Bostan v European Operations Co Pty Ltd
[2023] FedCFamC2G 262
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bostan v European Operations Co Pty Ltd [2023] FedCFamC2G 262
File number(s): MLG 2218 of 2022 Judgment of: JUDGE O'SULLIVAN Date of judgment: 14 April 2023 Catchwords: FAIR WORK – claim alleging dismissal in contravention of a general protection – claim alleging non-payment of entitlements – non-participation in proceedings by respondents – application for default judgment and declarations against the respondents and for the payment of compensation – whether default judgment should be ordered – whether relief sought is reasonably supported by materials before the Court – default judgment ordered. Legislation: Fair Work Act 2009 (Cth), ss. 90, 117, 323, 340, 351, 352, 536, 545, 550
Federal Circuit and Family Court of Australia (Division 2) (General Law) Rules 2021, r.1.07, 13.04, 13.05,
Cases cited: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427
Dafallah v Fair Work Commission [2014] FCA 328
Engel v Essential Magnesium Australia Pty Ltd [2021] FedCFamC2G 356
Hall v Active Towing Sydney Pty Ltd [2021] FedCFamC2G 385
Hall v City Country Hotel Management No.2 Pty Ltd (No 2) [2016] FCCA 1543
Musicki v de Tonnerre [2023] FCA 222
RailPro Services Pty Ltd v Flavel [2015] FCA 504.
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 6 April 2023 Place: Dandenong (via MS Teams) Counsel for the Applicant: Mr D’Abaco Solicitor for the Applicant: Job Watch Inc. Appearance for the Respondents: No appearance ORDERS
MLG 2218 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALEXANDRU-ANDREI BOSTAN
Applicant
AND: THE EUROPEAN OPERATIONS CO PTY LTD
First Respondent
MARIO DI NARDO
Second Respondent
order made by:
JUDGE O'SULLIVAN
DATE OF ORDER:
14 APRIL 2023
THE COURT DECLARES THAT:
1.Upon the admissions which the respondents are taken to have made, consequent upon the default/s by the respondents pursuant to Rule 13.04(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Law) Rules 2021 (‘the GFL Rules’):
(a)the first respondent contravened section 340 of the Fair Work Act 2009 (Cth) (“the Act”) in that it took adverse action against the applicant because he had a workplace right by reason that he was able to make a complaint or enquiry to the first respondent in relation to the wages payable during his employment.
(b)the first respondent contravened section 351 of the Act in that it took adverse action against the applicant because of the applicant’s physical disability.
(c)the first respondent contravened section 352 of the Act in that it dismissed the applicant because he was temporarily absent from work because of illness of a kind prescribed by the Fair Work Regulations 2009 (Cth).
(d)the first respondent contravened section 90 of the Act in that it failed to pay the applicant his untaken accrued paid annual leave upon the termination of his employment.
(e)the first respondent contravened section 117 of the Act in that it failed to pay the applicant one week’s pay in lieu of notice upon the termination of his employment.
(f)the first respondent contravened section 323 of the Act in that it failed to pay the applicant his outstanding wages when that payment fell due.
(g)pursuant to section 550 of the Act, the second respondent was involved in the contraventions by the first respondent of sections 340, 351, 352, 90, 117 and 323 of the Act.
AND THE COURT ORDERS THAT:
2.Pursuant to section 545 of the Act, the first respondent pay as compensation to the applicant the amount of $15,874.91 forthwith, comprising:
(a)$4,951.84 – outstanding wages;
(b)$704.32 – accrued annual leave;
(c)$1,826.92 – one week’s pay in lieu of notice;
(d)$7,891.83 – compensation for economic loss arising from the adverse action;
(e)$500.00 – compensation for non-economic loss caused by the adverse action.
3.Pursuant to section 547 of the Act, the first respondent pay the applicant pre-judgment interest on the total sum of $15,874.91 in order 2 in the amount of $648.71.
4.The applicant serve a copy of these orders within 7 days on the respondents.
5.This matter is adjourned to 18 August 2023 commencing at 10.30am at the Federal Circuit and Family Court of Australia in Melbourne for further hearing in respect of the applicant’s claim for penalties to be imposed on the respondents for the contraventions declared at paragraph 1 above and:
(a)evidence in chief on the question of penalty be by way of affidavit;
(b)the applicant file and serve evidence and submissions relating to penalty by no later than 35 days prior to the date of the hearing; and
(c)the respondents file and serve evidence and submissions relating to penalty no later than 21 days prior to the date of the hearing.
6.The applicant have liberty to apply on seven days’ notice in the event that any of the above orders are not complied with.
7.In the event that the respondents fail to comply with order 5(c) then the penalty hearing listed on 18 August 2023 will be vacated and the issue of the appropriate penalty will proceed undefended and be dealt with on the papers in Chambers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 6 April 2023, after hearing and granting leave for an application in a proceeding to proceed undefended the Court indicated that reasons for decision would be published as soon as practicable. These are those reasons.
Mr Alexandru-Andrei Bostan (‘the applicant’) commenced proceedings against The European Operations Co. Pty Ltd (‘the first respondent’) and its director Mario Di Nardo (‘the second respondent’) in the Fair Work Division of Division 2 of the Federal Circuit and Family Court of Australia on 3 October 2022.
By application, accompanied by a Form 2 filed that day, the applicant sought inter alia declarations that the first respondent had taken adverse action against him or terminated his employment in contravention of the Fair Work Act 2009 (Cth) (‘the FW Act’). The applicant also sought declarations that the first respondent had contravened ss. 90(2), 117 and 323 of the FW Act during the course of his employment. Furthermore, the applicant alleged that the second respondent was involved in those contravention within the meaning of s.550(2)(c) of the FW Act.
The application was served on the first respondent on 3 November 2022 and when the proceedings came before the Court on 29 November 2022, the following orders were made by Registrar Hird:
1.Leave be granted to Mr Di Nardo to appear at today’s Direction Hearing on behalf of the first respondent.
2.The matter be adjourned to a Directions hearing at 9:30am on 31 January 2023.
3.Liberty to apply.
As matters transpired, there was no appearance by the respondents at the next hearing. When the proceedings returned to Court on 31 January 2023, the following orders were made by Registrar Hird:
1.The need for personal service against the second respondent be dispensed with.
2.The applicant file and serve any application for default judgment together with any affidavit material in support by 15 February 2023.
3.Any application for default judgment be listed before the Federal Circuit and Family Court of Australia (Division 2) Judge on a date and time to be advised not before 1 March 2023.
4. The applicant serve a copy of these orders on the first respondent forthwith.
5.There be liberty to apply.
On 15 February 2023, the applicant filed an application in a proceeding under Chapter 1, Part 4, Division 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (‘the GFL Rules’) for default judgment supported by an affidavit of Alexandru-Andrei Bostan sworn on 15 February 2023. The application in a proceeding was referred to the Court as currently constituted and a notice of listing issued advising that the applicant’s default judgment application was fixed for hearing on 6 April 2023.
On the basis of affidavit material filed by the applicant it was clear that the following documents were served by email on the respondents on 15 March 2023:
(a)a copy of the orders made on 31 January 2023;
(b)application in a proceeding filed 15 February 2023 and supporting affidavit of Alexandru-Andrei Bostan sworn on 15 February 2023; and
(c)notice of listing for hearing on 6 April 2023.
BACKGROUND
Before turning to the hearing on 6 April 2023, it is timely to set out the factual background to the proceedings.
In June 2022, the applicant commenced employment for the first respondent to work as a venue manager on a permanent full-time basis. During the time the applicant was employed by the first respondent, the applicant contacted the second respondent about the failure to pay wages on time on 19 June 2022, 21 June 2022, 14 July 2022 and 17 July 2022.
On 14 July 2022, the applicant advised the second respondent that he was unwell during a shift and later confirmed that he tested positive for COVID-19. On 17 July 2022, the applicant received a phone call and email correspondence from the second respondent advising the applicant that his employment was terminated.
Following this, an application pursuant to s.365 of the FW Act was made by the applicant to the Fair Work Commission (‘FWC’) alleging adverse action by the respondents in contravention of the FW Act. The FWC conducted a conference to deal with the dispute on 15 September 2022 and the respondents did not attend.
Pursuant to s.368(3)(a) of the FW Act, the FWC issued a certificate confirming that it was satisfied that all reasonable attempts to resolve the dispute have been, or likely will be, unsuccessful. The applicant then commenced these proceedings.
THE ORDERS SOUGHT BY THE APPLICANT
In the application in a proceeding filed on 15 February 2023, the applicant sought the following orders:
1.Orders on default that the First and Second Respondents are individually and collectively in default pursuant to rr.13.04(2)(a) and (b) of the GFL Rules.
2.An order that judgment be entered against the First and Second Respondents pursuant to rr.13.05(2)(d) and 13.06(1)(e) of the Rules in favour of the applicant, including:
(a)An order that the respondents pay compensation to the applicant for economic loss resulting from the contraventions of the FW Act; and
(b)An order that the respondents pay compensation to the applicant for non-economic loss resulting from the contraventions of the FW Act.
(c)An order that the respondents pay interest to the applicant on the underpayments that occurred during and arising out of the applicant’s employment.
3.If default judgment is entered in the applicant’s favour, an order that the matter be listed for a directions hearing on a date to be fixed for timetable to be set for the filing of evidence and submissions in respect of the determination of penalties.
4.An order that the respondents pay the applicant’s costs of the proceeding pursuant to s.570(2)(b) of the FW Act.
5.Any other orders as the Court deems appropriate.
The applicant relied on the affidavit of Alexandru-Andrei Bostan sworn on 15 February 2023 which sets out the applicant’s attempts to contact the respondents in relation to this matter and to secure compliance with orders made on 29 November 2022.
On 29 November 2022, the applicant’s lawyer emailed a copy of the orders made on that day to the respondents. On 27 January 2023, the applicant’s lawyer emailed a copy of the proposed consent orders to the respondents. No response was received. On 30 January 2023, the applicant’s lawyer called the second respondent to discuss the future listing date on 31 January 2023. No response was received.
On 16 March 2023, the applicant also filed an affidavit of Katherine Gamble,[1] which provided proof of service on the respondents of the following documents on 15 March 2023:
(a)a copy of the orders made on 31 January 2023;
(b)the application in a proceeding filed 15 February 2023 and supporting affidavit of Alexandru-Andrei Bostan sworn on 15 February 2023;[2] and
(c)the notice of listing for hearing on 6 April 2023.
[1] See exhibit A2.
[2] See exhibit A1.
THE HEARING
At the hearing on 6 April 2023, when the matter was called on via Microsoft Teams, Mr D’Abaco of Counsel, appeared on behalf of the applicant. There was no appearance by or on behalf of the first and second respondents.
In addition to the material set out immediately above, Counsel for the applicant sought to also rely on a further affidavit of Alexandru-Andrei Bostan sworn 3 April 2023.[3] Viva-voce evidence was led from Counsel’s instructor to prove that the affidavit had been served on the respondents.
[3] See exhibit A3.
Having done so, Counsel adopted an outline of submissions and draft orders prepared on behalf of the applicant as a comprehensive exposition for why the Court should be satisfied it was appropriate to make the orders sought by his client.
After marking the material relied on and addressing the submissions made on behalf of the applicant leave was granted to proceed undefended with the default judgment application. The Court otherwise reserved judgment on same.
RELEVANT PROVISIONS OF THE GFL RULES
The applicant applied under the relevant provision of the GFL Rules for default judgment against the respondents. The provisions relevantly provide:
13.04 When a party is in default
…
(2) For the purposes of rule 13.05, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claim; and
(b) fails to:
(i)give an address for service before the time for the respondent to give an address has expired; or
(ii)file a response before the time for the respondent to file a response has expired; or
…
13.05 Orders on default
…
(2) If a respondent is in default, the Court may:
…
(b)if the claim against the respondent is for a debt or liquidated damages—grant leave to the applicant to enter judgment against the respondent for:
(i) the debt or liquidated damages; and
(ii) if appropriate—costs; or
(c)if the proceeding was started by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant; or
(d) give judgment or make any other order against the respondent;
…
Subrule 13.05(2) of the GFL Rules applies to a respondent who “is in default”. Under r.13.04(2) of the GFL Rules, a respondent is in default if the respondent has not satisfied the applicant’s claim, and the respondent has failed to do one or more of the things identified in r.13.04(2)(b) of the GFL Rules. The things identified in r.13.04(2)(b) of the GFL Rules that are relevant to the application before me is the failure to attend Court, the failure to file a response or defence before the time for doing so has expired, comply with a Court order, and the failure to defend the proceeding with due diligence.
When a respondent is in default, or when a respondent is absent from a hearing, the Court may make one of the orders set out in r.13.05(2) of the GFL Rules.
Rules 13.04 and 13.05 of the GFL Rules were adapted from, and are substantially similar to, the rules contained in O35A of the now repealed Federal Court Rules 1979 (Cth) (‘the old FC Rules’); and r.13.05(2)(c) of the GFL Rules is almost identical to O35A, r.3(2)(c) of the old FC Rules. There are a number of principles that have been formulated in relation to O35A, r.(3)(2) of the old FC Rules which apply to r.13.05 of the GFL Rules. These include the following:
(d)first, r.13.05(2)(c) of the GFL Rules “does not require proof of the claim by evidence, but only requires that – on the face of the statement of claim – there is a claim for the relief sought”[4];
(e)second, before the Court may make an order under r.13.05(2)(c) of the GFL Rules it must be satisfied that the document, which the applicant has filed with the application, is in fact a “statement of claim”. A statement of claim is a pleading, which means it must comply with the rules of pleading;
(f)third, it follows from (b) that the statement of claim must plead at least one reasonable cause of action that supports the granting of the relief the applicant seeks in the application. More particularly, “each element of the relevant civil wrong” of which the applicant complains must be “properly and discretely pleaded in the statement of claim”[5];
(g)fourth, although r.13.05(2)(c) of the GFL Rules does not require proof of the claim by evidence, it is permissible for the applicant to adduce evidence that is relevant to the relief sought. It has been confirmed that it is permissible on an application for an order under O35A r 3(2)(c) of the old FC Rules to adduce evidence relevant to relief. In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Limited[6] Kiefel J (as her Honour then was) said:
It may be accepted that some further affidavit material may be accepted by the Court in relation to the relief sought….Evidence which would alter the pleaded case should not be admitted….
Regard should not be had to evidence of facts which could have been, but were not, pleaded concerning the conduct of the respondents.
[4] Rathner, in the matter of Mildura Grand Pty Ltd (in liq) v Bendigo Skyrider Pty Ltd [2011] FCA 626, at [9] (Gordon J)
[5] Macquarie Bank Limited v Seagle [2005] FCA 1239, at [24] (Conti J); Macquarie Bank Limited v Seagle [2008] FCA 1417, at [20] (Jagot J)
[6] Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2006] FCA 1427, at [50] and [51]
Finally, the Court retains a discretion not to make an order under r.13.05(2)(c) of the GFL Rules even if the preconditions for making an order are satisfied.[7]
[7] See the authorities decided under O 35A of the Old FC Rules referred to by Flick J in Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227, at [20]
This Court’s power to make an order under r.13.05(2) of the GFL Rules is discretionary. As Flick J noted in Speedo Holdings BV v Evans (No 2):
[o]ther than necessarily recognising that the power must be exercised with caution, there is little detailed consideration as to how the discretion must otherwise be exercised.[8]
[8] Speedo Holdings BV v Evans (No 2) [2011] FCA 1227, at [21]. His Honour was speaking of r 5.23 of the Federal Court Rules 2011 (Cth), the equivalent rule to r 13.05(2) of the GFL Rules.
In Musicki v de Tonnerre [2023] FCA 222, Mortimer J said:
16.The authorities establish that the power to give summary judgment against a defaulting party is “undoubtedly discretionary”, and that discretion must be exercised cautiously: Chamberlain Group, Inc v Giant Alarm System Co (No 2) [2019] FCA 1606, [13] (Yates J). Yates J gives, with respect, a concise summary of the relevant principles at [14] of Chamberlain:
Rule 5.23(2)(c) requires the Court to be satisfied that the applicant is entitled to the relief claimed in the statement of claim. This requirement has been interpreted as meaning that the Court must be satisfied that “on the face of the statement of claim” the applicant is entitled to the relief that is claimed. It is not a requirement that the applicant prove its claim by way of evidence. Put another way, the facts alleged in the statement of claim are taken to have been admitted: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR513 at [42]. If, on inspection of the statement of claim, the Court is satisfied that the applicant would be entitled to the relief sought then this requirement of r 5.23(2)(c) will be met: CNIP Pty Ltd v Chan &Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170 at [18]-[19]; Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227 at [23]. The Court may permit further evidence to be adduced, but not evidence that would alter the pleaded case: Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR513 at [45], [48]-[50]; United Broadcasting International Pty Ltd v Turkplus Pty Ltd (No 2) [2010] FCA 1413 at [42]-[44]; Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; 195 FCR 1 at [62]-[63].
I adopt those principles which are supported by the authorities for the purposes of this application in a proceeding.
DEFAULT JUDGMENT?
Although this matter has not proceeded on pleadings or by way of a statement of claim, the Form 2 in Part G is pleaded in a conventional way. The fact that pleading appears in the Form 2 rather than a separate points of claim or statement of claim does not mean that r.13.05(2)(c) of the GFL Rules does not apply to it.[9] Consistent with the decision in Hall v Active Towing Sydney Pty Ltd [2021] FedCFamC2G 385, to the extent that is incorrect I would conclude that it is nevertheless appropriate to rely on r.1.07 to proceed as if r.13.05(2)(c) applied.
[9] Hall v Active Towing Sydney Pty Ltd [2021] FedCFamC2G 385 at [13]
To the extent there is a claim for unliquidated damages there could be default judgment under r 13.05(2)(d) of the GFL Rules. This approach would be consistent with that taken in Hall v City Country Hotel Management No.2 Pty Ltd (No 2) [2016] FCCA 1543 and Engel v Essential Magnesium Australia Pty Ltd [2021] FedCFamC2G 356.
The respondents have not satisfied the applicant’s claim. The respondents have not filed a notice of address for service, a response or affidavit, as required. The respondents have not complied with an order of this Court and, having regard to the provisions of the GFL Rules referred to earlier, the Court has the authority to give judgment or make any other order against both respondents. Given the defaults by the respondents and the material that the applicant has filed, the Court was satisfied that, pursuant to the relevant sections of the GFL Rules, that it was appropriate to proceed with the application in a proceeding for default judgment.
On the material before the Court the applicant established a basis for the Court to grant default judgment. Although it is appropriate to award default judgment, the Court must still be satisfied that the orders sought are reasonably supported by the materials before the Court.
The proceedings issued by the applicant are proceedings seeking that the Court deal with the respondents to pay compensation to the applicant for economic loss, non-economic loss and interest. These were all payments resulting from the contraventions of the FW Act and associated costs.
LEGISLATION
The FW Act relevantly provides:
90 Payment for annual leave
(1)If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the period.
(2)If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
117 Requirement for notice of termination
…
(2)The employer must not terminate the employee’s employment unless:
…
(b)the employer has paid to the employee…payment in lieu of notice of at least the amount the employer would have been liable to pay the employee…
…
323 Method and Frequency of Payment
(1)An employer must pay and employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b)in money by one, or a combination of the methods referred to in subsection (2); and
(c) at least monthly.
(2)The methods are as follows:
(a) cash;
(b)cheque, money order, postal order or similar order, payable to the employee;
(c)the use of electronic funds transfer system to credit an account held by the employee;
(d) a method authorised under a modern award or an enterprise agreement.
(3)Despite paragraph 1(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.
…
340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(iv)to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
…
341 Meaning of workplace right
1. A person has a workplace right if the person:
(a) is able to make a complaint or inquiry
…
iiif the person is an employee--in relation to his or her employment.
…
342 Meaning of ‘adverse action’
…
Adverse action is taken by… an employer against an employee if… the employer:
(a) Dismisses the employee; or…
(b) Alters the position of the employee to the employees prejudice; or
(c)Discriminates between the employee and other employees of the employer
…
351 Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
…
352 Temporary absence
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations
…
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
…
536 Employer obligations in relation to pay slips
(1)An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
(2) The pay slip must:
(a) if a form is prescribed by the regulations – be in that form; and
(b) include any information prescribed by the regulations.
545 Orders that can be made by particular courts
(1)The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
…
546 Pecuniary penalty orders
(1)The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.
Determining amount of pecuniary penalty
(2) The pecuniary penalty must not be more than:
(a)if the person is an individual–the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); …
547 Interest up to judgment
(1)This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.
(2)In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
…
550 Involvement in contravention treated in same way as actual contravention
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
The Applicant’s Case
The Form 2 accompanying the substantive application sets out the allegations of fact made by the applicant very much along the same lines a statement of claim would set out allegations of fact. In summary, they were as follows.
On 1 June 2022, the applicant was employed by the first respondent to work as a venue manager at The European Hotel on a permanent full-time basis. The terms and conditions of the applicant’s employment were set out in a written employment contract dated 1 June 2022 which inter alia provided for the applicant to be paid on a fortnightly basis. The applicant began work for the first respondent on 6 June 2022.
On 16 June 2022, the applicant received a pay slip from the first respondent for his first week of work. Although the pay slip recorded the payment date as 16 June 2022, the applicant did not receive his wages that day.
The applicant still had not received those wages by 19 June 2022 and texted the second respondent (Employment Inquiry). The applicant was told he would receive those wages shortly but still had not received his wages by 21 June 2022.
The applicant emailed the second respondent (First Employment Complaint) and later that day discussed the late wages with the second respondent. Subsequently the applicant was paid $500 on 21 June 2022 and his outstanding wages on 22 June 2022.
On 14 July 2022, the applicant received a pay slip from the first respondent for the pay period 27 June 2022 to 10 July 2022. Whilst the pay slip recorded the payment date as 14 July 2022, the applicant did not receive his wages that day.
Later that day, the applicant began to feel unwell and advised the second respondent’s son that he was leaving work. The applicant subsequently tested positive for COVID-19 using a Rapid Antigen Test. As a result, the applicant called the second respondent and advised he would be absent and the second respondent expressed concern about the impact of the applicant’s absence on his business.
By 17 July 2022, the applicant had not received the wages that were due on 14 July 2022. As a result, at 10.26am, the applicant emailed the second respondent (Second Employment Complaint).
The applicant then received a phone call from the second respondent who advised the applicant that his employment was terminated and that there was no need for him to return to work.
The applicant’s case is that the first respondent has contravened ss 340(1), 351(1) and 352 of the FW Act, and that the second respondent is a person involved in the same contraventions under s.550 of the FW Act.
The applicant alleged that he was dismissed as a result of exercising a workplace right in contravention of s.340(1) of the FW Act. The applicant had a workplace right because, as an employee, he was able to make a complaint or inquiry in relation to his employment. The applicant exercised a workplace right when he made the Employment Inquiry and the First and Second Employment Complaints.
Additionally, the applicant alleged that he was dismissed as a result of a disability, being his temporary incapacity to work due to his COVID-19 illness. The exception in s.351(2)(b) of the FW Act is not applicable because the temporary nature of the disability means that it did not affect the applicant’s ongoing ability to perform “the inherent requirements of the particular position concerned”. The applicant further alleged that he was dismissed as a result of a temporary absence from work due to illness or injury, in contravention of s.352 of the FW Act.
Sections 360 and 361 of the FW Act together impose an onus on an employer (such as the first respondent) to disprove that an alleged prohibited reason was not among the reasons for taking adverse action against an employee. The employer may do this by proving that the action was taken for other reasons, to the exclusion of the alleged prohibited reasons.
The applicant alleged that neither the first or second respondent provided the applicant with any reason for his dismissal. The applicant further alleged that the first respondent has also contravened s.90(2) payment for annual leave when employment ends; s.117(2) payment in lieu of notice and s.323(1) non-payment of wages in full when due.
By reason of the above matters the applicant’s case is that the first respondent has also contravened ss.340(1), 351(1) and 352 of the FW Act, and that the second respondent is a person involved in the same contraventions (set out above) under s.550 of the FW Act.
WHAT ORDERS SHOULD BE MADE?
On the face of the material the applicant has filed, I am satisfied that the applicant has made out a sufficient basis for the orders sought in the application in a proceeding. I am satisfied that I am able to make the requisite declarations in relation to the contraventions by both respondents of the FW Act.
Section 545 of the FW Act confers on the Court broad powers to grant relief to a person(s) who have suffered as a result of a contravention of a civil remedy provision. By virtue of s.545(2) of the FW Act, the Court has the power to order a payment for compensation for loss that a person has suffered because of a contravention, as well as interest on that amount, which is provided for in s.547.
As well as the amounts owing in outstanding wages ($4,951.84), accrued annual leave ($704.32) and pay in lieu of notice ($1,826.92) it is necessary to consider the applicant’s claims for economic and non-economic loss arising from the adverse action.
Turning firstly to the applicant’s claim of economic loss of $7,891.83. The applicant’s most recent affidavit set out the basis for this claim and how the figure arrived at was calculated. [10] Given the approach in the authorities[11] and as a result of the above there is a proper evidential foundation for the compensation sought. An order will be made for the respondents to pay the applicant the sum of $7,891.83 for future economic loss.
[10] See para [34] and Annexure AB-14.
[11] See for e.g. Dafallah v Fair Work Commission [2014] FCA 328.
Turning then to the applicant’s claim for non-economic loss in relation to the “hurt and humiliation” caused by the respondents conduct of $5,000.00, Counsel for the applicant conceded the evidence was “thin”. Taking into account the “absence of probative evidence”, that it is necessary to be satisfied there is something more than the usual element of distress accompanying most terminations[12] and the approach in the authorities[13] only a modest amount of compensation in the amount of $500.00 is called for. There will be an order accordingly.
[12] See RailPro Services Pty Ltd v Flavel [2015] FCA 504.
[13] See Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27.
Finally there is the applicant’s claim for interest. Calculations prepared by the applicant’s solicitor (in accordance with the “Interest on Judgements Practice Note”) correctly[14] records the amounts that will be ordered pursuant to s.547 of the FW Act. There will be an order for the respondents to pay the applicant $648.71 for pre-judgment interest.
[14] Save that the amount for non-economic loss for above reasons is only $20.43 in total.
CONCLUSION
Therefore, and for the reasons set out above, I will make the requisite declarations that the respondents have contravened the relevant provisions of the FW Act referred to in the Form 2 and the necessary consequential orders. I require the applicant to serve the respondents with a copy of the orders made this day and I otherwise fix the matter for a penalty hearing, with the directions for that purpose.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan.
Associate
Dated: 14 April 2023
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