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David Joseph v Jayne Worthington

David Joseph v Jayne Worthington

Case [2018] VSCA 102 23 April 2018

Appeal

Statutory Construction

Statutory Interpretation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0097

DAVID JOSEPH	Applicant
v
JAYNE WORTHINGTON & ANOR	Respondents

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JUDGES:	TATE, OSBORN and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2018
DATE OF JUDGMENT:	23 April 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 102
JUDGMENT APPEALED FROM:	[2017] VSC 501 (Derham AsJ)

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STATUTORY INTERPRETATION – Appeal – Appeal from decision of Associate Judge on question of law – Whether the summary offence created by s 72(2) of the Long Service Leave Act 1992 of failing to pay the full amount of long service leave owing to an employee on the day employment ended is a continuing or complete offence – Plain meaning of text of provision does not create continuing offence – Appeal allowed – Jones v Lorne Saw Mills Pty Ltd [1923] VLR 58; R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd [1965] VR 615; R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd [1980] VR 459; Sloggett v Adams (1953) 70 WN (NSW) 206.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr D Gurvich QC with Mr K McDonald	David Joseph & Co
For the First Respondent:	Mr P Hanks QC with Ms R Sharp	Maddocks

TATE JA:

I have had the benefit of reading the judgment of Osborn JA, in draft. I agree, for the reasons his Honour gives, that leave to appeal should be granted and the appeal allowed.

OSBORN JA:

Introduction

Susan Scorah resigned from her employment with the applicant, David Joseph, on 7 December 2012.

The applicant had acquired the practice of a law firm in which Ms Scorah was employed on 14 April 2008. At that time Ms Scorah had been employed in the practice since September 2002. Accordingly, at the date of her resignation, her total period of employment was approximately 10 years and three months.

Two months after ceasing her employment with the applicant, Ms Scorah wrote to the applicant requesting payment of her long service leave entitlement. The applicant denied liability to pay any amount for long service leave, maintaining (amongst other things) that the entitlement had already been paid.

In March 2014, Ms Scorah complained of the non-payment to the Department of Economic Development, Jobs, Transport and Resources (‘the Department’).

On 20 October 2014, the first respondent Jayne Worthington (‘Worthington’), (who is an officer of the Department) signed a charge sheet and summons directed to the applicant which was issued by the Magistrates’ Court on the following day.

The charge alleged:

On and from 7 December 2012 and continuing, David Joseph, trading as David Joseph & Co Lawyers (ABN 12 247 624 310), being the former employer of Susan Charmaine Scorah, contravened s 72(2) of the Long Service Leave Act 1992 (Vic)

Particulars
You, David Joseph, trading as David Joseph & Co Lawyers, were required on 7 December 2012, to pay Susan Charmaine Scorah, an employee whose employment ended on 7 December 2012, before she had taken all of…

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 David Joseph v Jayne Worthington

Details

AGLC: David Joseph v Jayne Worthington [2018] VSCA 102
Case: [2018] VSCA 102
Decision Date: 23 April 2018

CaseChat Overview and Summary

David Joseph appealed against a decision of the Associate Judge, who found him guilty of a summary offence under section 72(2) of the Long Service Leave Act 1992. Joseph, the former employer, was charged for failing to pay the full amount of long service leave owed to his former employee, Jayne Worthington, on the day her employment ended. The Associate Judge found that the offence was a continuing one, and Joseph sought to appeal this decision on a question of law.

The primary legal issue before the court was whether the offence of failing to pay the full amount of long service leave owing to an employee on the day employment ended is a continuing or complete offence. The court examined the text of the provision and its plain meaning, considering relevant precedents that interpret statutory provisions. The court was required to determine whether the provision created a continuing offence or if it was a complete offence that required action on a specific day.

The court found that the plain meaning of the text of section 72(2) of the Long Service Leave Act 1992 did not create a continuing offence. Instead, the provision required the payment of the full amount of long service leave on the day employment ended. The court relied on precedents such as Jones v Lorne Saw Mills Pty Ltd, R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd, R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd, and Sloggett v Adams to support its interpretation. The court held that the offence was complete on the day employment ended, and there was no requirement for ongoing compliance. Consequently, the appeal was allowed, and Joseph's conviction was quashed.

The court ordered that the conviction of David Joseph be quashed, and the matter be remitted to the Associate Judge for reconsideration in light of the court's determination that the offence under section 72(2) of the Long Service Leave Act 1992 is not a continuing offence.

Orders