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Bartlett v Signostics Ltd (in Liquidation)

Bartlett v Signostics Ltd (in Liquidation)

Case [2019] FCCA 2989 21 October 2019

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BARTLETT v SIGNOSTICS LTD (IN LIQUIDATION)

[2019] FCCA 2989

Catchwords:
INDUSTRIAL LAW – CIVIL PENALTY PROVISION – Contravention of National Employment Standards – non-payment of untaken annual leave on termination of employment – pecuniary penalty – order for compensation.

INDUSTRIAL LAW – ACCRUED JURISDICTION – Contractual claims arising from applicants employment – common substratum of facts – orders for payment of amounts owed pursuant to contracts.

INDUSTRIAL LAW – PECUNIARY PENALTY – Where senior management involved in contravention – where forged document relied on by respondent – where sustained and deliberate conduct by respondent amounted to serious contravention.

INDUSTRIAL LAW – COSTS – Indemnity costs.

Legislation:

Corporations Act 2001 (Cth), ss.471B & 533
Crimes Act 1914 (Cth), s.4AA
Fair Work Act 2009 (Cth), ss.14, 44(1), 90(2), 338(2), 539, 545, 545(1) & (2)(b), 546, 547, 557, 557A & 557B & 570(2)
Federal Circuit Court Act 1999 (Cth), s.18

Cases cited:

Fencott v Muller (O’Connors Winebar case) (1983) 152 CLR 570

Wakim, Re; Ex parte McNally (1999) 198 CLR 511
Houghton v Arms [2006] HCA 59
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (2017) 271 IR 321
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476
Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (ACCC) (2012) 287 ALR 249
Australian Competition and Consumer Commission (ACCC) v TPG Internet Pty Ltd (2013) 304 ALR 186
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Markarian v R (2005) 228 CLR 357
Seven Network (Operations) Ltd v CEPU (2001) 110 IR 372
Australian Licenced Aircraft Engineers Association v International Aviation Services Assistance Pty Ltd (2011) 193 FCR 526
Transport Workers’ Union of Australia, NSW Branch v No Fuss Liquid Waste Pty Ltd [2011] FCA 982
McAleer v University of Western Australia (No.2) (2007) 161 IR 151
Adamczak v Alsco Pty Ltd (No.4) [2019] FCCA 7
Shea v Energy Australia Services Pty Ltd (No.2) [2015] FCAFC 14
Australian and International Pilots Association v Qantas Airways Ltd (No.3) (2007) 162 FCR 392
McDonald v Parnell Laboratories (Aust) (No.2) (2007) 164 FCR 591

Applicant:

STEWART GAVIN BARTLETT

Respondent:

SIGNOSTICS LTD (IN LIQUIDATION)

File Number:

ADG 524 of 2017

Judgment of:

Judge Heffernan

Hearing date:

4 July 2019

Date of Last Submission:

4 July 2019

Delivered at:

Adelaide

Delivered on:

21 October 2019

REPRESENTATION

Solicitors for the Applicant:

Mr G Bartlett of Bartlett Workplace Lawyers & Consultants

The Respondent:

No appearance

DECLARATIONS

THE COURT DECLARES THAT:

The respondent contravened a provision of the National Employment Standards contrary to s.44(1) of the Fair Work Act 2009 (Cth) (‘the FW Act’) by breaching section 90(2) of the FW Act by failing to pay Stewart Gavin Bartlett the full amount owing to him by way of untaken annual leave that would have been payable to him had he taken that leave during the period of his employment.
The unpaid amount referred to in 1(a) of this declaration was $33,627.91.
The unpaid…

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 Bartlett v Signostics Ltd (in Liquidation)

Details

AGLC: Bartlett v Signostics Ltd (in Liquidation) [2019] FCCA 7
Case: [2019] FCCA 2989
Decision Date: 21 October 2019

CaseChat Overview and Summary

The applicants, former employees of Signostics Ltd (in Liquidation), brought proceedings against the company alleging contraventions of the National Employment Standards (NES) concerning the non-payment of untaken annual leave upon termination of their employment. The proceedings were heard in the Federal Court of Australia.

The court was required to determine whether Signostics Ltd had contravened the NES by failing to pay the applicants their accrued but untaken annual leave on termination. Additionally, the court considered whether it had accrued jurisdiction to hear and determine contractual claims arising from the applicants' employment, which shared a common substratum of facts with the statutory claims. The court also had to assess whether the contraventions constituted a serious contravention, particularly given the involvement of senior management and the reliance on a forged document by the respondent.

In his reasoning, Judge Heffernan found that Signostics Ltd had indeed contravened the NES by failing to pay the untaken annual leave. The court determined that the conduct was sustained and deliberate, and the use of a forged document by senior management indicated a serious contravention. The court exercised its accrued jurisdiction to also award amounts owed to the applicants pursuant to their employment contracts. The court ordered Signostics Ltd to pay pecuniary penalties for the contraventions of the NES and compensation to the applicants for the unpaid leave and contractual entitlements. The court also made orders regarding costs.

Orders