Ho v Ngo
[2021] FedCFamC2G 127
•8 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Ho v Ngo [2021] FedCFamC2G 127
File number(s): MLG 768 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 8 October 2021 Catchwords: INDUSTRIAL LAW – application for imposition of civil penalties and other remedies arising out of 15 week employment – applicant paid flat rate of pay less than the applicable Award minimum – applicant paid no overtime or other loadings – applicant not provided with pay slips in accordance with the regulations
ADVERSE ACTION – applicant seeking reduction of hours because of pregnancy – applicant being subject to taunts and assaults because of her application for reduced hours and her pregnancy – applicant seeking payment for time worked – applicant subjected to threats as a result
REMEDY – court imposing penalties for respondent’s numerous contraventions of the Hair and Beauty Industry Award 2010 and Fair Work Act 2009 (Cth) – court ordering payment in accordance with the award – court ordering payment of $10,000 for hurt, distress and intimidationLegislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Hair and Beauty Industry Award 2010
Cases cited: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333
Bobridge v Choppair [2018] FCA 32
Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301
Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission/s: 24 August 2021 Date of hearing: 24 August 2021 Place: Melbourne Counsel for the Applicant: Mr Millar (pro-bono) The Respondent: The Respondent did not appear ORDERS
MLG 768 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LYNA HO
Applicant
AND: DUNG NGO
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
8 OCTOBER 2021
THE COURT ORDERS THAT:
1.
The respondent pay the applicant compensation for unlawful adverse action,
in the sum of $26,239.
2.
The respondent pay the applicant for compensation for hurt and humiliation,
in the sum of $10,000.
3.The respondent pay the applicant for underpayment of entitlements under the Hair and Beauty Industry Award 2010, in the sum of $9,173.76.
4.
The respondent pay to the applicant’s superannuation fund, Vision Super,
for the underpayment of superannuation, in the sum of $2,429.80.
5.
The respondent pay the applicant interest on the amounts in Orders 1 and 3 herein,
in the sum of $4,343.22.
6.The respondent pay the applicant penalties in sum of $20,790.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BURCHARDT
INTRODUCTORY
The applicant in this case worked as a nail technician for the respondent from 2 August 2019 until 14 November 2019. She worked long hours, including hours at weekends and in excess of eight hours a day, but there was never paid any loadings of any sort to compensate for such matters. She was paid a flat rate which was in fact less than the applicable rate of pay
in the relevant Award. On or about 19 September 2019, Ms Ho informed coworkers
at the salon that she was pregnant and sought slightly reduced hours. After this,
she was subjected to taunts and hostility and indeed was assaulted because of her pregnancy and the adjustment of hours that she sought. Her work roster was effectively altered further
to her detriment. Following the assault on 14 November 2019, the applicant wrote
to the respondent in effect seeking redress for the things that had been done to her.
The response was a request that she collect her things and a series of insulting and intimidating messages.
The applicant seeks redress arising from these matters. She complains of adverse action taken against her within the meaning of the Fair Work Act 2009 (Cth), she seeks rectification of the underpayment of her wages, compensation for distress and the imposition of civil penalties.
The respondent, as I will explain, despite being on proper notice of this application, has not participated at all. On the materials filed by the applicant it is plain that she is entitled
to the relief she seeks and there will be declarations and orders accordingly. There are, however, some preliminary matters to address.
THE RULES PURSUANT TO WHICH THE APPLICATION SHOULD BE CONSIDERED
As I understand it, pursuant to the new legislation, all rules made under the Federal Circuit Court of Australia Act 1999 (Cth) lapsed on 1 September 2021. Matters not then completed are to be determined pursuant to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, unless the Court orders otherwise.
Given the failure of the respondent to participate in the proceedings, it is quite clear that
the respondent is in default within the meaning of Rule 13.03 of the Rules. Pursuant to Rule 13.04(2) the respondent has not satisfied the applicant’s claim, has not given an address for service or filed a response (the latter being ordered by Registrar Alloway on 9 June 2020). In those circumstances, the Court has power pursuant to Rule 13.05(2)(d) to give judgment
or make any other order against the respondent. As earlier indicated, I propose to do so.
SERVICE/THE IDENTITY OF THE RESPONDENT
From the materials filed in the matter, it is apparent, as I find, that there is only one respondent in this matter (the introduction above comes from the materials the applicant has filed). The applicant’s affidavit makes it clear that her employee was Ms Ngo, Ms Dung (Julie) Ngo. Although there appears to have been a business name for Crystal Nails at some point, the applicant’s evidence satisfies me that there is no incorporated company associated with that name, and it seems that the registered business name belonged to somebody who has nothing to do with the business for which Ms Ho actually worked. In the circumstances, I am going to treat the matter as involving Ms Ngo personally as the only respondent.
I know from materials annexed to the applicant’s affidavit that Ms Ngo was aware of, and indeed responded to, a prior application brought by Ms Ho in the Fair Work Commission. Indeed, in that proceeding, she expressly set out that the legal name of the respondent was Dung Ngo and that the trading name or registered business name was Crystal Foot and Spa. That response was completed at a time when she was legally represented and only goes to buttress the conclusions I have just expressed. I note that the response asserted the applicant was a work experience student to whom she gave moneys for her lunch and petrol because
she was a student.
I have no difficulty in inferring that when the Fair Work Commission issued the relevant certificate to enable the applicant to bring an application in this court, a copy must have been sent either to Ms Ngo or to her legal representative.
From an affidavit of the applicant’s husband, Minh Vi Nguyen, filed 31 March 2020,
it is apparent that the husband served Mr Tran, a solicitor for the respondent,
with the application in this Court. An affidavit of attempted service sworn by Patricia Ann Angliss was filed on 27 March 2020. The applicant then filed an application in a case seeking a substituted service order. The applicant’s supporting affidavit affirmed 17 April 2020 gave details of the endeavours made to serve the respondent and/or to speak to her. Accordingly, Registrar Ryan on 28 April 2020 dispensed with personal service and made orders for service by alternative means, including service by mail at the premises in Springvale where the applicant had deposed the respondent was carrying on business. That order has been complied with both by postal service and by hand delivery by the applicant’s husband (see affidavit Minh Vi Nguyen filed 1 June 2020.) Further orders to progress the matter were made and service of those orders has been effected. In the circumstances, I am quite satisfied that the respondent has adequate notice of the claim.
THE RELEVANT FACTS
The facts in this case have been proved by the affidavit of the applicant, which I caused
her to adopt on oath when the matter was heard before me and which became exhibit A2.
She explained satisfactorily, in my view, that she fully understood the terms of the affidavit even though her English is self-evidently not at all good and there was no attestation of interpretation. From that affidavit, the following facts emerge.
The applicant was born in Vietnam in 1992 and married her husband on 1 January 2017. She migrated to Australia to join him on 9 December 2017 and has become a permanent resident of Australia in about September 2020. She had previously worked in the hospitality and tourism industry.
In late July 2019, the applicant saw a post on Facebook for Crystal Nails Vic looking for a full-time nail technician at their salon in Dandenong, and she telephoned the owner, Ms Ngo, to discuss. In due course, the applicant attended the salon and started work the same day
on 2 August 2019. She worked six days a week on Mondays to Wednesdays from 10.00 am
to 5.30 pm, Thursdays and Fridays 10.00 am to 8.00 pm and Saturday 10.00 am to 5.30 pm. She was initially given a 15-minute meal break each day. She was paid at a flat rate of $19 per hour for her first month and thereafter $20. She was told that she would not be paid superannuation when she asked about it and was required to work on public holidays with no extra loading. She was paid in cash, and no tax instalments were deducted. The pay was handed to her in an envelope with the total amount handwritten on the front with, usually, a handwritten note setting out the calculations. Annexure LTH1 shows four such handwritten notes which do indeed conform with the hours that the applicant asserts.
The applicant has deposed that the people working at the salon included Ms Ngo, the owner, Romeo Nguyen, her husband, Tuyet Nguyen, manager, who was Romeo’s sister, Phuong Nguyen, manager, who was a cousin of the owner, May Nguyen, a manager, and Hoa Thi Cam Vuong, another employee. The owner was rarely present on the site, and she and her husband only usually attended to collect money and to generally supervise the conduct of the business. Tuyet was also only occasionally present, usually to collect takings.
In early September 2019, Ms Ho became aware that she was pregnant. On 19 September 2019, she was experiencing back pain and discomfort as a result of her pregnancy and told manager Phuong Nguyen and others in the salon at the time that she was pregnant. She asked the manager Phuong if she could work shorter hours, but Phuong told her to ask Julie. She sent a text to Julie by SMS on 19 October 2019 confirming her pregnancy and asking for a reduction in her rostered hours so that she could finish on Thursdays and Fridays at 6.00 pm instead of 8.00 pm. She did not receive a response and her hours were not reduced. LTH2 is a copy of the text message that she sent.
Following the notification of the pregnancy and the request to work reduced hours, the attitude of the managers and co-workers, in particular, Phuong, Tuyet, May, and Ha changed. In about late September, Phuong said to her in Vietnamese words to the effect of:
Why did you get pregnant when the busy Christmas is coming?
From the time of the disclosure of the pregnancy and the request for ancillary reduced hours, the applicant’s work arrangements were altered with clients being booked in at lunchtime and late into the evening. She was regularly forced to work overtime and without regular breaks, including without a lunch break. The 15-minute meal break initially given was no longer provided.
On 14 November 2019 the applicant was performing a pedicure. May and Hoa started yelling at her in front of the customer, even though the applicant explained that she was doing what the customer had requested. Hoa continued yelling and swore at her using rude Vietnamese expletives and physically pushed her, attempted to hit her and threw a pusher (a metal object used in the filing of nails) at her pregnant stomach, shouting in Vietnamese words to the effect of:
I want you to miscarry the baby. I don't care if you are pregnant. I am still going to hit you. I will hit you in the carpark.
The applicant moved way when the object was thrown at her and cut her hand and bruised her leg. Hoa said to her in Vietnamese words to the effect that:
If you don't like the conditions here, then don't come back to work, you can quit.
These words were said in the presence of May, the store manager.
On 21 November 2019 the applicant’s husband (plainly acting as her agent) sent a text message to Julie querying an underpayment of the most recent pay. That message is annexed as LTH3 with an English translation. On 27 November 2019 the applicant sent a letter to Julie in English outlining her concerns, which the husband hand-delivered to the salon. That letter is LTH4. This set out in rather greater detail the sort of conduct of which the applicant was complaining following the notification of her pregnancy. She stated relevantly in terms:
I have been mistreated for being pregnant.
And went on to say why. The letter ended:
Please tell me within 7 days (via email : [email protected]) what steps you will take to make the workplace safe for me, otherwise I will have no choice but to resign.
The same day May, the manager of the salon, sent a message to the applicant’s husband relevantly saying:
I am so sorry but can you please give me another letter now . And you can pick up some Lyna's stuff here as well . She forgot her craft.
In the days following, the respondent and her husband sent the applicant and her husband a series of text messages with threats and insults, which are annexed as LTH6. The threats were insulting and threatened to cause a miscarriage and included:
If you're pregnant, be careful and watch out for car accident, or fall down the stairs, you have a miscarriage, eat and drink, you will vomit that miscarriage. as long as I remind you!!
The applicant has deposed that after those messages it was clear to her she was not welcome to return at Crystal Nails, and she did not do so. She went on to depose to the birth of her child on 29 April 2020, and suffering hurt and humiliation as a result of her experiences at the Crystal Nails salon. She said (paragraph 35):
I have been diagnosed with anxiety and depression as a result of what occurred. I am continuing to receive medical treatment.
It should be noted, however, that there is no medical evidence to support that assertion. As earlier indicated, the respondents have not participated in the matter in any way whatever. I note that the defence offered in the Fair Work Commission sits utterly at odds with the records of work hours contained in LTH1 which only goes to support the force and veracity
of the applicant’s assertions as to what the facts truly were. I am going to treat the facts
as expressed above as proven. They are inherently probable and they have been deposed
to on oath without challenge.
WHAT REMEDIES SHOULD FLOW (ADVERSE ACTION)
It should be noted that, although Ms Ngo is an individual rather than a corporation,
as the applicant’s written submissions correctly assert, as a Victorian employer she remains
a national system employer and is thus within the operation of the Fair Work Act (see sections 14 and 30N of the Fair Work Act). The Court has been provided with a copy of the Hair and Beauty Industry Award 2010, the coverage clause of which (clause 4) makes it clear that
it applies to the business conducted by Ms Ngo. The first claim pressed by the applicant is that of adverse action, however. The applicant’s written submissions (paragraph 11) submit that the material before the Court supports finding that the applicant was subjected to taunts and abuse during her employment because of either or both of the applicant’s pregnancy (breach of section 351) or her exercise of workplace rights in seeking a reduction in hours (breach of section 341). I accept the applicant’s submission that the application to reduce hours was in substance the exercise of a right under section 62(2) of the Act to not work additional hours beyond 38 hours, and that this was within the concept of a workplace right,
pursuant to section 341(1)(a) of the Act. I further accept that it was the making of a complaint or inquiry in relation to employment within the scope of section 341(1)(c)(ii) of the Act.
Once again, I have no difficulty in accepting the applicant’s submission that the taunts and abuse to which the applicant was exposed constitute adverse action within the meaning of section 342(1) of the Act. It was conduct injuring her in her employment,
altering her position to her prejudice and discriminating between her and others who were not pregnant. I again accept the submissions of the applicant that while most of this conduct (that is to say, the conduct that took place actually at the workplace) was by persons other than Ms Ngo, these were persons who were acting as her agent as they plainly had managerial capacity, particularly in the respect of May. The messages sent to the applicant and her husband following the applicant’s last day of actual work, at a time when her employment had not formally ended, plainly also constitute adverse action. Furthermore, a finding to this effect might not even be necessary in the circumstances. The reverse onus arising under section 361 of the Act arises in these circumstances and, on any view of the matter, the respondent has not satisfied it.
Additionally, of course, Ms Ho made a complaint in relation to her employment in writing, being annexure LTH4 to which I have referred. This provoked a series of responses which made it clear that the employment relationship could not continue.
Whether or not the respondent’s course of conduct taken as a whole constituted termination or whether this amounted to what is sometimes referred to as a constructive dismissal,
in that the actions of the respondent so repudiated the contract that the applicant was entitled to accept it by ceasing the employment, in my view does not matter. It is plain that it was the conduct of the respondent that brought the employment to an end. The request for a day’s pay was met with a request that the applicant collect her possessions.
The applicant seeks compensation for the loss of her job arising out of the adverse action taken against her. I note that her child was not born until April 2020, but the claim is only pressed from 14 November 2019 until 26 March 2020. The applicant has deposed that she would have worked until shortly before the birth of her child, and that evidence is unchallenged.
In the circumstances, in my view, the applicant has established that she both would have worked for the period of time that she has claimed, and was unable to work because
of the respondent’s conduct during that period of time. This claim succeeds. The amount
to be awarded is $26,239 (see applicant’s revised submissions dated 24 August 2021
at paragraphs 28-29, which I accept are made out on the applicant’s evidence).
COMPENSATION FOR HURT AND HUMILIATION
The applicant has sought $20,000 for hurt and humiliation. I have queried with the applicant, during the course of the trial, whether the Court had power to make an award of that character when there is no medical evidence to support the claim. Counsel’s further written submissions refer to a number of authorities. There is no doubt that other judges of this Court have made such awards. In Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875, at [359], her Honour Judge Whelan made an order for $7,500 in a not dissimilar case to this one. The making of that award, seems to me, consistent with the authority of Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 at [438]-[450]. In the circumstances, I am satisfied that the Court has power to make an award of the sort that is desired here.
Having looked at the cases to which Counsel has referred, I note that the amounts involved have invariably been substantially more modest than those that the applicant seeks in this case. In my view, and drawing upon my extensive past history in the human rights law area, in which such awards are often made, bearing in mind the egregious nature of the conduct to which the applicant was exposed, I think that an appropriate figure for general hurt and distress is $10,000.
UNDERPAYMENTS OF WAGES
The applicant seeks recovery of underpayments for the 15 weeks of actual employment that was served. The figures in the revised applicant’s submissions at paragraph 31 are clearly made out from the award materials filed with the Court, and the applicant’s description of her hours worked. There will be an order for the payment of $9,173.76 in respect
of the underpayment, together with a further order as to underpayment of superannuation
to the applicant’s superannuation fund, Vision Super, of $2,429.80 (see Bobridge v Choppair [2018] FCA 32 at [91]-[92], per Bromberg J).
The applicant submits, correctly, that in the absence of payslips, pursuant to section 557C
of the Act, there is a reverse onus on the employer, in any event, which has plainly not been discharged.
INTEREST
Interest is payable pursuant to section 547 of the Fair Work Act from the date of the cause of action arose, being 14 November 2019. I accept the calculations at paragraph 33 of the revised written submissions, and there will be an order for $4,343.22.
PENALTIES
The applicant seeks the imposition of penalties. The respondent has, on any view of the matter, contravened the Award, and that is a civil penalty provision, pursuant to section 45 of the Act. I was, at first, concerned as to whether the respondent had properly been put on notice of this aspect of the claim as the box indicating claims for penalties was not ticked in the originating application. Nonetheless, the application did squarely raise, at paragraph 8, under the heading Remedies Sought: Compensation, “applicant seeking full loss, including the payment of pecuniary penalties under section 546 of the Act.” In the circumstances, I accept that the respondent has been given sufficient and proper notice of the claim.
The respondent, being a natural person, the maximum penalties are limited to 60 penalty units, which were $210 at the relevant time, being $12,600 for each contravention. I accept, as asserted at paragraph 35 of the applicant’s submissions, that the following breaches of the civil remedy provisions of the Act are established:
(a)failure to pay minimum award wage (section 45 of the Act, based on clause 17 of the Award);
(b)failure to make superannuation contributions (section 45 of the Act, based on clause 24.2 of the Award);
(c)failure to pay overtime rates (section 45 of the Act, based on clause 31.2(a) of the Award);
(d)failure pay Saturday penalty rates (section 45 of the Act, based on clause 31.2(c) of the Award);
(e)failure to pay annual leave on termination (section 44 and 90(2) of the Act; section 45 of the Act, based on clause 33 of the Award);
(f)adverse action during employment (sections 340 and 351 of the Act); and
(g)adverse action involving dismissal (sections 340 and 351 of the Act).
In oral submissions, Counsel submitted that the penalties in relation to underpayments (a)-(e) above should be assessed as mid to high, but (f) and (g) – the adverse action – should be assessed towards the high end. Counsel also sought that any penalties orders should be paid to his client. Counsel submitted that, in the circumstances, there was no section 557 course of conduct arising in these circumstances, as all the obligations are discrete. It should be noted that the approach to the assessment of penalties was authoritatively set out my Bromwich J most recently in Fair Work Ombudsman v NSH North Pty Ltd trading as New Shanghai Charlestown [2017] FCA 1301 at [36] in the following terms:
(1)Identify the separate contraventions, with each breach of each obligation being a separate contravention, and each breach of a term of the Award being a separate contravention.
(2)Consider whether each separate contravention should be dealt with independently or with some degree of aggregation for those contraventions arising out of a course of conduct, noting that s 557 of the FW Act provides that two or more contraventions of a given civil remedy provision are to be taken to be a single contravention if committed by the same person and arising out of a course of conduct by that person.
(3)Consider whether there should be further adjustment to ensure that, to the extent of any overlap between groups of separate aggregated contraventions, there is no double penalty imposed, and that the penalty is an appropriate response to what each respondent did.
(4)Consider the appropriate penalty in respect of each final individual group of contraventions, taken in isolation.
(5)Consider the overall penalties arrived at, including by reference to those which may be proposed by the FWO (as permitted by Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (CFMEU Civil Penalties Case) at [64]) and what is proposed by the respondents, and apply the totality principle, to ensure that the penalties for each respondent are appropriate and proportionate to the conduct viewed as a whole, making such adjustments as are necessary: see Kelly v Fitzpatrick [2007] FCA 1080; 166 IR 14 at [30]; Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [23]. [71] and [102].
The Court’s first task is to assess the individual contraventions, which has been done above. The Court’s next task is to consider whether section 557 of the Act should be applied.
In the particular circumstances of this case, I agree with the applicant that no such course of conduct finding is appropriate.
There is still the question of what is sometimes called common law grouping, because of overlap between the contraventions. While the failure to pay the minimum award wage, failure to pay overtime rates, and failure to pay Saturday penalty rates all arose from the single action of providing a single rate of pay, I do not think this is properly described as an overlap, for these purposes. They all involve breaches of discrete and important obligations under the award. The superannuation contributions and failure to pay annual leave likewise are discrete. However, I think that the adverse action during employment and the adverse action involving dismissal should be grouped. Looked at a distance, the conduct from the point of time when the applicant revealed her pregnancy until the appalling behaviour on 14 November and its sequelae, all arose in a relatively confined time period and reflected a course of conduct. I will group adverse action matters as one contravention accordingly.
I agree with Counsel that the penalties for the contraventions set out in paragraph 39(a)-(e) above should be assessed at the midpoint, namely $6,300 each (i.e. $31,500 in total). The joint contravention of sections 340 and 351 of the Act, in my view, should be assessed at 80 per cent of the applicable maximum being $10,080.
The Court is then required to consider the totality principle. The orders to be made must not be crushing. The respondent has put on no materials of any sort that would mitigate the effect and force of the contraventions, nor anything as to financial circumstances. The employment subsisted only for a short period of time, some 15 or so weeks. The impugned conduct,
at the most, lasted for some seven or so weeks. The total of penalties otherwise to be imposed absent the totality principle amounts to $41,580. This total is oppressive or crushing given the short period of employment. In the particular circumstances of this case I will reduce the total penalties payable by 50 per cent, producing a total of $20,790. I am also satisfied they should be paid directly to the applicant, as is usual practice.
CONCLUSION
In my view, the applicant has succeeded in effect on all fronts. She is entitled to the remedies that she seeks. Given the egregious nature of the respondent’s conduct, it is, in my view, appropriate that there be declaratory relief also. The respondent needs to know exactly why the Court is making the orders that are to be made. The Court will make the declarations that the applicant seeks.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 8 October 2021
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