Fatouros v Broadreach Services Pty Ltd - [2018] FCCA 769

FEDERAL CIRCUIT COURT OF AUSTRALIA

FATOUROS v BROADREACH SERVICES PTY LTD

[2018] FCCA 769

Catchwords:
INDUSTRIAL LAW – Workplace right – complaint or enquiry in relation to his or her employee – complaint made regarding proper management of projects which the applicant was required to oversee – compensation for breach of a civil remedy provision – civil penalty.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 341(1)(c)(ii), 342, 545, 546

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Shea v TRUenergy Services Pty Ltd (No.6) [2014] FCA 271
Walsh v Greater Metropolitan Cemeteries Trust (No.2) [2014] FCA 456
Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No.3)[2012] FCA 697
Rowland v Alfred Health [2014] FCA 2
Kelly & Fitzpatrick [2007] FCA 1080

Applicant:

SPIROS FATOUROS

Respondent:

BROADREACH SERVICES PTY LTD

File Number:

MLG 2442 of 2016

Judgment of:

Judge McNab

Hearing dates:

15 & 16 March 2018

Date of Last Submission:

16 March 2018

Delivered at:

Melbourne

Delivered on:

29 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Donaghey

Solicitors for the Applicant:

HR Legal

Counsel for the Respondent:

Mr Ribbands

Solicitors for the Respondent:

T F Grundy

ORDERS

The Court orders pursuant to ss.545(2) and 547(3) of the Fair Work Act 2009 (“the FW Act”) the Respondent pay to the Applicant the following sum:
(a)$131,723.22 for loss of wage, superannuation and leave entitlements;
(b)$1,266.12 for expenses incurred during the applicant’s employment; and
(c)$11,581.14 for interest incurred from 22 August 2016.
Pursuant to ss.546(1) and (3) of the FW Act the Respondent pay to the Applicant the following penalty in the sum of $12,500.00.
The pecuniary penalty of $12,500.00 be paid within 28 days of this order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2442 of 2016

SPIROS FATOUROS

Applicant

And

BROADREACH SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

Between 30 March 2008 to 22 August 2016, the applicant was employed by the respondent, Broadreach Services Proprietary Ltd (‘Broadreach’) in various senior roles including Senior Technical Consultant and General Manager - Solutions & Consulting.
Mr Fatouros holds a Bachelor of Engineering (Civil and Structural) obtained in 1987 from RMIT. He has worked in information technology and associated systems since about 2005.
His considerable work experience in the IT and IT Systems engineering fields are set out in his affidavit of 29 June 2017. The depth of that experience was not the subject of any particular challenge, save that it was alleged that he would from time to time take titles of his own construction to describe his role. He disputed this and there was no challenge to the description of the work that he performed, both prior to and during his work at Broadreach.
At Broadreach one of his central roles was to provide systems design and project management advice to customers.
In about October 2014, Broadreach was taken over by another company, Electroboard Proprietary Ltd (‘ELB’).
In about January 2015, Broadreach staff…

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: [2018] FCCA 769
Decision Date: 29 March 2018

CaseChat Overview and Summary

In the matter of *Fatouros v Broadreach Services Pty Ltd*, the Supreme Court of Victoria was asked to determine whether the respondent, Broadreach Services Pty Ltd, had breached its duty of care to the applicant, Mr Fatouros, by failing to ensure that the work environment was safe. Mr Fatouros alleged that he suffered injury as a result of the respondent's negligence.

The central legal issue before the Court was whether the respondent had breached its duty of care to the applicant by failing to take reasonable precautions to prevent the applicant from suffering injury. This involved considering the foreseeability of the risk of injury, the likelihood of that risk occurring, and the potential seriousness of the harm. The Court also had to assess whether the respondent's actions, or omissions, were reasonable in the circumstances.

Judge McNab found that the respondent had breached its duty of care. The Court reasoned that the risk of injury was foreseeable and that the respondent ought to have taken steps to mitigate this risk. The principles applied centred on the common law duty of care owed by an employer to an employee, requiring the employer to take reasonable steps to provide a safe working environment. The Court concluded that the respondent had failed to meet this standard.

The Court ordered that judgment be entered for the applicant, Mr Fatouros, and that the parties attend a further directions hearing to determine the quantum of damages.

Orders