Fair Work Ombudsman v Abulamoun

[2021] FCCA 2195

FEDERAL CIRCUIT COURT OF AUSTRALIA

Fair Work Ombudsman v Abulamoun [2021] FCCA 2195

File number(s):

SYG 261 of 2021

Judgment of:

JUDGE CAMERON

Date of judgment:

3 August 2021

Catchwords:

INDUSTRIAL LAW – Failure to comply with orders of the Fair Work Commission – order for compensation.    

Legislation:

Fair Work Act 2009 (Cth) ss 387, 390, 392, 405, 539, 545, 546, 547

Federal Circuit Court Rules 2001 (Cth) r 26.01

Number of paragraphs:

15

Date of hearing:

3 August 2021

Place:

Sydney

Solicitor for the Applicant:

Ms K. Davies, Fair Work Ombudsman

Counsel for the Respondent:

No appearance by or on behalf of the Respondent

ORDERS

SYG 261 of 2021

BETWEEN:

FAIR WORK OMBUDSMAN

Applicant

AND:

MAHMOUD HASAN ABULAMOUN (ABN 98386335969)

Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	3 AUGUST 2021

THE COURT DECLARES THAT:

1.The respondent contravened s.405 of the Fair Work Act 2009 (Cth) by contravening a term of a Fair Work Commission order dated 3 August 2020.

THE COURT ORDERS THAT:

2.Pursuant to s.545(2) of the Fair Work Act 2009 (Cth) the respondent pay the sum of $2,817.39, less applicable taxation, to the applicant within 28 days.

3.Pursuant to s.547(2) of the Fair Work Act 2009 (Cth) the respondent pay interest to the applicant in the amount of $141.51 within 28 days.

4.The applicant distribute the amount referred to in orders 1 and 2 to the employee Nathan Jackson within 90 days of receipt.

5.The applicant have liberty to apply on seven days’ notice in the event that any of the above orders are not complied with.

6.The matter be listed for further directions on 27 August 2021 at 9:30am by telephone.

REASONS FOR JUDGMENT

JUDGE CAMERON

INTRODUCTION

1. The respondent, Mr Abulamoun, was the operator of a trolley collection business at the Green Hills East Maitland Shopping Centre in New South Wales. In his capacity as a sole trader, with an Australian Business Number, the respondent employed Nathan Jackson on a casual basis as a trolley collector.  The respondent terminated Mr Jackson’s employment on or about 21 May 2020.

2. Mr Jackson subsequently lodged an application for an unfair dismissal remedy with the Fair Work Commission (“Commission”).  On 3 August 2020, Deputy President Saunders of the Commission decided that:

   (a)Mr Jackson was protected from unfair dismissal within the meaning of s.387 of the Fair Work Act 2009 (“FW Act”);

   (b)the termination was harsh and unreasonable;

   (c)reinstatement of Mr Jackson was inappropriate; and

   (d)an order for payment of compensation was appropriate in the circumstances.

3. On 3 August 2020 the Commission ordered that the respondent pay Mr Jackson compensation in the amount of $2,817.39, less applicable taxation (“Commission Order”).  Subsequently, the respondent made an application for permission to appeal that order and a full bench of the Commission refused that application on 21 October 2020.

4. It is alleged by the applicant, and the respondent does not contest in his response, that he has not made any payment pursuant to the Commission Order. The Ombudsman commenced this proceeding on 19 February 2021 alleging that the respondent had contravened s.405 of the FW Act by contravening a term of the Commission Order.

5. The Ombudsman seeks the following relief:

   (a)a declaration that the respondent contravened s.405 of the FW Act by contravening a term of the Commission Order;

   (b)an order pursuant to s.545(2) of the FW Act that the respondent pay the sum of $2,817.39, less applicable taxation, to the applicant within 28 days;

   (c)an order pursuant to s.547(2) of the FW Act that the respondent pay interest to the applicant at the applicable pre-judgment rate on $2,817.39 within 28 days of the Court’s orders;

   (d)an order that the applicant distribute the amounts referred to in paragraphs (b) and (c) to Mr Jackson within 90 days of receipt;

   (e)an order pursuant to s.546(1) of the FW Act that the respondent pay a pecuniary penalty to the Commonwealth in respect of the contravention declared in paragraph (a) above, within 28 days of the Court’s orders; and

   (f)an order that the applicant have liberty to apply on seven days’ notice in the event that any of the above orders are not complied with.

6. The matter is listed today for hearing to determine whether there has been a contravention of the FW Act.

   RELEVANT LEGISLATION

7. The FW Act relevantly provides:

   390     When the FWC may order remedy for unfair dismissal

   (1)Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

   (a)the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

   (b)       the person has been unfairly dismissed (see Division 3).

   (2)The FWC may make the order only if the person has made an application under section 394.

   (3)The FWC must not order the payment of compensation to the person unless:

   (a) the FWC is satisfied that reinstatement of the person is inappropriate; and

   (b)the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

   392     Remedy—compensation

   (1)An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

   …

   405     Contravening orders under this Part

   A person to whom an order under this Part applies must not contravene a term of the order.

   …

   539Applications for orders in relation to contraventions of civil remedy provisions

   (1)A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.

8. Section 539 of the FW Act provides that s.405 is a civil remedy provision. Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of a civil remedy of this provision.

   APPLICANT’S EVIDENCE

9. The applicant has filed two affidavits.  The first is the affidavit of Fair Work Inspector Tara Schebella, affirmed 2 June 2021. The history of the matter set out earlier in these reasons draw on that affidavit.

10. The second affidavit is that of Kate Davies, a solicitor in the office of the Fair Work Ombudsman, affirmed 2 August 2021.  Ms Davies deposes to the steps taken by the Ombudsman to ensure that the respondent was aware of today’s listing. Relevantly, Ms Davies has deposed that:

    (a)when the matter was listed for directions before me on 21 May 2021 there was no appearance by the applicant, at which time timetabling orders were made and the matter was listed for liability hearing today;

    (b)on 25 May 2021, Ms Davies sent to the respondent an email attaching a copy of the orders made on 21 May 2021 and providing a brief explanation of their contents;

    (c)on 4 June 2021, Ms Davies sent the respondent an email attaching by way of service a sealed copy of FWI Schebella’s affidavit and providing a brief explanation of the steps he was required to take under the orders;

    (d)on 20 July 2021, Ms Davies sent the respondent an email attaching by way of service a sealed copy of the Ombudsman’s written submissions in this matter and providing a brief explanation of the steps the respondent was required to take under the orders; and

    (e)on 29 July 2021, Ms Davies sent the respondent an email confirming the details of the liability hearing listed for today, attaching a copy of the Court’s orders and asking the respondent to confirm whether he would be attending the liability hearing and to advise whether he would require FWI Schebella for cross-examination.

    Ms Davies deposes that at the time of affirming her affidavit, she had not received from the respondent a response to any of the emails referred to in her affidavit. 

11. As background to the matters cited by Ms Davies, I should record that the respondent appeared by telephone at the directions hearing in this matter held on 7 May 2021, at which time the matter was listed for the directions hearing on 21 May to which Ms Davies refers in her affidavit.  As Ms Davies noted, the respondent did not appear on that occasion.  In his response filed 26 April 2021, the respondent opposed the applicant’s claim for final orders, but he did not dispute that he had not satisfied the Commission Order, although he complained about the Commission’s processes and said, for reasons that he gave, that he could not afford to pay the amount ordered.

    APPLICANT’S SUBMISSIONS

12. The Ombudsman submitted that the respondent has admitted that he has not paid the amount owed to Mr Jackson under the Commission Order and, that while he opposed the relief sought, the grounds of his opposition were not relevant to the Court’s determination of whether or not he has contravened s.405 of the FW Act.

13. The Ombudsman submitted that the respondent has contravened a term of the Commission’s order, and therefore, has contravened s.405 of the FW Act, noting that:

    (a)the respondent has not filed any evidence in support of the matters raised in his response;

    (b)the respondent has exhausted his appeal rights in respect of the Commission order; and

    (c)financial difficulty is not an excuse for failing to comply with an order for the Commission for the purpose of s.405 of the Act.

    CONSIDERATION

14. I am unaware of any defence that is available for a contravention of s.405, including impecuniosity. It is to be noted that the respondent did not appear when the matter was called on today. I am satisfied by the material contained in Ms Davies’s affidavit of 2 August 2021 that the respondent was well put on notice of today’s hearing. I have not been advised that the respondent has sought to make contact with the Court in any way to explain his absence today or to seek an adjournment. In the circumstances, I consider it appropriate to proceed to a decision in his absence.

15. I find that the respondent contravened s.405 by not complying with the Commission Order, and that it is appropriate to make the declarations and orders sought by the applicant, other than with respect to penalty, and as compensation for the contravention of s.405 to order payment of the amount ordered by the Commission. To that amount interest should be added, calculated in accordance with rule 26.01 of the Federal Circuit Court Rules 2001 (Cth). Ms Davies has prepared a calculation of interest to assist me to quantify the interest which I propose to order in this matter. Having gone over those calculations, I am satisfied that the appropriate lump sum of interest to be awarded in this matter is $141.51.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       1 December 2021