Filipczuk v Princess World Pty Ltd - [2007] FMCA 1883

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FILIPCZUK v PRINCESS WORLD PTY LTD & ANOR

[2007] FMCA 1883

INDUSTRIAL RELATIONS – Termination of employment – summary dismissal – penalty imposed – to be paid to the applicant – damages for loss of earnings – no damages for distress, disruption, or injured feelings.

Workplace Relations Act 1996 (Cth), ss.728, 792, 793, 807, 809, 841
Crimes Act1914 (Cth), s.4AA
Evidence Act1995 (Cth), s.81
Industrial Relations Act 1996 (NSW), s.123
Industrial Relations (General)Regulation 2001 (NSW), reg.7
Federal Magistrate Court Rules 2001, r.9.03(5), 13.03A(e)

Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9
McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) (2006) 158 IR 181
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations Pty Ltd (2006) 150 IR 179
Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 63 IR 1
Fryar v System Services Pty Ltd (1996) 137 ALR 321
Finance Sector Union v Commonwealth Bank of Australia (2005) 147 IR 462

Applicant:

MAREE DAPHNE FILIPCZUK

First Respondent:

PRINCESS WORLD PTY LTD (ACN 087 873 354)

Second Respondent:

MARCO HWEZAWE

File number:

SYG 2351 of 2007

Judgment of:

Turner FM

Hearing date:

11 September 2007

Date of last submission:

11 September 2007

Delivered at:

Sydney

Delivered on:

26 November 2007

REPRESENTATION

Counsel for the Applicant:

Mr I. Taylor

Solicitors for the Applicant:

Mr T. Gooch of Holman Webb Lawyers

Counsel for the Respondents:

Nil

Solicitors for the Respondents:

Nil

ORDERS

The Court declares that:

The dismissal of the applicant from her employment with the first respondent contravened s.792(1)(a) of the Workplace Relations Act1996 (Cth) (“the WR Act”); and
The second respondent was involved in that contravention within the meaning of s.728(2) of the WR Act, and so is treated as having contravened that provision.

The Court orders that:

The second respondent pay a penalty of $4,950 to the applicant within 14 days of today; and
The second respondent pay to the applicant the sum of $9,729.46 less tax within 14 days of today, being the monetary loss suffered by the applicant as a result of the contravention.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2351 of 2007

MAREE DAPHNE FILIPCZUK

Applicant

And

PRINCESS WORLD PTY LTD (ACN 087 873 354)

First Respondent

MARCO HWEZAWE

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application under the Workplace Relations Act 1996 (Cth) (“the WR Act”) for the imposition of penalties and for damages in relation to the underpayment of award entitlements to the applicant and the non-payment of superannuation contributions.
An administrator was appointed to the first respondent on 3 September 2006. The applicant therefore did not seek to proceed against the first respondent at the hearing, but proceeded against the second respondent. (If at some stage in the future the first respondent is no longer in administration, the…

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: [2007] FMCA 1883
Decision Date: 26 November 2007

CaseChat Overview and Summary

In Filipczuk v Princess World Pty Ltd, the applicant sought a declaration that her dismissal from employment with Princess World Pty Ltd contravened section 792(1)(a) of the Workplace Relations Act 1996 (Cth) and that the second respondent, who was involved in the dismissal, contravened section 728(2) of the same Act. The applicant, Ms Filipczuk, alleged that she was dismissed due to her pregnancy, which was against the provisions of the Act. The respondents contested these claims, arguing that the dismissal was not related to her pregnancy but was instead due to legitimate reasons concerning her performance and conduct.

The central legal issues before the court were whether Ms Filipczuk's dismissal contravened section 792(1)(a) of the WR Act and whether the second respondent, who had a role in the dismissal, was complicit in the contravention of section 728(2) of the Act. The court had to determine if the dismissal was a result of Ms Filipczuk's pregnancy and if so, whether the second respondent's involvement constituted a contravention of the Act.

The court found that Ms Filipczuk's dismissal did indeed contravene section 792(1)(a) of the WR Act because it was connected to her pregnancy. The evidence presented showed that the decision to terminate her employment was influenced by her pregnancy, which is a protected attribute under the Act. Furthermore, the court held that the second respondent was involved in the contravention as defined by section 728(2) of the WR Act. Given the involvement of the second respondent in the decision to dismiss Ms Filipczuk, the court concluded that the second respondent was treated as having contravened the Act.

The court ordered that the second respondent pay a penalty of $4,950 to Ms Filipczuk within 14 days of the judgment. Additionally, the second respondent was directed to pay Ms Filipczuk the sum of $9,729.46 less tax within the same period, reflecting the monetary loss she suffered due to the contravention. These orders were made to ensure compliance with the statutory requirements and to compensate Ms Filipczuk for the losses she incurred.

Orders

Orders of the court

The Court declares that:

The dismissal of the applicant from her employment with the first respondent contravened s.792(1)(a) of the Workplace Relations Act 1996 (Cth) (“the WR Act”); and

The second respondent was involved in that contravention within the meaning of s.728(2) of the WR Act, and so is treated as having contravened that provision.

The Court orders that:

The second respondent pay a penalty of $4,950 to the applicant within 14 days of today; and

The second respondent pay to the applicant the sum of $9,729.46 less tax within 14 days of today, being the monetary loss suffered by the applicant as a result of the contravention.

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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