Johanson v Paradise Security Australia Pty Ltd

[2015] FCCA 2432

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOHANSON v PARADISE SECURITY AUSTRALIA PTY LTD [2015] FCCA 2432

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalty and assessment of compensation for adverse action taken against employee – pecuniary penalty imposed – compensation assessed.

Legislation:

Fair Work Act 2009, ss.340, 341, 539(2), 546, 570, 570(2)

McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181

Applicant: BERIT MIRJA JUHL JOHANSON

Respondent: PARADISE SECURITY AUSTRALIA PTY LTD T/A PARADISE SECURITY AUSTRALIA ACN 095 274 721

File Number: BRG 401 of 2015

Judgment of: Judge Jarrett

Hearing date: 18 August 2015

Date of Last Submission: 18 August 2015

Delivered at: Brisbane

Delivered on: 18 August 2015

REPRESENTATION

The Applicant appeared on their own behalf

No appearance by the Respondent

ORDERS

1. The respondent pay to the applicant within 28 days of today the sum of $10,820.00 by way of compensation for its breach of the Fair Work Act 2009 (Cth) the subject of the declaration made on 22 June 2015.

2. The respondent pay a pecuniary penalty for its breach of the Fair Work Act 2009 (Cth) the subject of the declaration made on 22 June 2015 in the sum of $5,000.00.

3. Of the pecuniary penalty, the respondent pay one half ($2,500.00) to the applicant and the balance to the Consolidated Revenue Fund within 28 days from today.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 401 of 2015

BERIT MIRJA JUHL JOHANSON

Applicant

And

PARADISE SECURITY AUSTRALIA PTY LTD T/A PARADISE SECURITY AUSTRALIA ACN 095 274 721

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application for compensation and the imposition of a pecuniary penalty arising from what the applicant alleges is a breach of s.340 of the Fair Work Act2009. On 22 June, 2015 and in the absence of the respondent, I declared that the respondent had contravened s.340 of the Fair Work Act2009 in that the respondent took adverse action against the applicant by dismissing her from its employment on 30 March, 2015. 

2. The applicant’s case is a simple one. She was employed by the respondent and because of bullying and harassment in the workplace she took stress leave. She made a WorkCover claim which had been accepted. Whilst she was absent from her employment, by reason of the effects of the bullying and harassment upon her, she was dismissed from her employment. By reason of the declaration that I made on 22 June, 2015 the applicant is entitled to compensation and to have the Court impose a pecuniary penalty on the respondent for its contravention of the Fair Work Act.

3. In support of her claim for compensation, the applicant has filed an affidavit on 13 August, 2015.  In the affidavit, she deposes that her gross fortnightly income was $1972.10, her net income per fortnight was $1616.10, together with compulsory superannuation contributions by her employer of $187.35. 

4. She claims that at the moment she is presently on WorkCover and WorkCover are meeting her lost wages but once she is well enough to return to the workforce she will need to apply for further employment.  She suggests that it will take her some six weeks to find further employment.  There is no reason to doubt her assertions in that regard.  She claims therefore a very modest sum of compensation calculated by reference to her net wages multiplied by some six weeks.  I accept that is an appropriate way to calculate the compensation in this case.  Including her superannuation entitlements, over six weeks she would lose $10,820.70.  In those circumstances, I assess her compensation in that sum. 

5. She also claims compensation for the cost of filing the application and for legal costs incurred during the course of the application but those amounts are not recoverable in these proceedings by reason of s.570 of the Fair Work Act. The applicant, quite properly, accepted during the course of submissions that the circumstances set out in s.570(2) of the Act which might enliven the Court’s jurisdiction to make an order as to costs were not present in this case. The same applies, of course, to the costs of serving the proceedings and my order of 22 June.

6. In her affidavit, the applicant also claims as compensation an amount for the injury “suffered (see attached marked annexure E a letter from Dr Chand) stating that I am suffering from post-traumatic stress disorder with depressive illness due to the actions of the respondent”.  That claim, having regard to the evidence of Dr Chand, appears to arise out of the experiences of the applicant whilst employed by the respondent; experiences she describes as bullying and harassment. 

7. There is nothing in Dr Chand’s opinion, however, which links her medical condition to the adverse action taken against her and relied upon in this case, namely her dismissal.  Her condition seems to be linked to the treatment that she endured whilst employed by the respondent.  Those actions are not the subject of these proceedings.  The point might be a fine one but it is nonetheless significant.  In my view, the matters dealt with in Dr Chand’s letter do not sound in compensation in these proceedings.

8. Finally, in terms of a pecuniary penalty, the Court has power to impose a pecuniary penalty in this case. A number of matters need to be taken into account but in respect of those matters there is very little evidence before me. So I have no evidence about the size or nature of the respondent’s business. I have no evidence about the involvement or otherwise of senior management. I have no evidence or otherwise about whether the respondent has, in the past, been dealt with for breaches of the Fair Work Act.

9. I do have the facts of the matter as I have stated them to be, the matters that appear from the applicant’s affidavits and the other matters to which I have referred. Section 546 of the Fair Work Act provides that any pecuniary penalty order must not be more than five times the maximum number of penalty units referred to in the relevant item in column 4 of the table in s.539(2) of the Act if the person concerned is a body corporate.

10. Here, the respondent is a body corporate and so the maximum penalty that might be imposed is five times the amount set out in the relevant schedule. Section 539(2) provides that in respect of a contravention of s.341 of the Fair Work Act a maximum of 60 penalty units is available. Five times that is 300 and so the maximum number of penalty units that might be imposed on the respondent is 300 penalty units. As I recollect, a penalty unit is presently $170 and so the maximum that might be imposed on the respondent in this case is $51,000.

11. There is very little evidence before me about the circumstances in which the contravention has occurred. The applicant’s evidence is relatively thin on the ground and the respondent’s evidence is non-existent. Having regard to the matters to which I have already referred, it seems to me that it is appropriate to impose a pecuniary penalty on the respondent of $5000 to serve both the requirement to specifically deter this respondent from further breaching or contravening the provisions of the Fair Work Act and to more generally send a message to employers that the terms and conditions imposed by the Fair Work Act and in particular those set out in Part 3 or Chapter 3 of the Fair Work Act need to be observed by employers.

12. The next question is whether I ought to order that the pecuniary penalty to be paid to the Commonwealth of Australia or to the applicant. The applicant has, according to her evidence, incurred some legal costs for which she is not entitled to recover under the Fair Work Act. Nonetheless, according to the judgment of Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181 it is not inappropriate in certain circumstances to order that the pecuniary penalty or part of it be paid to the applicant. I propose to adopt that course here.

13. In respect of the pecuniary penalty, I will order that the respondent pay half of that amount, $2500, to the applicant and the balance to Commonwealth Consolidated Revenue.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered 18 August, 2015.

Associate: 

Date: 10 September 2015