Hampton v Brown Cow Cafe Sunbury Pty Ltd
[2023] FedCFamC2G 808
•31 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hampton v Brown Cow Cafe Sunbury Pty Ltd [2023] FedCFamC2G 808
File number(s): MLG 2048 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 31 October 2023 Catchwords: INDUSTRIAL LAW – FAIR WORK – application for default judgment – where respondents have not filed any response material or otherwise participated in proceeding – consideration of rr 13.04 and 13.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – application granted.
INDUSTRIAL LAW – FAIR WORK – alleged contraventions of ss 45, 323, 351 and 352 of the Fair Work Act 2009 (Cth) – where the applicant was a casual employee at a café – where the applicant was a minor at the time of the alleged breaches and underpayments – alleged dismissal due to temporary disability – where applicant was unable to attend shift due to illness – where second respondent found to be a person involved in the established contraventions of the first respondent – contraventions found, declarations made and relief granted.
Legislation: Fair Work Act 2009 (Cth), ss 45, 323, 338, 342, 351, 352, 361, 368, 545, 547, 550
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.04, 13.05
Fair Work Regulations 2009 (Cth), reg 3.01
Restaurant Industry Award 2020, cls 18, 24
Cases cited: Dafallah v Fair Work Commission (2014) 225 FCR 559
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Hall v City Country Hotel Management Pty Ltd & Ors (No 2) [2014] FCCA 2317
Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75
Pavolvich v Atlantic Contractors Pty Ltd [2012] FMCA 1080
Professional Administration Services Centres Pty Ltd v Federal Commissioner of Taxation (2012) 295 ALR 52
Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407
Division: Division 2 General Federal Law Number of paragraphs: 117 Date of last submission/s: 17 May 2023 Date of hearing: 10 May 2023 Place: Melbourne Solicitor for the Applicant: Mr P Goddard of Jobwatch Inc Solicitor for the Respondents: No appearance by the First and Second Respondents ORDERS
MLG 2048 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: WADE HAMPTON
Applicant
AND: BROWN COW CAFE SUNBURY PTY LTD
First Respondent
HAO 'NICK' TRUONG
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
31 OCTOBER 2023
THE COURT DECLARES THAT:
1.The first respondent contravened section 351 of the Fair Work Act2009 (Cth) in that it took adverse action against the applicant because of the applicant’s disability.
2.The first respondent contravened section 352 of the Fair Work Act2009 (Cth) in that it dismissed the applicant because he was temporarily absent from work because of illness of a kind prescribed by the Fair Work Regulations 2009 (Cth).
3.The first respondent contravened section 45 of the Fair Work Act2009 (Cth) in that it failed to pay the applicant his minimum wages pursuant to the Restaurant Industry Award 2020.
4.The first respondent contravened section 323 of the Fair Work Act2009 (Cth) in that it failed to pay the applicant his outstanding wages when that payment fell due.
5.Pursuant to section 550 of the Fair Work Act2009 (Cth), the second respondent was involved in the contraventions by the first respondent of sections 45, 323, 351 and 352 of the Fair Work Act2009 (Cth).
AND THE COURT ORDERS THAT:
6.Pursuant to section 545 of the Fair Work Act2009 (Cth), within 21 days of the date of these orders, the respondents pay as compensation to the applicant the amount of $7,320.08, comprising:
(a)outstanding wages – $120.08;
(b)compensation for economic loss arising from the adverse action – $1,200; and
(c)compensation for non-economic loss for hurt and humiliation caused by the adverse action – $6,000.
7.Pursuant to section 547 of the Fair Work Act2009 (Cth), the first respondent pay the applicant pre-judgement interest on the sum of $7,320.08.
8.The applicant serve on the respondents a sealed copy of these orders together with a copy of rule 17.05 of the Federal circuit and Family Court of Australia (Division 2) (General Federal Law) rules 2021 by registered post to the registered office of the first respondent.
9.The matter be listed for further directions on 1 December 2023 at 9:30am in relation to the issue of penalty and costs.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
By application filed on 19 April 2023, the applicant seeks default judgment against the respondents. The respondents have not filed any material responding to the applicant’s claims, nor did the respondents attend the final hearing in this matter.
FACTUAL BACKGROUND
On 22 December 2021, the applicant commenced casual employment for the first respondent, Brown Cow Café Sunbury Pty Ltd, classified as a level 1 beverage attendant pursuant to the Restaurant Industry Award 2020 (‘the Award’).[1]
[1] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [1]; Originating application filed on 9 September 2022.
The applicant reported to Mr Truong, the second respondent.[2]
[2] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [3].
The applicant usually worked on Saturdays and Sundays from 9:00am to 2:00pm.[3]
[3] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [5].
At the commencement of the applicant’s employment in December 2021, the applicant was 16 years of age and was paid a base rate of $15.69 per hour on Saturdays and $18.31 per hour on Sundays under the Award.[4]
[4] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [5].
On 12 April 2022, the applicant turned 17 years of age.[5]
[5] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [6].
On Easter Saturday, 16 April 2022, the applicant worked a four hour shift and was paid at a rate of $15.69 per hour, being the Saturday rate under the Award for a 16 year old.[6]
[6] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraphs [11] to [12]; Annexures WH-7 and WH-8.
On Easter Sunday, 17 April 2022, the applicant worked a six hour shift and was paid at a rate of $26.15, being the public holiday rate for a 16 year old.[7]
[7] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraphs [11] to [12]; Annexures WH-7 and WH-8.
The applicant alleges that he should have been paid at a rate of $31.38 per hour for both days, being the public holiday rate under the Award for a 17 year old.[8]
[8] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [12].
On 7 May 2022, the applicant communicated with the second respondent via text message while working a Saturday shift that he was beginning to feel unwell and that he sought permission to work from 9:00am to 12:00pm the following day.[9] Mr Truong did not respond to the applicant until the following day.[10]
[9] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [7].
[10] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [7]; Annexure WH-2.
On 8 May 2022, the applicant contacted Mr Truong via text message, explaining that he was too sick to attend work and forwarding his mother’s mobile number for the second respondent to call her.[11] Mr Truong responded to this text message by requesting the applicant attend work on that day.[12]
[11] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [8]; Annexure WH-2.
[12] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [8]; Annexure WH-3.
Following this text message correspondence, the applicant was removed from the Brown Cow Staff Facebook Messenger Group, the means through which the applicant received notifications of shifts.[13] Mr Truong sent a message to the Facebook Messenger group chat explaining that the applicant would no longer be working at the café, which the applicant became aware of after screenshots were sent to the applicant of Mr Truong’s message.
[13] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [9].
On 9 May 2022, the applicant obtained a medical certificate from a doctor, confirming that he had a chest infection and that he would be unable to work.[14]
[14] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [10].
PROCEDURAL HISTORY
On 27 May 2022, the applicant filed a General Protections claim in the Fair Work Commission (‘the Commission’).[15]
[15] Affidavit of Mr Paul Goddard affirmed on 18 April 2023 and filed on 19 April 2023 at paragraph [3].
The respondents did not submit a response to that claim.[16] The respondents did not participate in conciliation attempts before the Commission and ultimately, the Commission issued a certificate under section 368 of the Fair Work Act 2009 (Cth) (‘the Act’) indicating that conciliation was not likely to resolve the dispute.[17]
[16] Affidavit of Mr Paul Goddard affirmed on 18 April 2023 and filed on 19 April 2023 at paragraph [4].
[17] Affidavit of Mr Paul Goddard affirmed on 18 April 2023 and filed on 19 April 2023 at paragraphs [5] to [6].
On 30 August 2022, the applicant filed an application in the Fair Work Division of this court and on 14 September 2022, the application was served on the first respondent.[18]
[18] Affidavit of Mr Paul Goddard affirmed on 18 April 2023 and filed on 19 April 2023 at paragraphs [7] and [8].
On 27 February 2023, the court made orders for substituted service with respect to the second respondent.[19] Orders were also made on that occasion for the respondents to file and serve a response and any defence by 18 March 2023 and for the applicant to serve any reply by no later than 1 April 2023.
[19] Orders of Deputy Chief Judge Mercuri made on 27 February 2023.
Leave was also granted to the applicant to file any application and supporting affidavit for default judgment no later than 19 April 2023.
The matter was otherwise adjourned to 10 May 2023 for directions hearing.
As stated above, notwithstanding the orders made on 27 February 2023, the respondents did not file any responding material in this matter.
On 19 April 2023, the applicant filed an interlocutory application seeking default judgment against the respondents. That application was listed for hearing before me on 10 May 2023.
In support of the application for default judgement, the applicant relies upon:
·an affidavit of the applicant affirmed on 17 April 2023; and
·an affidavit of Mr Paul Goddard affirmed on 18 April 2023.
The applicant also relies upon written submissions, a chronology and a document setting out calculations for pre-judgment interest on the compensation sought.
SUBMISSIONS
In summary, the applicant claims that:
(a)the respondents are in default pursuant to rule 13.04(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’);
(b)on the basis of the evidence before the court, the court should enter default judgment against the respondents pursuant to rule 13.05(2)(d) of the Rules;
(c)the first respondent contravened sections 45, 323, 351 and 352 of the Act; and
(d)the second respondent is a person involved in the said contraventions of the first respondent.[20]
[20] Applicant’s Outline of Submissions at paragraph [1].
The applicant seeks:
(a)declaratory relief in respect of the respondents’ breaches of the Act;
(b)compensation under section 545 of the Act;
(c)pre-judgment interest pursuant to section 547 of the Act; and
(d)orders for the timetabling of proceedings.[21]
[21] Applicant’s Outline of Submissions at paragraph [2].
The applicant also seeks an order for costs, but proposes to make submissions in relation to that at a future hearing, if any, to deal with costs and penalties if successful in its present application.[22]
[22] Applicant’s Outline of Submissions at paragraph [3].
DEFAULT JUDGMENT
Rule 13.04 of the Rules relevantly provides:
(1) …
(2) For the purposes of rule 13.05, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claims; and
(b) fails to:
(i)give an address for service before the time for the respondent to give an address has expired; or
(ii)file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
As stated, neither of the respondents have participated in these proceedings at all. They have not complied with the requirements of the Rules in that they have not filed any responding material, nor have they defended these proceedings at all, let alone with any due diligence.
This is so in circumstances where the respondents have been notified of these proceedings and the various procedural steps taken in these proceedings on numerous occasions.
The respondents have been given numerous opportunities over an eight-month period to participate in and defend these proceedings. They have chosen not to do so. In these circumstances, I find that the respondents are in default for the purposes of rule 13.04.
Rule 13.05(2) of the Rules further provides:
(2) If a respondent is in default, the Court may:
(a) …
(b) …
(c) …
(d) give judgment or make any other order against the respondent; or
(e) …
Rule 13.05(6) goes on to provide that:
(6)The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
Rule 13.05 confers a discretion where a party is in default. This is a broad discretion but one which must be exercised judiciously and in the interests of the administration of justice.
In this instance, the applicant initiated proceedings in this court to seek a remedy for an alleged underpayment of wages and a failure to comply with an industrial instrument.
As stated above, the respondents have been put on notice on numerous occasions of these proceedings and have chosen not to participate. If permitted to continue to do so, they could effectively stifle any prospect of the court resolving the issues in dispute. This is not a case in which a respondent has tried to comply with the rules and orders of this court, or where there has been partial or substantial compliance. The respondents have simply not engaged in the proceedings at all.
In Professional Administration Services Centres Pty Ltd v Federal Commissioner of Taxation (2012) 295 ALR 52, the Full Court of the Federal Court considered the equivalent rule in the Federal Court Rules 2011 (Cth). The Full Court said:
35.The discretion conferred by r 5.23 of the Federal Court Rules is unconfined save that a party be in default. This power is similar to that conferred by the former O 10 r 7, the subject of the consideration by the Full Court in Lenijamar Pty Ltd & Ors v AGC (Advances) Limited … to which both parties referred at some length.
…
37.In Lenijamar, Wilcox and Gummow JJ pointed out … that the power must be exercised against the backdrop of a case management system in which it is expected that parties will observe procedural directions.
…
39.Their Honours stated that it was undesirable to attempt any exhaustive statement of the circumstances under which the power will appropriately be exercised … However, their Honours identified two situations where the use of the power will generally be warranted, namely, (a) where a history of non-compliance indicates an inability or unwillingness to co-operate with the Court and the other party in having the matter ready for trial within an acceptable period, and (b) where there is significant continuing default giving rise to undue prejudice and expense to the other party …
Given the history of this matter and the respondents’ repeated failure to engage in the proceeding at all, both of these factors come into play. There is a history of non-compliance by the respondents in this matter. The continuing default by the respondents continues to place the applicant in a position of having to continue to incur ongoing expense in attending court events which do not progress the resolution of the dispute.
The nature of the proceedings in this case also support the exercise of the court’s discretion in the face of ongoing default by the respondents. The alleged breaches relate to beneficial legislation. This is a claim for unpaid entitlements and for an alleged breach of the general protections provisions of the Act. Moreover, the applicant was a minor at the time of the alleged breaches and underpayments. A respondent ought not be able to frustrate the enforcement of such beneficial legislation by simply refusing to engage in litigation of this type.
For each of these reasons, I am satisfied that it is appropriate for the court to exercise its discretion and order default judgment in the applicant’s favour.
CONTRAVENTIONS OF SECTIONS 351 AND/OR 352 OF THE ACT
Turning now to the substantive issues for consideration, as stated, the applicant claims that he was dismissed from his employment on 8 May 2022 and that the first respondent dismissed him in breach of section 351 and/or section 352 of the Act.
By virtue of section 338(1)(a) of the Act, sections 351 and 352 of the Act apply to actions taken by a constitutionally-covered entity. As a constitutional corporation, the first respondent is a constitutionally-covered entity as defined in section 338(2).
The applicant was engaged in casual employment with the respondent from 22 December 2021 until his dismissal on 8 May 2022. The second respondent was a director of the first respondent and was the applicant’s manager.[23]
[23] Applicant’s Outline of Submissions at paragraph [19].
Contravention of section 351 of the Act
Section 351 of the Act relevantly provides that:
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s … physical or mental disability …
Section 351(2) goes on to relevantly limit the operation of section 351 to conduct which would also be unlawful in the state or territory in which the action occurred, and exclude conduct taken because of an inherent requirement of the position.
It is also submitted for the applicant that the term ‘disability’ in section 351 ought to be given its ordinary meaning and include temporary illnesses or injuries.[24] As noted by Judge Jarrett, as he then was, in Pavolvich v Atlantic Contractors Pty Ltd [2012] FMCA 1080 at paragraph [26]:
26.… The applicant points out … that a physical or mental disability is not confined to permanent disability. I accept that argument. There seems to be no particular reason why one ought to read down the otherwise remedial provisions of s 351 of the Fair Work Act 2009 in such a way. A physical disability can, of course, be temporary or permanent. In the case of sickness, the disability may only last as long as the sickness lasts. …
[24] Applicant’s Outline of Submissions at paragraph [21].
I agree with this reasoning.
The applicant’s evidence, which I accept, is that he started feeling unwell on 7 May 2022. His symptoms worsened the following day, and on 9 May 2022, the applicant attended on a doctor who confirmed that he had a chest infection and that he was unfit for work.
The applicant submits that the chest infection that he was suffering at the time was a temporary disability within the meaning of the term ‘disability’ for the purposes of section 351, but did not affect his ability to perform the inherent requirements of the role.[25]
[25] Applicant’s Outline of Submissions at paragraph [21].
The factual issue that arises in this case is therefore whether the employer has taken adverse action against the applicant and if so whether this was because of the applicant’s disability, so defined.
As stated, the respondent has not participated in these proceedings. As such, it is not clear what the respondent’s position would have been in relation to these matters.
Section 342 of the Act defines adverse action to arise, in the context of an employer and an employee, where:
[T]he employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
Did the first respondent take adverse action against the applicant?
At the hearing before me, it was submitted that in removing the applicant from the first respondent’s Facebook messenger group by which shifts were allocated to the first respondent’s staff, and by sending a message to the Facebook group advising that the applicant would no longer be working at the café, the first respondent dismissed the applicant, and consequently, that this constituted adverse action.
As stated, the applicant was a casual employee. His evidence, which I accept, is that in the period during which he was employed by the first respondent, he regularly worked on Saturdays and Sundays, although his hours and shifts sometimes varied.
The text message exchange between the applicant and second respondent regarding his illness and his inability to attend for work is at Annexures WH-3 and WH-4 of the applicant’s affidavit affirmed on 17 April 2023. Relevantly, the message at Annexure WH-4 reads:
Hi guys wade will no longer be working for us. Thansk [sic]
***IMPORTANT ALL READ***
If I haven’t been clear enough already, there is a zero tolerance for not showing up to your shift. I don’t know how much more clearer I need to be.
I will not tolerate parents as a excuse for not being able to come to work. I hired you guys as adults and I expect you guys to behave like one. Not showing up to work simply is a act of defiance and disrespect towards your coworkers and throws the whole store under bus, this I can’t not allow at my store. [sic]
The rules have been the same from day one and that would not change anytime soon.
I want everyone to comment on this msg with a “♥” to demonstrate they acknowledge and understand the context of this msg.
If you have problems understanding this or need clarification msg me directly.
It is clear from this message that the first respondent was no longer going to roster the applicant on any shifts. Leaving aside whether this amounts to a dismissal for the purposes of the adverse action provisions, in circumstances where the applicant was a casual employee, this clearly constitutes action which is altering the position of the employee to his detriment by removing him from the group chat and expressly stating that he will no longer be offered any shifts.
On the basis of the applicant’s evidence, and in the absence of any other reason proffered to explain the respondents’ conduct, I find that given the temporal connection between the applicant’s notification to the respondent of his illness on 7 and 8 May 2022, the content of the message that the second respondent sent to staff set out above, and the second respondent’s actions in removing the applicant from the Facebook group, thereby refusing him any further shifts, that the applicant’s illness was a substantial and operative reason, or part of the reason, for the respondents’ action.
It also constitutes a dismissal for the purposes of section 351(a) of the Act, notwithstanding that the applicant was employed on a casual basis. As noted by Justice McElwaine in Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 at paragraph [70]:
70.… The text of s 342 of the FWA is plain – it applies to the dismissal of employees without limitation as to the character of the employment as permanent, fixed term or casual. This is confirmed by the definition of ‘dismissed’ at ss 12 and 386 of the FWA by which a person is dismissed if their employment is terminated ‘on the employer’s initiative’. …
The applicant has therefore established that the action by the first respondent constitutes adverse action. It was taken because of the applicant’s inability to attend for work on his scheduled shift on 8 May 2022. That inability arose from his illness as confirmed the following day by his doctor. The adverse action was therefore taken for a reason which included a proscribed reason, namely the applicant’s disability. There is no suggestion that the applicant’s illness was ongoing, and therefore would preclude him from being able to meet the inherent requirements of his position.
Having established these facts, the presumption is that the adverse action taken was for a proscribed reason and the burden shifts to the respondents to prove otherwise.[26] As the respondents have not engaged in this litigation, they have offered no alternative explanation or reason for the taking of the adverse action.
[26] Fair Work Act 2009 (Cth), s 361.
The applicant has therefore established that in removing the applicant from the first respondent’s Facebook messenger group and in determining not to give him any more shifts, the first respondent acted in breach of section 351.
Contravention of section 352 of the Act
The applicant also claims that the respondents breached and/or were involved in a breach of section 352, in that the first respondent dismissed the applicant because the applicant was temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009 (Cth) (‘the Regulations’).[27]
[27] Applicant’s Outline of Submissions at paragraph [28] and following.
Regulation 3.01 of the Regulations relevantly provides:
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
(2)A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
(3) …
(4) …
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee’s absence extends for more than 3 months; or
(ii)the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) …
On the facts in this case, the applicant was absent from work for one day and provided a medical certificate in relation to that absence the following day. His absence falls squarely within the definition of a ‘temporary absence’ as prescribed.
There is nothing in the text or the context of section 352 which limits the application of this provision to employees other than casual employees.
For reasons already discussed above, the actions of the first respondent (through the second respondent) in sending the message at Annexure WH-4 constitute a dismissal of the applicant. That correspondence makes clear that the reason for the dismissal was the applicant’s inability to attend for his rostered shift on 8 May 2022. The applicant was unable to attend due to illness and the respondents were notified of that fact by message from the applicant over the course of 7 and 8 May 2022, and then by the provision of a medical certificate indicating that the applicant was unwell and unfit to attend work for the specified period of time.
Moreover, in my view, nothing turns on the fact that at the time that the applicant provided the medical certificate, he had already been dismissed. It is clear that the applicant had notified the second respondent that he was feeling ill the day before his dismissal, and again on the day of his dismissal. There is no suggestion that there was any other reason for the dismissal. Indeed, the second respondent’s message at Annexure WH-4 expressly makes it clear the reason for the applicant’s dismissal was the fact that he had not attended for his shift.
The second respondent, and through him, the first respondent, was aware that the reason given for the applicant’s absence was illness. The fact that the medical certificate provided within 24 hours of the absence was given after the dismissal does not change the nature of the absence from a temporary absence due to illness.
The need to provide a medical certificate within 24 hours of the absence, or such other period as is reasonable in the circumstances, goes to the need to establish the contemporaneity of the reason for the absence. To read the Regulations in any other way would frustrate the beneficial nature of the legislation.
Employers could simply avoid the effect of section 352 by dismissing an employee immediately without giving them an opportunity to obtain and provide a medical certificate.
For each of these reasons, I find that the employer’s actions were also in breach of section 352.
CONTRAVENTIONS OF SECTIONS 45 AND/OR 323(1) OF THE ACT
The applicant also claims that the first respondent has contravened sections 45 and/or 323(1) of the Act.
Section 45 of the Act provides that a person must not contravene a term of a modern award.
As stated above, the applicant submits that he was employed as a level 1 food and beverage attendant under the Award.[28] His duties included general café work, such as working at the counter, serving customers, washing dishes, food preparation and closing the store whilst supervised.[29] These are all duties which fall within the classification structure for a food and beverage attendant grade 1 at A.2 of Schedule A to the Award.
[28] See Applicant’s Outline of Submissions at paragraph [40].
[29] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [4].
The applicant was 16 years of age when he commenced working, and turned 17 years of age on 12 April 2022. Clause 18.2 of the Award sets out the rates of pay for employees under the age of 20. Employees who are 16 years of age are to receive 50% of the adult rate and employees who are 17 years of age are to receive 60%.
Clause 24 of the Award sets out the penalty rates payable for work at specified times throughout the week payable in circumstances where overtime is not otherwise payable. At clause 24.2, a table sets out the various penalty rates payable, including for casual employees.
The applicant’s evidence, which is not challenged and which I accept, is that he generally worked on weekends. As a casual employee working on weekends, the applicant was therefore entitled to 150% of the hourly rate of pay for weekend work and 250% for work on public holidays pursuant to clause 24.2 of the Award.
At the relevant time, the rate of pay for a 16 year old casual at the applicant’s classification was $13.08 per hour and for a 17 year old casual was $15.69 per hour. Applying the weekend penalties to these rates, the applicant should have received $15.69 per hour for weekend work as a 16 year old and $18.83 per hour for weekend work as a 17 year old.
In addition, applying the public holiday penalty rates, the applicant should have been paid $26.15 per hour for any public holiday worked whilst he was 16 years old and $31.38 per hour for any public holiday worked as a 17 year old.
The applicant has set out the amounts he has received in wages from the first respondent and his calculations of the amounts owing under the award at Annexure WH-7 to his affidavit. He has also annexed his pay slips at Annexure WH-8. On the basis of his calculations, the applicant has claimed that he has been underpaid in the sum of $120.08.
Having regard to the totality of the evidence, the first respondent has failed to comply with clauses 18 and 24 of the Award. By virtue of that non-compliance, the first respondent has contravened section 45 of the Act.
Having failed to pay the applicant his entitlements under the Award, the first respondent has also contravened section 323(1) of the Act, which requires an employer to pay an employee in full in money at least monthly.
SECOND RESPONDENT’S INVOLVEMENT IN THE FIRST RESPONDENT’S CONTRAVENTIONS
As stated, the applicant seeks declarations that the second respondent was involved in the first respondent’s contraventions for the purposes of section 550 and seeks declarations to that effect against the second respondent.
Section 550 of the Act relevantly provides:
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
…
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) …; or
(b) …; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) …
In Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365, his Honour Justice White considered how accessorial liability is to be assessed for the purposes of section 550 of the Act. Relevantly, at paragraph [176], his Honour said:
176.Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention … In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime … Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention … That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. The Full Court in Rafferty v Madgwicks [2012] FCAFC 37 … summarised the position in this respect at [254]:
“[W]hile the identification of the elements of a contravention requires careful legal analysis, ‘[i]n order to know the essential facts, and thus satisfy s 75B(1) … and like provisions, it is not necessary to know those facts are capable of characterisation in the language of the statute’ … This is another aspect of the longstanding principle that it is not necessary for a person to ‘recognise’ the contravention as such, or explicitly to think about the relevant legislation that their actions may contravene …”
At paragraph [178], his Honour went on to say:
178.The notion of being “knowingly concerned” in a contravention has a different emphasis from that of [“]aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention …
In this case, I have found above that the first respondent has contravened the following provisions of the Act:
(a)sections 351 and 352 in relation to the applicant’s dismissal; and
(b)sections 45 and 323(1) in relation to the underpayment of wages.
In this case, it was the second respondent who engaged in the conduct which constituted the contraventions in relation to the applicant’s dismissal. In this sense, therefore, the second respondent was ‘knowingly concerned’ in the contravention in the sense discussed by Justice White, and was therefore involved in the contravention for the purposes of section 550(2) and I so find.
The position is less clear in relation to the underpayment claims. As stated above, the applicant says that he reported to the second respondent and communicated only with the second respondent regarding his employment. The applicant also points to the fact that the second respondent was the sole director, secretary and sole shareholder of the first respondent.[30] However, the applicant does not produce any evidence in support of his assertion that the second respondent was responsible for the payment of the applicant’s wages.[31]
[30] Affidavit of Mr Paul Goddard affirmed on 27 January 2023 and filed on 30 January 2023 at paragraph [3]; Annexure PG-2.
[31] See Applicant’s Outline of Submissions at paragraph [56(c)].
Having regard to the totality of the evidence, I am satisfied on the balance of probabilities that the second respondent was the person responsible for the applicant’s wages.
As such, the second respondent was involved in the contraventions of section 45 and section 323(1) for the purposes of section 550 of the Act.
RELIEF SOUGHT
In his application filed on 9 September 2022, the applicant seeks compensation and the imposition of penalties on the respondents for the contraventions and payment of unpaid wages.
The applicant seeks an order for the payment of outstanding wages in the sum of $120.08.[32] He also seeks compensation for loss arising from the adverse action in the sum of $3,200 and compensation for non-economic loss for the hurt and humiliation caused by the adverse action in the sum of $6,000.
[32] Applicant’s Outline of Submissions at paragraph [58].
The applicant further seeks an award of pre-judgment interest on each of these amounts pursuant to section 547 of the Act.[33]
[33] Applicant’s Outline of Submissions at paragraph [59].
In terms of the claim for penalty and legal costs, the applicant seeks directions for the filing of material regarding those issues and for a further hearing date to deal with those issues.[34]
[34] Applicant’s Outline of Submissions at paragraph [60].
For the reasons set out above, I have found that the first respondent has failed to pay the applicant in accordance with the Award. As such it is appropriate for an order to be made that the first respondent pay the applicant an amount referable to that underpayment, in the sum of $120.08.
As stated, the applicant seeks a further $3,200 by way of economic loss arising from the adverse action. The applicant concedes that he has not made any attempts to find alternative work in order to mitigate his loss.[35]
[35] Applicant’s Further Outline of Submissions at paragraph [5].
However, it was submitted for the applicant that he was earning an average of $200 per week as a 17 year old and he estimates that he lost 16 weeks of wages.[36] This is based on the assertion that he would have continued working until the end of term, and as it got closer to the end of the year, he would in all likelihood have worked less, if at all, and focussed on his studies.
[36] Applicant’s Further Outline of Submissions at paragraphs [5] and [6].
The only evidence in support of this submission is at paragraph [15] of the applicant’s affidavit where he says:
15.Had I been allowed to take time off to recover, I would have returned to work the next week. I had enjoyed working for my employer. I would have continued working mostly Saturdays and Sundays for as long as I could, working about 10-11 hours per week with a few possible exceptions for any weekend school activities.[37]
[37] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [15].
Section 545 of the Act relevantly provides:
(1)The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
…
(2)Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:
(a)…
(b)an order awarding compensation for loss that a person has suffered because of the contravention;
(c)…
In Dafallah v Fair Work Commission (2014) 225 FCR 559, in considering the scope of the court’s powers to order compensation under section 545, her Honour Justice Mortimer, as she then was, said:
148.The language of s 545 is broad, allowing the Court to provide remedies which meet the circumstances of any given contravention, taking into account the range of parties who may have brought proceedings in relation to the contravention, and the actions which might in any given circumstance be required to remedy the contravention, or to ensure that it does not occur again. Awarding compensation for loss is but one example and may not be appropriate, depending on what other action has been taken in respect of any losses. Each case will turn on its facts in that sense.
149.Fixing compensation under s 545 is a statutory task, and the Court must not substitute that task with approaches derived from the general law.
…
157. … an award of compensation is discretionary. In s 545(1), the governing consideration is what the Court considers “appropriate”, and this in my opinion leaves room for a Court to find in a given case that less than full compensation might be appropriate.
158.While by no means operating as a mandatory approach to a discretion such as that conferred by s 545(1), with respect I adopt the remarks of Lee J in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 63 IR 1, considering factors relevant to an award of compensation under s 170EE of the then Industrial Relations Act 1988 (Cth). His Honour said (at 9), that the Court will:
“have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened … The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.”
159.One of the principal tasks, if compensation is to be awarded, is to ensure that there is the appropriate causal connection between the contravention and the loss claimed …
Applying these principles to the matter before me, I note that the applicant is claiming compensation for 16 weeks’ lost income. Whilst I accept that there is the requisite connection between claimed economic loss and the adverse action in that had the applicant not been dismissed, he would have continued to be available to be rostered on for work and receive payment for that work, the applicant’s own evidence is that he had been employed by the first respondent for less than six months. Whilst I accept his evidence that he enjoyed the work and that he would have continued in that employment for as long as he could, there is no evidence as to how long that might have continued.
The applicant was a school student and this was a part time job. On his own evidence, he would have continued to work on weekends, although there may have been occasions where he was not able to do so due to weekend school activities.
In addition, as stated, the applicant concedes that he did not take any steps to mitigate his loss. Rather, he simply says that he had been focussing on his studies.
Having regard to all of these factors, I find that a claim of compensation for a period of 16 weeks is not appropriate in all of the circumstances. I do accept, however, that having regard to the contravention, the applicant would have been impacted and therefore unable to seek and obtain alternative employment for a period of six weeks.
Having regard to the fact that the applicant’s evidence is that he earned on average $200 per week, I find that it is appropriate to order that the respondent pay the applicant the equivalent of six weeks’ pay at this rate, namely $1,200, by way of compensation for the economic loss suffered as a result of the contravention arising from the dismissal.
The applicant also seeks compensation for hurt and humiliation arising from the dismissal.[38] Such damages are available under section 545 of the Act provided that the applicant establishes that he has suffered such hurt and humiliation.[39]
[38] Applicant’s Outline of Submissions at paragraph [58].
[39] Hall v City Country Hotel Management Pty Ltd & Ors (No 2) [2014] FCCA 2317 at [25] and cases referred to therein
In Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407, his Honour Justice Kerr said:
1065.At common law damages are payable for pain and suffering, which includes physical pain; mental illness or anguish; loss of enjoyment of life; and loss of the amenities of life.
…
1070.If common law principles can be accepted to be relevant to (although not governing an award of compensation pursuant to s 545 of the Fair Work Act, then I am entitled to be mindful of the High Court’s guidance in Planet Fisheries. I proceed on the basis that the awards that counsel have cited do not govern the outcome in this case. No two cases will be the same, and the consequences of apparently similar injuries can vary from one person to the next …
Turning to the facts of this case, the applicant has given evidence, which I accept, as to the impact on him of the dismissal, and indeed, the message by the second respondent to the remaining staff.[40]
[40] Affidavit of Mr Wade Hampton affirmed on 17 April 2023 and filed on 19 April 2023 at paragraph [14].
The applicant is a young man who is in the very early stages of his employment journey. He gives evidence, which I accept, that he enjoyed his job with the first respondent and that he felt ‘terrible, depressed and humiliated’ when he found out that he had lost his job. I accept that the respondent’s conduct was likely to, and I find that it did cause distress, hurt and humiliation to the applicant. Indeed, to add insult to injury, the hurt and humiliation the applicant suffered, was compounded by the manner in which his dismissal was communicated to the rest of the team.
The applicant seeks damages in the sum of $6,000. I find that having regard to the totality of the evidence, including the manner in which the applicant’s employment was terminated and communicated to other staff, that an award in that amount is appropriate.
Pre-judgment interest
The applicant also seeks an award of pre-judgment interest on the above amounts pursuant to section 547 of the Act.
Section 547 relevantly provides:
(1)This section applies to an order (other than a pecuniary penalty order) under this Division in relation to an amount that a person was required to pay to, or on behalf of, another person under this Act or a fair work instrument.
(2)In making the order the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.
(3)Without limiting subsection (2), in determining the amount of interest, the court must take into account the period between the day the relevant cause of action arose and the day the order is made.
In the applicant’s written submissions, the applicant seeks pre-judgment interest calculated at the rate of 4.85% for the period from 30 August 2022 to 31 December 2022 and at the rate of 7.18% thereafter.[41]
[41] Applicant’s Revised Interest Calculations provided to chambers on 16 May 2023.
In circumstances where the respondents have not participated in these proceedings, no good cause has been identified as to why such interest ought not be ordered.
In those circumstances, I am satisfied that it is appropriate for pre-judgment interest to be applied in the amounts sought.
Finally, in circumstances where the respondents have not participated in these proceedings, I also propose ordering that the applicant serve a copy of the orders and declarations I make on the respondents by sending a copy by registered post to the registered office of the first respondent together with a copy of rule 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
CONCLUSION
I therefore make the declarations and orders set out at the commencement of these reasons.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 31 October 2023
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