Guthrie v Mondiale VGL Pty Ltd (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Guthrie v Mondiale VGL Pty Ltd (No 2) [2025] FedCFamC2G 938

File number(s): PEG 101 of 2020
Judgment of: JUDGE CORBETT
Date of judgment: 19 June 2025
Catchwords: INDUSTRIAL LAW – Contraventions of s 340(1) of the Fair Work Act 2009 (Cth) – Pecuniary penalties and compensation – Whether applicant has suffered compensable loss because of the contravention – Measure of compensation – Compensation and Penalties ordered.
Legislation:

Crimes Act 1914 (Cth), s 4AA

Fair Work Act 2009 (Cth), ss 340, 340(1), 557(1), 539(2), 545, 546, 546(1), 546(2)(b), 546(3)(c), 547(2), 557(1), 570(1), 570(2), Item 11

Long Service Act 1958 (WA), ss 3, 8, 8(2)(a)

Cases cited:

Australian Building and Construction Commissioner v CFMEU [2018] HCA 3

Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8

British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rlys Co of London Ltd [1912] AC 673

Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144

Chaplin v Hicks [1911] 2 KB 786

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 122

Community and Public Sector Union (CPSU) v Telstra Corp Limited (2001) 108 IR 228

Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown (2017) 275 IR 148

Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498

Footscray Football Club Ltd v Kneale [2024] VSCA 314

Guthrie v Mondiale VGL Pty Ltd [2024] FedCFamC2G 384

Guthrie v Visa Global Logistics Pty Ltd [2021] FCCA 479

GW Sinclair & Co Pty Ltd v Cocks [2001] VSCA 47

Hill v St Anthony’s Tennis Club (No 2) [2023] FedCFamC2G 269

James Cook University v Ridd [2020] FCAFC 123

Jeater v Mondiale VGL Pty Ltd [2022] FedCFamC2G 758

Johnson v Perez (1988) 166 CLR 351

Kelly v Fitzpatrick [2007] FCA 1080

Kumova v Davison (No 2) [2023] FCA 1

Malec v Hutton (1990) 169 CLR 638

Mann Judd v Paper Sales Australia (WA) Pty Ltd [1998] WASCA 268

Maritime Union of Australia v Fair Work Ombudsman & Anor [2015] FCAFC 120

Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 2) [2023] FCA 1594

O’Brien v Dunsdon (1965) 39 ALJR 78

Parsons v Serco Citizen Services Pty Ltd [2024] FCA 754

Rizk v PVH Brands Australia Pty Ltd (No 2) [2024] FedCFamC2G 613

Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4

Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332

Transport Workers’ Union of Australia v Qantas Airways Limited [2024] FCA 1216

United Workers’ Union v Bervar Pty Ltd (No 2) [2023] FedCFamC2G 251

Van Gervan v Fenton (1992) 172 CLR 327

Division: Division 2 General Federal Law
Number of paragraphs: 150
Date of last submission/s: 4 April 2025
Date of hearing: 17, 18 February 2025
Place: Perth
Solicitor for the Applicant
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Details
Case
[2025] FedCFamC2G 938
Decision Date

CaseChat Overview and Summary

In Guthrie v Mondiale VGL Pty Ltd (No 2), the applicant, Mr. Guthrie, sought compensation and penalties from Mondiale VGL Pty Ltd for alleged contraventions of section 340(1) of the Fair Work Act 2009 (Cth). The dispute arose from Mr. Guthrie's dismissal by Mondiale, which he claimed was due to his requests for more flexible working arrangements and assertions regarding underpayment of wages, constituting protected industrial action. The court had to determine whether Mr. Guthrie suffered compensable loss due to the contravention and the appropriate measure of compensation. Additionally, the court needed to decide on the appropriate penalty to be imposed on Mondiale for the contravention.

The court considered Mr. Guthrie's claims for various forms of compensation, including loss of earnings, superannuation benefits, long service leave, travel costs, legal expenses, and the value of a Tag Heuer watch, among others. The court also evaluated Mr. Guthrie's claims for pain and suffering. The evidence presented included affidavits from Mr. Guthrie and his wife, as well as witness statements. The court ruled on the admissibility of certain parts of the evidence, admitting some as statements of belief and excluding others as inadmissible. The court meticulously calculated the compensation based on the admissible evidence, awarding specific sums for each head of claim.

In its decision, the court ordered Mondiale to pay Mr. Guthrie compensation totaling $207,330.83 for the various losses incurred. Additionally, the court imposed a pecuniary penalty of $27,500.00 on Mondiale to serve as a deterrent. The court also directed Mondiale to pay the penalty to Mr. Guthrie within 28 days of the order. The court reserved its decision on the matters of interest and costs, indicating that it would hear further submissions from the parties before making final orders on these issues.

Orders

Orders of the court

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Background

Background to the litigation

These reasons are given following evidence from both parties and after the parties submitted further written submissions on the appropriate compensation to be ordered and the appropriate penalty, if any, to be imposed on Mondiale following the breach by it of s 340 of the Fair Work Act 2009 (Cth) (FWAct).BACKGROUND The following background facts are uncontroversial and taken from the findings of Judge Lucev in Guthrie (No 1) at [11]:a. VGL is a freight and forwarding, and customs brokering company with offices in all States of Australia;b. Mr Guthrie commenced employment with VGL on 10 June 2014 in New South Wales, and was initially employed as a casual Day Shift Heavy Combination Driver (“Day Shift Driver”);c. on 29 January 2015 Mr Guthrie commenced as a permanent Day Shift Driver;d. Mr Guthrie subsequently requested to work as an Afternoon Shift Driver, a move approved by VGL, resulting in Mr Guthrie commencing as an Afternoon Shift Driver on 17 August 2017;e. in November 2018 Mr Guthrie advised VGL that he would be relocating to Western Australia (“WA”) for family reasons;f. Mr Guthrie moved to WA in January 2019 as a Day Shift Driver;g. Mr Guthrie then requested to work an afternoon or night shift pattern to enable him to care for his child; andh. on 9 December 2019 VGL made a decision to dismiss Mr Guthrie for alleged “nonprofessional work behaviours displayed in the workplace” which were said to be in contravention of the VGL “Code of Conduct and Ethics, the Health, Safety, Environment and Quality Administrative ‘Three Strike Policy’” (“Dismissal Decision”).GUTHRIE (NO 2) (LIABILITY DECISION) In Guthrie (No 2) his Honour set out in considerable detail the relevant law and then the facts that resulted in a finding of adverse action and breach of s 340 of the FW Act. The workplace right asserted by Mr Guthrie was established at [104] and the finding was as follows:Asserted workplace rights established [104] For the reasons set out above Mr Guthrie has established that: (a) his various requests to Mondiale to provide him with more flexible working arrangements by providing him with a night shift so that he could better attend to child-care responsibilities was a complaint in relation to a workplace right which he had or proposed to exercise;(b) his assertion as to the alleged underpayment of casual and afternoon shift loadings was an assertion of a workplace right which he had or proposed to exercise; and (c) the initiation and participation in the conference in the FWC was the initiation and participation in a process or proceeding under a workplace law and the assertion of a workplace right which he had. His Honour then considered whether Mr Guthrie’s dismissal constituted unlawful adverse action (Guthrie (No 2) at [108]). The alleged reasons for dismissal advanced by Mondiale were set out at [110], they were that Mr Guthrie:(a) had a history of safety issues breaches; and(b) displayed unprofessional work behaviours in the workplace which contravened Mondiale’s Code of Conduct.

Evidence

Evidence Before The Court

After the conclusion of evidence, the parties were directed to file closing submissions in writing. Mr Guthrie filed written submissions on 7 March 2025 and Mondiale on 21 March 2025. Mr Guthrie also filed closing submissions in reply on 4 April 2025.EVIDENCE - Applicant Mr Guthrie’s evidence-in-chief was in two affidavits, the first, affirmed 29 November 2024 (Exhibit A1), the second, affirmed 25 January 2025 (Exhibit A2) and the annexures thereto. Parts of the affidavits were objected to and ruled inadmissible, other parts were admitted but only as statements of Mr Guthrie’s belief or understanding and not as proof of the asserted facts. Annexed to the first affidavit, A1, was a spreadsheet that summarised Mr Guthrie’s claims for compensation (A1, annexure JG-Spreadsheet, CB 343-355). A copy of that spreadsheet and other primary source documents from A1 were consolidated into a final master sheet that was produced in closing by counsel for Mr Guthrie (final spreadsheet). The following heads of compensation were identified in the first affidavit (A1, annexure JG-Spreadsheet) and final spreadsheet:(1)Loss of Earnings;(2)Loss of Superannuation Benefits;(3)Loss of Long Service Leave;(4)Additional Travel Costs;(5)Legal costs and expenses incurred in pursuing interlocutory relief;(6)Loss of the value of a Tag Heuer watch;(7)Loss of the opportunity to buy a family home; and(8)Pain and suffering (also described as Hurt and Humiliation). Mr Guthrie also relied on an affidavit from his wife, Ms Joanne Elizabeth Reavill-Guthrie, affirmed 24 January 2025 (Exhibit A3) and adopted as true and correct at the hearing. The affidavit deposed to the desire of Mr Guthrie to secure work as an afternoon shift driver with Mondiale in Perth to complement childcare needs for their young son. Ms Reavill-Guthrie also gave evidence of her observations of her husband and his attempts to find suitable employment following his dismissal by Mondiale in December 2019. Ms Reavill-Guthrie also gave evidence of her observations of Mr Guthrie and the stress that he appeared to suffer due to the limited employment opportunities available to him. Mr Jeater gave his evidence in person. Mr Jeater’s employment with Mondiale was terminated for redundancy in April 2020. The circumstances under which Mr Jeater was terminated by Mondiale were the subject of proceedings for breach of the FW Act in this Court in Jeater v Mondiale VGL Pty Ltd [2022] FedCFamC2G 758 per Judge Lucev (Jeater). Mr Jeater gave evidence of his attempts to find employment as a heavy haulage truck driver in Perth in 2020 and 2021. He gave evidence that it took him eleven months to secure full-time employment from the date of termination of his employment with Mondiale. He said that it took him approximately three and a half months to secure ‘labour hire’ work which was sporadic and limited to three or four days a week with differing shift days. Then in September 2020, he secured a casual position for six months with K&S Freighters until March 2021 when he secured full-time employment as a day shift driver.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In the circumstances and with a view to specific and general deterrence of relatively large organisations operating in the transport industry, I will make an order under s 546(1) of the FW Act for the payment by Mondiale of a pecuniary penalty of $27,500.00.OTHER CONSIDERATIONS/MATTERS Section 546(3)(c) of the FW Act provides that the Court may order that a pecuniary penalty be paid to a particular person. In Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4 at [116] the Full Court of the Federal Court said:[116] …the policy considerations of s 546(3) “speak loudly” in the circumstances to justify the payment of the penalty imposed to the individual affected by the contravention who, under the authority of the FW Act, commenced and maintained this enforcement proceeding. If Mr Sayed had not pursued the action, it is unlikely that it would have been pursued. He took on the proceeding at obvious cost to himself. The pecuniary penalty is to be paid to Mr Guthrie who commenced and maintained this proceeding at obvious cost to himself and his family. Payment is to be made within 28 days of the date of this order.COSTS AND INTEREST The written closing submissions did not address the questions of interest and whether this is an appropriate proceeding in which the Court might be satisfied to make a costs order under s 570(2) of the FW Act including the costs reserved by Judge Lucev on 23 May 2024. The Court will hear the parties on interest and costs before pronouncing final orders.ORDERS The Court will make the following orders on the issues of compensation and penalty. The respondent pay the applicant the following sums as compensation for loss pursuant to s 545(1) of the FW Act within 28 days of the date of this order:(a)Loss of wages $184,134.94.(b)Loss of superannuation entitlements $6,974.52.(c)Loss of long service leave entitlements $9,221.37.(d)Loss of benefit of a Tag Heuer watch $2,000.00.(e)Hurt and humiliation $5,000.00.Total $207,330.83 The respondent pay the applicant within 28 days of the date of this order a pecuniary penalty in the amount of $27,500.00 in respect of the contravention of the FW Act, the subject of the declaration made by the Court on 23 May 2024. The Court will hear further from the parties on the question of interest and costs including any reserved costs.