FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dixon v Pro-Tect Security Management Pty Ltd (No 2) [2024] FedCFamC2G 47
File number(s): SYG 1973 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 29 January 2024 Catchwords: INDUSTRIAL LAW – contravention of Award in breach of the Fair Work Act 2009 (Cth).
INDUSTRIAL LAW – compensation – dependant on contravention or purported contravention of a civil remedy provision.
Legislation: Fair Work Act 2009 (Cth), ss 45, 539, 545, 546, 557, 557A, 570
Crimes Act 1914 (Cth), s 4AA
Cases cited: Dixon v Pro-Tect Security Management Pty Ltd [2022] FedCFamC2G 854
Dafallah v Fair Work Commission (2014) 225 FCR 559
Leggett v Hawkesbury Race Club Limited (No 4) (2022) 293 FCR 608
Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216
Kelly v Fitzpatrick (2007) 166 IR 14
McIver v Healey [2008] FCA 425
Rocky Holdings Pty Ltd v Fair Work Ombudsman (2014) 221 FCR 153
Fair Work Ombudsman v Lohr (2018) 158 ALD 457
Johnson v The Queen (2004) 78 ALJR 616
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450
Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557
Carbone v James McConvill and Associates Pty Ltd [2019] FCA 1305
Division: Fair Work Number of paragraphs: 48 Date of last submissions 20 December 2022 Date of hearing: On the papers Place: Sydney Counsel for the Applicant: Mr A. Neal Solicitor for the Applicant: Slater & Gordon Lawyers Counsel for the Second Respondent: Mr D. Burwood Solicitor for the Second Respondent: Elysium Law Firm ORDERS
SYG 1973 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAI DIXON
Applicant
AND: PRO-TECT SECURITY MANAGEMENT PTY LTD (ABN 51145301391)
First Respondent
TAREK SOBH
Second Respondent
STEVE MOSS
Third Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
29 JANUARY 2024
THE COURT ORDERS THAT:
1.The first respondent pay the applicant compensation of $19,940.62 together with interest of $4,500.00.
2.The first respondent pay the applicant penalties totalling $20,000.00.
3.The first respondent pay the applicant 25% of his costs of the proceeding assessed in accordance with the Court’s scale as at today.
4.The applicant file written submissions on the calculation and quantification of costs within 21 days.
5.The first respondent file any written submissions in reply within 42 days.
6.The application be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order…
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- Case
- [2024] FedCFamC2G 47
- Decision Date
CaseChat Overview and Summary
The court addressed the contravention of the Fair Work Act, noting that Pro-Tect Security did not contest Mr Dixon’s claims and failed to provide any evidence or arguments against them. The court highlighted that Mr Dixon had submitted detailed spreadsheets to substantiate his claims, while Pro-Tect Security did not offer any counter-evidence or forensic analysis. Given this lack of opposition, the court found that Pro-Tect Security’s actions were unreasonable, leading to Mr Dixon incurring additional costs. The court also ruled on the compensation to be awarded, considering the reasonable circumstances and the detriment suffered by Mr Dixon due to the contravention. Additionally, the court determined the appropriate penalties and costs under the Fair Work Act.
The court ordered Pro-Tect Security to pay Mr Dixon compensation of $19,940.62, along with interest of $4,500.00 and penalties of $20,000.00. It also awarded 25% of the applicant’s costs of the proceeding, assessed according to the court’s scale of costs. The court emphasised that these orders were based on the findings of unreasonable conduct by Pro-Tect Security and the reasonable circumstances surrounding the case. The court dismissed the application in all other respects.
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Orders of the court
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Background
Background to the litigation
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Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
Mr Sobh also invited the Court to resist Mr Dixon’s submission that, in the exercise of its broad discretion as to remedies under s.545 of the FW Act, it should find him to be an accessory to Pro-Tect Security’s contraventions. CONSIDERATIONCompensationGenerally Compensation may not be ordered under s.545 of the FW Act unless a person has contravened, or proposes to contravene, a civil remedy provision. If that criterion is satisfied, compensation may be awarded if the Court “considers [that to be] appropriate”. As to the existence of a compensable loss, in Dafallah v Fair Work Commission (2014) 225 FCR 559 Mortimer J said at 596 [158]:While by no means operating as a mandatory approach to a discretion such as that conferred by s 545(1), with respect I adopt the remarks of Lee J in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 63 IR 1 considering factors relevant to an award of compensation under s 170EE of the then Industrial Relations Act 1988 (Cth). His Honour said (at 9), that the Court will:have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened … The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.Her Honour went on to observe at 597 [164] that the burden remained on the applicant to prove their loss. In Leggett v Hawkesbury Race Club Limited (No 4) (2022) 293 FCR 608, Rares J said:31.The expressions used in s 545(2)(b) “compensation” and “loss that a person has suffered” are not defined in the Fair Work Act. But the provision creates a causal link that the loss for which compensation may be awarded must arise “because of the contravention” of that Act…51.Any award under s 545(2)(b) is not made at common law. Rather, it is a form of statutory compensation for loss in supplementation of the more general power in s 545(1) to make “any order the court considers appropriate” if satisfied that a person has contravened a civil remedy provision. And, the relevant causal nexus between the entitlement to an order for compensation is that the person suffered the loss “because of the contravention”.…56.[The applicant’s] loss, to which the compensation payable under s 545(2)(b) applies, is to be measured by comparing her position as it is against what it would have been but for the Club’s contravention of the Fair Work Act. Quantum Pro-Tect Security has not engaged with the proceeding and, most relevantly, has adduced no evidence and made no arguments in contradiction of Mr Dixon’s case. Mr Sobh’s written submissions made rhetorical arguments questioning Mr Dixon’s spreadsheets but did not identify in what particular they were inaccurate. Reference was made to a spreadsheet that had been annexed to Mr Sobh’s affidavit filed in the earlier part of the proceeding but that document was obscure and inadequately explained. No forensic accountant’s report was relied on. That spreadsheet was of no assistance in determining the accuracy of Mr Dixon’s spreadsheets.