Flavel v Railpro Services Pty Ltd (No.2) - [2013] FCCA 1449

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLAVEL v RAILPRO SERVICES PTY LTD (No.2)

[2013] FCCA 1449

Catchwords:
INDUSTRIAL LAW – Unlawful dismissal – damages sought for past and future economic loss – general damages also sought – total award of $95,000 – imposition of a penalty for contravention of s.340(1)(a)(ii) and s.351 of the Act – penalty of $5,000 to be paid to applicant.

Legislation:

Fair Work Act 2009 (Cth), ss.340(1)(a)(ii), 351, 539, 545(2)(b) and 546

Workers Rehabilitation and Compensation Act (1986) SA, s.58B

Flavel v Railpro Services Pty Ltd (No.1) [2013] FCCA 1180

Latham, Taylor, “Assessing compensation in adverse action cases” Workplace Review Volume 3, No. 2 Winter 2012
Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526
Transport Workers’ Union of Australia, NSW Branch v No Fuss Liquid Waste Pty Ltd [2011] FCA 982
Mason v Harrington Corporation Pty Ltd, t/a Pangaea Restaurant and Bar [2007] FMCA 7
Kelly v Fitzpatrick (2007) 166 IR 14
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550

Applicant:

COLIN FLAVEL

Respondent:

RAILPRO SERVICES PTY LTD

File Number:

ADG 24 of 2012

Judgment of:

Judge Simpson

Hearing date:

16 August 2013

Date of Last Submission:

17 September 2013

Delivered at:

Adelaide

Delivered on:

27 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr A Wright

Solicitors for the Applicant:

Wright & Kirsten Lawyers

Counsel for the Respondent:

Mr R Manuel

Solicitors for the Respondent:

Marsh & Maher

ORDERS

The respondent shall forthwith pay the applicant damages in the sum of NINETY FIVE THOUSAND DOLLARS ($95,000).
The respondent shall forthwith pay the applicant a penalty of FIVE THOUSAND DOLLARS ($5,000) for the contravention found proven in paragraph 2 of the declarations made on 29 August 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 24 of 2012

COLIN FLAVEL

Applicant

And

RAILPRO SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

My reasons in relation to liability were delivered on 29 August 2013.[1] The action was then adjourned to 17 September 2013 for the parties to put to the Court any further submissions that they considered appropriate on the topic of the relief to be granted.
[1] Flavel v Railpro Services Pty Ltd (No. 1) [2013] FCCA 1180.
On the adjourned date, counsel for the applicant advised the Court that the applicant no longer sought reinstatement. The applicant merely sought compensation and the imposition of a pecuniary penalty.
The orders of 29 August 2013 included declarations that the respondent contravened ss.340(1)(a)(ii) and 351 of the Fair Work Act 2009 (Cth) (“the Act”). Both of these provisions are civil remedy provisions. As such, the Court can make orders awarding compensation for loss that a person has suffered because of the contravention.[2] The Court can also impose a pecuniary penalty.[3]
[2] See subs.545(2)(b) of the Act.
[3] See s.546 of the Act.
A party must not be punished twice for the same conduct, even when the conduct happens to breach…

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: [2013] FCCA 1449
Decision Date: 27 September 2013

CaseChat Overview and Summary

In the matter of *Flavel v Railpro Services Pty Ltd (No.2)*, the Federal Court of Australia considered a dispute between Mr. Flavel, the applicant, and Railpro Services Pty Ltd, the respondent. The proceedings concerned allegations of contraventions of the *Fair Work Act 2009* (Cth) and the applicant's entitlement to certain entitlements under the National Employment Standards.

The primary legal issues before the Court were whether the respondent had contravened specific provisions of the *Fair Work Act 2009* (Cth) relating to the termination of employment and the provision of notice, and whether the applicant was entitled to payment in lieu of notice. The Court was also required to determine the appropriate penalty for any contraventions found.

Judge Simpson found that the respondent had contravened section 117 of the *Fair Work Act 2009* (Cth) by failing to provide the applicant with the minimum period of notice of termination of employment required by the National Employment Standards. The Court reasoned that the respondent's conduct in terminating the applicant's employment without providing the requisite notice constituted a breach of its statutory obligations. The Court ordered the respondent to pay the applicant a sum equivalent to the notice period that should have been provided.

Orders