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…
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Details
- Case
- [2023] FedCFamC2G 262
- Decision Date
CaseChat Overview and Summary
In the Federal Circuit and Family Court of Australia, Alexandru-Andrei Bostan, the applicant, filed an application for default judgment against European Operations Co Pty Ltd and another respondent. The applicant, who had been employed by the first respondent, alleged that the respondents had contravened the Fair Work Act by failing to pay wages on time and by terminating his employment without proper notice or payment of wages. The applicant sought compensation for economic and non-economic loss, interest, and costs.
The legal issues before the Court were whether the Court had the authority to grant default judgment and whether the applicant’s claims were reasonably supported by the materials before the Court. The Court considered the relevant rules of the General Federal Law Rules and decided that, due to the respondents’ defaults and the applicant’s supporting material, it was appropriate to proceed with the application for default judgment. The Court found that the applicant had established a basis for the Court to grant default judgment. The Court was satisfied that the orders sought were reasonably supported by the materials before the Court.
The Court granted default judgment in favour of the applicant and ordered that the respondents are individually and collectively in default. The Court ordered that judgment be entered against the respondents, including orders for the respondents to pay compensation to the applicant for economic loss, non-economic loss, and interest, as well as costs. The Court also ordered that the matter be listed for a directions hearing to set a timetable for the filing of evidence and submissions in respect of the determination of penalties.
The legal issues before the Court were whether the Court had the authority to grant default judgment and whether the applicant’s claims were reasonably supported by the materials before the Court. The Court considered the relevant rules of the General Federal Law Rules and decided that, due to the respondents’ defaults and the applicant’s supporting material, it was appropriate to proceed with the application for default judgment. The Court found that the applicant had established a basis for the Court to grant default judgment. The Court was satisfied that the orders sought were reasonably supported by the materials before the Court.
The Court granted default judgment in favour of the applicant and ordered that the respondents are individually and collectively in default. The Court ordered that judgment be entered against the respondents, including orders for the respondents to pay compensation to the applicant for economic loss, non-economic loss, and interest, as well as costs. The Court also ordered that the matter be listed for a directions hearing to set a timetable for the filing of evidence and submissions in respect of the determination of penalties.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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 right1. 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 absenceAn 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
Ratio Decidendi
Legal Principle Established
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