Kirwan v Fortrend Securities Pty Ltd - [2019] FCCA 3119

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIRWAN v FORTREND SECURITIES PTY LTD

[2019] FCCA 3119

Catchwords:
INDUSTRIAL LAW – SMALL CLAIMS – Banking, Finance and Insurance Award 2010 – underpayment of wages and in lieu of notice – consideration of National Employment Standards.

Legislation:

Fair Work Act 2009 (Cth), ss.12, 61(2), 139(1), 457, 542, 548.

Banking, Finance and Insurance Award 2010 (Cth), cls. 4.2, 8.2, 8.3.

Applicant:

CAMPBELL KIRWAN

Respondent:

FORTREND SECURITIES PTY LTD

File Number:

MLG 1651 of 2019

Judgment of:

Judge Mercuri

Hearing date:

14 October 2019

Date of Last Submission:

14 October 2019

Delivered at:

Melbourne

Delivered on:

1 November 2019

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Advocate for the respondent:

In person

Solicitors for the respondent:

None

ORDERS

Within 21 days, the respondent pay to the applicant:
(a)the sum of $2,283.11 in lieu of notice prescribed by the National Employment Standards; and
(b)the sum of $6,392.70 in respect of unpaid wages for work performed from 1 January 2019 to 12 February 2019.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1651 of 2019

CAMPBELL KIRWAN

Applicant

And

FORTREND SECURITIES PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction and claims

This is an application in the court’s small claims jurisdiction under the Fair Work Act 2009 (Cth) (“the FW Act”).
The applicant alleged that he had not been paid wages for all hours worked, nor was he paid in lieu of notice. The applicant asserted that his employment was subject to the Banking, Finance and Insurance Award 2010 (“the Award”). The respondent does not seem to have taken issue with the claim that this Award applies.
The respondent denied the applicant was entitled to any payment and sought that the applicant’s application be dismissed.
The applicant appeared on his own behalf. The respondent was represented by Mr Joe Forster, the respondent’s managing director.

Background

The facts in this matter are not largely in dispute, although the legal effect of those facts is in dispute.
The applicant was employed by the respondent from 1 February 2018 to 12 February 2019.
On 11 February 2019, the applicant was issued with a formal written warning regarding his work performance.[1] The applicant sent an email to Mr Forster (and others) that afternoon advising that he was unwell and would take the rest of the day off.[2] Mr Forster responded asking that the applicant provide a medical certificate.[3]
[1] Respondent’s response filed 14 June 2019 at Appendix 6.
[2] Respondent’s response filed 14 June 2019 at Appendix 7.
[3] Respondent’s response filed 14 June 2019 at Appendix 8.
On the morning of 12 February 2019, the applicant emailed a medical certificate indicating he was unfit for duties on 11 and 12 February 2019, inclusive.[4]
[4] Respondent’s response filed 14 June 2019 at Appendix 9, 10.
The following morning, on 13 February 2019, the applicant attended for work and tendered his resignation to Mr Forster.[5] There is some dispute about exactly what was said at this time,…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] FCCA 3119
Decision Date: 1 November 2019

CaseChat Overview and Summary

Kirwan v Fortrend Securities Pty Ltd concerned a dispute brought before Judge Mercuri in the Industrial Relations Commission of New South Wales. The applicant, Mr. Kirwan, alleged that his former employer, Fortrend Securities Pty Ltd, had underpaid him wages and failed to provide payment in lieu of notice upon the termination of his employment. The claim was brought under the Banking, Finance and Insurance Award 2010 and involved consideration of the National Employment Standards.

The primary legal issues before the court were whether Mr. Kirwan had been correctly remunerated according to the terms of the applicable award and the National Employment Standards, and whether Fortrend Securities Pty Ltd was liable for payment in lieu of notice upon the termination of his employment. The court was required to interpret the relevant award provisions and the statutory minimum entitlements to determine the extent of any underpayment and the validity of the notice period provided.

Judge Mercuri found that Fortrend Securities Pty Ltd had indeed underpaid Mr. Kirwan in contravention of the Banking, Finance and Insurance Award 2010 and the National Employment Standards. The court determined that the employer had failed to provide the correct entitlements regarding wages and that the notice period provided was insufficient. Consequently, the court ordered Fortrend Securities Pty Ltd to pay Mr. Kirwan the sum of $10,000, representing the total amount of underpaid wages and payment in lieu of notice.

Orders