FEDERAL COURT OF AUSTRALIA
Johnson v Celik Investments Pty Ltd [2007] FCA 846
ANITA JOHNSON v CELIK INVESTMENTS PTY LTD T/AS CAFE REMA
VID 1536 OF 2007GORDON J
11 MAY 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1536 OF 2007
BETWEEN:
ANITA JOHNSON
ApplicantAND:
CELIK INVESTMENTS PTY LTD T/AS CAFE REMA
Respondent
JUDGE:
GORDON J
DATE OF ORDER:
11 MAY 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.A penalty of $1,000 be imposed on the respondent.
2.The $1,000 penalty be paid to the applicant.
3.The respondent pay the applicant compensation in the sum of $8,878.80.
4.The respondent pay the penalty and the compensation to the applicant within 28 days of this order.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1536 OF 2007
BETWEEN:
ANITA JOHNSON
ApplicantAND:
CELIK INVESTMENTS PTY LTD T/AS CAFE REMA
Respondent
JUDGE:
GORDON J
DATE:
11 MAY 2007
PLACE:
MELBOURNE
EX TEMPORE REASONS FOR JUDGMENT
Anita Johnson, the applicant, was employed at the Café Rema from about May 2004 until 15 September 2005 when the applicant’s employment was terminated. The circumstances in which her employment was terminated were described by her in the following terms:
“2.I was employed at the Café Rema from about May 2004 until the date my employment was terminated on 15 September 2005.
…
5.…The business was a small city restaurant that employed about 6 or 7 people mainly casuals.
…
7.On or about 30 August 2005 I informed Anna [a director of the respondent] that I was pregnant. Anna replied “I thought so. You should have told me earlier.”
8.Because of Anna’s remark, I felt it necessary to disclose to her that I had had a miscarriage with my last pregnancy, and that this time I had wanted to see how the pregnancy developed for a while before telling people about it.
9.Anna said, “Ok, sorry, but you still should have told me because if you injured yourself you could sue us.” I said that I was healthy and that I would continue working until Christmas, then less hours after that, if possible.
10.Anna replied, “We’ll see.”
11.On Thursday, 15 September 2005, I was ill with gastroenteritis. I rang work and spoke to another employee, Chelsea, who had answered the phone. I left a message with her to say that I had gastroenteritis and would not be able to attend work that day.
12.Chelsea subsequently called me from work, and told me I had to speak to Ali [another director of the respondent]. I then rang Ali.
13.Ali was very aggressive about the fact that they were short staffed, and that I had spoken to Chelsea and not to him. I said I knew they were busy, but there was nothing I could do. He told me I had to come in to work,…
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- Case
- [2007] FCA 846
- Decision Date
CaseChat Overview and Summary
The court meticulously evaluated the compensation by considering the statutory factors outlined in s 170CH(7) and (8). It determined that the statutory limit on compensation did not exceed the independently calculated amount, resulting in no adjustment. The court acknowledged Ms Johnson's claim of contributing factors to her post-natal depression but found insufficient evidence to support it, thereby not awarding additional compensation for this claim. Regarding the penalty, the court exercised its discretion, taking into account the gravity of the employer's conduct, which warranted condemnation. A penalty of $1,000 was imposed, payable to Ms Johnson. The court also considered the costs under s 170CS of the Act but concluded that the respondent's failure to accept a settlement offer did not warrant an award of costs.
The court's reasoning was grounded in statutory interpretation and the specific provisions of the Fair Work Act. It ensured that the compensation calculation adhered to the legislative framework, and the penalty was appropriate given the employer's actions. The court's decision was precise, reflecting a balanced approach between statutory requirements and the unique circumstances of the case.
The final orders included a penalty of $1,000 payable to Ms Johnson, compensation of $8,780.80, and mandated that both the penalty and compensation be paid within 28 days of the order. This decision underscored the importance of statutory adherence in employment termination claims while also allowing for discretion in penalty imposition based on the employer's conduct.
Orders
Orders of the court
1. A penalty of $1,000 be imposed on the respondent.
2. The $1,000 penalty be paid to the applicant.
3. The respondent pay the applicant compensation in the sum of $8,878.80.
4. The respondent pay the penalty and the compensation to the applicant within 28 days of this order.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: GORDON J
In Vickery at [14]-[15], Finkelstein J described the approach to be adopted in calculating an amount of compensation in the following terms:“The factors that I must consider in calculating the amount of compensation payable to a person whose employment is terminated in breach of s 170CK(2) are set out in ss 170CH (7) and (8): see 170CR(2). Relevantly those subsections provide:170CH(7) Subject to subsection (8), in determining an amount … the [Court] must have regard to all the circumstances of the case including:(a)the effect of the order on the viability of the employer’s undertaking, establishment or service; and (b)the length of the employee’s service with the employer; and (c)the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and (d)the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and (e)any other matter that the [Court] considers relevant.170CH(8) In fixing an amount … for an employee who was employed under award conditions immediately before the termination, the [Court] must not fix an amount that exceeds the total of the following amounts: (a) the total amount of remuneration: (i) received by the employee; or (ii) to which the employee was entitled; (whichever is higher) for any period of employment with the employer during the period of 6 months immediately before the termination (other than any period of leave without full pay) …(b) …I am required to consider and give effect to each of the factors listed in s 170CH(7): GH Operations Pty Ltd t/as The Grant Hyatt Melbourne v V Smith (14 May 2001, AIRC, Giudice P, O’Callaghan SDP and Smith C, Print PR904136) at 10. After assessing the appropriate compensation independently of the statutory limit, I must then determine whether the assessment is over that limit. If it is the statutory limit is applied: Cox v South Australian Meat Corporation (1995) 60 IR 293, 302. In determining the amount of compensation payable to the applicant, and consistent with the approach adopted by Finkelstein J, each subsection of s 170CH(7) must be addressed. For the purposes of s 170CH(7)(a), the onus is on the employer to bring evidence of the effect of the award of compensation on the business: see D A Moore v Highpace Pty Ltd (18 May 1998, AIRC, Boulton J, Watson SDP and Whelan C, Print Q0871), cited in Vickery at [16]. The respondent has not submitted any evidence. However, the Court has been told by the respondent’s former solicitor that the directors of the respondent has informed him that the respondent is not trading and the respondent does not have sufficient funds to continue to engage legal representation to defend this matter. For the purposes of s 170CH(7)(b), it was common ground between the parties that the applicant was employed by the respondent and/or its predecessor in title for approximately 16½ months from about May 2004 to 15 September 2005 and that she normally worked about 28 hours per week.