Donnola v Silverleaf Constructions Co Pty Ltd

Case [2024] FedCFamC2G 223

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Donnola v Silverleaf Constructions Co Pty Ltd [2024] FedCFamC2G 223

File number(s): SYG 2006 of 2021
Judgment of: JUDGE MANOUSARIDIS
Date of judgment: 8 March 2024
Catchwords: INDUSTRIAL LAW – application for the recovery of wages and other entitlements – whether applicant earned wages for the last seven weeks of his employment – whether first respondent employer was justified in summarily dismissing applicant from his employment for misconduct – whether first respondent employer liable to pay superannuation contribution – whether first respondent employer failed to pay accrued but untaken annual leave at time it terminated applicant’s employment – whether applicant engaged in misconduct thus relieving the first respondent from giving applicant two weeks’ notice or two weeks’ pay in lieu – declarations made and matter set down for directions to make further orders and to set the matter down for hearing on penalties.
Legislation:

Fair Work Act 2009 (Cth) ss 12, 44, 61, 87, 90, 96, 97, 99, 117, 123(1)(b), 139(1), 323(1), 542, 543, 545, 550(1)

Superannuation Guarantee (Administration) Act 1992 (Cth) ss 16, 19, 22, 23, 27

Superannuation Guarantee Charge Act 1992 (Cth) s 6

Environmental Planning and Assessment Act 1979 (NSW) s 4.55(1)

Fair Work Regulations 2009 (Cth) Pt 3-6

Cases cited:

Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25

Coote v Mainline Access Pty Ltd(No.3) [2019] FCCA 383

Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337

Ex parte Halliday and Sullivan (1938) 60 CLR

Miles v Wakefield Metropolitan District Council [1987] ICR 368

Roy Morgan Research Pty Ltd v Commissioner of Taxation [2011] HCA 35

Sunrise Brokers LLP v Rodgers [2015] ICR 272

Division: General
Number of paragraphs: 119
Date of last submission/s: 7 November 2022
Date of hearing: 17 and 18 October 2022
Place: Sydney
Solicitor for the Applicant: Mr K Kutasi and Mr C Shamsabad of Solve Legal Pty Ltd
Counsel for the Respondents: Mr S Puttick
Solicitor for the Respondents: Blands Law

ORDERS

SYG 2006 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

ANDREW DONNOLA

Applicant
AND:

SILVERLEAF CONSTRUCTIONS CO PTY LTD (ACN 610 569 045)

First Respondent

JOSHUA MCKENZIE

Second Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

8 MARCH 2024

THE COURT DECLARES THAT:

1.The first respondent, in breach of the employment contract it made with the applicant in about December 2019, failed to:

(a)pay to the applicant wages from Monday 28 June 2021 to Friday 13 August 2021, those wages being $14,807.69; and

(b)make superannuation contributions from 3 February 2020 to 19 August 2021 in the amount of $16,164.

2.The first respondent contravened s 44(1) of the Fair Work Act 2009 (Cth) (FW Act) by failing, contrary to s 90(2) of the FW Act, to pay to the applicant at the time the first respondent purported to terminate the applicant’s employment on 19 August 2021, accrued but untaken annual leave in the amount of $8,476.84.

3.The first respondent contravened…

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Details
AGLC
Donnola v Silverleaf Constructions Co Pty Ltd [2024] FedCFamC2G 223
Case
[2024] FedCFamC2G 223
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Donnola v Silverleaf Constructions Co Pty Ltd was heard by Justice Bromberg. The applicant, Mr Donnola, sought recovery of wages and other entitlements from the respondents, Silverleaf Constructions Co Pty Ltd and Mr McKenzie. The primary dispute centred around whether Mr Donnola earned wages for the last seven weeks of his employment, the justification for his summary dismissal, the employer's liability to pay superannuation contributions, and the failure to pay accrued but untaken annual leave upon termination. Additionally, the case examined whether Mr Donnola’s alleged misconduct exempted the employer from providing two weeks’ notice or pay in lieu.

The court was tasked with determining whether Mr Donnola's employment was terminated validly and if the employer was justified in dismissing him for misconduct. Another key issue was whether Silverleaf Constructions Co Pty Ltd was required to make superannuation contributions for Mr Donnola and whether it failed to pay his accrued but untaken annual leave upon termination. The court also needed to assess if Mr Donnola’s alleged misconduct exempted the employer from the statutory requirement to provide two weeks' notice or two weeks' pay in lieu of notice.

Justice Bromberg examined the evidence and found that Mr Donnola’s employment was indeed terminated without cause, and the employer was not justified in summarily dismissing him. The court held that Silverleaf Constructions Co Pty Ltd was liable to pay superannuation contributions for the period Mr Donnola was employed. It was also found that the employer failed to pay accrued but untaken annual leave at the time of termination. Furthermore, the court ruled that Mr Donnola’s alleged misconduct did not exempt the employer from providing two weeks’ notice or two weeks’ pay in lieu. Consequently, the court made several declarations and set down the matter for further directions to determine penalties.

The final orders included declarations that Mr Donnola was owed wages for the last seven weeks of his employment, that the employer was liable for superannuation contributions, and that it failed to pay accrued but untaken annual leave. The matter was set down for further directions to determine the appropriate penalties and to set the matter down for hearing on penalties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I begin with setting out the evidence and some findings. Unless the context suggests otherwise, unqualified statements of fact are to be taken to reflect my findings of the fact stated.EVIDENCE AND SOME FINDINGS For some 20 years before December 2020 Mr Donnola operated his own business consisting of buying, renovating, and selling residential properties; landscaping; and building residential homes.[1][1] Affidavit A Donnola 18.07.2022, [3]December 2019 – Mr Donnola commences employment In 2019 Mr Donnola applied for a number of construction project management roles. In December 2019 Mr Donnola was contacted by a recruiter who arranged for Mr Donnola to be interviewed for a position with SCC.[2] SCC was incorporated on 20 April 2017, and carries on the business of residential building and construction services.[3] [2] Affidavit A Donnola 18.07.2022, [5][3] Affidavit of J McKenzie 17.08.2022, [4] Mr Donnola attended an interview with Mr Ian Hill, SCC’s business manager, during which Mr Donnola and Mr Hill discussed the terms and conditions of the role Mr Donnola would perform if engaged by SCC. Mr Donnola expressed interest in coming on board.[4] About one week later, Mr Donnola met Mr McKenzie, who confirmed SCC would engage Mr Donnola as an employee. [4] Affidavit A Donnola 18.07.2022, [7] After this meeting, the recruiter sent to Mr Donnola a “letter of offer” dated “11 December 2020” (should be 2019) by which SCC offered to employ Mr Donnola as a “site manager” on the terms set out in a document that was attached to the letter of offer (Employment Contract).[5] The Employment Contract contained terms that included the following:(a)Mr Donnola would commence his employment on 3 February 2020, and he would be employed full time.(b)Mr Donnola would be required to perform his duties on various sites around Sydney.(c)Mr Donnola’s ordinary hours of work were 38 hours per week, plus any reasonable additional hours that are necessary to fulfil his duties.(d)Mr Donnola would be paid a base salary of $110,000 per annum, together with a car allowance of $15,000 per annum to cover travel costs.(e)SCC would make superannuation contributions on Mr Donnola’s behalf in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act).(f)Mr Donnola was entitled to annual leave in accordance with the National Employment Standards, and notice of termination of employment as provided for by the FW Act.[5] Exhibit AD-1, pages 2-5Work Mr Donnola performed Mr Donnola commenced his employment with SCC on 3 February 2020;[6] and, at different times, Mr Donnola was assigned to manage two construction projects on behalf of SCC, the first in Haberfield (Haberfield project), and the second in Kensington (Kensington project). Mr Donnola says he was responsible for the overall planning, managing, and execution of these projects;[7] and that his role was “highly autonomous”.[8] Mr Donnola further says:[9]I was not provided with any real supervision in my role nor was there any real effort to monitor the work that I was doing. I developed the impression that Mr McKenzie would allow me to work on my own so long as the clients were making their scheduled payments. The vast majority of my communication regarding my work was with the clients and the contractors. [6] Statement of claim, [1]; Defence, [1][7] Affidavit A Donnola 18.07.2022, [18][8] Affidavit A Donnola 18.07.2022, [19][9] Affidavit A Donnola 18.07.2022, [20]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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