LEUTTON v Sheralee Hotels Pty Ltd Trading as Imperial Tavern

[2019] FCCA 2471

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEUTTON v SHERALEE HOTELS PTY LTD TRADING AS IMPERIAL TAVERN & ORS [2019] FCCA 2471

Catchwords:
INDUSTRIAL LAW – Substituted service – satisfaction of the court that respondent parties have notice of adjourned hearing – sufficient steps taken – hearing proceeded in the absence of respondents – application granted.

Legislation:

Fair Work Act 2009 (Cth) ss.81, 340, 351, 545, 546, 550.

Federal Circuit Court Rules 2001 (Cth) r.6.16.

Cases cited:

Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4.

Applicant: ANGELA LEUTTON

First Respondent: SHERALEE HOTELS PTY LTD TRADING AS IMPERIAL TAVERN

Second Respondent JANICE GUIDICE

Third Respondent CHRISTOPHER GUIDICE

File Number: BRG 115 of 2018

Judgment of: Judge Egan

Hearing date: 28 August 2019

Date of Last Submission: 28 August 2019

Delivered at: Brisbane

Delivered on: 28 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Watson

Solicitors for the Applicant: Legal Aid Queensland

First, Second and Third Respondents: No appearance

ORDERS

IT IS DECLARED THAT:

1. The First Respondent once contravened each of:

   (a)s.340 of the Fair Work Act 2009 (Cth) on 24 September 2017 by taking adverse action against the applicant because she had exercised or proposed to exercise a workplace right; and

   (b)s.351 of the Fair Work Act 2009 (Cth) on 24 September 2017 by taking adverse action against the applicant because she was pregnant.

2. The Second Respondent once contravened each of:

   (a)s.340 of the Fair Work Act 2009 (Cth) on 24 September 2017; and

   (b)s.351 of the Fair Work Act 2009 (Cth) on 24 September 2017;

   in the same manner as the First Respondent did as described in declarations 1(a) and 1(b) herein by being ‘involved in’ the First Respondent’s abovementioned contraventions within the meaning of s.550(2) of the Fair Work Act 2009 (Cth).

3. The Third Respondent once contravened each of:

   (a)s.340 of the Fair Work Act 2009 (Cth) on 24 September 2017; and

   (b)s.351 of the Fair Work Act 2009 (Cth) on 24 September 2017

   in the same manner as the First Respondent did as described in declarations 1(a) and 1(b) herein by being ‘involved in’ the First Respondent’s abovementioned contraventions within the meaning of s.550(2) of the Fair Work Act 2009 (Cth).

AND IT IS ORDERED THAT:

1. Pursuant to the provisions of s.545 of the Fair Work Act 2009 (Cth) the First, Second and Third Respondents pay compensation to the Applicant in the amount of $28,978.18 comprised of:

   (a)$10,919.13 for loss of wage entitlements; and

   (b)$1,037.32 for loss of superannuation; and

   (c)$15,000.00 for hurt and humiliation; and

   (d)$2,771.00 for interest up to the date of this order.

2. Pursuant to the provisions of s.546(1) of the Fair Work Act 2009 (Cth) the First, Second and Third Respondents are to pay a pecuniary penalty in the total sum of $10,000.00 for contravening the provisions of s.340 and s.351 of the Fair Work Act 2009 (Cth).

3. Pursuant to the provisions of s.546(3) of the Fair Work Act 2009 (Cth), the pecuniary penalty referred to in Order 5 herein be paid directly to the Applicant.

4. The First, Second and Third Respondents are jointly and severally liable to pay the above amounts to the Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 115 of 2018

ANGELA LEUTTON

Applicant

And

SHERALEE HOTELS PTY LTD TRADING AS IMPERIAL TAVERN

First Respondent

JANICE GUIDICE

Second Respondent

CHRISTOPHER GUIDICE

Third Respondent

REASONS FOR JUDGMENT

1. This matter came before the court on 5 June 2019. At that time, the court was not satisfied that the steps which had been taken on behalf of the applicant to give notice to the respondents of the hearing on that day had adequately taken place. The court was not satisfied that what had been done by, or on behalf of, the applicant would necessarily have brought to the attention of the respondents the fact that the matter was listed for final hearing before the court at Cairns on 5 June 2019.

2. As a consequence of the court’s concerns in that regard, the court made orders on 5 June 2019 providing for the means by which substituted service could be effected upon each of the respondents, with a view to bringing to the attention of those respondents, not only the contents of the documents defined under the term “following documents”, as referred to in that order, but, also, as to the listing of the matter for further hearing before this court in Brisbane on 28 August 2019 at 10 am.

3. Mr Watson of counsel appears, and is instructed, on behalf of the applicant. The names of each of the first respondent, the second respondent and the third respondent were called, when the matter commenced this morning, in the precincts of the court, both in Brisbane and in Cairns. The applicant resides in Cairns and, though her counsel and her solicitor appear before the court in Brisbane, she appears by video link from a court in Cairns. A court attendant in Cairns was able to make the call in respect of each of the respondents in Cairns, whilst the court’s associate made the call in Brisbane. In any event, there was no answer by any of the respondents to their call. In those circumstances, I asked counsel for the applicant, Mr Watson, to hand up to the court an affidavit of service of Sharna Quigley affirmed on 27 August 2019 and also filed on that date.

4. Mr Watson handed to me a voluminous affidavit, which, relevantly, annexed the material required to be the subject of service upon each of the respondents, as provided for in the order of the court made on 5 June 2019.  Mr Watson, however, pointed out to the court that, though order 2 of the court’s order made on 5 June 2019 required that each of the respondents be forthwith served, by way of substituted service, with the “following documents”, only the first respondent was so served by registered post as provided for in the order.

5. Evidence of that service is contained in annexure SQ204 to the affidavit of service of Ms Quigley (page 152 of affidavit of service bundle). The delivery confirmation note from Australia Post, which appears as that exhibit, recorded that the documents sent to the first respondent were collected from the Buddina Post Office on 23 July 2019. Mr Watson advanced the proposition that the person who acknowledged their collection of the documents on that date – namely, one J Robinson – was probably an employee of the accounting firm whose office was the registered office of the first respondent. Mr Watson is probably right in that respect.

6. In any event, it transpires that the error in the applicant failing to send all of the “following documents” by registered post to the second and third respondents at the nominated address for Lime Accounting was discovered, after which the “following documents” were sent by express post, rather than registered post, to the Lime Accounting address, as set out in the order.

7. Though there has been a failure to comply in its entirety with paragraph 2 of the order, insofar as service by registered post was intended to be effected upon each of the second and third respondents, the court accepts, nonetheless, that the documents sent by express post were, on the balance of probabilities, received by a person or persons at the address of Lime Accounting, who could have passed on the documents to the second and third respondents.

8. When asked as to whether the documents sent by express post to the second and third respondents, care of the Lime Accounting address, had been returned to the applicant’s solicitor, Mr Watson informed the court that, on his instructions, the documents had not been so returned.  The clear implication, in those circumstances, is that the documents had been received, and that someone from Lime Accounting had passed on the documents to the second and third respondents.

9. In any event, Mr Watson helpfully pointed out the provisions of rule 6.16 of the Federal Circuit Court Rules 2001 (Cth)(the Rules), which rule specifically provides for a failure to comply with an order relating to substituted service in circumstances such as the present. Rule 6.16 provides as follows:

   Rule 6.16 Failure to comply with condition

   Failure to comply with a condition of an order for substituted service does not prevent the Court from finding that the document is taken to have been served on a date specified in the order.

   The affidavit of service of Ms Quigley otherwise appropriately addressed compliance with each of the other orders made by the court on 5 June 2019. In those circumstances, the court is satisfied that notice of today’s hearing has duly been given to each of the first respondent, the second respondent and the third respondent, and that, by their non-appearance, the respondents have waived their right to be heard.

10. In those circumstances, the court is satisfied that the matter should proceed to a determination in the usual way.

11. The applicant in this matter is a female aged 39 years. She commenced employment with the first respondent in the capacity of a bottle shop attendant on 6 May 2015. There is no suggestion that she failed to carry out her duties as a bottle shop attendant other than in an entirely acceptable and satisfactory manner.

12. On 21 September 2017, the applicant attended a medical appointment with her general practitioner, whereupon she was advised that because of her being pregnant, she was, during the course of her life and work activities, not to pick up items that weighed in excess of five kilograms. She was provided with a medical certificate to that effect. That certificate is to be found as annexure AL1 to the applicant’s affidavit filed on 11 June 2018.

13. Because her work as a bottle shop attendant involved lifting and moving items more than five kilograms in weight, the applicant was, accordingly, precluded from continuing in her employment in that capacity with the first respondent.

14. The applicant had, on or about 11 September 2017, informed the respondents that she was pregnant. The applicant was told by the second respondent that the second respondent wanted to consider her position after the applicant had attended for a doctor’s appointment concerning that pregnancy. It was at that time, on 11 September 2017, that the applicant advised the second respondent that she had a medical appointment scheduled for 21 September 2017.

15. On the basis of that proposed medical appointment, a meeting concerning the applicant’s employment was scheduled to be held on 24 September 2017. At paragraph 10 of her affidavit filed on 11 June 2018, the applicant deposed that, at the 11 September 2017 meeting with the second and third respondents, she told the third respondent that she wanted to stay in her position for as long as possible during her pregnancy, to which the third respondent said words to the effect of:

    “I cannot tell you not to unload the van, as that is not fair on me, as I have enough to do.”

16. The applicant had earlier deposed in such affidavit that the second respondent was responsible for managing the bar at the first respondent’s premises whilst the third respondent was responsible for managing the drive-through bottle shop in which the applicant had been employed.

17. At paragraph 13 of her affidavit filed on 11 June 2018, the applicant deposed that, prior to the 24 September 2017 meeting, she had found out about a “no safe job” option afforded to her by the provisions of the Fair Work Act 2009 (Cth)(FWA). In that regard, the applicant was no doubt referring to the provisions of section 81 of the FWA, which section provides as follows:

    Section 81 Transfer to a safe job

    (1)This section applies to a pregnant employee if she gives her employer evidence that would satisfy a reasonable person that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated period (the risk period) because of:

    (a)     illness, or risks, arising out of her pregnancy;  or

    (b)     hazards connected with that position.

    Note:Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.

    (2)If there is an appropriate safe job available, then the employer must transfer the employee to that job for the risk period, with no other change to the employee’s terms and conditions of employment.

    Note:If there is no appropriate safe job available, then the employee may be entitled to paid no safe job leave under section 81A or unpaid no safe job leave under 82A.

    (3)An appropriate safe job is a safe job that has:

    (a)     the same ordinary hours of work as the employee’s present position;  or

    (b)     a different number of ordinary hours agreed to by the employee.

    (4)If the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee’s full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period.

    (5)If the employee’s pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.

    (6)Without limiting subsection (1), an employer may require the evidence to be a medical certificate.

18. At paragraph 14 of the applicant’s affidavit filed on 11 June 2018, the applicant deposed that she had found an advertisement which had been placed on Facebook by the second respondent on 16 September 2017. That job advertisement appears as annexure AL2 to the applicant’s said affidavit. The advertisement was for “bar staff”. A condition of employment, as stated in such advertisement, was that any applicant “must have (an) RSA” certificate – an acronym for “Responsible Service of Alcohol”.

19. The applicant gave evidence today that she, at the relevant time, held such a certificate and, also, that she was capable of fulfilling the role of a barperson. The applicant also gave evidence that she had previously worked behind a bar serving drinks in two other licensed establishments.

20. The applicant deposed that, when she spoke to the bar manager about the advertised position, she was informed that the position was still available.

21. At paragraphs 15 to 24, inclusive of the applicant’s affidavit filed on 11 June 2018, the applicant deposed as to the circumstances in which the meeting of 24 September 2017 took place. She deposed that those present at the meeting were the second respondent, the third respondent and the applicant’s partner, Anthony. The applicant handed over her medical certificate to the second respondent, whereupon the second respondent asked her what she wanted to do.

22. The applicant responded that she wanted to go on “unpaid, no safe job leave”, in the event that she could not continue working. The applicant said that the second respondent replied by saying, “We don’t do paid leave.” That was said, notwithstanding, according to the applicant, that the applicant had not sought any paid leave.

23. The applicant then asked if she would still have a job when she got back from maternity leave, to which the second respondent replied that she would see if there was a job available then. The applicant then suggested that she go to work in the bar section, noting that there was an advertisement on Facebook seeking bar staff. The applicant said that she had spoken to the bar manager who had told her that pregnant women had worked in the bar previously.

24. The second respondent was said by the applicant to have rejected such suggestion, saying that someone had once had a miscarriage when working at the bar when pregnant, so she didn’t want the applicant working there. The second respondent also said to the applicant that it was a “bad look” for pregnant women to work behind a bar. The applicant, by the contents of her affidavit, had clearly established that the second respondent, with the concurrence of the third respondent, both of whom at the relevant time were acting as agents for and on behalf of the first respondent, had rejected the proposition that she would either be allowed to work in the bar or otherwise have unpaid, no safe job leave.

25. The applicant, by her counsel, asserted that she had been the subject of adverse action in contravention of the provisions of section 340 of the FWA, which section provides as follows:

    Section 340 Protection

    (1)A person must not take adverse action against another person:

    (a)     because the other person:

    (i)has a workplace right;  or

    (ii)has, or has not, exercised a workplace right;  or

    (iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right;  or

    (b)     to prevent the exercise of a workplace right by the other person.

    Note:This subsection is a civil remedy provision (see Part 4-1).

    (2)A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.

    Note:This subsection is a civil remedy provision (see Part 4-1).

26. It is asserted, on behalf of the applicant, that the adverse action was taken against the applicant in two respects, namely:

    a)that the applicant had exercised, or proposed to exercise, a workplace right, being the right to unpaid, no safe job leave; and

    b)that the applicant had exercised, or proposed to exercise, a workplace right, being the right to be transferred to a safe job during the risk period.

27. As a result of the dialogue between the applicant and the second and third respondents at the meeting held on 24 September 2017, it is apparent that, by reason of the applicant’s pregnancy, she was discriminated against in both of the above respects in contravention of the provisions of section 351 of the FWA. Section 351 of the FWA provides as follows:

    Section 351 Discrimination

    (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 preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

    Note:This subsection is a civil remedy provision (see Part 4-1).

28. There is no doubt that the applicant’s employment was terminated because of her pregnancy. At paragraph 28 of the applicant’s affidavit filed on 11 June 2018, the applicant referred to annexure AL4, which was the employer’s signed separation certificate. The reason for “separation” set out by the second respondent in such certificate was as follows:

    Due to pregnancy, Angela is unable to continue with her position as (a) bottle shop attendant.

29. None of the respondents have appeared to answer any of the allegations made against them. In those circumstances, it must be taken that the assertions contained in the affidavit material filed on behalf of the applicant, and in the outline of submissions filed on behalf of the applicant on 15 May 2019, are unchallenged.

30. Evidence given today by the applicant was that she would have been prepared to remain working for the first respondent until the seventh month of her pregnancy. That means that she would have been able to continue in employment for a further five and a half months after her date of termination on 24 September 2017 – namely, a period of 29 weeks.

31. In this matter, the applicant had had filed on her behalf, on 6 February 2018, a Fair Work application, the grounds of which were as set out in a form 2 claim, also filed on 6 February 2018. Each of those documents have been served by way of substituted service upon each of the respondents, as earlier found by the court. No amended claim has been filed or sought to be filed. The claim for damages contained in the claim is as set out on pages 16 and 17 of the claim document.

1. As a result of the evidence of the applicant, counsel on behalf of the applicant, Mr Watson, amended the period of time over which monetary loss was sought from 31 weeks down to 29 weeks, which was reflective of the five-and-a-half-month period that the applicant would have worked behind the bar up until her seventh month of pregnancy had she been so re-deployed.  The claim was properly amended down in that regard.

2. One would have expected the monetary amount therefore claimed to reduce, however, exhibit 5 was the last payslip which the applicant received. The payslip is dated 24 September 2017. That payslip indicates that the applicant’s gross weekly wage was in the amount of $417.90. It also indicates that the tax payable on the applicant’s weekly wage was in the amount of $12.90. It is clear, therefore, that the applicant’s net weekly loss, occasioned by reason of her termination of employment, was in a weekly amount greater than $400.

3. The amount claimed in the damages schedule on page 17 of the claim document, though purporting to be a gross wage amount, is nevertheless less than the net wage loss which could have been claimed on behalf of the applicant.  In all of the circumstances, therefore, it is appropriate that the amount claimed, as set out in the damages schedule, remains as the amount able to be the subject of an order for compensation, notwithstanding that it is expressed on an erroneous basis.

4. It is, accordingly, appropriate to award compensation for the applicant’s wrongful dismissal in the amount of $10,919.13 for wage loss over a five-and-a-half-month period, together with the amount of $1,037.32, by way of lost superannuation over such period.

5. As to compensation for hurt and humiliation, the applicant has set out, in her affidavit filed 11 June 2018, at paragraph 24, that she was tearful and deeply upset by what had happened to her. She said that she was in shock. She similarly complained that she felt anxious, was upset and that she experienced disbelief as to what was happening to her at the time of her termination, as set out in paragraph 73 of her affidavit filed on 25 June 2018. Her partner, Anthony De Marchi, in his affidavit filed on 11 June 2018, similarly sets out the extent to which the applicant was speechless and upset in paragraphs 14 and 23 of his affidavit.

6. The amount claimed for hurt and humiliation is in the amount of $15,000.00. The court considers such sum, in all respects, to be reasonable. Further, notwithstanding that the applicant has established that the first respondent has been responsible for contraventions of the provisions of both section 340 and section 351 of the FWA, the only civil penalty sought on behalf of the applicant is in the amount of $10,000.00.

7. The applicant alleges that the second and third respondents are accessorily liable for the contraventions of the first respondent. It is only appropriate that those in managerial positions are so found to be accessorily liable, pursuant to the provisions of s. 550(1)(c) of the Act, in circumstances where they have been directly and knowingly concerned in the contraventions which have been alleged, and which have been proven.

8. In all of the circumstances, the court finds that the second respondent and the third respondent are accessorily liable for the contraventions as claimed. The amount claimed by way of a civil penalty for the contraventions is in the amount of $10,000.00. The court has had regard to the principle of totality and accepts that such claim made in respect of two different contraventions, which, nevertheless, arise out of the same set of facts, is a claim which is reasonable in all of the circumstances.

9. The above is particularly so in circumstances where the court is of the view that the total amount of compensation and pecuniary penalties ought to be made payable jointly and severally by each of the first respondent, the second respondent and the third respondent. In that regard, the total amount awarded by way of compensation and civil penalty, as claimed on page 17 of the applicant’s claim document, is in the amount of $36,956.45. Interest is claimed at the rate of 5 per cent for a period of one and a half years on that sum – namely, an interest component in the amount of $2,771.00.

10. In the circumstances, the amount of $2,771.00 is awarded by way of interest. The total amount recoverable jointly and severally by the applicant against each of the respondents is in the claimed amount of $39,727.45 It is also appropriate that such total amount be paid directly to the applicant in accordance with the principles for payment of moneys to an applicant in circumstances where the applicant has suffered loss and has been put to the inconvenience and expense of commencing proceedings.

11. I note that, in this matter, the applicant is legally represented by Legal Aid Queensland, but, in the exercise of the court’s discretion, it is appropriate, in all of the circumstances, to not depart from the general principle that, in cases such as the present, the amount of civil penalty ought to be paid directly to the applicant. [1]

    [1]        Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4 at [72] – [74], [98-

12. And the court so orders.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 5 September 2019

         101], and [120] - [121].