Hoskin v Tone Block Pty Ltd

[2017] FCCA 2897

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSKIN v TONE BLOCK PTY LTD & ANOR [2017] FCCA 2897

Catchwords:
INDUSTRIAL LAW – Adverse action application – breach of general protection provisions of the Fair Work Act – termination of employment following provision of medical certificate – failure to provide appropriate wage slips – proceedings undefended – corporate employer in liquidation – accessorial liability – reverse onus – assessment of damages – damages for pain and distress – quantum of penalty to be imposed – to whom should penalty imposed be paid – matters to be considered.

Legislation:

Fair Work Act 2009, ss.12, 340, 341(1), 341, 342, 351, 352, 361, 536(1), 539, 545(2)(b), 546(3), 550

Federal Circuit Court Rules 2001, rr.3.01(2), 3.01(5), 11.02(2), 13.03A(2), 13.03B(2)

Cases cited:
Taylor v Taylor (1970) 143 CLR 1
Speedo Holdings BV v Evans (No 2) [2011] FCA 1227
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184
McIlwain v Ramsay Food Packaging No 4 [2006] FCA 1302
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Kelly v Fitzpatrick [2007] 166 IR 14
Blandy v Coverdale NT Pty Ltd [2008] FCA 1533
Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
Veen v R (No 2) (1988) 164 CLR 465
Ewin v Vergara (No3) [2013] FCA 1311
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333
FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258
Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412
FWO v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543
Fair Work Ombudsman v Lifestyle SA Pty Ltd [2014] FCA 1151
Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union (2008) 171 FCR 357

Applicant: DANIEL MALCOLM HOSKIN

First Respondent: TONE BLOCK PTY LTD

Second Respondent: CAROLYN ANN CAGNEY

File Number: ADG 433 of 2015

Judgment of: Judge Brown

Hearing date: 15 September 2017

Date of Last Submission: 15 September 2017

Delivered at: Adelaide

Delivered on: 28 November 2017

REPRESENTATION

Counsel for the Applicant: Mr T Bourne

Solicitors for the Applicant: Bourne Lawyers

Counsel for the Respondents: No appearance

Solicitors for the Respondents: Not applicable

ORDERS

1. The Court declares that the First and Second Respondent have contravened the following provision of the Fair Work Act 2009 (Cth) the Act):

   (a)section 352 of the Act, by terminating the Applicant’s employment following his provision of a certificate indicating his temporary absence from work due to illness;

   (b)sub-section 536(1) of the Act by failing to issue pay slips to the Applicant.

2. The Second Respondent was involved, within the meaning if subsection 550(2)(c) of the Act, in the First Respondent's contraventions as set out at (a) to (b) in Declaration 1 above, and therefore is taken to have committed those contraventions pursuant to subsection 550(1) of the FW Act.

3. Pursuant to subsection 545(1) of the Act within 28 days the Second Respondent:

   (a)pay compensation to the Applicant the following sums:

   (i)compensation in an amount of $15,000.00;

   (ii)wages lost in an amount of $5,175.00.

4. Pursuant to subsection 546(1) of the Act the second respondent pay a total pecuniary penalty fixed in the sum of $8,100.00.

5. Pursuant to subsection 546(3)(a) of the Act that the penalties imposed on the Second Respondents pursuant to order (3) hereof be paid to the Applicant within 28 days of these orders being made.

6. A copy of the orders made today are to be served on the respondent by pre-paid post at her last known address.

7. The application be otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 433 of 2015

DANIEL MALCOLM HOSKIN

Applicant

And

TONE BLOCK PTY LTD

First Respondent

And

CAROLYN ANN CAGNEY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings arise under the Fair Work Act 2009 (Cth).[1]  The applicant in the proceedings is Daniel Malcolm Hoskin.  The respondents are firstly, Tone Block Pty Ltd and secondly, Carolyn Ann Cagney. 

   [1]  Hereinafter referred to as the FWA or the Act

2. Mr Hoskin is thirty-nine years of age.  He is a printer by trade, having been involved in the industry since 2005.  In mid-April of 2014, he obtained employment with 5 Star Print, a commercial printing enterprise. 

3. Initially, 5 Star Print was operated by a company known as Graf-X Pty Ltd, which was owned and operated by Ms Cagney.  Mr Hoskin’s role at the company was as a customer service and sales officer.  He was paid $23.00 per hour for a 37.5 hour week. 

4. In January of 2015, Mr Hoskin was promoted to the role of production manager.  His salary was increased to $60,000.00 per annum.  At the same time, his hours of work and the pressures on him also increased.

5. Mr Hoskin did not cope with his new role.  It is his evidence that, in the first half of 2015, 5 Star Print was struggling to satisfy its orders and there were many complaints from its customers. 

6. Mr Hoskin felt pressured and stressed by the demands of the job, particularly dealing with its angry customers.  He did not feel Ms Cagney gave him adequate support and it was his perception that she was not managing the business’ finances prudently. 

7. In addition, Mr Hoskin felt that his health was suffering as a consequence of his employment.  He was diagnosed with high blood pressure and stress.  He felt that Ms Cagney unfairly blamed him for the difficulties in the business.  In these circumstances, in July 2015, he requested to revert to his previous role.  Ms Cagney agreed. 

8. In August 2015, Graf-X Pty Ltd was placed into liquidation.  The liquidator was BRI Ferrier.  It is Mr Hoskin’s evidence that neither he nor other staff members, of whom there were between twenty and thirty, were advised of this development.  The first respondent Tone Block Pty Ltd assumed control and ownership of 5 Star Printing. 

9. Ms Cagney was the sole director and only shareholder in Tone Block Pty Ltd, as well as its secretary, in 2015.  On 30 August 2016, Tone Block Pty Ltd was also placed into liquidation and again, BRI Ferrier was appointed as the company’s liquidator. 

10. Mr Hoskin’s employment with 5 Star Print was terminated, by means of an email, which was sent to him by Ms Cagney on 14 September 2015.  Mr Hoskin was not at work that day, which was a Monday.  It is his case that he was unwell and had been advised by his doctor, Dr Moxham, to remain at home. 

11. Mr Hoskin had consulted Dr Moxham during the morning of 14 September 2015 and had been provided with a certificate, by the doctor, in the following terms:

    “Mr Daniel Hoskin has a medical condition and will be unfit for work from 14/09/2015 to 14/10/2015 inclusive.”[2]

    [2]  See annexure DH1 to the affidavit of Daniel Malcolm Hoskin filed 6 September 2017

12. Mr Hoskin is married.  In early October of 2015, he and his wife were expecting their second child.  In these circumstances, at an earlier stage, Mr Hoskin had foreshadowed with Ms Cagney that he would take two weeks unpaid paternity leave to coincide with the child’s birth and the period thereafter. 

13. It is Mr Hoskin’s evidence that he intended to apply for dad and partner pay, through the Department of Human Services, for the period of fourteen days, during which he anticipated he would be away from work on unpaid leave.  It is his position that Ms Cagney was both informed of this arrangement and approved it. 

14. The reason why Mr Hoskin consulted Dr Moxham, on 14 September 2015, is that he had felt increasingly anxious and unable to cope with what he regarded as an unduly stressful work environment at 5 Star Print. 

15. It is also his case that Ms Cagney was well aware that he was finding his position increasingly difficult.  Mr Hoskin provided Dr Moxham’s certificate to Ms Cagney, by email, shortly after he received it from the doctor. 

16. A very short time after he had dispatched the medical certificate, Ms Cagney sent him an email in the following terms:

    “Hi Daniel

    Sorry to hear you are unwell.

    I was hoping to speak to you in person today to discuss a couple of things. But you have requested email correspondence only.

    I have discovered a couple of empty whisky bottles in the cupboard in the reps room. According to the people that share that office it is yours?

    I can not allow this on the premises unfortunately you have left me no alternative but to end your employment here. [3]

    [3]  Ibid at annexure DH2

17. Mr Hoskin does not dispute that 5 Star Print had a zero tolerance policy in respect of its employees being under the influence of illegal drugs or alcohol at the workplace.  It is however his position that the business regularly hosted after work social drinks on each Friday, after the business had closed its doors and production had ceased.  Mr Hoskin and his colleagues, including Ms Cagney, routinely attended at these drinks. 

18. Mr Hoskin is allergic to beer and wine.  His preferred alcoholic beverage is whisky.  He does not dispute that there were two empty whisky bottles, at the offices of 5 Star Print and at least one of these bottles was his property.  It is his evidence that the other bottle was used as a template to measure up alcohol gift boxes, which 5 Star Print produced. 

19. In these circumstances, Mr Hoskin asserts that Ms Cagney has used the two whisky bottles and the allegation that he consumed alcohol on the businesses premises in breach of the company’s alcohol policy, as a pretext to terminate his employment because he has sought to take either sick leave or unpaid paternity leave.  In these circumstances, Mr Hoskin asserts that both the first and second respondent have breached the general protection provisions of the FWA. 

20. In addition, in the period between Graf-X Pty Ltd going into liquidation and the period of his termination, Mr Hoskin alleges that he did not receive any payslips from his employer.  It is his contention that this too is a breach of the provisions of the FWA, which is made particularly serious by the uncertainty surrounding which particular corporate entity was actually employing him. 

21. It is Mr Hoskin’s evidence that he is mortified at any suggestion he would transgress his employer’s code of conduct.  He is also deeply upset at what he regards as Ms Cagney’s opportunistic fabrication against him, which led to him being unlawfully terminated.  He feels hurt, angry and humiliated.  He has consulted a psychologist, Mr McCurdy, to seek treatment and counselling to assuage these feelings. 

22. Mr Hoskin was unemployed between 14 September 2015 and 25 October 2015, when he obtained a job with Douglas Press, as a print finisher and guillotine operator.  Although this position paid less than his previously employment at 5 Star Print, as a consequence of working an extra 7.5 hours per week, Mr Hoskin was able to maintain his previous level of salary. 

23. It is Mr Hoskin’s evidence that the printing industry, in Adelaide, is fairly close knit.  In these circumstances, he is concerned that his termination by 5 Star Print, for what he believes is for a trumped up but nonetheless potentially serious reason, has the potential to damage his previously good reputation as a reliable employee in the print industry.

24. In all these circumstances, Mr Hoskin seeks the following orders from the court:

    ·A declaration that 5 Star Print and Ms Cagney have contravened the provisions of the FWA in respect of workers’ general protections;

    ·A declaration that 5 Star Print and Ms Cagney have breached the provisions of the FWA in respect of the provision of payslips to him;

    ·The imposition of financial penalties in respect of these breaches;

    ·An order that he be paid compensation for both economic and non-economic loss in respect of these contraventions;

    ·An order that any penalty imposed by the court, in respect of the contraventions arising under the FWA be paid to him personally. 

The conduct of the proceedings to date

1. Mr Hoskin commenced these proceedings, in this court, on 20 November 2015.  At this stage, he named only Tone Block Pty Ltd as the respondent to his action.  At this stage, the company was not in liquidation. 

2. The case first came before the court on 3 February 2016.  On this occasion, Tone Block Pty Ltd was represented by Ms Fisher, an industrial advocate employed by the Printing Industry Association of Australia, which is an employer’s industrial organisation.  On this occasion, Tone Block Pty Ltd was ordered to file a response and affidavit in support within fourteen days.

3. Tone Block Pty Ltd did file a response, albeit late.  No supporting affidavit was filed.  The response was a brief document.  In it, Tone Block Pty Ltd indicated its opposition to any orders imposing pecuniary penalties or compensation upon it, in respect of its actions towards Mr Hoskin.  The ground of opposition was stated as follows:

   “The respondent terminated the applicant’s employment on 14 September 2015, due solely to the applicant having brought two whiskey bottles into the workplace.”

4. The parties were also referred to mediation, with a registrar of the court, on 27 April 2016.  This mediation was unsuccessful.  In these circumstances, when the matter returned to court on 11 May 2016, the parties’ competing applications were fixed for final hearing on 30 and 31 January 2017 and each party was directed to file affidavit material well in advance of these dates.

5. On 9 January 2017, Mr Hoskin’s solicitor, Mr Bourne filed an application in a case. In his affidavit in support of the application, Mr Bourne deposed that he had discovered that Tone Block Pty Ltd was in liquidation and BRI Ferrier had advised him that it was unlikely the company would have sufficient assets to satisfy its liabilities, including in respect of any award made against it in favour of Mr Hoskin. In these circumstances, he sought leave to join Ms Cagney as a respondent to the case pursuant to the provisions of Rule 11.02(2) of the Federal Circuit Court Rules 2001.

6. As previously indicated, at all relevant times, Ms Cagney was the sole director and shareholder of Tone Block Pty Ltd.  In addition, it was Mr Hoskin’s evidence that Ms Cagney had been the decision maker in respect of his termination by the company in September of 2015.  In these circumstances, I was satisfied that Ms Cagney was a person relevant to the matters in dispute in the case and therefore it was appropriate that she be joined as a party, notwithstanding the case had been on foot for a significant period of time and had, in fact, been fixed for final hearing. 

7. In these circumstances, I made the following orders:

   “1. Pursuant to rule 11.02(2) of the Federal Circuit Rules 2001 leave is granted to join Ms Carolyn Michelle Cagney of 2 Farr Terrace, Glenelg East in the State of South Australia as a respondent in the case.

   2. Within fourteen (14) days the applicant file an amended application and statement of claim which is to be personally served on the respondent.

   3. Further consideration of the matter is adjourned to 16 March 2017 at 9:30am for directions.”

8. I am satisfied that this order was served on Ms Cagney personally on 16 March 2017.  Ms Cagney was ordered to file a response and an affidavit in respect of the application within twenty-one days of 6 April 2017.  Mr Bourne has informed me that Ms Cagney has told him that she does not intend to take part in the proceedings. 

9. Accordingly, apart from the brief response, there is no affidavit evidence regarding the circumstances surrounding the two whisky bottles and the reasons for Mr Hoskin’s termination, apart from the evidence provided by Mr Hoskin himself.

10. On 22 June 2017, the time for Ms Cagney to file and serve a response was extended to 12 July 2017.  It was further ordered that if she failed to comply with this order, the matter would be fixed for an undefended hearing.  The relevant orders were to be served by pre-paid post on Ms Cagney at her last known address.

11. Ms Cagney has chosen not to take part in the proceedings.  I am satisfied that she knows of the proceedings and has been given a reasonable opportunity to take part in them.  In all these circumstances, Mr Hoskin seeks that I deal with his application on an undefended basis.

The principles applicable to summary judgment

1. It is a significant thing for proceedings to be determined in the absence of one of the parties, particularly proceedings which potentially include the imposition of a pecuniary penalty on the absent party.  The court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings.  Before a person can be adversely affected by judicial order, he or she must be afforded an adequate opportunity to be heard.[4]

   [4]  See Taylor v Taylor (1970) 143 CLR 1

2. The court cannot compel a respondent to engage in litigation.  It is however obliged to give a respondent the opportunity to put evidence before the court and, if he or she wishes to do so, contest any evidence relied upon by the applicant.  In this particular case, Ms Cagney has not chosen to contest any of the evidence put forward by Mr Hoskin, although earlier Tone Block Pty Ltd has asserted it had proper cause for terminating Mr Hoskin’s employment.

3. A respondent, whether by intransigence, disinterest or manipulation cannot succeed in denying an applicant a just resolution, according to law, of his or her application, by choosing not to take part in a proceeding.  In these circumstances, the court has mechanisms to resolve applications in the absence of a party, if it is satisfied it is appropriate to do so. 

4. In this particular matter, I am satisfied that Ms Cagney is aware of the nature of Mr Hoskin’s application, particularly in respect of the central evidentiary issue which arises in it, namely the reason why Mr Hoskin lost his job.  Ms Cagney has elected not to formally put her position in respect of that issue. 

5. On the other hand, Mr Hoskin, in my view, has carefully and exhaustively put his position in respect of the matter.  He has filed a detailed affidavit of evidence.[5]  In addition, Mr Hoskin gave additional sworn evidence to the court, particularly in respect of the circumstances surrounding his termination and its psychological sequallae so far as he was concerned. 

   [5]  See affidavit of the applicant filed 6 September 2017

6. In his oral evidence to the court, I formed the view that Mr Hoskin was an honest and decent person.  Although he was not subject to the rigours of any cross-examination, I have no reason to think anything other than that he is a person of credit.  It was obvious to me that he remains deeply shocked and troubled by what occurred to him in September of 2015. 

7. From Mr Hoskin’s perspective, he has done everything available to bring about a resolution of his claim against Ms Cagney.  He attended a conference at the Fair Work Commission, which was unable to conciliate his dispute with Tone Block.  Thereafter, he has diligently pursued his application, firstly against Tone Block and more recently against Ms Cagney, who has chosen not to take part in the proceedings.

8. Rule 13.03A(2) of the Federal Circuit Court Rules 2001 “the Rules” sets out the circumstances in which a respondent is taken to be in default.  It includes the following:

   ·the respondent has not satisfied the applicant’s claim;

   ·has not complied with an order in the proceedings;

   ·has not produced a document;

   ·has not defended the proceedings with due diligence.

9. The powers of the court, when a respondent is found to be in default, are set out in  Rule 13.03B(2) as follows:

   “(2)   If a respondent is in default, the Court may:

   (a)order that a step in the proceeding be taken within the time limited in the order; or

   (b)if the claim against the respondent is for a debt or liquidated damages—grant leave to the applicant to enter judgment against the respondent for:

   (i)     the debt or liquidated damages; and

   (ii)     if appropriate—costs; or

   (c)if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief that:

   (i)     the applicant appears entitled to on the statement of claim; and

   (ii)     the Court is satisfied it has power to grant; or

   (d)give judgment or make any other order against the respondent; or

   (e)make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.”

1. In Speedo Holdings BV v Evans (No 2)[6] Flick J identified some principles which are to be applied by the court when considering whether to enter a judgment against a defaulting respondent.  They can be summarised as follows: the power is discretionary; and it must necessarily be utilised cautiously.

   [6]  Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 at [20] – [21]

2. In all the circumstances of this case, I am satisfied that Ms Cagney has failed to defend the proceedings with due diligence.  In addition, she has failed to comply with orders requiring her to file affidavit evidence and a formal response. 

3. In these circumstances, I am satisfied that it is appropriate to proceed with determining Mr Hoskin’s claim, notwithstanding the absence of Ms Cagney. In addition, for reasons upon which I will elaborate in due course, I am also satisfied that she is an appropriate respondent to the proceedings and is civilly liable in respect of them [see FWA section 550].

The legal provisions applicable and relevant findings of fact

1. Part 3-1 of the Fair Work Act is headed General Protections. Pursuant to section 340(1) a person must not take adverse action against another person because that other person has a workplace right. 

2. Section 342(1) of the Act contains a table setting out the circumstances in which a person is to be regarded as having taken adverse action against another person.  The first item of the table provides as follows:

   “Adverse action is taken by an employer against an employee if the 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.”

3. The expression workplace right is defined by section 341(1) of the FWA;

   (1)     A person has a workplace right if the person:

   (a)     is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

   (b)     is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   (c) is able to make a complaint or inquiry:

   (i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

   (ii)if the person is an employee—in relation to his or her employment.

4. Section 12 of the Act defines workplace law and workplace instrument.  Relevantly, workplace law means the FWA itself or any other law of the Commonwealth or a State, which regulates the relationships between employers and employees (including by dealing with occupational health & safety matters).  A workplace instrument is any document made pursuant to a workplace law, which concerns the relationship between employers and employees. 

5. Pursuant to section 351(1) of the FWA:

   (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 race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

6. In addition, section 352 of the FWA provides as follows:

   “352 Temporary absence—illness or injury

   An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”

   Pursuant to Regulation 3.01(2) a prescribed illness or injury exists if the employee concerned provides a medical certificate within 24 hours after the commencement of the absence.  The expression medical certificate is defined by section 12 of the FWA simply as a certificate signed by a medical practitioner.

7. The certificate provided by Mr Hoskin indicated an incapacity for work for one month in duration. Accordingly, it does not fall within the provisions of Regulation 3.01(5), which exclude some certificates from the operation of the legislative regime. Accordingly, I find that the certificate of Dr Moxham was for a prescribed illness or injury and so falls within the purview of section 352.

8. It is Mr Hoskin’s case that Ms Cagney took adverse action against him, in the terms envisaged by sections 342(2) and 352, namely by terminating his employment, because he exercised his workplace right to take sick leave, after presenting her with a medical certificate or alternatively because of his expressed intention to take paternity leave around the time his child was to be born, in contravention of either section 351 or section 342.

9. As a consequence of the use of the word because in sections 340, 351 and 352 there must be a causal link between the taking of the adverse action against the applicant concerned and a protected attribute relating to that applicant, either as a consequence of a workplace right or one of the attributes listed in section 351 and 352.

10. Section 361 provides as follows:

    “(1)If:

    (a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

    (b)taking that action for that reason or with that intent would constitute a contravention of this Part;

    it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.”

11. The effect of section 361 is to place the onus of disproving the necessary causal link on the respondent. In these circumstances, an application arising under Part 3-1 of the Act involves three elements:

    ·Does the applicant have a workplace right or other protected attribute arising under either section 340,351 or 352 of the Act;

    ·Did the respondent concerned take adverse action against the applicant;

    ·If so, was the adverse action taken because of the applicant’s possession, exercise or proposed exercise of that workplace right or because of one of the protected attributes of the applicant concerned.

12. In State of Victoria (Office of Public Prosecutions) v Grant White J summarised the relevant principles applicable to section 361 as follows:

    ·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”

    ·That question is to be answered having regard to all the facts established in the proceeding.

    ·The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

    ·It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”

    ·Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.

    ·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.[7]

13. Tone Block Pty Ltd is in liquidation.  The evidence clearly indicates that formerly Ms Cagney was the company’s director.  In correspondence with Mr Hoskins she styles herself its managing director.  Pursuant to section 550(1) of the Act:

    “A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.”

14. More specifically, section 550(2) provides the circumstances in which a person is taken to have been involved in such a contravention.  The circumstances can be summarised as follows:

    ·the person has aided, abetted, counselled or procured the contravention;

    ·has induced the contravention;

    ·has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

    ·has conspired to bring the contravention about.

15. The evidence is unequivocal that Ms Cagney was directly involved in terminating Mr Hoskin’s employment.  It was by means of a letter, under her hand, as Tone Block’s managing director that justification for the adverse action affecting Mr Hoskin was provided to him.  In these circumstances, I am satisfied that she was directly involved in the various contraventions alleged by Mr Hoskin and is personally liable for them, if established.

16. I am satisfied that Mr Hoskin had a workplace right arising in respect of his entitlement to take temporary absence from his employment due to illness or injury. This right arises as a combination of the statutory provisions contained in sections 340 and 351 of the Act but particularly section 352. In addition, it is clear that he provided a medical certificate, to Ms Cagney, within the terms defined by the FWA, when he provided her with Dr Moxham’s certificate on 14 September 2015.

17. Mr Hoskin has provided evidence, both in affidavit form and viva voce to the court itself, regarding what happened following the provision of the medical certificate to Ms Cagney.  He received the email from her in which he was dismissed on the basis of an alleged breach of 5 Star Print’s Illegal Drugs & Alcohol Policy.

18. In addition, Mr Hoskin has deposed that on 14 September 2015, he and his father-in-law attended upon a Mr Jason Heist, who was employed by BRI Ferrier, the liquidator of Graf-X Pty Ltd, to raise concerns with the liquidator about Mr Hoskin’s unpaid superannuation contributions.

19. From his perspective, the only logical reasons for his termination are the provision of the medical certificate or because Ms Cagney perceived him to be some form of trouble-maker because he had made inquiries of the liquidator of his former employer or she had some other form of animus against him because he had reverted to his previous role in the workplace because of stress.  In my view, on any reasonable prima facie basis, such a logical nexus must arise because of the time frame involved.

20. Ms Cagney has elected not to take part in these proceedings. Accordingly, she has not discharged the onus incumbent upon her by virtue of section 361 to provide her explanation for Mr Hoskin’s termination. The only explanation she has provided is in her email to him of 14 September 2015.

21. Mr Hoskin responded to the allegation that he had breached Tone Block’s zero alcohol tolerance promptly, on 16 September 2015.  He wrote to Ms Cagney denying that he had breached this policy indicating his view that staff of the firm regularly congregated on Friday afternoon to have work drinks and this was a practice condoned by management, including her, as she had attended the drinks on past occasions.

22. In response to the particular allegations regarding the two empty whisky bottles, he wrote as follows:

    “You refer to a couple of empty whisky bottles in the cupboard in the reps’ room.  One of those bottles has been retained in the cupboard for a long time to be used as a sample bottle to measure up print products.  The other empty bottle was on a shelf awaiting recycling.”[8]

    [8]  See Annexure DH3 to the applicant’s affidavit filed 6 September 2015

23. Mr Hoskin maintained this account in his oral evidence to the court.  Whilst I appreciate he was not subject to cross examination, I found him to present credibly.  In particular, I accept that he has felt compelled to commence these proceedings, which have been stressful and expensive for him, because he remains outraged at what he perceives to have been Ms Cagney’s out and out dishonesty and high handed treatment of him.

24. Mr Hoskin has disclosed a further email Ms Cagney sent to him on 16 September 2015 in response to his communication.  Ms Cagney accepted that the firm approved a few beers on a Friday afternoon but she was talking about 3 full bottles of Scotch Whisky.  She indicated a suspicion that there might be others.  The tone of the correspondence is one of innuendo that Mr Hoskin is a clandestine and problematic drinker of spirits.

25. In his oral evidence, Mr Hoskin expressed himself to be “very upset and angry” by his termination.  He indicated his belief that he had “worked very hard and done well” at 5 Star, but the actions of Ms Cagney had left him feeling “exploited” by the company. 

26. He also deposed that he felt “dumb-founded” in respect of the allegation that he was a problem drinker or had ever been dishonest, in the workplace, about the fact that his preferred social drink was whisky, given his intolerance for beer and wine. 

27. In his affidavit evidence, he accepted that there were two empty whisky bottles in the customer service area – as previously indicated, one of these was used as a model to measure up alcohol gift bottles, which the company printed; the other was empty, awaiting recycling, which had not occurred because the firm’s cleaner had recently been terminated and not replaced.  The clear thrust of his evidence was that he believed Ms Cagney was using this issue as a pretext to smear his character and justify her termination of his employment.

28. I found Mr Hoskin to be a credible witness.  In the witness box he presented as an emotionally sensitive person, who felt that he had been unfairly wronged as a consequence of his termination.  My impression was not of a person who was embellishing his evidence for personal advancement or to settle a grievance. 

29. At the same time, he is not a person who is temperamentally inclined to forgive and forget when wronged.  Rather, he is more inclined, somewhat slowly and methodically, to seek redress through appropriate channels.  I have no reason to disbelieve any aspect of Mr Hoskin’s evidence, particularly in the absence of any evidence from Ms Cagney herself.  Mr Hoskin presented as a decent and hardworking person, who valued his reputation highly.

30. I do not accept that Ms Cagney’s email letter of 16 September 2015 is capable of discharging the onus placed upon Ms Cagney, as a consequence of the provisions of section 361. The evidence unequivocally indicates that Ms Cagney was the decision-maker concerned in respect of the termination of Mr Hoskin’s employment, which occurred only hours after he had submitted a medical certificate to her.

31. Viewing all the evidence available to me particularly that of Mr Hoskin, I have come to the conclusion that the most likely reason the adverse action was taken was because of Mr Hoskin’s provision of the medical certificate to Ms Cagney. 

32. Ms Cagney has not directly provided any evidence to the court as to why she took the action which she did, notwithstanding the fact that she was given an opportunity to do so. In these circumstances, I find that she has failed to displace the burden imposed on her by section 361.

33. The essential task for the court is to determine why Mr Hoskin’s employment was terminated?  His evidence is that he had performed his duties conscientiously but for personal reasons and with the acquiescence of management, had elected to stand down from his managerial role and return to his previous duties.

34. Ms Cagney’s letter to Mr Hoskin does not delineate any concerns about the specific performance of his duties.  In addition, no previous concerns had been raised with him about him taking part in Friday afternoon social drinks or his use of alcohol in the workplace.  Certainly, there is no evidence to indicate that he had ever been warned about either issue.  In these circumstances, on the balance of probabilities, the most logical reason for Mr Hoskin’s termination is that for some reason or other, Ms Cagney felt aggrieved that Mr Hoskin’s was taking sick leave.

35. Ms Cagney was given an opportunity to take part in these proceedings, but she elected not to do so.  Necessarily, in the absence of evidence from her, it is extremely difficult for the statutory presumption, arising under section 361, to be displaced. As a consequence of these matters, I find that Ms Cagney terminated Mr Hoskin’s employment because he tendered a medical certificate and indicated he would be absent from his duties.

36. In his email letter of 16 September 2015, Mr Hoskins also raised with Ms Cagney the fact that he had not received payslips since 26 August 2015.   This being the period of time the control of 5 Star Pint passed from Graf-X Pty Ltd to Tone Block Pty Ltd.  Ms Cagney responded to this matter, in her answering correspondence, as follows:

    “I will organise your pay slips tomorrow I will not be reinstating you.”

    Following his termination, Mr Hoskin received the payment of his accrued annual leave only.

37. Section 536(1) of the FWA provides as follows:

    “An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.”

38. I accept Mr Hoskin’s evidence that he did not receive his pay slips within the one working day specified by the legislation.  The content of Ms Cagney’s email letter to Mr Hoskin, set out above, is a tacit acknowledgement of this omission on her part.

39. Accordingly, I find that Ms Cagney has breached the provisions of both section 352 and 536(1) of the FWA. I am also satisfied that Ms Cagney has infringed the more general protections provided by sections 340 and 351. However, it is appropriate for the court to calculate penalties in respect of the former provisions to avoid the imposition of double penalties for the same course of conduct on Ms Cagney’s part.

40. Both section 352 and 536 are described as civil remedy provisions falling within the purview of Part 4-1 of Chapter 4 of the FWA. Section 539 of the Act sets out the maximum penalty applicable for each provision – 60 penalty units in the case of the former; 30 penalty units in the case of the latter. At relevant times, a penalty unit amounted to $180.00.

41. Accordingly, the maximum penalty applicable to Ms Cagney, as an individual rather than a corporate entity, for the section 352 contravention is $10,800.00 and for the section 536 contravention is $5,400.00. Pursuant to section 546(3) of the Act, the court may order the payment of any penalty imposed to be paid to the Commonwealth; a particular organisation; or a particular person. In this case, Mr Hoskin seeks that any penalty be paid to him personally.

42. In Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union the Full Court of the Federal Court (Gray, Branson and Lander JJ) discussed the principles to be applied in respect of the appropriate recipient of any penalty imposed by the court in respect of a violation of an industrial law provision. 

43. In his separate judgment Gray J said as follows:

    “The correct view is that the initiating party is normally the proper recipient of the penalty as part of a system of recognising particular interests in certain classes of persons (now specified in s 718 of the WR Act) in upholding the integrity of awards and agreements the subject of penal proceedings.  Where a public official vindicates the law by suing for and obtaining a penalty, it is appropriate that the penalty be paid to the Consolidated Revenue Fund.  Otherwise, the general rule remains appropriate, that the penalty is to be paid to the party initiating the proceeding, with the Gibbs exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted.”[9]

    [9]  See Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union (2008) 171 FCR 357 at 44 per Gray J

44. The Gibbs exception arises when an industrial organisation, such as a union, commences proceedings on behalf of one of its members, in respect of a breach of an industrial provision or award.  The proper prosecution of any such breach has the potential to benefit not only the individual directly affected by it, but also members of the union concerned generally. 

45. In such circumstances, it is appropriate that such an organisation be recompensed, in some way, for the costs incurred in bringing the action, rather than consolidated revenue or the individual concerned.   Gray J rejected any notion that for an applicant to receive a penalty imposed, in circumstances not involving a representative group, could potentially be characterised as a windfall and that it was therefore inappropriate for a penalty to be paid to an applicant, who had personally brought an application. 

1. The majority (Branson and Lander JJ) took a different view but did not specifically rule that a penalty should never be paid to an applicant, in circumstance in which that applicant was not represented by an industrial organisation.  In this context, they characterised the concept of the windfall represented by the payment of a penalty to involve an unexpected and relatively large financial benefit.

2. Mr Hoskin has financed these proceedings personally.  Due to the liquidation of Tone Block Pty Ltd, they have had a somewhat tortuous path towards finalisation.  Necessarily this has added to his costs.  I have not been advised what has been the cost of mounting these proceedings to Mr Hoskin personally.  It is however clear that he is not legally aided and has not had the assistance of a union or industrial advocate in preparing or running his case.

3. In these circumstances, I accept that he is likely to have incurred significant legal costs in bringing his action.  Accordingly, I do not consider that the payment to him of any penalty to be imposed in this matter can be characterised as a windfall and so antithetical to public policy reasons.  The amount received to him will not be significant given the likely extent of the cost incurred by him and accordingly, in my view, there is little to differentiate his situation to that which arises in cases falling within the rubric of Gibbs.

4. In all the circumstances of this case, particularly the fact that Mr Hoskins has pursued them personally and at some cost to himself, I am of the view that any penalties imposed upon Ms Cagney should be paid to him personally.[10]

   [10]  See McIlwain v Ramsay Food Packaging No 4 [2006] FCA 1302 per Greenwood J approved in Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union (supra) at [70] per Branson and Lander JJ

5. The fundamental task, for the court, in its determination of what is the appropriate penalty to apply, is to examine the gravity or seriousness of the offending, which it is called upon to penalise.  The considerations relevant to this task have been delineated in a number of decisions of both this court and the Federal Court.[11]

   [11]  See Mason v Harrington Corporation Pty Ltd [2007] FMCA 7; Kelly v Fitzpatrick [2007] 166 IR 14 at [14]; Blandy v Coverdale NT Pty Ltd [2008] FCA 1533 at [23]

6. The considerations are as follows:

   ·The nature and extent of the conduct which led to the breaches;

   ·The circumstances in which the conduct took place;

   ·The nature and extent of any loss or damage sustained as a result of the breaches;

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

   ·Whether the breaches were properly distinct or arose out of the one course of conduct;

   ·The size of the business enterprise involved;

   ·Whether or not the breaches were deliberate;

   ·Whether senior management was involved in the breaches;

   ·Whether the party committing the breaches has exhibited contrition;

   ·Whether the party committing the breaches has taken corrective action;

   ·Whether the party committing the breaches has cooperated with the 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.

7. The court needs to be careful not to apply a formulaic approach to the imposition of penalties or attempt to extrapolate the penalties imposed in one case to the circumstances of another.  Each case involving the imposition of a civil penalty warrants an idiosyncratic approach and a careful analysis of all relevant circumstances.  As was stated in Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560:

   “Penalties are not a matter of precedent.  The choice of penalty must be dictated by the individual circumstances of a case, not by a line by line comparison with another case.”[12]

   [12]  Australian Opthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 at [12]

8. Clearly the check-list, as enumerated above, is useful.  It is not to be regarded as an exhaustive list of factors to be considered.   The ultimate control on any sentence is that it must be proportionate to the offence committed.  A court is not permitted to impose a sentence greater than is warranted by the objective circumstances of the offending.[13]

   [13]  See Veen v  R (No 2) (1988) 164 CLR 465 at 472

9. In addition, Mr Hoskin seeks compensation from Ms Cagney as a consequence of her breach of the FWA under two headings – firstly, in economic terms for the wages lost to him as a consequence of his termination; and secondly, for the non-economic loss suffered by him because of the distress, pain and suffering occasioned to him by the unlawful termination. The relevant section of the Act, dealing with compensation, is section 545(2)(b) which reads as follows:

   (2)     Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:

   …

   (b)an order awarding compensation for loss that a person has suffered because of the contravention; “

10. In support of his claim for compensation, Mr Hoskin relies on his own evidence and on a report of his treating psychologist, Mr Franklin McCurdy dated 13 September 2017.[14]  Although I would categorise Mr Hoskin as an emotionally sensitive person, he is also a self-reliant and self-motivated one. 

    [14]  See Exhibit B

11. Mr Hoskin’s evidence is that he was unemployed between 15 September and 25 October 2015, a period of approximately six weeks.  On 25 October 2015, he obtained a position with Douglas Press, as a print finisher and guillotine operator. 

12. At the time of his termination, Mr Hoskin worked a 37.5 hour week at an hourly rate of $23.00.  I calculate his weekly wage to have been $862.50.  Accordingly, I calculate the wages lost to him, as a consequence of his termination, to amount to $5,175.00. 

13. From Mr Hoskin’s perspective, his position at Douglas Press represented a major step backwards in his career.  It is his evidence, which I accept, that he felt distressed and anxious because of his termination and the implications he felt it had for his career generally. 

14. In his evidence, he deposed that his anxiety caused his sleep to be irregular and he himself was defensive and snappy in his interactions with his family, particularly his wife.  In this latter context he describes himself as being moody, which was not very nice for his wife. 

15. As a consequence of these symptoms, Dr Moxham referred Mr Hoskin to Mr McCurdy, a clinical psychologist, who consulted with him on eight occasions between 16 August 2016 and 12 September 2017.  Earlier, Dr Moxham had diagnosed Mr Hoskin as suffering from an adjustment disorder with depression and anxiety features. 

16. In his report, Mr McCurdy wrote, as follows, in respect of Mr Hoskin’s reaction to his termination by Ms Cagney:

    “The effect of his dismissal has lead to Daniel experiencing depression, anxiety, anger, mood swings that affected the peace in the family, a loss in motivation and tiredness problems.  I have initiated a therapy programme involving counselling, cognitive behaviour methods and a mindfulness/relaxation course that has helped Daniel restore a better psychological balance in his life and I believe future sessions will have him eventually fully restored.”[15]

    [15]  See Exhibit B

17. The task of assessing general damages, in the context of the FWA, is a difficult one, given that the facts and circumstances of each case and the applicant concerned are necessarily idiosyncratic.  In Ewin v Vergara (No3)[16] Bromberg J said as follows:

    “The assessment of general damages in compensation for pain and suffering, for loss of amenity or enjoyment of life and other intangibles, is not a science and by its nature is not readily capable of arithmetic calculation.  … The award of compensation should be neither restrained nor excessive.  Each case will be determined by its own particular facts. …”

    [16]  See Ewin v Vergara (No3) [2013] FCA 1311 at [658]

18. A compensatory order for distress, hurt and humiliation is available under section 545 of the Act only if the applicant concerned has in fact suffered distress, hurt and humiliation, as a result of the contravention.[17]  On the basis of the evidence of the applicant himself and his psychologist, Mr McCurdy, I am satisfied that the applicant has suffered distress, hurt and humiliation as a consequence of his unlawful termination by Ms Cagney. 

    [17]  See Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 per Barker J

19. In particular, I accept that he felt demeaned when he was retrenched as a consequence of submitting a valid medical certificate to his employer, as he was entitled to do. 

20. I also find that Mr Hoskin’s distress was not of a transitory nature, which quickly subsided following the incident in question.  Rather, Mr Hoskin ruminated on the issue, which caused his distress to persist for several months. 

21. I also accept that the printing industry, in Adelaide, is a fairly small industry, the participants in which know each other and their various doings well.  As a consequence, I also accept that Mr Hoskin perceived that his termination tarnished his personal reputation as a good and reliable employee in the industry. 

22. Ultimately, I accept that no amount of money is likely to compensate Mr Hoskin for the emotional dislocation, which he has suffered as a consequence of his termination.  My responsibility is to calculate what I consider to be a fair and reasonable compensation, for Mr Hoskin’s suffering, in all the circumstances.  I assess such sum to be $15,000.00.

23. I now turn to the consideration of the appropriate penalties to be levied in respect of Mr Cagney’s breaches arising under the FWA.  I will do so by reference to the various headings listed above and on the basis that Ms Cagney’s termination of Mr Hoskin, following the tender of the applicable medical certificate, represents one course of conduct. 

The nature of the conduct

1. I consider Ms Cagney’s termination of Mr Hoskin’s employment to be a serious breach of the FWA.  Employees routinely fall ill and, as a consequence, submit medical certificates to their employers.  Employees are entitled to take sick leave for legitimate reasons.  It is part of the industrial safety net created by the FWA.

2. I have found that Ms Cagney elected to dismiss Mr Hoskin on spurious grounds, after he had pursued his legitimate entitlements.  She chose to do this in a most callous manner through the agency of an email.  In my view, the circumstances surrounding the conduct of Ms Cagney, in terminating Mr Hoskin, puts that conduct into the most serious of categories. 

3. The provision of appropriate and correct payslips is an essential component of a fair system of wage regulation.  Employees, particularly vulnerable ones, are entitled to know what they have been paid and how specifically their wages are broken down.  They also need to know who formally is employing them, so that they can pursue any queries arising from their employment and, if necessary, seek redress from the appropriate source.

4. Employees need to know this information promptly so that they can query any areas of uncertainty and sort out any misunderstandings.  On a basic level, they need to be able to budget and make properly informed decisions about whether they will elect to continue to work in a particular manner, such as on weekends and at night time. 

5. In this context, I respectfully adopt what was said by Judge Reithmuller in FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor[18] as follows:

   “Without proper payslips, employees are significantly disempowered, creating a structure within which breaches of the industrial laws can easily be perpetrated.”

   [18]  FWO v Taj Palace Tandoori Indian Restaurant Pty Ltd & Anor [2012] FMCA 258 at [67]

6. In my view, the failure of Ms Cagney to provide Mr Hoskin with wage slips in this particular matter represents a serious breach of the provisions of the relevant provision.  This arises because the corporate entity, which had previously employed Mr Hoskin, had gone into liquidation and had been replaced by another.  Such a situation is calculated to create uncertainty in the minds of employees, particularly in respect of the security of their positions. 

Previous conduct

1. Ms Cagney has not previously been found to have breached any general protection provisions of the FWA. 

Consequence of the conduct concerned

1. For the reasons outlined above, I accept that Ms Cagney’s conduct has had a significant impact upon Mr Hoskin.  Mr Hoskin has felt demeaned by what occurred to him.  It has impacted upon his psychological health for a significant period. 

The size of the business concerned

1. I have little evidence regarding the size of the business operated by Ms Cagney.  In his evidence, Mr Hoskin indicated that it was essentially a printing shop which employed approximately twenty to thirty people.  He further deposed that at least one of its printing presses was valued in excess of a million dollars.

2. The main reason I know little about the extent of the business concerned is that Ms Cagney has elected to take no part in these proceedings.  I propose to proceed on the basis that her business is to be characterised as being a small business but nonetheless one which employed many individuals and therefore had a reasonable payroll.  As such, the community is entitled to expect that individuals, such as Ms Cagney, will be aware of their obligations under relevant industrial legislation and act in accordance with them.

3. Small business, in Australia, is a significant employer in terms of the number of persons which it employs.  In these circumstances, I adopt the comments of Driver FM (as his Honour then was) in Rajagopalan v BM Sydney Building Materials Pty Ltd [19] as follows:

   “Employers must not be left under the impression that because of their size or financial difficulty that they are able to breach an award.  Obligations by employers for adherence to industrial instruments arise regardless of their size.  Such a factor should be of limited relevance to the Court’s consideration of penalty.”

   [19]  Rajagopalan v BM Sydney Building Materials Pty Ltd [2007] FMCA 1412 at [27]

4. In particular, the employees of small business and the community at large are entitled to expect that small businesses will provide workers with proper payslips and adhere to their legal obligations as employers.  The evidence indicates that Ms Cagney had held a managerial position, in the printing industry, for some years.  She also had access to advice from her industry association. 

The deliberateness of the breaches

1. I am satisfied that neither of the breaches arising in this case can be characterised as one of inadvertence or lack of knowledge of the relevant provisions.  In these circumstances, regrettably, I find that Ms Cagney deliberately elected to breach the provisions of the FWA pertaining to her.

Contrition

1. Ms Cagney has elected not to take part in these proceedings.  Accordingly, she has expressed no regret for her conduct.  Indeed, in my view, it would not be an unreasonable inference, for the court to draw, that given Tone Block Pty Ltd, as with its predecessor Graf-X Pty Ltd, is in liquidation, she believes she can escape the consequences of her behaviour by ignoring these proceedings. 

2. In addition, I am satisfied that she confabulated a reason for Mr Hoskin’s termination, when challenged by him in respect of it, her attitude towards him has been one of toughing it out rather than any attempt at conciliation.

3. Sadly, it is my finding, that Ms Cagney has demonstrated only disdain for Mr Hoskin and the court process generally.  She has demonstrated no remorse or contrition.

General deterrence

1. One of the central purposes of imposing a civil penalty, in proceedings such as these, is to deter other employers from embarking on a similar course of conduct to that engaged upon by the transgressing employer.  In FWO v Maclean Bay Pty Ltd (No 2) Marshall J said as follows:

   “It is important to ensure that the protection afforded by the Act to employees are real and effective and properly enforced.  The need for general deterrence cannot be understated.  Rights are a mere shell unless respected.” [20]

   [20]  FWO v Maclean Bay Pty Ltd (No 2) [2012] FCA 557 at [29]

2. The role of general deterrence in fixing appropriate penalty is demonstrated by what Lander J said in Ponzio v B & P Caelli Constructions Pty Ltd[21] namely:

   “In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend….  The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations.  If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section.  However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat.  In some cases, general deterrence will be the paramount factor in fixing the penalty... “(citations removed)

   [21]  Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543 at [93] approved by Mansfield J in Lifestyle SA (supra) at [154]

3. In my view, in this particular case, issues of general deterrence are important, but not significantly so.  It however remains the case that the court needs to underline to the community, at large, the importance of employer’s respecting medical certificates and issuing appropriate payslips promptly and reliably. 

4. However, in my view, issues relating to specific deterrence loom large in this case.  The evidence available to me indicates that Ms Cagney has operated a fairly large printing business, employing multiple employees, through the mechanisms of two corporate entities, each of which is now defunct.  In my view, it is likely that Ms Cagney will continue to operate further corporate entities and will employ others in this way. 

5. Considerations relevant to specific deterrence focus on the individual circumstances of the offender concerned and require some degree of prognostication as to the likelihood of re-offending.  The most reliable tool for such prognostication is usually the attitude expressed by the party in question.[22]

   [22]  See Plancor Pty Ltd v Liquor Hospitality & Miscellaneous Union (2008) 171 FCR 357 at [37] per Gray J

6. Ms Cagney’s attitude towards both these proceedings and Mr Hoskin has been poor.  In these circumstances, I am satisfied that it is incumbent upon the court to send a strong message to Ms Cagney personally that her behaviour, as an employer, is not satisfactory.

7. In all these circumstances, I am satisfied that a penalty of fifty percent of the maximum prescribed is an appropriate penalty.  Accordingly, the penalty imposed is $5,400.00 in respect of the adverse action leading to Mr Hoskin’s termination and $2,700.00 in respect of the payslip violations.  I will grant Ms Cagney 28 days to pay these penalties to Mr Hoskin personally, along with the compensation as assessed.

8. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     28 November 2017

[7]  State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]