FEDERAL CIRCUIT COURT OF AUSTRALIA
Boyd v Glenvill Pty Ltd [2021] FCCA 265
File number(s): MLG 1676 of 2019 Judgment of: JUDGE A KELLY Date of judgment: 23 February 2021 Catchwords: INDUSTRIAL LAW – adverse action – whether applicant had been dismissed from employment while on sick leave by reason that he had made inquiries and complaints in relation to claims for accrued commission in contravention of s 340 of Fair Work Act 2009 (Cth) – whether applicant had been dismissed because he had been temporally absent from work because of illness in contravention of s 352 of Act – whether respondent had failed to pay amounts payable to applicant in relation to performance of work in contravention of s 323 of Act – whether presumption displaced that dismissal was taken for proscribed reasons as alleged – whether the proscribed reasons were a substantial and operative reason for termination – where focus of inquiry is upon reasons of decision-maker at time of adverse action – where decision made by a diverse number of persons – where failure to call evidence unexplained – whether inference was open that uncalled evidence would not have assisted respondent’s case – where inference arose in context that respondent bore onus – where inference open in deciding whether reasonable to accept evidence of denial that proscribed reason was not a reason for termination – application upheld as to complaint and inquiry as to withholding of monies – application as to dismissal by reason of temporary absence dismissed - application as to contravention for failure to pay monies in full upon termination upheld.
INDUSTRIAL LAW – whether remedies of reinstatement or compensation appropriate – applicable principles – reinstatement ordinarily to be granted in appropriate case – reinstatement refused – measure of compensation for economic loss and general damages – failure to mitigate – discount for vicissitudes – compensation awarded.
CONTRACT – claim for accrued commissions – whether entitlement to commission crystallises at time of applicable third-party contract, annually or on a cumulative basis over period of employment – proper construction of contract – applicable relief – whether relief is in debt or damages.
Legislation: Fair Work Act 2009 (Cth), ss 3, 323, 324, 336, 340, 341, 342, 352, 360, 361, 392, 545, 547
Long Service Leave Act 2018 (Vic)
Edelman, James, McGregor on Damages (Sweet & Maxwell, 21st ed, 2021)
Sappideen, Carolyn et al, Macken’s Law of Employment (Thomson Reuters, 8th ed, 2016)
Cases cited: Australian Building and Construction Commissioner v
Bauer Consumer Media Ltd v Evergreen Television Pty Ltd [2017] FCA 507; (2017) 349 ALR 679
Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288
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- AGLC
- Boyd v Glenvill Pty Ltd [2021] FCCA 265
- Case
- [2021] FCCA 265
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Glenvill Pty Ltd contravened section 340 of the *Fair Work Act* by dismissing Boyd because he had exercised his workplace right to inquire about or complain about unpaid commissions. It also needed to consider whether the dismissal contravened section 352 of the Act, specifically if it was because Boyd was temporarily absent from work due to illness. Furthermore, the court had to assess whether Glenvill Pty Ltd contravened section 323 of the Act by failing to pay amounts payable to Boyd in relation to his work upon termination. Finally, the court was asked to determine the proper construction of Boyd's employment agreement regarding his entitlement to sales commissions and the appropriate remedies, including reinstatement or compensation, in the event of a contravention.
The court found that Glenvill Pty Ltd had contravened section 340 of the *Fair Work Act* by dismissing Boyd because he had inquired about his accrued commissions, and that the proscribed reason was a substantial and operative reason for the termination. However, the court dismissed the application concerning a contravention of section 352, finding that the dismissal was not due to Boyd's absence from work due to illness. The court also upheld the claim that Glenvill Pty Ltd contravened section 323 by making deductions from Boyd's final pay. Regarding the sales commissions, the court clarified the accrual and payment conditions under the employment agreement, finding that commissions were payable upon the execution of specific agreements and when they exceeded the annual retainer, with approval by the General Manager, Housing, having been given on 19 July 2018 for commissions accrued in 2014, 2015, and 2016.
Consequently, the court declared that Glenvill Pty Ltd contravened sections 340 and 323 of the *Fair Work Act*. Reinstatement was refused, but compensation was awarded in the sum of $110,000, along with pre-judgment interest. The court also ordered payment of sums due for unpaid sales commissions for the years 2014, 2015, and 2016, subject to further agreement or determination on quantum and interest.
Orders
Orders of the court
1. The questions posed for determination be answered as follows:
Contravention of section 340 – Termination
Ques 1. Did the respondent contravene s 340 of the Fair Work Act 2009 (Cth) (Act) in terminating the employment of the applicant? In particular, was the adverse action in the form of the dismissal taken because, or for reasons including that, the applicant exercised his workplace right to complain or inquire about his allegedly unpaid commissions?
Answer: Yes.
Contravention of section 352 – Termination of employment – Absence from work due to illness or injury
Ques 2. Did the respondent contravene s 352 of the Act in terminating the employment of the applicant? In particular, was the adverse action in the form of the dismissal taken because, or for reasons including that, the applicant was temporarily absent from work due to illness or injury, within the meaning of that section?
Answer: No.
Contravention of section 323(1) – Deduction of final pay
Ques 3. Did the respondent contravene s 323(1) of the Act in making deductions from the applicant’s final pay upon termination of his employment?
Answer: Yes.
Remedies – Reinstatement/Compensation
Ques 4. In the event of a contravention of any of these provisions of the Act, what remedy should be ordered (reinstatement and/or compensation?).
Answer: Pursuant to ss 545 and 547 of the Act, compensation in the sum of $110,000 together with all interest thereon from 28 May 2019 to judgment, such interest to be determined by agreement, and failing agreement upon the papers (with each party to submit a minute of consent order, alternatively, within fourteen days hereof a single page submission as to the computation of interest).
Proper construction of clause 6 and schedule 1 – Sales commission
Ques 5. In respect of the Employment Agreement between the applicant and the respondent, and more specifically the applicant’s entitlement to sales commissions detailed in clause 6 and schedule 1 thereof:
(a) What is the proper construction of clause 6 and schedule 1 of the Employment Agreement?
(b) As regards the applicant’s sales commission entitlement -
(i) is the applicant’s entitlement to sales commissions to be calculated and paid on an annual basis, less the amount of the annual retainer paid to the applicant; or,
(ii) is the applicant’s entitlement to sales commissions to be calculated as a cumulative total for any unpaid period as at the date when the applicant makes a claim for commission from the respondent, less the amount of the annual retainer paid to the applicant in that period?
(c) What is the quantum of the applicant’s sales commission entitlement, if any, and what discounts given by the respondent to customers are to be taken into account in determining that quantum?
Answers. (a) Inappropriate to answer.
(b) (i) Save that no Sales Commissions were payable to the applicant in any calendar year until the amount of such commissions exceeded his Retainer (as defined), and as paid to that point in such year, the applicant’s entitlement to Sales Commissions accrued: (1) upon execution of the PA2 agreements upon which the commissions were claimed and payment of a deposit equal to 5% of the total cost of works as specified by such agreement, and; (2) in each year, as and whenever the sum of such commissions exceeded the sum of the Retainer that had been paid to that point. Otherwise, such commission was payable within 14 days of approval by the respondent’s General Manager, Housing, such approval having been given on 19 July 2018 in respect of the applicant’s claims for commissions as accrued for the years 2014, 2015 and 2016 respectively.
(ii) No.
(c) Unnecessary to answer.
Damages
Ques 6. Is the applicant entitled to damages or an order for payment of sums due, in respect of unpaid sales commissions?
Answer: Subject to the question of election between remedies in debt or damages, the applicant is entitled to an order for payment of the sums due in respect of sales commissions for each of the years 2014, 2015 and 2016 respectively.
Declarations and orders
2. Declare that the respondent contravened s 340 of 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 respondent in relation to the sales commissions accrued in his employment.
3. Declare that the respondent contravened s 323 of the Act in that it withheld from the applicant a sum of $12,846 on 7 March 2019 when terminating his employment being an amount payable to the applicant in full in relation to the performance of his work.
4. The application for a declaration for contravention of s 352 of the Act be dismissed.
5. The applications for reinstatement and all related ancillary relief are dismissed.
6. Pursuant to s 545 of the Act, the respondent pay as compensation to the applicant $110,000.
7. Pursuant to s 547 of the Act, the respondent pay the applicant pre-judgment interest on the said sum of $110,000 and upon the sum of $12,846 (being the sum withheld by the respondent from 7 March 2019 until shortly prior to the final hearing of this proceeding).
8. Subject to paragraphs 9-11 of this Order, the respondent pay the applicant the sums due in respect of the claims for commission the subject of this proceeding in respect of sales achieved in the years 2014, 2015 and 2016 as embodied in the parties’ Scott schedule in this proceeding.
9. Pursuant to s 547 of the Act, the respondent pay the applicant pre-judgment interest on the sums due to the applicant in respect of the aforesaid claims for commission.
Directions
10. By 4:00pm on Tuesday, 9 March 2021, the parties confer as to the sums due pursuant to paragraphs 8-9 of this Order by way of pre-judgment interest upon the said sums of $110,000 and $12,846 and upon the commissions due as provided by this Order and with the aim of providing the court with agreed proposed orders as to such sums.
11. Should the parties be unable to agree on the amounts of pre-judgment interest, by 4:00pm on Tuesday, 9 March 2021, the parties are to file submissions (not exceeding one page), with the question of pre-judgment interest to be determined on the papers.
12. Should the parties be unable to agree upon the sums due in respect of the claims for commission the determination as to the quantum of such claims be adjourned for hearing of submissions during the further hearing upon penalties on 26-27 April 2021.
13. By 4:00pm on Tuesday, 9 March 2021, the parties confer as to the directions to be made with respect to the filing and service of any further affidavits, a minute of proposed orders and submissions upon which they intend to rely at the hearing on the matter of penalty.
14. The costs of and incidental to the hearing on liability issues be reserved.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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