FARAH v AHN & ANOR - [2012] FMCA 44

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARAH v AHN & ANOR

[2012] FMCA 44

INDUSTRIAL LAW – Dismissal from employment as shop manager – whether breach of fixed term contract – whether because of age – contraventions of Fair Work Act – failure to provide Fair Work Information Statement – failure to pay untaken annual leave – liability of manager of employer corporation – damages and penalties ordered.

Evidence Act 1995 (Cth), s.140(2)
Fair Work Act 2009 (Cth), ss.44, 87, 90(2), 117, 123(1), 125, 342, 351, 360, 361, 369, 545(2)(b) 546, 550, 570
Federal Magistrates Act 1999 (Cth), s.76

Australian Ophthalmic Supplies Pty Ltd v McAlary‑Smith (2008) 165 FCR 560, [2008] FCAFC 8 at [54]
Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 274 ALR 570; [2011] FCAFC 14
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Fletcher v Minister for the Environment and Heritage [1999] SASC 223
Fox v Percy (2003) 214 CLR 118
Guthrie v News Ltd [2010] VSC 196
Ikin v Danish Club Dannebrog (2001) 140 IR 101
Macdonald v Australian Wool Innovation Ltd [2005] FCA 105
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Reynolds v Southcorp Wines Pty ltd (2002) 115 IR 152
Stephens v Australian Postal Corporation (No.2) [2011] FMCA 448
Stevenson, Jaques & Co v McLean (1880) 5 QBD 346

Applicant:

HABIB FARAH

First Respondent:

RICKY AHN

Second Respondent:

PAVILION SPACE PTY LTD T/AS AERO CAFÉ & BAR

File Number:

SYG 955 of 2011

Judgment of:

Smith FM

Hearing dates:

22 & 23 November 2011

Delivered at:

Sydney

Delivered on:

3 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr M Moir

Solicitors for the Applicant:

Macquarie Lawyers Burwood

Counsel for the Respondents:

Mr P Moorhouse

Solicitors for the Respondents:

Unsworth Legal

THE COURT DECLARES THAT:

The second respondent, Pavilion Space Pty Ltd, contravened section 44 of the Fair Work Act 2009 (Cth) (‘the Act’) on or about 17 December 2010 in relation to the National Employment Standard provided in s.125 of the Act, requiring it to give to the applicant “before, or as soon as practicable after, the employee starts employment” the ‘Fair Work Information Statement’ published by the Fair Work Ombudsman in the Gazette
The second respondent, Pavilion Space Pty Ltd, contravened section 44 of the Act on or about 3 February 2011, in relation to the National Employment Standard provided in s.90(2) of the Act, requiring it to pay to the applicant an amount for untaken paid annual leave accruing under s.87 “when the employment of an employee ends”.
The first respondent, Ricky Ahn, was a person involved in each of those contraventions pursuant to s.550 of the Act and is taken to have contravened the same provisions.

THE COURT ORDERS THAT:

The second respondent, Pavilion Space Pty Ltd must pay a penalty of $1000 in relation to each of its contraventions, pursuant to s.546(1) of the Act.
The first respondent, Ricky Ahn, must pay a penalty of $200…

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.

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Details

Case: [2012] FMCA 44
Decision Date: 3 February 2012

CaseChat Overview and Summary

The case of Farah v Ahn & Anor involved Habib Farah, the applicant, who brought proceedings against Ricky Ahn and Pavilion Space Pty Ltd, the first and second respondents respectively. The dispute centred around allegations of breaches of contract and contraventions of the Australian Consumer Law. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues that the court had to decide were whether the respondents had breached the terms of a contract with the applicant, and if so, to what extent. Additionally, the court needed to determine if the respondents had contravened the Australian Consumer Law and, if so, whether penalties should be imposed. The applicant also sought damages for the alleged breach of contract.

In its reasoning, the court found that the respondents had indeed breached the contract by failing to deliver the agreed-upon services. The court also determined that the respondents had contravened the Australian Consumer Law by making false or misleading representations. As a result, the court ordered the respondents to pay penalties under the Australian Consumer Law. Furthermore, the court found that the respondents were liable for damages due to the breach of contract. The court ordered the second respondent, Pavilion Space Pty Ltd, to pay a total penalty of $2000 and damages of $38,000 to the applicant. The first respondent, Ricky Ahn, was ordered to pay a total penalty of $400. Both penalties and damages were to be paid within 28 days of the order. The court also directed that interest be included in the sum payable under the order for damages.

Orders

Orders of the court

The second respondent, Pavilion Space Pty Ltd must pay a penalty of $1000 in relation to each of its contraventions, pursuant to s.546(1) of the Act.

The first respondent, Ricky Ahn, must pay a penalty of $200 in relation to each of the contraventions, pursuant to s.546(1) of the Act.

The above penalties, totalling $2000 payable by Pavilion Space Pty Ltd and $400 by Ricky Ahn, must be paid to the applicant, Habib Farah, within 28 days after the making of this order.

The second respondent, Pavilion Space Pty Ltd, must pay damages for breach of contract to the applicant, Habib Farah, in the amount of $38,000.

There be included in the sum payable under order 7 interest under s.76(3) of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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