FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FLEMING v RESTAURANT SERVICES GROUP & ORS | [2008] FMCA 455 |
| INDUSTRIAL LAW – Application for imposition of penalties for breaches of ss.400, 401 Workplace Relations Act 1996 and Workplace Relations Regulations 2006 against the Second Respondent and of s.337 Workplace Relations Act 1996 against the Third Respondent – where Second Respondent was manager of restaurant – where employee signed AWA – where employee not given Information Statement or advised of her right to consider the document for seven days – whether Second Respondent’s conduct in regard to the signing of second AWA constituted giving false and misleading information – whether actions of Second Respondent were reckless – whether they caused employee to sign AWA – whether actions of second Respondent constituted duress – where Third Respondent was director and sole shareholder of employer – where Third Respondent took no part in management of company – effect of not ensuring employee relations were conducted according to law – penalties and matters to be taken into consideration. |
| Workplace Relations Act 1996, ss.337, 400(5), 401(1), 728, 841 Corporations Act 2001, s.440D Workers Compensation Act 1987 (NSW) Workplace Relations Regulations 2006, r.8.11(1)(c), 8.12(1), 8.12(2)(c) |
| R v Lawrence (1981) 1 All ER 974 The Pharmacy Guild of Australia and Another v Australian Community Pharmacy Authority and Another (1996) 46 ALD 310 Canturi v Sita Coaches Pty Ltd (ACN 004 444 900) [2002] FCA 349 Schanka v Employment National (Administration) Pty Ltd [1999] 166 ALR 663 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 |
| Applicant: | INSPECTOR JOHN FLEMING |
| First Respondent: | RESTAURANT SERVICES GROUP (ABN 74 080 946 201) |
| Second Respondent: | IMRAN SULEMAN |
| Third Respondent: | ALAN JOSEPH NOOR |
| File Number: | SYG 3064 of 2007 |
| Judgment of: | Raphael FM |
| Hearing dates: | 2 & 3 April 2008 |
| Date of Last Submission: | 3 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Farmer |
| Solicitors for the Applicant: | Freehills |
| Counsel for the Respondent: | Mr R Warren |
| Solicitors for the Respondent: | Toomey Pegg Drevikovsky |
ORDERS
The Second Respondent pay a penalty of $250.00 for breach of s.400(5) of the Workplace Relations Act 1996.
The Second Respondent pay a penalty of $50.00 for breach of Workplace Relations Regulation 8.11(1)(c).
The Second Respondent pay the penalties referred to in Orders 1 and 2 to Ms Alice McCarthy pursuant to s.841 Workplace Relations Act 1996.
The Third Respondent pay a penalty of $10,000.00 for breaches of s.337 Workplace Relations Act 1996.
The Third Respondent pay the penalty referred to in Order 4 above to the Commonwealth pursuant to s.841 Workplace Relations Act 1996.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3064 of 2007
| INSPECTOR JOHN FLEMING |
Applicant
And
| RESTAURANT SERVICES GROUP (ABN 74 080 946 201) |
First Respondent
| IMRAN SULEMAN |
Second Respondent
| ALAN JOSEPH NOOR |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding is brought under the Workplace Relations Act 1996 (Cth) (the “Act”) by a workplace inspector for various breaches of the Act and…
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- AGLC
- Fleming v Restaurant Services Group [2008] FMCA 455
- Case
- [2008] FMCA 455
- Decision Date
CaseChat Overview and Summary
The court found that Mr Suleman had indeed made false statements about changes to the AWA, including the name of the employer, the pay rates, and the period of operation. The court accepted that Mr Suleman believed he was accurately relaying information he had received, but concluded that he had not taken reasonable steps to verify the accuracy of this information. The court emphasised the meaning of "reckless" in this context, stating that recklessness involves a failure to recognise a significant risk of harm, which Mr Suleman had done. The court found that Ms McCarthy was influenced by the false statements about the pay rates, which led her to sign the new AWA. Therefore, the court determined that Mr Suleman's conduct constituted an offence under the Workplace Relations Act 1996.
As a result of the findings, the court ordered the Second Respondent to pay a penalty of $250 for breaching section 400(5) of the Workplace Relations Act 1996 and a penalty of $50 for breaching Workplace Relations Regulation 8.11(1)(c), with both penalties to be paid to Ms Alice McCarthy. The Third Respondent was ordered to pay a penalty of $10,000 for breaches of section 337 of the Workplace Relations Act 1996, with this penalty to be paid to the Commonwealth. These penalties were imposed to address the breaches of the law and to provide appropriate redress to the affected party.
Orders
Orders of the court
1.
The Second Respondent pay a penalty of $250.00 for breach of s.400(5) of the Workplace Relations Act 1996.
2.
The Second Respondent pay a penalty of $50.00 for breach of Workplace Relations Regulation 8.11(1)(c).
3.
The Second Respondent pay the penalties referred to in Orders 1 and 2 to Ms Alice McCarthy pursuant to s.841 Workplace Relations Act 1996.
4.
The Third Respondent pay a penalty of $10,000.00 for breaches of s.337 Workplace Relations Act 1996.
5.
The Third Respondent pay the penalty referred to in Order 4 above to the Commonwealth pursuant to s.841 Workplace Relations Act 1996.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I have found that Mr Suleman enquired of the changes to the AWA and was told that there were three, the name on the document, the period of operation and the pay rates. I am satisfied that Mr Suleman told Ms McCarthy that the pay rate had changed. But it had not. I am satisfied that Mr Suleman told Ms McCarthy that the period of operation was from three to five years but did not give her the information contained in clause 3 of the agreement:“3. Period of OperationThis AWA shall take effect as at the 1st March 2007 or, the day after the approval notice is issued by the Employment Advocate, (whichever is the later) and expire on the 1st March 2010. After the AWA has expired, either party, after giving two days’ written notice to the other, may file a termination notice with the Employment Advocate under s170VM(6).”I am satisfied that Mr Suleman told Ms McCarthy that the name on the front page of the document had changed from Brinker to RSG. Section 401 of the Act is in the following form:“False or misleading statements (1) A person contravenes this section if: (a) the person makes a false or misleading statement to another person; and (b) the person is reckless as to whether the statement is false or misleading; and (c) the making of that statement causes the other person: (i) to make, approve, lodge, vary or terminate a workplace agreement; or (ii) not to make, approve, lodge, vary or terminate a workplace agreement. (2) Subsection (1) is a civil remedy provision.” The first statement that the name of the employer had changed from Brinker to RSG was false. The name had never changed from the document that Ms McCarthy signed. Ms McCarthy does not recall Mr Suleman saying anything about the name change. I am satisfied that the making of the statement did not cause Ms McCarthy to make the AWA. The second statement related to the pay rates. The pay rates had not changed from the first AWA. It is clear from the evidence from Ms McCarthy that it was the change in pay rates that caused her to sign the document. She thought she was going to get a pay rise. The statement was false. The question is, was it made recklessly? Mr Suleman argues that the statement was not made recklessly. He says that when he received advice that the company wanted the staff to sign the second AWA he specifically asked Ms Griffin what the changes were. He was told what the changes were and he sent her an email asking her to confirm this which she did. Mr Suleman argues that this is not the act of a reckless person. What he did not do was to compare the second AWA with the first. Had he done so he would have found that the only change was to the period of operation,“The ordinary meaning of the word “reckless” in the English language is “careless”, “heedless”, “inattentive to duty”, literally, of course it means “without reck”. “Reck” is simply an old English word, now, perhaps obsolete, meaning “heed”, “concern” or “care” R v Bates [1952] 2 ALL ER 842 at [845-846] per Donovan J.”The meaning of the term was elegantly described by Lord Hailsham in R v Lawrence (1981) 1 All ER 974 at [978]:“It only surprises me that there should have been any question regarding the existence of mens rea in relation to the words “reckless”, “recklessly” or “recklessness”. Unlike most English words it has been in the English language as a word in general use at least since the eight century AD almost always with the same meaning, applied to a person or conduct evincing a state of mind stopping short of deliberate intention, and going beyond the mere inadvertence, or, in its modern though not etymological and original sense, mere carelessness. The Oxford English Dictionary quotes several examples from Old English, many from the Middle English period, and many more from modern English. The word was familiar to the Venerable Bede, to Shakespeare. In its alternative and possibly older pronunciation, and etymologically incorrect spelling (wretchless, wretchlessly, wretchlessness) it was known to the authors of the Articles of Religion printed in the book of Common Prayer. Though its pronunciation has varied, so far as I know its meaning has not. There is no separate legal meaning to the word.”In the same case Lord Diplock opined:“Recklessness on the part of a doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent and that the risk of those harmful consequences occurring was not so slight that just an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting “recklessly” if, before doing the act, he fails to give any thought to the possibility of there being any such risk or, having recognised that there was such a risk, he nevertheless goes on to do it.” [At 982]