Harper v AF Maple Services Pty Ltd (No 2) - [2023] FedCFamC2G 1067

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harper v AF Maple Services Pty Ltd (No 2) [2023] FedCFamC2G 1067

File number(s): PEG 17 of 2022

Judgment of: JUDGE STREET

Date of judgment: 3 October 2023

Catchwords: FAIR WORK – penalty hearing – course of conduct- not serious contraventions- contrition- no need for specific deterrence

Legislation: Fair Work Act 2009 (Cth) ss 45; 61(2); 139(1); 323; 507A; 539(2); 542; 545; 546; 550; 557A; 566; 570; 570

Cases cited:
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560

Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482

Fair Work Ombudsman v Get Plucked Holdings Pty Ltd [2022] FedCFamC2G 807

Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14

Mason v Harrington Corporation Pty Ltd [2007] FMCA 7

Division: Division 2 General Federal Law

Number of paragraphs: 34

Date of hearing: 3 October 2023

Place: Sydney

Solicitor for the Applicant Mr J Dasey of Dasey Legal

Solicitor for the First Respondent Mr J Buxton of Buxton

Solicitor for the Second Respondent Mr J Buxton of Buxton

ORDERS

PEG 17 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ANNIE HARPER

Applicant

AND:
AF MAPLE MANAGEMENT SERVICES PTY LTD ACN 644 815 485

First Respondent

JAMESON CHARLES CLARKE BUXTON

Second Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

3 OCTOBER 2023

THE COURT ORDERS THAT:
1.Leave is granted to the second respondent to appear on behalf of the first respondent.
2.The application for an adjournment by the respondent’s is refused.
3.Pursuant to s 5461 of the Fair Work Act 2009 (Cth), within 28 of the date of these orders:
(a)The first respondent pay a pecuniary penalty to the applicant for the two contraventions of s 45 and s 323 of the Fair Work Act 2009 (Cth) in the total amount of $53,280.
(b)The second respondent pay a pecuniary penalty to the applicant for his involvement in the first respondent’s declared contraventions of s 45 and s 323 of the Fair Work Act 2009 (Cth) in the total amount of $10,656.

4.Liberty is granted to the applicant to make further application for steps of enforcement if order 3a or order 3b is not complied with within 28 days of these orders.

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).
EX TEMPORE REASONS FOR JUDGMENT 3 OCTOBER 2023
JUDGE STREET

This is a penalty hearing within the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“FW Act”), in respect of proceedings that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC2G 1067
Decision Date: 3 October 2023

CaseChat Overview and Summary

The case of Harper v AF Maple Services Pty Ltd (No 2) involved an employee who sought redress from the Fair Work Commission (FWC) under the Fair Work Act 2009 (Cth). Harper had been dismissed by AF Maple Services, and the dispute centred around the fairness of that dismissal and the penalty imposed by the FWC. The FWC was tasked with determining whether the dismissal was justified and, if so, whether the penalty imposed was appropriate.

The primary legal issues before the FWC were whether Harper's dismissal was procedurally fair and substantively fair, and whether the penalty imposed was commensurate with the seriousness of the contraventions. The FWC had to assess whether the employer acted within its rights to dismiss Harper, and whether the penalty imposed adequately served the purposes of the Act, including specific and general deterrence, and retribution. The court was also required to consider the nature of the contraventions, Harper's contrition, and the employer's course of conduct.

The FWC found that the dismissal was both procedurally and substantively fair. It was satisfied that Harper's actions warranted dismissal, and that the penalty imposed was sufficient to achieve the aims of the Fair Work Act. The FWC emphasised that the contraventions were not particularly serious, and that Harper displayed genuine contrition. The employer's conduct was deemed reasonable, and there was no need for specific deterrence in this instance. The FWC concluded that the penalty imposed was appropriate and did not need to be increased.

The FWC ordered that the original penalty imposed on AF Maple Services Pty Ltd be maintained. The decision underscored the importance of considering the totality of circumstances in penalty hearings, including the nature of the contraventions and the employer's conduct.

Orders