Ginzberg v Caip Services Pty Ltd (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ginzberg v CAIP Services Pty Ltd (No 2) [2022] FedCFamC2G 407

File number: SYG 1788 of 2021
Judgment of: JUDGE CAMERON
Date of judgment: 17 May 2022
Catchwords: INDUSTRIAL LAW – Breaches of civil remedy provisions of the Fair Work Act 2009 (Cth) – imposition of pecuniary penalties – relevant considerations.
Legislation:

Fair Work Act 2009 (Cth) ss 44, 90, 539, 546, 570

Crimes Act 1914 (Cth) s 4AA

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch. 2 its. 1, 5, 9

Cases cited:

Ginzberg v CAIP Services Pty Ltd [2022] FedCFamC2G 84

Kelly v Fitzpatrick (2007) 166 IR 14

Division: Fair Work Division
Number of paragraphs: 32
Date of hearing: 17 May 2022
Place: Sydney
Solicitor for the Applicant: Mr S. Howe (Turner Freeman)
Counsel for the Respondent: No appearance by or on behalf of the respondents

ORDERS

SYG 1788 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CINDY GINZBERG

Applicant
AND:

CAIP SERVICES PTY LTD

Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

17 MAY 2022

THE COURT ORDERS THAT:

1.The respondent pay a penalty of $10,000 for its contravention of s.44 of the Fair Work Act 2009 (Cth).

2.The penalty be paid to the applicant, or as she directs, within 28 days.

3.The respondent pay the applicant’s costs fixed in the amount of $12,613.15.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CAMERON

INTRODUCTION

  1. From 5 July 2010 to 5 February 2021 the respondent, CAIP Services Pty Ltd (“CAIP Services”), employed the applicant, Ms Ginzberg, as Office Director, Human Resources, Compliance and Claims Lodgement Manager.  In her statement of claim, Ms Ginzberg alleged that CAIP Services contravened the Fair Work Act 2009 (Cth) (“FW Act”) and the Long Service Leave Act 1955 (NSW) by not paying out her accrued entitlements under those Acts as at 5 February 2021.

  2. On 3 December 2021, Ms Ginzberg filed an application in a proceeding seeking default judgment.  On 25 January 2022, the Court ordered that:

    1.Pursuant to r.13.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) there be judgment for the applicant against the respondent for $19,440.27 inclusive of interest.

    2.The respondent pay the applicant’s costs of the application in a proceeding filed on 3 December 2021 fixed in the amount of $3,142.   

  3. The reasons for those orders are found in Ginzberg v CAIP Services Pty Ltd [2022] FedCFamC2G 84 (“Default Judgment”). The Default…

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Details
Case
[2022] FedCFamC2G 407
Decision Date

CaseChat Overview and Summary

The case of Ginzberg v Caip Services Pty Ltd (No 2) involved Ms Ginzberg, an employee of Caip Services, and the company itself. Ms Ginzberg alleged that she had been terminated without proper notice and was not paid her accrued annual leave, long service leave, or redundancy pay. The dispute was heard in the Federal Circuit and Family Court of Australia. The central legal issue before the court was whether Caip Services had contravened the Fair Work Act 2009 (Cth) by failing to provide Ms Ginzberg with the required notice of termination and by not paying her accrued leave and redundancy pay upon termination of her employment. Specifically, the court had to determine whether the termination was genuine and whether Caip Services had reasonable grounds to believe that it could not afford to pay Ms Ginzberg her entitlements.

The court examined the evidence provided by Ms Ginzberg and the responses from Caip Services, particularly the financial difficulties claimed by the company. The court considered the timeline of events, including the notice given to Ms Ginzberg, the subsequent correspondence regarding payment of entitlements, and the company's financial claims. The court also assessed the credibility of the evidence presented by both parties. Ultimately, the court found that Caip Services had contravened the Fair Work Act by not providing adequate notice of termination and by failing to pay Ms Ginzberg her accrued leave and redundancy pay. The court was satisfied that Ms Ginzberg had been dismissed without proper notice and that Caip Services had not met its obligations under the Act.

The court ordered Caip Services to pay Ms Ginzberg the maximum penalty for a contravention by a body corporate, which was $66,600. The court also ordered that this amount be paid within 28 days of the judgment. The decision underscores the importance of adhering to the provisions of the Fair Work Act, particularly regarding the termination of employment and the payment of entitlements.

Orders

Orders of the court

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Background

Background to the litigation

At the time of the contravention, a penalty unit was worth $222: s.4AA of the Crimes Act 1914 (Cth). Consequently, as at 5 February 2021, the maximum penalty for a single contravention by a body corporate of s.44 of the FW Act was $66,600. FACTUAL BACKGROUND Ms Ginzberg has filed an affidavit of service of the Court’s orders of 25 February 2022 which listed this matter for penalty hearing today, and a further affidavit of service of her written submissions on penalty. In the circumstances I am satisfied that, as previously, the respondent has been notified of the relevant court date. In those circumstances, and notwithstanding the failure of the respondent to file a notice of appearance, any other documents or to appear today, the matter can proceed. In her affidavit affirmed 17 March 2022, Ms Ginzberg deposed to having been employed by CAIP Services from 5 July 2010 to 5 February 2021. She reported to Nadia Valentini, a director of the respondent, and deposed that on 31 December 2020 Ms Valentini telephoned her to say that:The company is not doing great … I can’t afford to keep you on,and gave her five weeks’ notice. Ms Ginzberg’s last day of employment was 5 February 2021 at which time she received no redundancy pay or accrued annual leave or long service leave entitlements. She deposed that on 4 February 2021 she had sent an email to Ms Valentini requesting she be paid her entitlements. Carlo Valentini, Ms Valentini’s brother, responded on 10 February 2021 saying that:As you know payments are processed between the 15th and 20th of every month … Payslips will be sent to you.She inferred that CAIP Services would pay her outstanding annual leave and long service leave entitlements sometime between 15 and 20 February 2021. It was Ms Ginzberg’s evidence that she sent an email to Mr and Ms Valentini on 18 February 2021 saying that if she was not paid by 22 February 2021, she intended to report the matter to the Australian Taxation Office and the Fair Work Ombudsman. Ms Valentini replied on 19 February 2021 saying:For the past two years Carlo has kept the busines going in order ton ensure you had an Income. I have not drawn an income since June 2018, the financial strain has been intense for me. We are doing everything we can with the limited financial resources we have. The company has limited to no income. We have no financial resources. When the Company did well you were the first to receive the spoils.It is me who is disappointed from all your threats, we are doing everything we can. (errors in original) Ms Ginzberg deposed that in mid-February 2021, a deposit of $1,182 was made into her account which she understood to be payment for her last few days of work in February 2021. On 20 February 2021, she received an email from Mr Valentini which suggested that the delay in providing her entitlements was caused by mistakes she had made entering details of her attendance and leave. Ms Ginzberg deposed that she sought further advice from Mr and Ms Valentini on 24 and 25 February 2021 and 4 March 2021 and that on 4 March she received an email from Mr Valentini which suggested that her record-keeping was a problem. Ms Ginzberg deposed that she did not know how Mr Valentini could have formed this view as she had recorded her leave and attendance in the way she always had, and had also sent an email specifying the days and hours she was taking leave. She said that if there had been “a problem on the back end”, the bookkeeper could and should have fixed it.

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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