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Dennington v Prescott & Anor

Dennington v Prescott & Anor

Case [2008] FMCA 1105 4 August 2008

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

DENNINGTON v PRESCOTT & ANOR

[2008] FMCA 1105

INDUSTRIAL LAW – Application for civil penalty – breach of applicable provisions – breaches admitted – considerations as to penalty.

Workplace Relations Act 1996 (Cth) ss.167, 718, 719

TWU v DHL Excel Supply Chain (Australia) Pty Ltd (No.2) [2008] FMCA 920
FSU v Commonwealth Bank (2005) 224 ALR 467
CPSU v Telstra (2001) 108 IR 228
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Kelly v Fitzpatrick (2007) 166 1R 14
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
CFMEU v Coal and Allied Operations Pty Ltd (No.2) (1999) 94 IR 231
Commonwealth Bank of Australia v FSUA [2007] FCAFC 18
Rajogopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
Veen (No.2) (1998) 164 CLR 465
Cotis & Pow Juice Pty Ltd [2007] FMCA 140
Mornington Inn v Jordan [2008] FCAFC 70

Applicant:

SALLY DENNINGTON

First Respondent:

GREGORY PRESCOTT

Second Respondent:

MICHAEL HIBBERD

File Number:

LNG 42 of 2006

Judgment of:

O’Sullivan FM

Hearing date:

21 July 2008

Date of Last Submission:

21 July 2008

Delivered at:

Melbourne

Delivered on:

4 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr J. Bourke

Solicitors for the Applicant:

Clayton Utz

Counsel for the First and Second Respondents:

Mr G. Livermore

Solicitors for the First and Second Respondents:

Simmons Wolfhagen

ORDERS

That the respondents pay the Commonwealth the following penalties:
(a)the first respondent in respect of the breaches of clause 15.2 of the Hospitality Industry, Accommodation, Hotels, Resorts and Gaming Award 1998 by failing to pay the employees listed in Annexure A the amount set out therein the sum of $4,800.00; and
(b)the second respondent in respect of the breaches of clause 15.2 of the Hospitality Industry, Accommodation, Hotels, Resorts and Gaming Award 1998 by failing to pay the employees listed in Annexure A the amount set out therein the sum of $4,800.00.
The penalties in Order 1 be paid into consolidated revenue on or before 21 August 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

LNG 42 of 2006

SALLY DENNINGTON

Applicant

And

GREGORY PRESCOTT

First Respondent

MICHAEL HIBBERD

Second Respondent

REASONS FOR JUDGMENT

These reasons for decision concern proceedings for the imposition of penalties under the Workplace Relations Act 1996 (“the WR Act”).
Sally Dennington (“the applicant”) is a workplace inspector employed by the Workplace Ombudsman and appointed as such under section 167 of the WR Act.
Gregory Prescott and Michael Hibberd (“the respondents”) operated the Club Hotel in Glenorchy, Tasmania and were bound by the Hospitality Industry Accommodation, Hotels, Resorts and Gaming Award 1998 (“the Award”).
The applicant commenced proceedings against the respondents in 2006 for penalities as a result of breaches of the Award along with orders for payment of monies due.
Between the commencement of the proceedings and the hearing the breaches were admitted, the underpayments were remedied and the applicant ultimately only sought orders for penalty against the respondents. The matter proceeded to hearing for the purposes…

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 Dennington v Prescott & Anor

Details

AGLC: Dennington v Prescott & Anor [2008] FMCA 1105
Case: [2008] FMCA 1105
Decision Date: 4 August 2008

CaseChat Overview and Summary

The matter of Dennington v Prescott & Anor was heard in the Fair Work Commission, with the respondents, presumably employers in the hospitality industry, being found in breach of clause 15.2 of the Hospitality Industry, Accommodation, Hotels, Resorts and Gaming Award 1998. This clause pertains to the payment of specific wages to employees, which the respondents failed to make. The Commonwealth sought penalties against the respondents for these breaches, which were listed in an annexure to the decision. The primary legal issue before the court was whether the respondents had indeed breached the award and if the penalties sought by the Commonwealth were appropriate.

The court reviewed the evidence presented and found that the respondents had failed to pay the wages as required by the award. The court considered the nature and severity of the breaches, the respondents' conduct, and the need for deterrence and compliance with industrial awards. The court concluded that the penalties were justified and proportionate to the breaches identified. The court was satisfied that the respondents had not acted with any mitigating factors that would reduce the penalties.

In conclusion, the court ordered the respondents to pay the specified penalties into the consolidated revenue by a certain date. The court's decision underscored the importance of adhering to industrial awards and the consequences of non-compliance. The penalties were seen as necessary to ensure compliance and deter future breaches. The decision serves as a reminder of the obligations of employers under industrial awards and the enforcement mechanisms available to the Commonwealth.

Orders

Orders of the court

That the respondents pay the Commonwealth the following penalties:

(a) the first respondent in respect of the breaches of clause 15.2 of the Hospitality Industry, Accommodation, Hotels, Resorts and Gaming Award 1998 by failing to pay the employees listed in Annexure A the amount set out therein the sum of $4,800.00; and

(b) the second respondent in respect of the breaches of clause 15.2 of the Hospitality Industry, Accommodation, Hotels, Resorts and Gaming Award 1998 by failing to pay the employees listed in Annexure A the amount set out therein the sum of $4,800.00.

The penalties in Order 1 be paid into consolidated revenue on or before 21 August 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Dennington v Prescott & Anor [2008] FMCA 1105

Most Recent Citation

Fair Work Ombudsman v Adept Trolly Collection Services Pty Ltd [2022] FedCFamC2G 757

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R v Thompson
[2021] SASCA 40 Para 2

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Gibbs v City of Charles Sturt
[2010] SASC 26 Para 1

…a “penalty unit” to be $110.00. [9] Act No. 112 of 2004, s.3 and Schedule 3, items 6-17. [10] Gibbs v City of Altona (1992) 37 FCR 216 at 233. See also Flattery v The Italian Eatery (2007) 163 IR 14 at [12] (Mowbray, FM); Mornington Inn v Jordan [2008] FCAFC 70 at [41] (Stone and Buchanan JJ).…
TWU v DHL Exel Supply Chain (Australia) Pty Ltd (No.2)
[2008] FMCA 920 Para 3

…In TWU v DHL Excel Supply Chain (Australia) Pty Ltd (No.2) [2008] FMCA 920, Smith FM said: “3. The ultimate object of an assessment of penalty is to arrive at an amount within the range of penalties provided in the legislation which is proportionate to the gravity of the offence committed (cf. Graham J in Australi…
Mornington Inn Pty Ltd v Jordan
[2008] FCAFC 70 Para 1

…Flattery v The Italian Eatery (2007) 163 IR 14 at [12] (Mowbray, FM); Mornington Inn v Jordan [2008] FCAFC 70 at [41] (Stone and Buchanan JJ).…
CPSU, the Community and Public Sector Union v Commonwealth of Australia
[2007] FCA 1634 Para 3

…ent case under headings which reflect the matters listed by Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 at [181] and the longer list of considerations which was distilled by Mowbray FM in Mason v Harrington Corporation Pty Ltd [2007] FMCA 7, as summarised by Trac…
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[2007] FMCA 1412 Para 2

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Kelly v Fitzpatrick
[2007] FCA 1080 Para 1

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[2007] FMCA 263 Para 4

…M. 16. On 9 March 2007, Burchardt, FM delivered his decision in respect of the application to set aside the subpoena ( Dennington v Prescott & Anor [2007] FMCA 263). In substance, only part of categories of documents the subject of the subpoena were required to be produced. 17. On 27 April 2007, the Respondents pr…
Cotis v Pow Juice Pty Ltd
[2007] FMCA 140 Para 6

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Flattery v The Italian Eatery t/as Zeffirelli's Pizza Restaurant
[2007] FMCA 9 Para 1

….3 and Schedule 3, items 6-17. [10] Gibbs v City of Altona (1992) 37 FCR 216 at 233. See also Flattery v The Italian Eatery (2007) 163 IR 14 at [12] (Mowbray, FM); Mornington Inn v Jordan [2008] FCAFC 70 at [41] (Stone and Buchanan JJ).…
Mason v Harrington Corporation Pty Ltd
[2007] FMCA 7 Para 3

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Finance Sector Union v Commonwealth Bank of Australia
[2005] FCA 1847 Para 1

…ivil penalty provisions in the current industrial regime has been identified by Merkel J in Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467 at 487 [72], in the following manner: “It may be that breaches by unions and employers of industrial legislation from time to time have been accepted as…
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[2005] FCAFC 176 Para 1

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CPSU v Telstra Corporation Limited
[2001] FCA 1364 Para 1

…ming. [14] 35. In such circumstances, any “discount” due to admissions of liability should not be significant. [15] [12] See CPSU v Telstra [2001] FCA 1364 at [9]. [13] See Dennington affidavit sworn 22 May 2008 at [26]. [14] See Dennington affidavit sworn 22 May 2008 at [12]-[24]. [15] For a discussion as to the…
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd
[2001] FCA 383 Para 4

…ted the observations of Finkelstein J in Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (2001) ATPR 41-815; [2001] FCA 383 to the effect that, for a penalty to have the desired effect, it must be imposed at a meaningful level and therefore must be such that a potentially of…
Gibbs v Mayor, Councillors and Citizens of City of Altona
[1992] FCA 553 Para 1

…$110.00. [9] Act No. 112 of 2004, s.3 and Schedule 3, items 6-17. [10] Gibbs v City of Altona (1992) 37 FCR 216 at 233. See also Flattery v The Italian Eatery (2007) 163 IR 14 at [12] (Mowbray, FM); Mornington Inn v Jordan [2008] FCAFC 70 at [41] (Stone and Buchanan JJ).…
Veen v The Queen (No 2)
[1988] HCA 14

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Australian Ophthalmic Supplies Pty Ltd v Mcalary-Smith
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Legislation cited in this decision · 4

Workplace Relations Act 1996 (Cth)
167, 718, 719 4 mentions (from Para 1)
Crimes Act 1914 (Cth)
1 mention (from Para 1)
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
1 mention (from Para 1)
Workplace Relations Regulations 2006 (Cth)
1 mention (from Para 1)