Guthrie v Mondiale VGL Pty Ltd (No 2)

[2025] FedCFamC2G 938

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

Mr J Raftos, Argos Legal

Counsel for the Respondent

Ms T Wong

Solicitor for the Respondent

Workplace Law

ORDERS

PEG 101 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

JOHN NICHOLAS GUTHRIE

Applicant

AND:

MONDIALE VGL PTY LTD ACN 002 433 267

Respondent

ORDER MADE BY:	JUDGE CORBETT
DATE OF ORDER:	19 JUNE 2025

THE COURT ORDERS THAT:

1.Pursuant to s 545(1) of the Fair Work Act 2009 (Cth) (FW Act) the respondent pay the applicant the sum of $207,330.83 as compensation for loss suffered because of the respondent’s breach of s 340(1) of the FW Act within 28 days of the date of this order;

2.Pursuant s 546(1) of the FW Act the respondent pay the applicant a pecuniary penalty in the amount of $27,500.00 in respect of the respondent’s contravention of s 340(1) of the FW Act within 28 days of the date of this order;

3.The applicant file and serve written submissions in relation to interest payable on the sums ordered to be paid by 4.00pm (AWST) on a date to be fixed;

4.The respondent file and serve any written submissions in reply by 4.00pm (AWST) on a date to be fixed;

5.The question of interest payable on the compensation and penalty ordered to be paid and the question of costs of the proceeding is reserved for further hearing; and

6.The proceeding be listed for a case management conference on the question of interest and costs of the proceeding at 10.00am (AWST) on a date to be fixed.

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 CORBETT

1. On 23 May 2023 his Honour Judge Lucev delivered Reasons for Judgment in Guthrie v Mondiale VGL Pty Ltd [2024] FedCFamC2G 384 (Guthrie (No 2)).[1] In that decision his Honour made the following findings at [179]:

   [179] The Court finds that:

   (a) Mondiale has not discharged the reverse onus under s 361 of the FW Act with respect to the dismissal of Mr Guthrie from his employment. It follows that there must be a conclusion that adverse action under s 342(1), Item 1(a) of the FW Act was taken against Mr Guthrie by Mondiale by dismissing him from his employment in contravention of s 340(1) of the FW Act by reason of his having exercised the workplace rights asserted at [104] above. There will be a declaration accordingly;

   (b) Mr Guthrie has failed to prove:

   (i) the alleged underpayments under the RTD Award by Mondiale, and that claim must be dismissed; and

   (ii) that required information was not included on payslips by Mondiale in contravention of reg 3.46(3) of the FW Regulations, and that claim must be dismissed,

   and there will be orders accordingly.

   [1] His Honour delivered an interlocutory decision in Guthrie v Visa Global Logistics Pty Ltd [2021] FCCA 479 (Guthrie (No 1)) on 23 March 2021 in which his Honour dismissed Mr Guthrie’s application for an interim injunction seeking reinstatement of his employment with Mondiale VGL Pty Ltd.

2. His Honour made the following orders:

   The Court:

   1. Declares that the termination of the Applicant’s employment by the Respondent contravened section 340(1) of the Fair Work Act 2009 (Cth).

   2.   Orders that:

   a.   the application be dismissed insofar as it relates to alleged contravention of:

   i.the Road Transport and Distribution Award; and

   ii.regulation 3.46(3) of the Fair Work Regulations 2009 (Cth);

   b. the proceedings be adjourned to 11:00am on 28 June 2024 for further directions as to a penalty hearing in relation to the Respondent’s contravention of s 340(1) of the Fair Work Act 2009 (Cth); and

   c.   costs, if any, be reserved.

3. On 26 June 2024, the further directions hearing was adjourned by consent to a date and time to be fixed by the Court not before 26 July 2024. On 31 July 2024, timetabling orders were made by consent setting the proceeding down for hearing on the quantum of compensation payable and civil penalties payable by the respondent (Mondiale) to the applicant (Mr Guthrie) on a date to be fixed by the Court.

4. The proceeding was listed for a two-day hearing to be heard in person on 17 and 18 February 2025 at Perth on the question of quantum and penalty. The parties had previously been ordered to file and serve any further affidavit evidence, outline of submissions and to give notice of the witnesses required for cross-examination.

5. Mondiale was formerly known as Visa Global Logistics Pty Ltd (VGL) and changed its name on 7 April 2021.

6. 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

7. 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; and

   h.   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)

8. 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.

9. 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.

10. 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.

11. On the allegation of alleged safety issues, his Honour considered the correspondence passing between the parties leading to the decision to dismiss Mr Guthrie and then the evidence of each of the two witnesses that gave evidence on behalf of Mondiale. At [117] his Honour found:

    [117] The utter paucity of Mondiale’s evidence as to the investigation and explanation of the alleged safety issues, and the lack of any, or implausibility of the, explanation as to how the alleged safety issues came to be part of the reason for the dismissal decision, have led the Court to conclude that not only did the alleged safety issues not occur, but also that they could not, in any event, have been substantive or operative reasons for the dismissal decision.

12. On the allegation that Mr Guthrie engaged in unprofessional conduct, disrespect and harassment, his Honour considered in detail the correspondence passing between the parties prior to dismissal. His Honour found that one email by Mr Guthrie, dated 18 November 2019, ‘might be considered borderline disrespectful’ (Guthrie (No 2) at [135]). However, his Honour did not find that Mr Guthrie’s low-level disrespect was the reason for dismissal. At [149] his Honour found:

    [149]…the Court’s view is that it can be inferred that there were reasons for Mr Guthrie’s dismissal other than those contained in the dismissal letter, and that those other reasons included, at least, Mr Guthrie’s complaints or inquiries in relation to the alleged underpayment of casual and afternoon shift loadings. It follows that, in this respect, adverse action was taken against Mr Guthrie by Mondiale in relation to a workplace right in contravention of s 340(1) of the FW Act.

13. His Honour found that the evidence established that the joint decision-makers of the decision to dismiss Mr Guthrie were Mr Punter, Ms Coleman, Mr Harris, Mr Mu Sung and Mr McLaughlin of Mondiale (Guthrie (No 2) at [156]). Only Mr Punter and Ms Coleman gave evidence at the hearing before his Honour. At [159] his Honour made the following finding:

    [159] There is no evidence before the Court that Mr Punter’s and Ms Coleman’s other joint decision-makers excluded the workplace rights summarised at [104] above in determining to dismiss Mr Guthrie. There was no opportunity for the state of mind or mental processes of the not called other joint decision-makers to be exposed to or considered by the Court. Further, the Court can also infer that those other joint decision-makers were not called because their evidence may not have assisted Mondiale’s case that the reasons for the dismissal were limited to alleged safety issues and alleged unprofessional behaviour: Dunkel, CLR at 308 per Kitto J, 312 per Menzies J and 320–321 per Windeyer J.

14. At [160] his Honour concluded:

    [160] In relation to the other joint decision-makers the Court is thus left with no explanation or evidence capable of discharging the reverse onus imposed on Mondiale under s 361 of the FW Act, and is thus satisfied that adverse action was taken against Mr Guthrie by Mondiale by dismissing him from his employment because of the exercise of the workplace rights asserted, and summarised at [104] above.

15. This led to his Honour making the findings at [179] referred to in paragraph [1] above.

    ISSUES

16. The issues to be determined by the Court are:

    (a)The quantum of compensation payable pursuant to s 545 of the FW Act to Mr Guthrie for loss suffered because of the contravention of his workplace rights and dismissal; and

    (b)The quantum of any penalty payable by Mondiale for contravention of the FWAct.

    HEARING

17. At the further hearing on 17 and 18 February 2025, Mr Guthrie and his wife, Ms Joanne Reavill-Guthrie, gave evidence and were cross-examined. Mr Guthrie also called as a witness a former employee of Mondiale, Mr Daniel Jeater, to give evidence regarding the employment opportunities available to Multi Combination (MC) truck drivers in the Perth area during the period from December 2019 until about March 2021.

18. Mondiale called only one witness, Ms Natasha Dunbier, the Chief People Officer of the Mondiale VGL Group of Companies (the Group). Ms Dunbier gave evidence about the current corporate practices and operations, including workplace initiatives and policies now in place across the Mondiale organisation.

19. A Court Book was tendered at the hearing by Mondiale without objection and marked as exhibits “R7” and “R8”. The Court Book contained the originating process, Mondiale’s response and defence, opening submissions, the affidavits and annexures relied on by both Mr Guthrie and Mondiale, and other documents produced by the parties as relevant and which were referred to by the parties during evidence and cross-examination. References hereafter to “CB” pages are to the pages of the Court Book.

20. 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

21. 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).

22. 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.

23. 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.

24. Mr Guthrie in his first affidavit said that at the time of the termination of his employment with Mondiale he was fifty years of age, and his preference and intention was to remain with Mondiale until retirement at the age of 68 (A1 [4]). Mr Guthrie deposed that he previously worked for British Telecom for over fourteen years and was previously employed by Mondiale/VGL at its Sydney depot from June 2014 and then transferred to the Perth depot in January 2019 (A1 [3], [5]). He and his wife intended to purchase a family home in Perth and his hope was to secure an afternoon shift with Mondiale that would allow him to take care of their young son in the mornings, when his wife worked remotely as a payroll manager for her employer in New South Wales (A1 [6], [24]).

25. Based on observations made after dismissal; Mr Guthrie believes that an afternoon shift became available with Mondiale shortly after his dismissal. He has observed that some of his former work colleagues still work for Mondiale (A1 [15]). His state of mind at the time of dismissal was that, but for his dismissal, he would have been employed by Mondiale full-time for at least another ten years (A1 [16]).

1. Mr Guthrie also observed several advertisements for positions with Mondiale for MC truck drivers after his dismissal. Screenshots of those advertisements were produced from January 2020, June 2020, September 2020, February 2021, March 2021, July 2021 and October 2021 (A1, annexure JG-2). Those advertisements show positions available for ‘MC Drivers’ (for day shifts and afternoon shifts), for drivers with a current MC licence, and suitable Maritime Security Identification Card (MSIC card) for ‘wharf work’ and ‘Sideloader’ and ‘Reach Stacker’ experience.

2. Mr Guthrie also observed new additions to the Mondiale fleet of vehicles in Perth after his dismissal (A1 [19]-[21]). He took and produced photos of these vehicles (A1, annexure JG-3). He has also observed the construction of a new depot/distribution facility for Mondiale’s business in Jandakot, Western Australia (A1 [23]). The relevance of this evidence was in part to rebut assertions by Mondiale in this proceeding that Mr Guthrie would have been made redundant in 2020 due to a downturn in Mondiale’s business.

3. Mr Guthrie says that following his dismissal he searched every single day for over eighteen months for alternative employment. In May 2021, he secured some casual employment but that did not always suit the childcare needs for his son in the mornings.

4. In August 2020, Mr Guthrie made an interlocutory application for interim reinstatement of his employment with Mondiale (Guthrie (No 1)). The application was unsuccessful. No order for costs was made.

5. In March 2021, Mr Guthrie says that he approached a recruitment agency and attended an interview (A1 [26], annexure JG-5). After the interview he was informed that an employment reference from Mondiale would be sought, however thereafter he received no offers of employment from that agency.

6. Mr Guthrie says that on 10 May 2021 he commenced casual employment with Randstad Recruitment for the supply of casual services to SCT Logistics as a truck driver on the afternoon shift (A1 [27]). Mr Guthrie produced payslips for income received with Randstad and income tax return statements for the tax years 2020/2021, 2021/2022, 2022/2023 and 2023/2024 (A1, annexures JG-6 and JG-9). These documents indicated the declared income received by Mr Guthrie during the three years before Mr Guthrie secured permanent full-time employment in May 2024 (A1 [52]).

7. In May 2024 Mr Guthrie secured full-time employment as a truck driver on an afternoon shift with Linfox in Perth. Mr Guthrie produced a pay advice for his income from casual employment with Randstad and payslips from Linfox. The tax return statement for the 2023/2024 tax year recorded that Mr Guthrie’s pre-tax income for the 2023/2024 tax year was $99,916.66. Mr Guthrie also provided a comparison of the gross income earned during his employment with Mondiale from 2014 until 2019, income earned following termination and income now received from full-time employment with Linfox (A1, annexures JG-8 and JG-9). Primary documents supporting that comparison were produced. The authenticity of these documents was not disputed but the methodology for calculating loss and the inferences to be drawn from the documents was a matter of contention.

8. Mr Guthrie also sought to rely on inferences to be drawn from employee data obtained from Mondiale for other employees at the time of his termination and shortly thereafter. This was in part to establish that Mr Guthrie’s average annual gross income was approximately $100,000.00 per annum, which formed a base from which to calculate his loss of income post termination. This base was an estimated because Mr Guthrie said he was unable to obtain accurate payslips from Mondiale and Mondiale was unable to produce similar documents from its payroll records for Mr Guthrie.[2]

   [2] Mondiale claimed to be unable to reproduce payroll records for Mr Guthrie and could not produce records for the hearing before Judge Lucev in Guthrie (No 2) or for this hearing. Mondiale did however produce two records, Annexure ND-14 (CB 566) and Exhibit R5, which purported to summarise Mondiale’s calculation of income earned by Mr Guthrie during the period February 2019 to December 2019 (see also footnote 5 below).

9. Mr Guthrie relied on his previous earnings as disclosed in his annual tax return statements and a comparison of another employee, Mr Dicton, who was employed by Mondiale in Perth on an afternoon shift and for whom Mondiale produced a normal weekly earnings statement that showed an annual gross income in excess of $100,000.00 (A1, annexure JG-11, CB 341).

10. Mr Guthrie’s calculation of lost income was set out in the spreadsheet annexed to his first affidavit and resulted in a claim for a loss of gross income of $216,629.34 (A1, annexure JG-Spreadsheet).

11. In the first affidavit, Mr Guthrie also claimed loss of long service leave entitlements (A1 [52]-[53]). This was based on the hypothetical assumption that Mr Guthrie remained employed with Mondiale until 10 June 2024 (ten years of continuous employment including Mr Guthrie’s employment at the Sydney depot of Mondiale) (A1 [46]). The sum of $9,221.37 was claimed and calculated on the basis of Mr Guthrie’s gross weekly pay of $1,064.00 multiplied by 8.6667.[3] The gross weekly pay figure of $1,064.00 comes from a document produced by Mondiale (A1, annexure JG-12, CB 357) and exhibit “R5” tendered by Mondiale. Mr Guthrie also claimed that, had he remained in the employment of Mondiale, he would have eventually been employed on an afternoon shift at a higher weekly rate of pay. Alternative figures for lost long service leave were deposed to by Mr Guthrie based on assumed rates of pay for an employee working on the afternoon shift (A1 [46]-[48]). However, in the closing submissions filed on behalf of Mr Guthrie and the final spreadsheet the figure of $9,221.37 was claimed.

    [3] Which is the number of weeks leave an employee is entitled to after ten years of continuous employment under s 8 of the Long Service Leave Act 1958 (WA).

12. Mr Guthrie also claimed losses arising from the extra travel incurred by him from his home to his new workplace which he claimed was an extra 60kms per day (A1 [49]). The calculation of the sum claimed, and the underlying assertions and assumptions relied on by Mr Guthrie was objected to by Mondiale and ruled inadmissible.

13. Mr Guthrie then claimed in his affidavit the loss of superannuation contributions that would have accrued as payable to him which he based on 69 weeks of unemployment (plus five weeks’ notice period) ‘as well as at least 7 weeks of no work whilst I was employed as a casual’ (A1 [52]). The sum of $7,682.08 claimed, was also based on a gross weekly pay amount of $1,064.00 per week using a multiple of 9.5%, or $101.08 per week (for 76 weeks). Added to this is a claim for ‘Interest and Compound Interest’. No calculation of interest or compound interest was provided. Mr Guthrie hypothesised that had he been employed on an afternoon shift the loss would have been greater using a gross weekly wage of $1,383.00 resulting in a loss of $10,512.00 ‘plus interest and compound interest’.

14. Upon completing five years of service with Mondiale, Mr Guthrie claimed that he was entitled to receive a Tag Heuer watch or a holiday voucher to the value of $2,000.00 (A1 [54]). Mr Guthrie claims that in early December 2019 his branch manager asked Mr Guthrie which option he would prefer, and he told the manager he would prefer the watch. Mr Guthrie claimed that the watch was due to be presented to him the week after he was terminated. He claims the sum of $2,000.00 in lieu.

15. Mr Guthrie then claimed the loss of an opportunity to purchase a home, which he and his wife were planning to do in 2020 (A1 [55]). It was not until 2023 that they were able to do so and by then Mr Guthrie claims that the cost was over $100,000.00 more than property prices in 2020 (A1 [56]). There was no sum claimed in the schedule attached to Mr Guthrie’s first affidavit or in the final spreadsheet. Mr Guthrie annexed to his first affidavit a document titled ‘Property History’ that contained price information for an unidentified property which Mr Guthrie described as “our property” (A1, annexure JG-14, CB 362). This evidence fell well short of the evidence required to establish a claim for loss of opportunity of this kind. There was no claim made for this head of damage in Mr Guthrie’s written closing submissions.

16. Mr Guthrie also deposed to the humiliation and embarrassment he felt for the past five years since his dismissal (A1 [58]-[61]). Annexed to the first affidavit were two journal articles reporting on the decision of Judge Lucev in Guthrie (No 2) (A1, annexure JG-15). Mr Guthrie claimed embarrassment arising from publicity associated with his case and the absence of an apology from Mondiale. He also claimed that he and his family suffered from the stress and uncertainty of protracted and expensive litigation.

17. The remaining paragraphs of the first affidavit addressed matters relating to any penalty including reference to the decision of Judge Lucev in Jeater and other cases involving Mondiale and subsidiaries as an employer in other jurisdictions.

18. Mr Guthrie’s second affidavit sought to respond to the affidavit evidence of Ms Dunbier sworn on 16 January 2025. In particular, her evidence about Mr Guthrie’s hourly rate of pay, working hours, and the calculation of Mr Guthrie’s gross annual income with Mondiale. Mr Guthrie also joined issue with Ms Dunbier’s opinion that Mr Guthrie would be likely to be made redundant by Mondiale in 2020. He also repeated his evidence about eligibility for the Tag Heuer watch.

19. Mr Guthrie was cross-examined as to his attempts to find appropriate employment after his dismissal on 9 December 2019, and the steps taken to mitigate his loss of income following his termination. Mondiale sought to cast doubt on Mr Guthrie’s claims that he was unable to find suitable employment as a truck driver in Perth after his dismissal and suggested that Mr Guthrie and his wife made a conscious decision not to seek full-time employment so that Mr Guthrie could care for their son.

20. Mondiale also challenged the reliability of Mr Guthrie’s evidence as to the quantum of compensation and the speculative inferences to be drawn from the evidence adduced. Mondiale submitted that Mr Guthrie failed to adduce evidence to support his claim for compensation and that the evidence adduced was ‘conflicting, speculative and did not reveal any logical basis for the sum sought’.[4]

    [4] Respondent’s closing submissions 21 March 2025 at [2].

    EVIDENCE – Mondiale

21. Ms Dunbier adopted as her evidence the content of her affidavit sworn 16 January 2025, with the exception of paragraphs [32], [49] and [52] which were objected to or not read. Ms Dunbier is the Chief People Officer for the Group. She is not an employee of Mondiale which is part of the Group, but her authority extends to executive responsibility for Human Resources and the wellbeing of employees of the Group.

22. The Group of companies of which Mondiale is a member was established following the merger between Mondiale Freight Services Limited and Visa Global Logistics Pty Ltd in March 2021. The merger resulted in the creation of Ms Dunbier’s position as Chief People Officer, together with other senior executive positions. The executives and employees of Mondiale that were employed by Mondiale at the time of Mr Guthrie’s termination, and who are mentioned or gave evidence before Judge Lucev in Guthrie (No 2) are now no longer employed by Mondiale or the Group.

23. Ms Dunbier was not involved in the decision to terminate Mr Guthrie’s employment. She was not an employee of the Group at that time. In her role as Chief People Officer, Ms Dunbier is responsible for leading and managing the Group’s ‘people practices’ across global operations. A copy of her position description was annexed to her affidavit (Annexure ND-3; CB 485–7).

24. In her affidavit sworn 16 January 2025, Ms Dunbier explained various initiatives and policies that have been put in place to drive cultural change across the Group. The relevance of which was to address the consideration of any penalty under s 546(1) of the FWAct.

25. On the issue of compensation, Ms Dunbier was forced to give evidence based on inquiries she made about the rates of pay applicable to day shift drivers in Perth during Mr Guthrie’s employment. Mondiale could not produce any payslips or other records of monies paid to Mr Guthrie during his employment. Ms Dunbier produced a document that was a report of Mr Guthrie’s weekly earnings during the period of 31 January 2019 to 9 December 2019, obtained from Mondiale’s payroll system (Annexure ND-14, CB 566). This was in circumstances where Mondiale claimed at the hearing before Judge Lucev in Guthrie (No 2), that it was unable to produce payslips and had difficulty in accessing business records and payroll information of Mondiale after this proceeding was commenced.[5] It was unclear whether this weekly earnings report included allowances and overtime and there was no record of the actual hours worked by Mr Guthrie. A further detailed summary of Mr Guthrie’s weekly earnings report from 6 February 2019 to 25 December 2019, was tendered by Mondiale and marked exhibit “R5”. That document recorded overtime, superannuation and allowances but did not include the total amount paid.

    [5] Paragraph [44] of A1 and CB 112, (transcript page 59, lines 15 and 40), evidence of Tania Coleman on behalf of Mondiale. In Guthrie (No 2) it was claimed by Mr Guthrie that he was not provided with payslips in accordance with reg 3.46(3) of the Fair Work Regulations 2009 (Cth). This claim was dismissed because no payslips were produced and Mr Guthrie failed to prove that required information was not included on payslips (Guthrie (No 2) at [178]).

26. Also annexed to Ms Dunbier’s affidavit, was a copy of an unsigned contract of employment between Mr Guthrie and Visa Global Logistics Pty Ltd dated 23 January 2019 (Annexure ND-11; CB 551-560). The contract recorded that the day shift ordinary hours are between 5.30am and 6.30pm, Monday to Friday, but were not to exceed eight hours per day. Afternoon shift was from 4.30pm to 12.30am, Monday to Sunday, and were also not to exceed eight hours per day. Salary was based on a 38-hour week at a rate of $27.00 per hour (i.e. $1026.00 gross per week before allowances). An allowance was to be paid of 17.5% of the day rate for an afternoon shift on only the ordinary hours worked. Overtime was to be paid at the rate of time and a half for the first two hours, after which double time would be paid. Meal allowances were also payable if work was performed in any one day beyond the normal finishing time. Superannuation was to be paid at the levels prescribed by law. Long service leave entitlements were in accordance with the applicable legislation.

27. It was submitted by Mondiale in closing submissions that, had Mr Guthrie remained employed by Mondiale, he would have been selected for redundancy in around April 2020. The opinion evidence relied on by Ms Dunbier in her affidavit was not read and was otherwise inadmissible. This left Mondiale with only inferences to be drawn from circumstantial evidence to support this assertion.

28. Ms Dunbier also claimed in her affidavit that the practice of providing gifts to employees for loyal service was discretionary and ceased in about December 2019. This was communicated to staff in January 2022. The remaining evidence of Ms Dunbier in her affidavit related to the issue of penalties.

29. In oral evidence, Ms Dunbier expressed the regret of the Mondiale organisation for the circumstances leading to Mr Guthrie’s termination and apologised to the Court and Mr Guthrie and his family.

30. In cross examination, Ms Dunbier was challenged on her authority to give evidence on behalf of the Mondiale entity. Ms Dunbier conceded that she was not an employee or director of the respondent Company, was based almost exclusively in New Zealand and was not personally responsible for ensuring compliance with the FWAct in Australia.

31. Ms Dunbier was also cross-examined about the production of payroll documents and why only one internal document (Annexure ND-14, CB 566) had been produced and attached to her affidavit. Ms Dunbier also admitted that she had limited knowledge of the operation of the Perth depot in 2019, 2020, 2021, 2022, 2023 and 2024. Ms Dunbier could not dispute the authenticity of the tax return statements produced by Mr Guthrie for the financial years 2014 to 2024 inclusive, upon which his claim for compensation for loss of income are based.

32. Most of the evidence of Ms Dunbier addressed the issue of the appropriate penalty, if any, under s 546 of the FWAct. On the issue of compensation, the substance of her evidence addressed the probability of Mr Guthrie remaining employed by Mondiale for a further four years and the calculation of earnings actually paid to Mr Guthrie during his employment at the Perth depot of Mondiale.

    ISSUE ONE - COMPENSATION - LEGAL PRINCIPLES

33. Section 545(1) of the FW Act gives this Court a broad discretion to award compensation caused by a breach of a person’s workplace rights, however the power to grant relief is not unfettered or boundless (see Australian Building and Construction Commissioner v CFMEU [2018] HCA 3 at [110] per Keane, Nettle and Gordon JJ; James Cook University v Ridd [2020] FCAFC 123 at [155] per Griffiths and S C Derrington JJ; Transport Workers’ Union of Australia v Qantas Airways Limited [2024] FCA 1216 at [62]–[66] per Lee J (Qantas).

34. The onus rests with Mr Guthrie to prove that he has suffered compensable loss because of the contravention of the FW Act. In Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 (MUA) at [28] the Court said:

    [28] The task of the primary judge, having found the relevant contraventions, was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions). Subject to any statutory requirement to the contrary, questions of the future or hypothetical effects of a wrong in determining compensation or damages are not to be decided on the balance of probability that they would or would not have happened. Rather, the assessment is by way of the degree of probability of the effects — the probabilities and the possibilities: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 625 at 642–643; Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 at 352–356. The above proposition must be qualified by the recognition that, where the fact of injury or loss is part of the cause of action or wrong, it must be proved on the balance of probability. Compensation is generally awarded for loss or damage actually caused or incurred, not potential or likely damage: Tabet v Gett [2010] HCA 12; 240 CLR 537; Sellars at 348; Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 at 526; that is equally so here under ss 807(1)(b) and 545(2)(b).

35. At paragraph [34] and [35] of MUA the Court said:

    [34] The assessment of the value of the loss of an opportunity may involve an evaluative judgment that calls for restraint in appellate review: McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 at [126]–[127]; Horne v Cranney [2011] QCA 149 at [9]; Hammond Worthington v Da Silva [2006] WASCA 180 at [128]; Nigam v Harm (No 2) [2011] WASCA 221 at [259]; Falkingham v Hoffmans (a firm) [2014] WASCA 140 at [47]–[49]; Wainwright v Barrick Gold of Australia Ltd [2014] WASCA 15 at [88]–[90]. It may also involve factual analysis and findings of a non-evaluative character, and it will almost necessarily involve a degree of speculation. Thus, how (that is, by what methodology), and with what ultimate result, an evaluation is made may involve questions of choice, and judgments about which reasonable minds may differ.

    [35] It is also relevant to recall that all evidence is weighed according to the proof which it is in the power of one side to have produced and in the power of the other side to have contradicted: Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970; Hampton Court Ltd v Crooks [1957] HCA 28; 97 CLR 367 at 371–372; Cullen v Welsbach Light Company of Australasia [1907] HCA 3; 4 CLR 990 at 1013–1014; see also JD Heydon Cross on Evidence (10th Australian Edition) at 312–313 [7160] and the cases at footnote 132.

1. It is therefore fundamental to the assessment of statutory compensation that the applicant/plaintiff prove compensable loss in order that damages or compensation may be assessed. Where an applicant has proven some loss, but it is difficult to quantify that loss with mathematical accuracy or where the loss is speculative, the court is required to assess damages doing the best it can. This may involve elements of forecasting or estimating, even ‘guesswork’. Simply because damages cannot be assessed with certainty does not relieve the wrong doer from paying damages (see Chaplin v Hicks [1911] 2 KB 786 at 792; Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 349 (Sellars); MUA at [30] and [34]).

2. When assessing loss, reference is often made to a claimant’s “duty to mitigate”. However, there is no absolute duty on an applicant to mitigate loss. Applicants are completely free to act in their own best interests, but respondent/defendants are not liable for loss suffered by claimants in consequence of so acting, or for loss unreasonably incurred, or which could reasonably be avoided (see British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rlys Co of London Ltd [1912] AC 673 at [689] per Viscount Haldane LC; Johnson v Perez (1988) 166 CLR 351 at 358 per Mason CJ and more recently Kumova v Davison(No 2) [2023] FCA 1 at [98] per Lee J (Kumova)).

3. In Kumova at [98] Justice Lee said:

   [98]…Usually, of course, in other areas of the law, the term “mitigation” is used in the phrase “a plaintiff’s duty to mitigate” (albeit mistakenly, as there is no so‐called duty, because claimants are completely free to act as they perceive to be in their best interests, but defendants are not liable for all loss suffered by claimants in consequence of so acting): Sotiros Shipping Inc and Aeco Maritime SA v Sameiet Solholt, The Solholt [1983] 1 Lloyd’s Rep 605 (at 608 per Donaldson MR); Borealis AB v Geogas Trading SA [2011] 1 Lloyd’s Rep 482; [2010] EWHC 2789 (Comm) (at [42]–[50] per Gross LJ). Such a factor might be best described as not being in “mitigation” of damage, but as simply a factor, among others, informing the Court’s assessment. The concept can be viewed through the prism of causation of loss as the use of such evidence is relevant to, and impacts upon, the actual, causally‐related harm suffered.

4. In this claim for compensation, all of these principles require consideration and application to the findings of fact that follow.

   CLAIMS FOR COMPENSATION – Loss of Earnings

5. Mr Guthrie claims that he has suffered loss of five years of gross full-time income because of the contravention of the FW Act by Mondiale. He said in his first affidavit that his intention was to remain as an employee of Mondiale until he retired at age 68 (A1 [4]). He enjoyed the stability of income and had shown loyalty to his previous employers including Mondiale when employed in Sydney. At the time of termination, he believed that he would be employed by Mondiale for at least ten years and likely longer. His desire was to be employed as a MC driver on an afternoon shift and he had been promised that would eventually occur. There were positions available for afternoon shift drivers after his termination and, had he not been terminated, he believes he would have been employed in one. Mr Guthrie asserted in his evidence that had he been employed on the afternoon shift he would have received a higher hourly rate ($36.40 per hour instead of $27.00-$28.00 per hour) and ‘a significant amount of daily overtime’. He asserts that it was ‘quite usual’ for afternoon shift drivers to earn $120,000.00 or more per annum. To support this assertion, Mr Guthrie relied on Mondiale payroll data for another driver at the Perth depot (A1, annexure JG-11) that showed gross income of $122,583.84 earned in 2019.

6. Mr Guthrie said in his first affidavit that he was unable to secure full-time employment as a MC truck driver in Perth until 13 May 2024 (A1 [29]). The sum claimed for lost income by Mr Guthrie is based on a notional average yearly gross income of $100,000.00 less, what Mr Guthrie earned from post termination part-time and casual employment. The sum claimed in closing submissions was $216,629.34.[6] This is also the total sum of lost earnings claimed in paragraph [32] of Mr Guthrie’s first affidavit (A1 [32]). However, this sum differs to the sum claimed in the final spreadsheet which was $216,546.00. The difference of $83.34 appears to be the amount claimed for the 2024 financial year, which does not appear on the final spreadsheet. In the financial year ending 2024, Mr Guthrie claims that he earned $99,916.66 of gross income which resulted in a loss of national gross income for that year of $83.34 (A1, annexure JG-9, CB 338).

   [6] Applicant’s closing submissions 7 March 2025 at [14].

7. The sum claimed is calculated by taking Mr Guthrie’s gross earnings for the financial years ending 30 June 2015, 2016, 2017, 2018, and 2019 taking the average of those amounts and rounding down to a figure of $100,000.00. That is then multiplied by four and then the actual total gross income received by Mr Guthrie after termination is deducted from that sum leaving a gross differential of $216,629.35.

8. The calculation is depicted in the first schedule annexed to Mr Guthrie’s first affidavit (A1) at CB 344 as follows:

9. The figures for gross annual income up to 30 June 2019 are taken from Mr Guthrie’s annual tax return statements as the best evidence available of income earned from employment with Mondiale, both in Sydney and Perth from June 2014 to 30 June 2019. These documents were annexed to the first affidavit (A1, annexure JG-8, CB 328-332). This was said to be the best available evidence in the absence of payroll records from Mondiale showing actual income, overtime and allowances paid. Then Mr Guthrie produced income tax return statements for the financial years ending 30 June 2020, 2021, 2022, 2023 and 2024 (A1, annexure JG-9, CB 334-8). These documents were relied on to establish actual income earned by Mr Guthrie until he found full-time employment in May 2024.

10. Mondiale was critical of this method of proof of loss of earnings. It was submitted in Mondiale’s closing submissions that Mr Guthrie failed to adduce evidence to support his claims for compensation. The figures offered were said to be ‘conflicting, speculative and do not reveal any logical basis for the sums sought’.[7] Mondiale also submitted that Mr Guthrie failed to mitigate his loss by unreasonably refusing to pursue employment opportunities in the Perth employment market during the period from termination on 9 December 2019, until securing full-time employment in May 2024. Mr Guthrie was cross-examined about the opportunities available to him and whether he and his wife made a deliberate decision to not seek suitable employment so that Mr Guthrie could care for their child.

    [7] Respondent’s closing submissions 21 March 2025 [2].

11. Ms Dunbier said that based on the limited records produced to the Court, Mr Guthrie’s annual gross income paid by Mondiale in the calendar year 2019 was only $73,800.76 (Annexure ND-14 to Ms Dunbier’s affidavit, CB 566). It was submitted that this amount was said to include overtime and other allowances.[8] Therefore the notional annual gross income figure of $100,000.00 per annum was overstated and misconceived.

    [8] Respondent’s closing submissions 21 March 2025 [10].

12. Mr Guthrie and Mr Jeater gave evidence that the employment market for MC truck drivers in Perth in 2020 and 2021 was problematic. This was in part due to COVID-19 and uncertainty about the economy. Mr Guthrie claimed that he checked employment website ‘Seek’ on a daily basis looking for employment opportunities without success. He also called on potential employers by telephone and in person without success. Mr Guthrie was challenged about this in cross-examination because only one email was produced to support this claim (A1, annexure JG-5). The email dated 30 March 2021, was from “Driver Hire”, which offered Mr Guthrie an interview with a driver recruitment agency. It was put to Mr Guthrie that he did not apply to any employers for work before 13 April 2021, when he emailed a potential employer (Exhibits R1 and R2, CB 664-5). Mr Guthrie disagreed.

13. Mr Guthrie was also challenged about the renewal of his MSIC Card. This is a security clearance identification card that allows truck drivers to access the port of Perth. It was put to Mr Guthrie in cross-examination that he did not apply to renew his card until April 2021 (CB 669, Exhibit R3). Mr Guthrie agreed that he had not made inquiries about renewing his MSIC card until April 2021 however claimed that he could not apply for a new card or renew an MSIC card without an employer. Mr Guthrie was then shown an email dated 22 April 2021 that said he could apply for an MSIC card without providing employer details (CB 670, Exhibit R3).

14. It was put to Mr Guthrie in cross-examination that he did not actively pursue alternative employment during the period from December 2019 (termination) and April/May 2021 when he first secured casual employment. Mr Guthrie disagreed and maintained that the employment market was very difficult at that time. He also denied that he and his wife decided that it was preferable that he not seek work during that period. Mr Guthrie also denied that from May 2021 until about November 2023 he did not seek work with other employers on a full-time basis. Mr Guthrie referred to two applications he made but conceded one was in fact made in December 2023.

15. Ms Reavill-Guthrie confirmed the content of her affidavit in which she corroborated her husband’s evidence of his attempts to find employment, and of the stress caused by dismissal and this proceeding. Ms Reavill-Guthrie said she observed her husband regularly checking Seek jobs. Ms Reavill-Guthrie also explained that due to their family circumstances and her employment commitments, Mr Guthrie could not simply take ‘any job that came up’ and that job opportunities that required him to be away from home for days at a time were not an option (A3 [16]).

16. In cross-examination it was put to Ms Reavill-Guthrie that it was decided between husband and wife that even if there were jobs available, for example, for day shift jobs, Mr Guthrie would not apply for those positions, to which the witness replied:

    ‘Not automatically. As I say, we had worked around that. Ideally, an afternoon shift was preferable, obviously. My son was only two and a half at the time. He had just started day care, so afternoon shift would be ideal.’

17. Mr Jeater said in his evidence that after he was made redundant by Mondiale in April 2020, he found that there was not much work available for heavy haulage truck drivers in Perth. He spent three and a half months without employment until finding some casual work through a labour hire firm. It was not until September 2020 that he secured more reliable work as a casual driver with K&S Freighters. He then obtained a permanent position with K&S Freighters about six months later.

18. In cross-examination, Mr Jeater confirmed that he sought employment as a day shift driver at about the same rate of pay earned at Mondiale, plus a casual loading which was the same or similar to the rates paid by Mondiale. Mr Jeater also explained the licensing and accreditation system for truck drivers in Westen Australia where an MC licence was more valuable in the employment market.

19. Having heard the evidence of Mr Guthrie and the other witnesses, I am satisfied that Mr Guthrie has suffered loss of income because of Mondiale’s contravention of s 340(1) of the FW Act. It is appropriate that an order for compensation be made.

20. I am satisfied that following termination on 9 December 2019, Mr Guthrie endeavoured to find suitable employment as a truck driver in Perth but was unable to immediately do so. Mondiale did not adduce any evidence to suggest that Mr Guthrie acted unreasonably in rejecting legitimate offers of employment from suitable employers, or that the employment market in Perth for MC truck drivers was particularly buoyant and that employment opportunities were bountiful. I am also satisfied that Mr Guthrie looked for work on a daily basis and this was corroborated by his wife, Ms Reavill-Guthrie, who observed her husband searching for employment. The evidence of Mr Jeater also confirmed that the employment market was problematic during 2020 to 2021. This was in part due to prevailing economic conditions arising from the COVID-19 pandemic but also limited opportunities available in the employment market, apart from positions advertised for employment with Mondiale. Ms Dunbier also gave evidence that Mondiale’s national business was adversely affected by COVID-19 and that two redundancies were made in Perth and employee hours reduced.

21. Mondiale submitted that it was “unlikely” that Mr Guthrie could not have found any work prior to May 2021 and that he could not find full-time work until 2023. It was submitted that Mr Guthrie did not take serious steps to find employment until April 2021 and that if he did, he was likely to have found at least casual employment within a month. Mondiale was critical of Mr Guthrie’s evidence which counsel described as self-serving and inconsistent. Mondiale was also critical of the absence of evidence of job opportunities that were considered and applied for by Mr Guthrie during the period from 9 December 2019 to May 2021. It was submitted that Mr Jeater’s evidence supported the inference that there was work available in 2020 for experienced drivers willing to work on a day shift. There was no evidence of any available employment opportunity during those dates that Mr Guthrie applied for and was unable to secure. However, equally, Mondiale did not adduce any evidence of an opportunity that suggested that Mr Guthrie was acting unreasonably, especially when he had been terminated for alleged safety concerns and disrespect. I do not accept the proposition that acting reasonably, Mr Guthrie would have secured casual employment within one month of termination in December 2019.

22. Mr Guthrie was sometimes combative and eager to promote his own cause when cross-examined however, on balance, his evidence as to his attempts to secure alternative employment was credible. There was some force in the proposition put to Mr Guthrie by counsel for Mondiale that Mr Guthrie was initially selective in the opportunities he pursued, and was seeking to obtain only an afternoon shift position which was difficult to secure, but I am satisfied that Mr Guthrie acted reasonably in his attempts to mitigate or reasonably reduce the losses arising from the unexpected termination of his employment.

23. Ms Reavill-Guthrie, was candid in her evidence about her husband’s attempts to find employment and she conceded that there was ‘Not automatically’ a decision to seek an afternoon shift position, rather that it would have been preferable if that occurred. I construed that to mean that there was no conscious or deliberate decision to not look for suitable employment, and that if a morning shift was available then Mr Guthrie and Ms Reavill-Guthrie would ‘work around that’ if required to do so.

24. I am also satisfied that because of Mondiale’s contravention of Mr Guthrie’s workplace rights and adverse action, Mr Guthrie was more likely than not to have remained as an employee of Mondiale for at least five years. Mr Guthrie had a stable record of employment with his previous employer, then Mondiale in Sydney, the responsibilities of a young family, and a sense of loyalty (perhaps misplaced) to his employer. Mondiale was also seeking drivers to fill day and afternoon shifts, especially those with experience and suitable accreditation. The re-employment of Mr Singh after redundancy is an example adding to the probability that Mr Guthrie would have enjoyed stability in employment.

25. I am not satisfied that Mr Guthrie would have been made redundant in April 2020 as was submitted by Mondiale.[9] The only evidence before this Court to support this contention was the evidence of Ms Dunbier in paragraphs [45]–[48] and [50]-[51] of her affidavit (CB 473-4). Paragraphs [32], [49] and [52] were not read into evidence. The advertisements produced by Mr Guthrie in his evidence showed that Mondiale was seeking truck drivers in January, June and October 2020 and again in February, March, July and October 2021 (A1, annexure JG-2, CB 296–302). The fact that Mr Guthrie saw these advertisements gives further weight to his evidence that he was actively searching for employment opportunities at that time. Mondiale was also expanding their fleet in Perth and constructing a new distribution centre (A1, annexure JG-3, CB 304-314).

    [9] Respondent’s closing submissions 21 March 2025 [32].

26. Ms Dunbier was not employed by Mondiale at that time (she commenced employment with the Group on 21 November 2022) and no executive or manager employed at that time by Mondiale in Perth or elsewhere by Mondiale, was called to give evidence to give weight to the probability of redundancy. I accept that it was likely that due to the initial economic uncertainty caused by the COVID-19 pandemic that parts of Mondiale’s business may have been adversely affected and that employees may have been asked to work reduced hours or take leave, however it was unlikely that Mr Guthrie’s employment with Mondiale would necessarily have ended for redundancy in April 2020.

27. Ms Dunbier produced an email from her predecessor Ms Coleman (Annexure ND-15, CB 567) dated 8 April 2020, identifying Mr Jeater and Mr Singh as possible redundancies in the Perth operations. In the case of Mr Jeater, the termination of his employment was found to be in breach of s 340 of the FW Act (Jeater at [118] per Judge Lucev). Ms Dunbier confirmed that Mr Singh was made redundant and then reemployed as a casual driver in April 2020 and then employed in a permanent role in August 2020. This confirmed Mr Guthrie’s evidence of his conversation with Mr Singh in paragraph [11] of his first affidavit (A1). It also suggests that the probability of redundancy in April 2020 was low. Therefore, I do not accept that redundancy was more likely to have occurred than continuity of employment at the very least as a day shift driver.

28. However, the evidence of Ms Dunbier, Mr Guthrie and Mr Jeater all point to a general downturn in productivity and earning capacity during 2020 due to the COVID-19 pandemic. Mr Guthrie also sought flexible working arrangements to assist with childcare responsibilities. It is for these reasons that the total sum claimed by Mr Guthrie for loss of the opportunity of full-time employment during the five-year period, until he secured a full-time position, should be discounted to allow for the probability that, for some of the five-year period, his hours may have been reduced, or childcare responsibilities may have reduced his earning capacity.

29. In assessing the compensation payable, it is appropriate to factor into the calculation the possibility of reduced working hours in 2020 and reduced allowances. It is also appropriate to apply a discount or adjust the compensation payable to reflect the degree of probability that Mr Guthrie would remain in regular full-time employment with Mondiale for a period of five years (see Malec v Hutton (1990) 169 CLR 638 and Sellars). In MUA at [127] and [135], the Full Court of the Federal Court considered the application of a discount to lost future earnings and the need to discount for contingencies. In that case, the Court considered that a discount of 20% was not reasonable given the seasonal and cyclical nature of the employee’s employment. The Full Court applied a discount of 50% but that was taking into account the unique circumstances of that case. The Court warned against taking an overly conservative approach (MUA at [140]). The discount is to take into account the contingencies and vicissitudes of life and employment in a particular industry or vocation.

1. Assessing the quantum of compensation requires the Court to weigh the competing evidence and determine reasonable compensation in the circumstances. In Qantas at [77], Justice Lee described the task of assessment as follows:

   [77] In assessing whether one should exercise the statutory discretion to make a compensation order under s 545 and the terms of the order, it is necessary to bear in mind the focus of an order for compensation is “in a loose sense, the restoration of those affected by a contravention to the positions they would have occupied but for its occurrence”: Shizas v Commissioner of Police [2017] FCA 61 (at [209] per Katzmann J). To this end, an order under s 545 does not confer power to grant remedies at large based on general considerations of fairness (FWO v CFMMEU (at [149])), but rather is directed to what is reasonable in the circumstances to compensate for the loss caused by the contravention: MUA v FWO (at [20]); see also Patrick Stevedores Holdings Pty Limited v CFMMEU (No 3).

2. His Honour also noted that in some cases the Court must do as ‘…best it can…’, even where a degree of imprecision is involved ‘having regard to the Court’s overall objective to provide a just remedial response’ (Qantas at [79]).

3. I accept that the notional gross income figure of $100,000.00 per annum is a probable and reasonable gross income figure based on historic income figures (2014-2019) and Mr Guthrie’s gross income in the 2024 tax year ($99,916.66). On balance, the sum claimed should be discounted by 15% to allow for the potential for reduced hours and other contingencies. This results in a compensation figure for lost income of $184,134.94 ($216,629.34 - 15%) excluding superannuation contributions.

   CLAIMS FOR COMPENSATION – Loss of superannuation

4. If not for the adverse action taken by Mondiale, Mr Guthrie would have been entitled to receive superannuation contributions from his employer for the period during which he suffered a loss of earnings. Two different sums are claimed for lost contributions. First, is the sum of $7,682.08 (A1 [52], CB 345).[10] This is calculated using a base contribution rate of 9.5% and applying that to the base gross weekly wage of $1,064.00 resulting in a figure of $101.08 per week of lost superannuation. Mr Guthrie then claims this amount for 76 weeks of unemployment during the period from 9 December 2019 and 10 May 2021.

   [10] See also Applicant’s closing submissions 7 March 2025 at [14].

5. The second figure claimed is based on a notional weekly gross wage of $1,383.20 per week, assuming that Mr Guthrie was transferred to an afternoon shift. This results in a figure of $131.40 per week lost superannuation contributions for 76 weeks resulting in the sum of $10,512.00 (A1 [53]).

6. A claim for ‘interest and compound interest’ is also claimed for lost superannuation but no rate or calculation has been provided (A1 [52]-[53]). The method of calculation is curious. The base gross weekly salary figure of $1,064.00 does not correspond with minimum hours in the contract of employment (38 hours at $27.00 per hour = $1,026.00 per week). However, in the only payslip produced by Mondiale (A1, annexure JG-12, CB 357), the base weekly rate for 38 minimum hours paid to Mr Guthrie in November 2019 was stated to be $1,064.00. This equates to an hourly rate of $28.00 per hour and not $27.00 per hour. I accept that this is the best evidence available of the actual rate of pay paid to Mr Guthrie before the termination of his employment.

7. The calculation of weeks is also curious. Mr Guthrie’s evidence is that he was unemployed for 69 weeks and then there was a further seven weeks ‘of no work whilst [he] was employed as a casual between 10 May 2021 and gaining permanent employment on 13 May 2024’ (A1 [52]). This appears to be a claim that there were seven weeks after 10 May 2021 where Mr Guthrie worked no hours which leads to the total of 76 weeks, when no superannuation contributions were received. I am not sure that this is the correct methodology to apply, albeit a conservative approach. The document produced by Ms Dunbier of Mr Guthrie’s gross weekly earnings include higher weekly earnings than $1,064.00, after allowances (CB 566, Exhibit R5). Doing the best that one can on the evidence provided, accepting the methodology used by Mr Guthrie (albeit conservative) and accepting that if there was lost income, because of the adverse action of Mondiale, there would also be a corresponding loss of compulsory superannuation contributions, I find that the most reliable figure to assess the loss is the gross weekly figure expressed in the pay printout for November 2019 (CB 357) which is $1,064.00 (see also Exhibit R5). When multiplied by 9.5% that equals $101.08 per week of lost superannuation. The period from the last day of the notice period given to Mr Guthrie, 13 January 2020, until 10 May 2021 is 69 weeks (and not 79 as claimed). I find that this was the period of unemployment which was caused by the breach of Mr Guthrie’s workplace rights, this results in lost contributions of $6,974.52 (69 weeks x $101.08 per week).

   CLAIMS FOR COMPENSATION – Loss of Long Service Leave entitlements

8. I have found that it was probable than not that, had Mondiale not taken adverse action, Mr Guthrie would have remained employed by Mondiale for the five-year period claimed. If that was the case, then Mr Guthrie claims that he would have been entitled to long service leave effective from 10 June 2024, which was ten years of full-time employment with the same employer from the date of commencement of employment with Mondiale in Sydney. [11] I find that in all probability Mr Guthrie would have remained in full-time employment until 10 June 2024 and that he is entitled to compensation in lieu of accrued leave entitlements.

   [11] Mondiale accepts that Mr Guthrie was first employed on 10 June 2014, see Respondent’s outline of closing submissions at [7] and the unchallenged finding of Judge Lucev in Guthrie No 2 at [28]. The original contract of employment dated 4 June 2014 was annexed to the Originating Form 2 Claim at CB 19. The commencement date of employment was stated to be 10 June 2014.

9. Under s 3 of the Long Service Leave Act 1958 (WA) (Long Service Leave Act), an employee is entitled to long service leave at ordinary pay after at least ten years of continuous employment. In respect of ten years employment, the employee is entitled to 8 and 2/3 weeks leave (s 8(2)(a) Long Service Leave Act). If the employee has completed seven years continuous employment and is terminated for any reason other than serious misconduct, the employee is entitled to a proportionate amount of leave. In the Long Service Leave Act, ‘ordinary pay’ is defined as the employee’s remuneration for the employee’s normal weekly number of hours worked, calculated on the ordinary time rate of pay applicable to the employee, as at the time when any period of long service leave is granted.

10. The sum claimed in lieu of leave by Mr Guthrie is $9,221.37.[12] This is based on a gross weekly pay amount of $1,064.00 multiplied by 8.667 (i.e. 8 and 2/3 weeks). An alternative figure is also claimed, assuming that at the time that long service leave accrued, Mr Guthrie was working an afternoon shift at a weekly ordinary pay of $1,383.20 per week. The source of that figure appears to be the Normal Weekly Earnings Report for Mr Singh that was obtained by Mr Guthrie from Mondiale (A1, annexure JG-10, CB 340). Mr Guthrie asserts that this is when Mr Singh was employed on the afternoon shift by Mondiale. However, there is nothing other than Mr Guthrie’s assertion to reliably establish that rate as the rate that would have been paid to Mr Guthrie had he obtained an afternoon shift. In the circumstances and doing the best that the Court can, the figure for lost long service leave entitlements will be calculated using the base gross weekly wage figure obtained for November 2019 of $1,064.00 multiplied by 8.667 which results in a compensable loss of $ $9,221.37 (CB 357).

    [12] Applicant’s closing submissions 7 March 2025 at [14] and A1 at [46].

    CLAIMS FOR COMPENSATION – Additional Travel Costs

11. Mr Guthrie claimed that due to the termination of his employment he is now required to travel approximately 60kms more per day to and from his place of employment. The methodology used to calculate this aspect of his claim and underlying data relied upon was ruled inadmissible, on the grounds of hearsay and inadmissible opinion. The claim made was also for an indefinite period. In the absence of admissible evidence to support this claim it cannot succeed. Further, there was no evidence in Mr Guthrie’s first affidavit to support the assertion that the return distance between his home and place of employment was in fact 60kms. There was also no evidence of the type of vehicle used, the capacity of the engine of the vehicle used, the absence of reasonable alternative transport or additional fuel consumed. This was a highly speculative claim that lacked particularity and supporting evidence to establish compensable loss. The claim also lacks the necessary causal connection of a reasonable loss arising because of the Mondiale’s adverse action. Whilst the termination of employment resulted in Mr Guthrie seeking employment elsewhere, Mondiale did not warrant under the terms of Mr Guthrie’s employment to pay the cost of transport to and from his place of employment. The additional expense incurred was not ‘because of’ the termination of employment but because of the location of Mr Guthrie’s home, relative to his new place of employment. Even if there was proof of loss (which there is not) this head of damage is too remote and not a compensable loss because of a breach of the FW Act.

    CLAIMS FOR COMPENSATION – Legal Costs

12. This claim also lacked the necessary supporting evidence. The claim was not articulated in Mr Guthrie’s first affidavit (A1) and was not supported by any documents, or other evidence to give it substance, or the necessary proof that it was a loss because of Mondiale’s breach. The claim is explained in the final spreadsheet as a claim for legal costs. It is also explained in paragraph [46] of the applicant’s closing submissions dated 7 March 2025. Mr Guthrie claims legal costs incurred in relation to his unsuccessful application for reinstatement of his employment with Mondiale (Guthrie (No 1)). It was submitted that a plaintiff is entitled to recover the cost of litigation that is reasonable to pursue, even if unsuccessful (see Mann Judd v Paper Sales Australia (WA) Pty Ltd [1998] WASCA 268 at 8-13 per Ipp J and GW Sinclair & Co Pty Ltd v Cocks [2001] VSCA 47).

13. This too is a speculative claim. The costs actually incurred have not been proven. The final spreadsheet includes a claim for $58,179.02 for legal costs paid to Mr Guthrie’s solicitor. There is no evidence that this amount has been paid and no evidence that this sum was in fact incurred in relation to the application for reinstatement. It is questionable whether they were reasonably incurred. The claim was not raised in the Originating Form 2 Claim (CB 6–38), the applicant’s submissions filed 7 February 2025 before the hearing, or the schedule annexed to Mr Guthrie’s first affidavit (A1). The claim appears to be an afterthought, but it was not one squarely raised until after the close of evidence and it was not a claim on which Mondiale had an opportunity to cross-examine or otherwise explore.

14. It is certainly possible that legal costs reasonably incurred by an applicant could be compensable loss because of a breach of s 340 of the FW Act by an employer, however in this case the costs were costs in this proceeding and the costs of the application for reinstatement were addressed by Judge Lucev in Guthrie (No 1) at [109]. In that case, his Honour found that the application was a no costs matter, citing s 570(1) of the FW Act. That finding was not the subject of appeal and may well give rise to an estoppel in respect of this claim for compensation. However, I do not consider it necessary to consider if that is the case, because there is simply no evidence to support the sum claimed or the basis for it.

    CLAIMS FOR COMPENSATION - Tag Heuer Watch

15. Mr Guthrie claims that he is entitled to the value of a discretionary Tag Heuer watch awarded to employees of Mondiale after five years of continuous service (A1 [54]). He claims that he was entitled to receive the watch or payment in lieu on 10 June 2019. Mr Guthrie says he spoke with his branch manager Mr Mu Sung in early December 2019 and told him that he would prefer the watch, which he expected to receive at the Christmas party later that month. He was terminated on 9 December 2019. Mr Mu Sung was not called to contradict this conversation. Ms Dunbier gave evidence that Mondiale did have a practice of providing a gift to employees who completed five years of continuous service, but it was a discretionary gesture and not a formalised practice. Ms Dunbier said the practice was ‘suspended’ in March 2020 (CB 474).

16. As there was no evidence to contradict the practice and Mr Guthrie was qualified to receive it, I am satisfied that this loss is compensable under s 545 of the FW Act and was a lost opportunity because of the adverse action taken by Mondiale by terminating Mr Guthrie’s employment. Ms Dunbier did not dispute the value of the gift. The power to order compensation under s 545 of the FW Act is very broad and extends to loss of opportunity damages. Applying a simple ‘but for’ test, the watch would have been given to Mr Guthrie, but for, the termination of his employment on 9 December 2019. Applying the test of whether this entitlement was more probable than not, I find that the gift would have been presented as promised by Mr Guthrie’s former manager. The loss of the value of this gift in the sum of $2,000.00 is compensable because of Mondiale’s breach of the FW Act.

    CLAIMS FOR COMPENSATION – Loss of opportunity to purchase family home

17. This claim was a claim for loss of the opportunity to purchase a home at a price prevailing in 2019 and 2020 as opposed the price of homes in Perth in about 2023 or 2024. This is a complex claim to prove. First, the opportunity must be established as probable than the value of that loss quantified by credible expert valuation evidence. None of which was present in this case. Mr Guthrie gave evidence of a very general and vague nature that he and his wife were unable to buy a home ‘as a direct result of the unlawful termination by the respondent’. That is not enough to establish a claim of this kind. There was no evidence that Mr Guthrie and Ms Reavill-Guthrie were ready willing and able to buy a home at the date of termination or about to and were forced to abandon that course because of termination of employment. The opportunity to do so may have been delayed by termination but in order to prove compensable loss, Mr Guthrie would be required to identify the type of property to be purchased, the location, that opportunities to purchase properties in that area existed, that there were properties available in their achievable price range, that they had finance available, and that the market for such properties changed between the time they proposed to purchase and the date they were able to do so. This would involve expert valuation evidence that was simply not present in this case. It is also arguable that this claim for compensation is too remote and not caused by the breach of the FW Act.

18. This claim was not included in the applicant’s closing submissions or the final spreadsheet and Mondiale submitted that it should be taken to have been abandoned. The claim was ambitious but not supported by evidence to establish the loss of an actual opportunity, or persuasive evidence capable of properly quantifying any loss. The claim must be rejected.

    CLAIMS FOR COMPENSATION – Humiliation and Embarrassment/Hurt and Humiliation

19. Mr Guthrie claims that he has been subjected to personal hurt and humiliation caused by unjustified termination, protracted litigation, publication of and commentary on the decision in Guthrie (No 2) and the absence of an apology from Mondiale. Ms Dunbier gave an apology to Mr Guthrie and his family when she gave evidence at the hearing which was sincere but belated. Ms Reavill-Guthrie gave evidence that her husband had been stressed during the more than five years of litigation and that this had taken a toll on their family.

20. Assessing claims for hurt and humiliation or pain and suffering (also known as non-pecuniary loss) is not an exact science (see Van Gervan v Fenton (1992) 172 CLR 327 at 343 per Deane and Dawson JJ; O’Brien v Dunsdon (1965) 39 ALJR 78 at 78 and more recently Footscray Football Club Ltd v Kneale [2024] VSCA 314 at [667]).

21. In the closing written submissions of both the applicant and respondent, there was no submission as to an appropriate range of damages or examples of awards made. Mr Guthrie was clearly aggrieved by his treatment and has been forced to pursue expensive litigation to seek confirmation that the termination of his employment was unlawful. There is clearly a causal connection to the breach of the FW Act and the hurt and humiliation claimed. Mr Guthrie pursued these proceedings at great personal expense and interruption to the enjoyment of his young family. He was forced to do so due the serious allegations made against him by Mondiale in the letter of termination. It is difficult to assess an appropriate figure noting also that any penalty (albeit a separate consideration and different test) is generally payable to the applicant in cases such as this. In assessing hurt and humiliation, I must also be satisfied that Mr Guthrie suffered more than the usual element of distress which accompanies termination (see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 122 at [11]). In Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144, the sum of $5,000.00 was held to be reasonable. Similarly in Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 2) [2023] FCA 1594, Justice Collier awarded a sum of $5,000.00 for hurt and humiliation for breach of the FW Act. In a recent decision of Parsons v Serco Citizen Services Pty Ltd [2024] FCA 754 at [191], Justice Rangiah awarded a sum of $10,000.00 in circumstances where the applicant was terminated after seventeen years of continuous service to the employer.

22. In the circumstances of this case and acknowledging the apology given by Ms Dunbier on behalf of Mondiale, together with the other compensation to be awarded to Mr Guthrie, the figure of $5,000.00 for hurt and humiliation is in my view appropriate.

    INTEREST

23. Pursuant to s 547(2) of the FW Act interest must be awarded on amounts ordered to be paid ‘unless good cause is shown to the contrary’. Neither party addressed the payment of interest in their closing written submissions. The period for calculation of interest is between the day the relevant cause of action accrued and the date of final order. I will hear the parties further on the calculation of interest before pronouncing final orders.

24. I turn to the issue of penalty.

    PRINCIPLES RELEVANT TO THE DETERMINATION OF PENALTY

25. The approach of the Court in determining penalties for contraventions of the FWAct is well settled. In Australian Building and Construction Commissioner v Pattinson (2022) 399 ALR 599; [2022] HCA 13 (Pattinson), the High Court said that:

    [9]…Under the civil penalty regime provided by the Act, the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act. In that context, the penalties fixed by the primary judge were appropriate because they were no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by Mr Pattinson, the CFMMEU or others. They represented a reasonable assessment of what was necessary to make the continuation of the CFMMEU’s non-compliance with the law, amply demonstrated by the history of its contraventions, too expensive to maintain.

    [10] The Full Court’s critical error was that it was distracted by a concern, drawn from the criminal law, that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is no place for a “notion of proportionality”, in the sense in which the Full Court used that term, in a civil penalty regime. Further, and relatedly, their Honours were misled by the view that the Act required that the maximum penalty be reserved for only the most serious examples of the offending comprehended by s 349(1), and that this principle could prevent the court from imposing the maximum penalty even though a penalty in that amount might reasonably be considered to be necessary to deter future contraventions of a like kind. Nothing in the text, context or purpose of s 546 requires that the maximum penalty be reserved for the most serious examples of misconduct within s 349(1). What is required is that there be “some reasonable relationship between the theoretical maximum and the final penalty imposed”. That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: the deterrence of future contraventions of a like kind by the contravenor and by others.

    [15]     Most importantly, it has long been recognised that, unlike criminal sentences, civil penalties are imposed primarily, if not solely, for the purpose of deterrence…

1. The Court has a broad discretion to assess the appropriate penalty. In Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown (2017) 275 IR 148 at [36], Bromwich J endorsed the following approach:

   (1)Identify the separate contraventions involved – each contravention of each separate obligation in the FW Act is a separate contravention;

   (2)Consider whether any of the contraventions arising from the above, constitute a single course of conduct within the meaning of s 557(1) of the FW Act;

   (3)Consider the extent to which two or more of the contraventions have common elements – the penalties imposed should be an appropriate response to the conduct of the respondent;

   (4)Consider the appropriate penalty for each contravention and, if relevant, each group of contraventions; and

   (5)Finally, assess whether the overall penalty is an appropriate and proportionate response to the conduct as a whole which led to the contraventions. This is the application of the ‘totality principle’.[13]

   [13] Kelly v Fitzpatrick [2007] FCA 1080, at [30] (‘Kelly v Fitzpatrick’).

2. Fundamental to the Court’s task, is an assessment of the gravity and seriousness of the offending which it is called upon to penalise, having regard to all relevant factual circumstances. The considerations deemed relevant to this task are well known and frequently cited.[14] They include:

   [14] See Pattinson at [18]; Kelly v Fitzpatrick at [14].

   •The nature and extent of the conduct which led to the breach;

   •The circumstances in which the conduct took place;

   •The nature and extent of any loss or damage sustained as a result of the breach;

   •Whether there has been similar previous conduct by the respondent;

   •Whether the breach was properly distinct or arose out of one course of conduct;

   •The size of the business enterprise involved;

   •Whether or not the breach was deliberate;

   •The involvement of senior management in the breach;

   •Whether the party committing the breach has shown contrition;

   •Whether the party committing the breach has taken corrective action;

   •Whether the party committing the breach has cooperated with enforcement authorities;

   •The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and

   •The need for specific and general deterrence.

3. While this extensive list is well-settled, it is not to be interpreted by the Court as a ‘rigid catalogue of matters for attention’ (see Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [91] per Buchanan J). In Pattinson at [19], the High Court reiterated that this list of possible relevant considerations ought not to be treated as a checklist. There is no specific order in which these matters should be considered. The Court may take into consideration matters relevant to both the character of the contravening conduct and of the contravener.

4. The decision in Guthrie (No 2) provides the background to the contravention of the FWAct by Mondiale. Judge Lucev found that the termination of Mr Guthrie on 9 December 2019 was because he exercised workplace rights (see paragraph [1] above and Guthrie (No 2) at [104] and [107]). Mondiale could not disprove the reverse onus of proof that the termination was for some other reason. There was only one contravention of the FW Act found to have occurred and that was the termination of Mr Guthrie’s employment for reasons other than those stated in the letter of termination.[15]

   [15] See also s 557(1) of the FW Act. A single contravention is taken to occur where the contraventions are committed by the same person and arose out of a course of conduct by the person.

5. The maximum penalty payable is 300 penalty units for a body corporate (s 539(2), Item 11 and s 546(2)(b) of the FW Act). At the time of the contravention (9 December 2019), one penalty unit was $210.00 pursuant to s 4AA of the Crimes Act 1914 (Cth). Therefore, the maximum penalty payable by the respondent corporation is $63,000.00.

6. In the outline of closing submissions filed on behalf of Mr Guthrie, it was submitted that the breach of the FWAct by Mondiale was serious. It was submitted that a penalty of not less than 85% of the maximum was appropriate ($56,100.00).

7. Mondiale submitted that the penalty should not exceed $18,000.00. That figure was proffered after referring to three decisions that were said to be comparable (see Rizk v PVH Brands Australia Pty Ltd (No 2) [2024] FedCFamC2G 613 (Rizk); Hill v St Anthony’s Tennis Club (No 2) [2023] FedCFamC2G 269 (Hill) and Fair Work Ombudsmanv Offshore Marine Services Pty Ltd [2012] FCA 498 (Offshore Marine Services)).

8. The outlines of closing submissions filed by both parties addressed each of the relevant considerations. I will consider each of the relevant considerations applicable to the factual circumstances identified above and in Guthrie (No2).

   Nature and Circumstances of the Breach

9. The breach arose following a request by Mr Guthrie for more flexible working arrangements, an assertion as to alleged underpayment of casual afternoon shift loadings and following a conciliation conference at the Fair Work Commission. Judge Lucev found that the reasons given by Mondiale for the termination of Mr Guthrie in the letter of termination dated 9 December 2019, were based on events that did not occur (Guthrie (No 2) at [117], [121], [125], [127], [131] and [142]). Judge Lucev observed that Mr Guthrie was generally persistent and sometimes robust and expressive in his communications. Attributes which were also observed in cross-examination before this Court. At paragraph [149] of Guthrie (No 2), his Honour concluded that the reason for Mr Guthrie’s termination included his complaints or inquiries in relation to alleged underpayments.

10. The consequence of terminating Mr Guthrie were substantial. Clearly Mondiale could not predict the onset or consequences of the COVID-19 pandemic, but the timing of the termination left Mr Guthrie and his family in a precarious situation. So too the reasons given for termination. Safety concerns and disrespect for Senior Management when there was no genuine basis to make such allegations, did not bode well for Mr Guthrie’s future employment prospects.

11. In the evidence of Ms Dunbier and the closing written submissions, Mondiale was at pains to explain that there has been a change in Senior Management, a change of corporate culture and mechanisms and policies now in place to avoid events such as those that occurred to Mr Guthrie from occurring in the future.

12. On behalf of Mr Guthrie, it was submitted that Mondiale had repeatedly failed to call all of the relevant decision-makers and directors responsible for the decision to terminate and defend the proceeding. In the written closing submissions, the solicitor for Mr Guthrie queried why the termination letter of 9 December 2019 was marked ‘without prejudice’ if it was genuinely given for the reasons stated (CB 57). Criticism was also levelled at Ms Dunbier in cross-examination and closing submissions as to her authority to represent the respondent company and the sincerity of Mondiale’s contrition. This was said to support the submission that the breach was serious.

13. The circumstances and nature of the breach by Mondiale were poorly explained before Judge Lucev and he was critical of the evidence given in support of the grounds for termination. Before this Court, Ms Dunbier did her best to acknowledge some responsibility by Mondiale for past conduct and apologised for that conduct. However, none of the directors or other senior executives were prepared to appear before the Court to show contrition, or to assure the Court that there was little or no need for specific deterrence when addressing penalty. Ms Dunbier conceded in cross-examination that she was not personally responsible for compliance with the FWAct in Australia, was almost exclusively based in New Zealand and conceded that she had never visited the Perth depot. The point was made fairly that none of those responsible for the termination of Mr Guthrie, and those executives and directors more senior to Ms Dunbier, or to whom she reports, were prepared to appear to give evidence before the Court.

    Circumstances in which the Conduct took place

14. The solicitor for Mr Guthrie submits that at the time of termination, Mr Guthrie was not the subject of any performance or conduct issues. It is also submitted that the termination was deliberate and to smear Mr Guthrie’s otherwise good reputation.

15. Mondiale relied on the fact that there had been significant cultural and management change since the merger between Mondiale and VGL and that the Court should rest assured of its remorse and determination not to repeat such conduct.[16]

    [16] Respondent’s written closing submissions 21 March 2025 at [55].

    Nature and Extent of Loss or Damage

16. The loss suffered by Mr Guthrie was substantial, so too the toll of protracted litigation in which Mondiale did not appear to take a backward step. Whilst Mr Guthrie is to be compensated for the breach of the FW Act, the need for specific and general deterrence is a primary consideration (Pattinson at [15]).

    Similar Previous Conduct

17. The Court was referred to the decision in Jeater where Judge Lucev found that Mondiale breached the FWAct shortly after the termination of Mr Guthrie. The decision on liability in Jeater was delivered on 14 September 2022. His Honour made findings that Mondiale breached the FWAct by taking adverse action against Mr Jeater and that the same senior managers and employees were responsible for the contravention. That proceeding did not proceed to a hearing on compensation or penalty.

18. In Mr Guthrie’s first affidavit, he refers to three other proceedings and a media statement where Mondiale was involved in an unfair dismissal claim and workplace safety prosecutions (A1 [66], CB 290). The cases included criminal proceedings in New South Wales where Mondiale was ordered to pay a substantial fine following a workplace fatality (A1, annexure JG-18).

19. Mondiale submitted that there had been significant change since those cases and education programs to ensure compliance with the FW Act by all managerial staff.

    Whether the Breach was Properly Distinct or arose out of one Course of Conduct

20. The breach occurred following a course of conduct over several months that resulted in correspondence which is set out in detail by Judge Lucev in Guthrie (No 2). Ultimately, the conduct that was said to give rise to termination was found not to have occurred. Mr Guthrie was persistent and assertive in his correspondence and in his evidence before this Court, and the “low level disrespect” that he was found to have displayed came very late in the interactions with his employer (Guthrie (No 2) at [146]). The circumstances in which the termination letter came to be given were described in paragraph [149] of the decision in Guthrie (No2). The reasons for termination were found to be other than described in the termination letter. There was one course of conduct by the respondent company facilitated by former managers, all of whom have now left the organisation or were not available to give evidence.

    Size of Contravening Company

21. Mondiale has substantial global operations. The respondent company is a subsidiary of the larger Group operations. Ms Dunbier gave evidence about the global operations and organisation structure. The evidence tendered on behalf of Mondiale included an historic company extract for Plasia Holdco Pty Ltd which is the ultimate holding company for the Mondiale Group in Australia. The search shows that it has a total paid up issued capital of $38,500,100.00 (Exhibit R6).

    Whether or not the Breaches were Deliberate

22. Based on the findings of Judge Lucev in Guthrie (No 2) and the absence of witnesses to suggest otherwise the breaches of the FW Act were deliberate.

    Whether Senior Management was Involved in the Breaches

23. Some former senior managers of Mondiale were involved in the breach. They were Mr Michael Punter, the National Transport Manager, Mr Tom Mu Sung, the Western Australian State Manager and Ms Tanya Coleman, the National Human Resources Manager. None were called to give evidence on the issue of compensation or penalty and all have now left the Mondiale organisation.

    Whether the Party Committing the Breach had Exhibited Contrition

24. Ms Dunbier did offer an apology to Mr Guthrie and his family, but it was not offered until she gave evidence before this Court on 18 February 2025. The apology was accepted by Mr Guthrie, however the Court is left to wonder if much time, stress, costs and public resources could have been avoided by an apology made much earlier. No explanation was given by Ms Dunbier as to her instructions to give the apology or why it was not forthcoming at an earlier stage of proceedings. The absence of evidence form other senior executives and directors is also telling about the level of actual contrition of the Mondiale organisation. Nevertheless, the Court accepts that significant changes have been put in place since the decision in Guthrie (No2) and that some steps have been taken to ensure compliance with the FW Act in the future.

    Corrective Action

25. Ms Dunbier gave evidence of the introduction of new People and Culture policies which included a Diversity and Inclusion Policy, Human Rights Policy, Bullying and Harassment Policy, Whistleblowing Policy and a Code of Conduct all of which were produced. A Flexible Work Arrangements Policy was also introduced in 2021. The Senior Managers and managers who were responsible for the breach of the FW Act have now all left the Mondiale organisation. Ms Dunbier says she takes her role very seriously and she says that Mondiale will strive to comply with the FWAct in the future. I accept that is the case, however general deterrence is a primary consideration when considering the appropriate penalty.

    Whether the Party Committing the Breach has Cooperated with Enforcement Authorities

26. No enforcement authorities were involved, save that there was a conference before the Fair Work Commission on 11 November 2019 which was referred to by Judge Lucev (Guthrie (No2) at [53]). Mr Guthrie claims that there was an agreement reached at that conference to address his concerns regarding underpayments and his request to be allocated to an afternoon shift. Apparently, if there was an agreement it was not honoured. Shortly thereafter the decision was made to terminate Mr Guthrie. Perhaps, if a further conference or alternative dispute resolution was pursued, a different outcome may have been achieved.

    General and Specific Deterrence

27. This is a case where there is a need for both general and specific deterrence. Mondiale has put in place mechanisms designed to ensure compliance with the FW Act in the future, but it remains to be seen whether they are effective to ensure cultural and management change. The need for general deterrence is also strong. In Kelly v Fitzpatrick at [28], Tracey J referred to Finkelstein J in Community and Public Sector Union (CPSU) v Telstra Corp Limited (2001) 108 IR 228 at 231, where his Honour said there will be occasions when general deterrence must take priority, and a penalty should be imposed to mark the law’s disapproval of the conduct in question. I am also mindful of the observations of the Court in Pattinson, about the importance of deterrence and the need for there to be ‘some reasonable relationship between the theoretical maximum and the final penalty imposed’ (Pattinson at [10]).

28. Here, those responsible for the conduct have left the organisation and Mr Guthrie will be awarded compensation for their breach. This is not a case where the maximum penalty or indeed 85% of the maximum is appropriate. Nor is a penalty of $18,000.00 adequate given; the conduct involved, the deliberate nature of the conduct, the senior management involved, the size of the respondent organisation, the belated apology and the other instances of non-compliance with the FW Act and workplace safety in the past. Mondiale referred to four cases in their closing written submissions: United Workers’ Union v Bervar Pty Ltd (No 2) [2023] FedCFamC2G 251 per Judge Blake; Rizk per Judge Manousaridis; Hill per Judge Manousaridis and Offshore Marine Services per Gilmore J. These cases were cited for guidance on appropriate penalties, but each case turns on the facts and circumstances unique to them and none are apposite to the facts and circumstances present in this case.

29. 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

30. 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.

31. 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

32. 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

33. The Court will make the following orders on the issues of compensation and penalty.

34. 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

35. 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.

36. The Court will hear further from the parties on the question of interest and costs including any reserved costs.

I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.

Associate:

Dated:       19 June 2025