with s.666(1)(b) of the Act.
No subsequent submissions were received by, or on behalf of, the respondents despite clear opportunity to do so.
Clearly, s.666(1)(a) does not apply in the these proceedings, as the applicant’s application was clearly not instituted vexatiously or without reasonable cause.
I have some difficulty in accepting the applicant’s submissions (see paragraph [35] of the written submissions of 25 March 2008) that the first, second and third respondents’ decision to defend the claim in this matter was an unreasonable act by them. My difficulty stems from the absence of anything further in support of this mere assertion or any specific reference to circumstances demonstrating the unreasonableness of that act.
The applicant’s submission, however, is on far stronger ground, having regard to the relevant evidence, and findings made by this Court in light of that evidence. To a large degree, the resolution of this case turned on the credibility of the evidence given by the third respondent, in some part, and separately the comparative credibility of the evidence given by the third respondent and the applicant in respect of claimed conversations and events. The relevant state of affairs in both regards would have been known by the third respondent (noting that he was the “driving force behind the painting business” and as it related also to the first and second respondents – see [63] of the earlier judgement), the Court has already found the third respondent’s evidence to be less persuasive or implausible in parts (see [31], [34], [36] to [38], and [44] of the earlier judgement, and as between the evidence of the third respondent and the applicant see [59], [63], [65], [66], [73], [76], [85] and, in particular, [86] of the earlier judgement).
Plainly, in at least one highly relevant particular the applicant was treated differently to other employees of the third (and first and second respondents) in April 2006. Even on the best view of the third respondent’s evidence, the applicant’s employment was terminated during the time that he was temporarily absent from work because of a work-related injury, in circumstances where all other employees (notwithstanding what was said to be the transmission of the painting business from the second respondent to the first and fourth respondents) continued to be employed in some form or another.
In these circumstances, I agree with the applicant’s submissions that the respondents initially (the first and second respondents) and subsequently, as a result of orders made on 13 October 2006 (by the third respondent from that date) have acted (including by omission) in an unreasonable manner. No attempt was made to mediate or to otherwise resolve the applicant’s complaint. From at least the making of the application (2 June 2006) in respect of the first and second respondents, and from the date of being joined in proceedings, by the third respondent, the failure by the employer to make any attempt to conciliate, negotiate or otherwise resolve the matter does justify, in my view, an order that the applicant recover costs incurred (costs as defined for the purposes of s.666), at least as they were incurred from those dates in respect of each of these three respondents.
I am further strengthened in this view by the manner in which the respondents have generally conducted their response in this litigation. There has been a marked delay (and in some instances, a failure) to produce relevant documents in a timely fashion. I have already addressed (and rejected) as being reasonable, for example, the respondents’ explanation for the failure to provide relevant “pay slips” in this matter (see in particular [44] of the earlier judgement).
Further, the respondents and their first legal representative in this matter, displayed what I can only describe as a somewhat cavalier attitude to attending Court on the dates where both hearings, and directions hearings, had been scheduled (on 26 July 2006, 27 September 2006, 13 October 2006, 23 November 2006, 9 February 2007) and I note, in particular, in this regard, that the original hearing date scheduled in this matter on 9 February 2007 could not proceed on that date because of the respondents’ failure to have filed evidence, and contentions, as to fact and law in a timely fashion, such as had been ordered by the Court, to enable the hearing to proceed on that date. I note also there was no appearance on 14 May 2008. Plainly, unnecessary and additional costs have been incurred for the applicant, by the respondents, because of these unreasonable and unexplained acts and omissions in connection with the conduct of these proceedings.
Nor do I see it as a barrier that the applicant be awarded costs in relation to legal and professional costs and disbursements and expenses of witnesses, because he was represented in this matter by a union (see Scott Sainsbury v Pilkington (Australia) Ltd [1999] NSWCIMC 124 and CFMEU (on behalf of) Justin Sutherland and Kevin Bowden [2005] NSWIRComm 220, cases to which the applicant specifically referred to Court).
The respondents have put nothing before the Court to argue against the making of such a costs order. In all the circumstances, it is appropriate that a costs order be made. I propose to make such orders in respect of the first and second respondents in relation to costs incurred since 2 June 2006, and in relation to the third respondent, since 13 October 2006 to the date of the earlier judgment.
Given the relevant finding in relation to the fourth respondent, in my earlier judgement (see [63] and, in particular, [106] to [110]) it is not appropriate that any order as to costs be made in respect of the fourth respondent in favour of the applicant.
I further considered whether, given my relevant findings, an order in relation to costs for the fourth respondent should be made against the applicant, or otherwise offset as against the costs awarded to the applicant in relation to the first, second and third respondents.
I note, in this regard, what was said in Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120 (“Goldman Sachs”), in particular, at [91] and [92]:
91 The policy debate about the respective merits of regimes in which costs follow the event and ‘no-costs’ regimes is wide ranging and of long-standing. In relation to s 170CS in its application to s 170CP, the reason for the policy choice in favour of a no-costs regime seems plain enough. Section 170CP(1) gave a right to apply to the Court to an employee who claims to have been the subject of an unlawful termination of employment. In some circumstances, an inspector, a trade union or a trade union officer could apply under s 170CP in respect of an alleged contravention but the primary focus was upon the employee.
92 The application of a ‘no-costs’ regime in such circumstances suggests that the object was to facilitate the exercise of an employee’s right to apply for an order under s 170CR in respect of an alleged contravention. Without the threat of a potentially disabling cost penalty, an employee may feel better able to assert the rights given to him or her by the WRA.
[With obvious reference also to the circumstances in the case currently before the Court].
I also note what was recently said by Lloyd-Jones FM riot in Radha v ING Investment Management Ltd [2008] FMCA 75, with reference to Ross, Re; Ex parte Crozier [2001] FCA 1665 per Gray, Branson and Kenny JJ at [40]:
Crozier suggests that an applicant who has the benefit of a provision such as s.666 of the Act ‘will only rarely be ordered to pay the costs of a proceeding in exceptional circumstances’. [With reference to Crozier [11]] …”
Noting again the absence of any current submissions by the fourth respondent (or, for that matter, any of the other respondents) on this issue, I cannot see that the orders initially joining the fourth respondent to the proceedings caused any additional costs or expenses to be incurred by the respondents (including the fourth respondent), given that at all relevant times (up to the handing down of the earlier judgement), all the respondents were represented by one solicitor.
I note, further in that regard, that directions were made by this Court for the respondents to file submissions in respect of whether the fourth respondent should remain a party to the proceedings, and no written submissions were filed in this regard.
In all, therefore, I agree with the applicant that it is not appropriate to make any costs order against the applicant in relation to the fourth respondent, noting that there is, in any event, nothing before the Court to show that any additional costs or expenses were incurred by the fourth respondent in this regard. Nor, for that matter, should any offset be made as against the cost order in relation to the first, second and third respondents.
The applicant also seeks costs in a set amount of $1000 in relation to legal costs and expenses for the hearing of the outstanding issues following my earlier judgement on 14 May 2008.
The third respondent appeared in person at the handing down of the earlier judgement on 22 February 2008, and a barrister and solicitor representing the respondents appeared at a directions hearing on 28 March 2008. A solicitor appeared for the respondents at a directions hearing on 14 April 2008. The respondents, therefore, clearly had notice of the hearing of 14 May 2008.
Yet neither any of the respondents, nor any legal representatives, attended on that date. While I note that a telephone call was made to my associate on the morning of that date, prior to the hearing, from a person who said he was a solicitor acting for the respondents, to say that their Counsel would not be attending at the hearing, no explanation was proffered for the failure to attend. It also appears that on the previous day a letter was received by the Court from a firm of solicitors (as best as I understood it, a copy was provided at the same time to the applicant’s representatives) notifying that the applicant would not be required for cross examination on 14 May 2008, but was otherwise silent as to whether the respondents would appear, or whether the representatives would appear, on that date.
In all the circumstances, it is appropriate that the costs order sought by the applicant in relation to this date be made, as notwithstanding the (albeit, late) advice that the applicant would not be required for cross-examination, the expectation by the applicant’s representative could plainly have been that the respondents, or their representatives, would appear and that argument would be put in relation to the outstanding issues arising from the earlier judgement. Plainly, the applicant’s legal representative attended on that date in that expectation. In my view, the respondents’ failure to attend, or their legal representative’s failure to attend, on that date, given that it was ultimately unexplained, was an unreasonable act, and an unreasonable omission (in the sense of failing to attend).
Therefore, the costs order should be made. As to the amount of $1,000, given the time spent in what would reasonably be expected as time for preparatory work, and the attendance, $1,000 is, in my view, a reasonable amount in the circumstances, and I will make the order in that regard as against the first, second, and third respondents.
Order Proposed
The orders that I propose to make, therefore, are as follows:
1)There be no order as to the applicant’s reinstatement to employment by the respondents.
2)The first and/or second and/or third respondents pay compensation to the applicant in the amount of $26,874.81
3)The first and/or second and/or third respondents make a payment in respect of the applicant to the relevant superannuation trustee in the total amount of $100 per week, as between the date of termination (13 April 2006) and the date of this judgment (11 July 2008) (117 weeks): $11,700.
4)The first and/or second and/or third respondents make a payment in respect of the applicant to the ACIRT redundancy trust fund in the amount of $60 per week, as between the date of termination (13 April 2006) and the date of this judgment (11 July 2008) (117 weeks): $7,020.
5)The first and/or second respondents pay the applicant’s costs as incurred between at the date of the making of the application (2 June 2006) and the date that the third respondent was joined as a party in the proceeding (13 October 2006).
6)The first and/or second and/or third respondents pay the applicant’s legal costs as assessed from 14 October 2006 to 22 February 2008 (the date of the earlier judgement).
7)The first and/or second and/or third respondents pay the applicant’s costs set in the amount of $1000 in relation to the hearing on 14 May 2008.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 11 July 2008
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