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Burke v Serco Pty Ltd

Burke v Serco Pty Ltd

Case [2013] FMCA 196 21 March 2013

Employment & Labour Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURKE v SERCO PTY LTD

[2013] FMCA 196

INDUSTRIAL LAW – Termination in breach of a general protection – assessment of compensation for contraventions – imposition of penalty.

Crimes Act 1914, s.4AA
Federal Magistrates Act 1999, s.76(1)
Fair Work Act 2009 (Cth), ss.340(1), 361, 539, 539(2), 545(1), 545(2)(b), 546, 546(2)(b), 546(3)(c), 546(5), 547(1)(2), 547(3), 570(1)

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Bagnall v National Tobacco Corp of Australia Ltd (1934) 34 SR(NSW) 421
Burke v Serco Pty Ltd [2012] FMCA 1134
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Drury v Andreco Hurll Refractory Services Pty Ltd (No.4) (2005) 225 ALR 339
Haines v Bendall (1991) 172 CLR 60
Harding v Harding (1928) 29 SR (NSW) 96
Kelly v Fitzpatrick [2007] FCA 1080
McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006)158 IR 181
Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant and Bar [2007] FMCA 7
Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375

Applicant:

DOMINIC BURKE

Respondent:

SERCO PTY LTD

File Number:

BRG 317 of 2011

Judgment of:

Jarrett FM

Hearing date:

30 January 2013

Date of Last Submission:

30 January 2013

Delivered at:

Brisbane

Delivered on:

21 March 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Baker & McKenzie

ORDERS

THE COURT ORDERS THAT

The Respondent pay to the Applicant by way of compensation for contravention of s.340(1) of the Fair Work Act 2009 the sum of $18,879.51.
The respondent pay a pecuniary penalty for contravention of s.340(1) of the Fair Work Act 2009 in the amount of $16,500.
The penalty in order 2 hereof be paid to the applicant;
The penalty and compensation be paid within 28 days of this order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 317 of 2011

DOMINIC BURKE

Applicant

And

SERCO PTY LTD

Respondent

REASONS FOR JUDGMENT

For the reasons I gave on 29 November, 2012 (see Burke v Serco Pty Ltd [2012] FMCA 1134), I determined that Serco contravened s.340(1) of the Fair Work Act2009 Act by taking adverse action against Mr Burke when it terminated his employment on 25 January, 2011.
By orders that I made on 29 November, 2012, I adjourned this application to 30 January, 2013 for hearing as to the relief to which Mr Burke is entitled by reason of my findings. I further ordered that each party file and serve any further evidence upon which they intended to rely at that hearing by certain dates specified in the order.
Mr Burke has filed two affidavits, one on 25 January, 2013 and the other on 4 February, 2013. He also filed what might be described as written submissions. Serco has not filed any further evidence, but has filed written submissions. When the application came before me for further hearing on 30 January, 2013, both parties were content to rely upon their written material.…

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 Burke v Serco Pty Ltd

Details

AGLC: Burke v Serco Pty Ltd [2013] FMCA 196
Case: [2013] FMCA 196
Decision Date

CaseChat Overview and Summary

In Burke v Serco Pty Ltd, the applicant, Dominic Burke, sought compensation and penalties against the respondent, Serco Pty Ltd, for the termination of his employment, which he claimed was in breach of the Fair Work Act 2009 (Cth). The Federal Magistrates Court of Australia considered the appropriate compensation and penalty to be imposed on Serco for the contravention of section 340(1) of the Fair Work Act. The Court found that Serco had indeed contravened the Act by terminating Mr Burke’s employment.

The central legal issue was the assessment of compensation for the contravention, which the Court was to determine in accordance with section 545(2)(b) of the Fair Work Act. The Court also had to decide on the appropriate amount of a pecuniary penalty under section 546(1) of the Act, considering factors such as the nature of the contravention and the need for deterrence. The Court was further required to determine whether any part of the penalty should be paid to Mr Burke, considering if it would result in a windfall gain for him.

The Court assessed Mr Burke's compensation based on his likely continued employment for a further three months, resulting in a compensation of $15,059.28 for lost wages and $1,355.34 for lost superannuation contributions, totaling $16,414.62. Interest on this amount, calculated at 7.0% from the date of the cause of action to the date of judgment, amounted to $2,464.89. The Court did not award compensation for non-economic loss, as it was not satisfied that there were unusual exacerbating circumstances that necessitated such an award. Regarding the pecuniary penalty, the Court deemed a penalty of 150 penalty units, or $16,500, appropriate given the seriousness of the contravention. The Court ordered that this penalty be paid to Mr Burke, as it did not consider it to result in a windfall gain for him.

The Court ordered Serco to pay Mr Burke compensation of $18,879.51 (including interest), and a pecuniary penalty of $16,500, to be paid within 28 days of the order.

Orders