Fox v St Barbara Mines Ltd

[1998] FCA 621

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - termination of employment - prohibited reason - review of Judicial Registrar awards - compensation in lieu of notice - calculated by reference to ordinary hours - meaning of “ordinary hours” - penalty - maximum penalty - criteria for imposition - whether payable to employee - compensation for breach of Act - mitigation of loss - evidence as to contingent factors to reduce compensation.

Workplace Relations Act 1996 (Cth) s 170CP, s 170CN(4), s 170CM, s 170CK, s 170CR
s 356(b)

Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362, cited
R v McMahon (1978) 19 ALR 448, cited
Veen v R [No 2] (1988) 164 CLR 465, applied

ANDREW JAMES FOX v ST BARBARA MINES LIMITED
WAG 9 of 1998

FRENCH J
PERTH
4 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	WAG 9 of 1998

B E T W E E N:                   ANDREW J FOX

APPLICANT

AND  ST BARBARA MINES

RESPONDENT

JUDGE:	FRENCH J
DATE OF ORDER:	4 JUNE 1998
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The respondent pay to the applicant within fourteen days the sums of:

   (a)$4,785 pursuant to s 170CR(4) as compensation for the breach by the respondent of s 170CM of the Workplace Relations Act 1996 (Cth).

   (b)$28,000 pursuant to s 170CR(1) as compensation for the breach by the respondent of s 170CK; and

   (c)$9,000 pursuant to s 170CR(1) and s 356(b) as a penalty for the breach by the respondent of s 170CK.

2. That the respondent pay the applicant’s costs of the application before the Judicial Registrar and the costs of this application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIAN DISTRICT REGISTRY	WAG 9  of 1998

BETWEEN:

ANDREW J FOX

APPLICANT

AND:

ST BARBARA MINES

RESPONDENT

JUDGE:	FRENCH J
DATE:	4 JUNE 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction
In January 1991 Andrew James Fox (Fox) commenced employment with St Barbara Mines Ltd as an exploration driller’s offsider. He remained in the employ of the company occupying a number of positions until 16 November 1997 when his employment was terminated. On 21 January 1998 he filed an application in this Court under s 170CP of the Workplace Relations Act 1996 (Cth) claiming compensation for unlawful dismissal and for breach of the Act, the imposition of a penalty against the company and damages for breach of contract.

His application was heard by Mr R.D. Farrell, a Judicial Registrar, on 24 March 1998 and on the same date Mr Farrell gave his decision.  He ordered that the company pay Fox within fourteen days the sums of:

(a)$5,045 pursuant to s 170CR(4) as compensation for the breach by the respondent of s 170CM of the Work Place Relations Act 1996;

(b)$28,000 pursuant to s 170CR(1) as compensation for the breach by the respondent of s 170CK; and

(c)$10,000 pursuant to s 170CR(1) and s…