Bartlett v Signostics Ltd (in Liq) (No.2) - [2019] FCCA 3506

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARTLETT v SIGNOSTICS LTD (IN LIQ) (NO.2)

[2019] FCCA 3506

Catchwords:
INDUSTRIAL LAW – Workplace rights – adverse action – threat to take adverse action – failure to pay annual leave – declaration – penalty.

Legislation:

Corporations Act 2001 (Cth), s.471B

Fair Work Act 2009 (Cth), ss.340(1), 341, 342(1) & (2), 361, 535, 535(1) & (2), 546(2)(b) and 557C

Fair Work Regulations 2009 (Cth), reg.3.36

Cases cited:

Bartlett v Signostics Limited (In Liq) (No 1) [2019] FCCA 2989

Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No.3) [2012] FCA 697
Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] 243 IR 468
Henry v Leighton Admin Services Pty Ltd (2015) 299 FLR 342
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Applicant:

STEWART GAVIN BARTLETT

Respondent:

SIGNOSTICS LTD (IN LIQUIDATION)

File Number:

ADG 525 of 2017

Judgment of:

Judge Heffernan

Hearing date:

4 July 2019

Date of Last Submission:

4 July 2019

Delivered at:

Adelaide

Delivered on:

4 December 2019

REPRESENTATION

Solicitors for the Applicant:

Mr G Bartlett of Bartlett Workplace Lawyers & Consultants

The Respondent:

No appearance

THE COURT DECLARES THAT:

The respondent took adverse action against the applicant contrary to section 340(1) of the Fair Work Act 2009 (Cth) (‘the FW Act’) when it threatened to injure him in the course of his employment by deducting amounts from his lawful entitlements on separation from his employment (‘the medical evidence adverse action’).
The respondent took adverse action against the applicant contrary to s.340(1) of the FW Act when it failed to pay him the full amount of his entitlements for annual leave on separation from his employment (‘the annual leave adverse action’).
The amount of the unpaid annual leave referred to in paragraph (2) above was $33,627.91.

ORDERS

Pursuant to s.546(2)(b) of the FW Act, the respondent do pay a pecuniary penalty to the applicant in the amount of $10,000 for the medical evidence adverse action by 1 January 2020.
Pursuant to s.546(2)(b) of the FW Act, the respondent do pay a pecuniary penalty to the applicant in the amount of $10,000 for the annual leave adverse action by 1 January 2020.
Pursuant to s.545 of the FW Act, the respondent do pay to the applicant an amount of $33,627.91 for unpaid annual leave, together with an amount of $3,489.00 in interest on that amount by 1 January 2020.
The respondent to pay the costs of the applicant on an indemnity basis from 28 November 2017 as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 525 of 2017

STEWART GAVIN BARTLETT

Applicant

And

SIGNOSTICS LTD (IN LIQUIDATION)

Respondent

REASONS FOR JUDGMENT

(As corrected)

This is an application alleging breaches of the Fair Work Act 2009 (Cth) (‘the Act’). It is alleged that adverse action was taken by the Respondent employer against the Applicant employee because he had exercised a…

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.

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Details

Case: [2019] FCCA 3506
Decision Date: 4 December 2019

CaseChat Overview and Summary

In *Bartlett v Signostics Ltd (in Liq) (No.2)*, the applicant, Mr Bartlett, brought proceedings against the respondent, Signostics Ltd (in Liquidation), alleging breaches of his workplace rights under the *Fair Work Act 2009* (Cth). The dispute concerned the respondent's alleged failure to pay Mr Bartlett his accrued annual leave entitlements upon the termination of his employment.

The primary legal issue before the Federal Circuit Court of Australia was whether the respondent had taken adverse action against Mr Bartlett by failing to pay his annual leave entitlements, and whether this failure constituted a contravention of the *Fair Work Act 2009* (Cth). The court was required to determine if the respondent's conduct was motivated by Mr Bartlett exercising a workplace right, specifically his entitlement to annual leave.

Judge Heffernan found that the respondent had indeed contravened the *Fair Work Act 2009* (Cth) by failing to pay Mr Bartlett his accrued annual leave. The court reasoned that the failure to pay the leave entitlements was directly linked to Mr Bartlett's exercise of his workplace right to that leave. The respondent's conduct was therefore deemed to be adverse action. The court ordered the respondent to pay Mr Bartlett the outstanding annual leave entitlements and imposed a pecuniary penalty for the contravention.

Orders