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Cotis v Oggy Pty Ltd

Cotis v Oggy Pty Ltd

Case [2009] FMCA 21 23 January 2009

Unconscionable Conduct

Breach of Contract

Restitution

Limitation Periods

Employment & Labour Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

COTIS v OGGY PTY LTD & ORS

[2009] FMCA 21

INDUSTRIAL LAW – Breach of a notional agreement preserving state awards – claim of underpayment of wages – claim of duress in connection with AWA – breach of freedom of association provisions.

Acts Interpretation Act 1901 (Cth), s.8
Crimes Act 1914 (Cth), s.4AA
Workplace Relations Act 1996 (Cth), ss.167(2), 170VD, 170VN ,400(5), 400(6), 407, 413, 719(1), 728, 779, 782, 785, 792(1), 793, 807, 809, 826(2), 841, Sch.8, cl.43
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Workplace Relations Amendment (Transitional to Forward with Fairness Act) 2008 (Cth)

Australian Services Union v Electrix Pty Ltd (1999) 93 IR 43
Bishop v Ropolo Services Pty Ltd (2006) 153 FCR 357
Brobbel v Darrell Lea Chocolate Shops Pty Ltd [2008] FMCA 714
Canturi v Sita Coaches Pty Ltd; Napoli v Sita Coaches Pty Ltd (2002) 116 FCR 276
Cotis (Office of Workplace Services) v Pow Juice Pty Ltd [2007] FMCA 140
Granada Tavern v Smith [2008] FCA 646
Jordan v Mornington Inn Pty Ltd 166 IR 33; Granada Tavern v Smith [2008] FCA 646
Maritime Union of Australia v Geraldton Port Authorities (1999) 93 FCR 34
Schanka v Employment National (Administration) Pty Ltd 92 IR 464
Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9

Restaurants, & c Employees (State) Award

Shop Employees (State) Award

Applicant:

KATE ELIZABETH COTIS

First Respondent:

OGGY PTY LTD T/AS GLORIA JEANS - REVESBY

Second Respondent:

ROBERT OGNENOVSKI

Third Respondent:

SILVANA OGNENOVSKI

File number:

SYG 2000 of 2007

Judgment of:

Lloyd-Jones FM

Hearing dates:

23, 24 June 2008

Delivered at:

Sydney

Delivered on:

23 January 2009

REPRESENTATION

Counsel for the Applicant:

Mr R Crow

Solicitors for the Applicant:

Blake Dawson

The Respondents

Mr R Ognenovski and Mrs S Ognenovski appeared as self-represented litigants.

THE COURT DECLARES:

The first respondent has contravened applicable provisions of a Notional Agreement Preserving State Award.
The first, second and third respondents have contravened s.400(5) of the Workplace Relations Act 1996 (Cth) by applying duress to Ms Shalindar Adams in connection with the Australian Workplace Agreement.
The first respondent has contravened s.792(1) of the Workplace Relations Act 1996 by dismissing Ms Shalindar Adams.

THE COURT ORDERS:

The first respondent pay a penalty pursuant to s.719(1) and cl.43 of Schedule 8 of the Workplace Relations Act 1996 (Cth) for contravention of applicable provisions of a Notional Agreement Preserving State Awards.
The first, second and third respondents pay a pecuniary penalty pursuant to s.407 of the Workplace Relations Act 1996 (Cth) for contravention of s.400(5) of the Act.
The first, second and third respondents pay compensation pursuant to s.413 of the Workplace Relations Act 1996 (Cth) for any loss or damage suffered by Ms Shalindar Adams.
The first respondent to pay a pecuniary penalty pursuant to s.807(1)(a) of the Workplace Relations Act 1996 (Cth) for contravention of s.792(1) of the Act.
The first respondent pay an amount to Ms Shalindar Adams as compensation for any damage suffered by her…

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 Cotis v Oggy Pty Ltd

Details

AGLC: Cotis v Oggy Pty Ltd [2009] FMCA 21
Case: [2009] FMCA 21
Decision Date: 23 January 2009

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Kate Elizabeth Cotis, a workplace inspector, filed proceedings against Oggy Pty Ltd, the owners of a Gloria Jeans café in Revesby, and its directors, Robert and Silvana Ognenovski. The proceedings were brought on behalf of the Commonwealth of Australia and the applicant sought declarations and orders against the respondents in respect of breaches of the Workplace Relations Act 1996 (Cth). The primary issue that the court was required to decide was whether: a) a penalty order is to be made against the respondents in respect of the underpayment under s.719(1) and cl.43 of Schedule 8 of the Workplace Relations Act 1996 (Cth) (“the WR Act”); b) an order be made against each respondent in respect of applied duress to an employee in connection with an AWA contrary to s.400(5) in relation to the employee within the meaning of s.728 of the WR Act; c) the conduct of the respondents constituted: i) a dismissal or threatened dismissal for a prohibited reason in contravention of s.792(1)(a) of the WR Act; ii) an injury or threatened injury to an employee’s employment for a prohibited reason in contravention of s.792(1)(b) of the WR Act; iii) an alteration or threatened alteration to the position as an employee to her prejudice for a prohibited reason in contravention of s.792(1)(c) of the WR Act; and iv) a refusal or threatened refusal to employ an employee for a prohibited reason in contravention of s.792(1)(d) of the WR Act; d) the second and third respondents were involved in any contravention with the first respondent if they: i) aided the contravention; ii) were in any way by act of omission directly or indirectly knowingly concerned in or party to a contravention; or iii) conspired with the first respondent to effect the contravention in breach of s.728 of the WR Act; and e) any conduct engaged in by the second and third respondents (being directors and officers of the first respondent) should also be taken to have been engaged in also by the first respondent in breach of s.826(2) of the Act. The court found that the first respondent contravened applicable provisions of a Notional Agreement Preserving State Awards, breached s.400(5) of the WR Act by applying duress to Ms Shalindar Adams in connection with the Australian Workplace Agreement, and breached s.792(1) of the WR Act by dismissing Ms Shalindar Adams. The court ordered the first respondent to pay a penalty pursuant to s.719(1) and cl.43 of Schedule 8 of the WR Act for contravention of applicable provisions of a Notional Agreement Preserving State Awards. The first, second and third respondents were ordered to pay a pecuniary penalty pursuant to s.407 of the WR Act for contravention of s.400(5) of the Act, and compensation pursuant to s.413 of the WR Act for any loss or damage suffered by Ms Shalindar Adams. The first respondent was ordered to pay a pecuniary penalty pursuant to s.807(1)(a) of the WR Act for contravention of s.792(1) of the Act and to pay compensation to Ms Shalindar Adams pursuant to s.807(1)(b) of the WR Act as a result of the contravention of s.792(1) of the Act. The applicant was invited to file submissions in respect of penalties and compensation by 20 February 2009, and the respondents to file any submissions in reply to the use of penalties and compensation by 20 March 2009.

Orders