Lintott v Harvey Industries Group Pty Ltd - [2024] WADC 12

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LINTOTT -v- HARVEY INDUSTRIES GROUP PTY LTD [2024] WADC 12
CORAM:   SWEENEY DCJ
HEARD:   21-25 & 28 JUNE, 8 JULY, 23-25 & 30-31 AUGUST, 7 & 10 SEPTEMBER 2021, 9 MARCH & 3 JUNE 2022
DELIVERED          :   7 MARCH 2024
FILE NO/S:   CIV 3059 of 2014
BETWEEN:   MARK CHARLES LINTOTT
Plaintiff

AND

HARVEY INDUSTRIES GROUP PTY LTD
Defendant

Catchwords:

Provisional assessment of damages

Legislation:

Nil

Result:

Plaintiff's action dismissed

Representation:

Counsel:

Plaintiff	:	Mr M J Lourey
Defendant	:	Mr A J C Mossop

Solicitors:

Plaintiff	:	Premier Compensation Lawyers
Defendant	:	Clayton Utz

Case(s) referred to in decision(s):

SWEENEY DCJ:

Introduction

In March 2009, the defendant company, trading as Harvey Beef, terminated the employment of 159 of its employees on the ground of redundancy. The Australasian Meat Industry Employees Union (AMIEU, or the union) was the union to which many of the employees at the Harvey Beef meat processing plant had belonged. Two of the employees who were made redundant brought an action against the defendant for breach of their employment contracts, namely the plaintiff in this matter, Mr Mark Lintott, and Mr Antonio Panetta, known as Michael Panetta, who was the plaintiff in the related action, matter CIV 3063 of 2014.
The two trials were heard at the same time on the basis that the legal and factual issues in both and the evidence to be led was almost identical, with slight variations only in detail, given that the plaintiffs performed different roles in their jobs, and excepting evidence that related only to the assessment of any damages suffered by the individual plaintiff. But that aside, the evidence of every witness, including that of the two plaintiffs, was cross‑admissible in both actions.
The judgment delivered in Mr Panetta's matter CIV 3063 of 2014 (Panetta v Harvey Industries Group Pty Ltd [2024] WADC 11) is the primary judgment in which the issues on liability were determined. Both plaintiffs' actions failed for the several reasons detailed in that judgment. That judgment concluded with general comments concerning the provisional assessment of damages in case of appeal. I incorporate [1] ‑ [939] of that judgment into this judgment. I also made general comments about the provisional assessment of damages which applied to both plaintiffs.
All that remains left in this judgment is to deal with the final provisional assessment of damages in so far as it pertained to Mr Lintott alone.

Provisional assessment of damages for Mr Lintott

Mr Lintott was born on 5 January 1978. He was 31 when his employment with Harvey Beef was terminated in March 2009. He said that he first became involved in the Harvey Beef business roughly in 1995 (he later accepted it was more likely to be 1997) working on the floor, firstly, as a labourer, and then through all the jobs in the boning room. Once he became a qualified boner in full‑time work with top seniority, he bought a house in Harvey and started a family.
He was taken to one of his payslips and the hours worked and the rate of pay but showed little understanding of it. When counsel took him to the payment date that he had received money in his account, he said 'I couldn't tell you that. My partner used to handle all our finances, mate. I just worked'. He agreed that the defendant had paid all of his entitlements when he had been made redundant. The payroll tax records for the defendant indicated that Mr Lintott had received a total of $24,918.88 upon termination. He agreed that Centrelink had been informed of his job loss, although he could not remember whether he had received any benefits. Of course, his four weeks' notice and his 12 weeks' severance pay would have enabled him to keep going for that period.
He testified that he had been working at Level 7, the top level for boners. In cross‑examination, after a number of detailed questions about his pay rates, Mr Lintott agreed that he had made a mistake and that he had actually been classified as a Level 5 boner, which was the top level for boners, because he was never a supervisor and had never had ambitions to become a supervisor. His ordinary hourly rate in 2009 then was $15.934 per hour as shown in his payslip. He testified that his earnings had varied from week to week and that, during a busy part of the year when there was a lot of beef, his earnings would have gone up, but he would also have been working more hours for those earnings and then, if it was a bit quieter, his earnings might have gone down.
He was asked about his typical annual earnings as a boner back when he was at Harvey Beef and working under the tally system and he said, off the top of his head, he had been earning around $75,000 to $80,000 a year under the tally system, but said that had obviously depended upon the amount of beef. He said it had varied but was generally within those figures or sometimes a little better. His payslip for the period 9 ‑ 15 March 2009, which indicated earnings for the year to date as $56,148, was consistent with his evidence and suggested (very broadly) that his income in that financial year may have reached the higher end of that range had his employment not come to an abrupt end in March 2009.
As to his future with the defendant had he not been made redundant, Mr Lintott testified that, had the employees voted to accept the defendant's proposed agreement (which they did eventually), he expected that he would have worked at Harvey Beef until he had found alternative employment offering better pay. He said he would have kept boning until something better had come up.
Mr Lintott said that, following the loss of his job, it had been pretty hard at that time in Harvey to get any work and he had struggled for a while to get a job. He said he had searched everywhere, including Perth. He said he had applied for jobs at other abattoirs in 2009, but agreed that he had not applied to Dardanup Butchering Company or the Woolworths' Meat Centre or V & V Walsh in Bunbury. He said he did work for Goodchild Meats at Australind for a little bit but that was way after, 2016. He said he had worked for them for roughly a year as a boner.
He said he did find work as a boner in Perth at Western Meat Packers, but could not recall when that was, or for how long. He said, after that, he floated around for a bit because his partner had been struggling at home, managing the children by herself and, after his mother passed away due to cancer, his father had also started living with them, and he described it as 'a big struggle'.
He said he had found secure employment at the mines for a while ‑ his notice of income tax assessment indicates that that was the best money he had ever earned ‑ but that was still away from home and his partner was struggling. Ultimately, he secured the job that he has now in the forestry industry, with Wilsons. He said he has worked there for five or six years ‑ that must have been after his work at Goodchild Meats ‑ and gets to come home every night. He said his current job in forestry gives him similar pay to what he had earned at Harvey Beef, but he is working 14 to 16 hours a day compared to working eight hours at Harvey Beef for the same money. His evidence was, however, that he had been working 12‑hour shifts at Harvey Beef, seven days a fortnight, which would average out to eight hours, but did not represent 8‑hour days.
Mr Lintott's notices of income tax assessment for his income in the years subsequent to his employment with Harvey Beef were tendered. His taxation assessments were tendered for the years 30 June 2010 to 30 June 2015 and then for the year ending 30 June 2017.
His claim was for loss of income and, therefore, his past income was to be provisionally assessed by comparing the income he had actually earned to the income he could have expected to earn had the defendant performed the contract and, as discussed in the judgment Panetta v Harvey Industries Group Pty Ltd [926] - [938], that meant the amount he could have expected to earn pursuant to each successive collective agreement in place at Harvey Beef.
When Mr Lintott was made redundant, he was paid four weeks' notice plus 12 weeks' severance pay at a rate based on his average earnings as a tally worker and all of his entitlements, which meant that he was paid the equivalent of his average earnings up to 6 July 2009. Adding his earnings to date of $56,148 in his penultimate payslip and his final payout of $24,918.88, he received $81,067. I assessed that he did not lose any income in the financial year ending 30 June 2009.
He lost no income for the first week of the following financial year, as the severance pay had covered him up until 6 July 2009. Between 7 July 2009 and 6 October 2009, he would have still been subject, had he stayed, to the 2006 collective agreement pay structure. Rather than calculate his base rate entitlements pursuant to that agreement, I worked on the basis of his actual earnings under that regime as there was evidence as to how that pay regime had paid out in reality. The court did not have his past income tax assessments but his penultimate payslip, which gave his earnings to date over a period of 36 weeks, enabled the extrapolation of a likely income of $81,102 over 52 weeks, had he continued in that employment. The date period represented 13 weeks, or an expected income of $20,276.
On 7 October 2009, the 2009 collective agreement became operative. Under that agreement, Mr Lintott would have been recognised as a Level 5 boner, which was the highest classification for boners. His hourly rate for the next 12 months would have been $20.08, with a 15% higher rate for afternoon shifts, double pay for working public holidays and 17.5% leave loading on his four weeks' annual leave.
On that basis I assessed the base rate of $20.08 per hour on a 38‑hour week would have resulted in a base salary of $39,678 together with $534 annual leave loading over four weeks' leave. I allowed that he would likely have worked 5 of the 10 public holidays, earning an extra $763, and I also considered it likely that Mr Lintott would have been willing to work the afternoon shift about a quarter of the time to increase his income by $1,488. I did not factor in the night shift given his family situation.
Those figures resulted in an expected annual income from 7 October 2009 until 6 October 2010 of $42,463. On the basis that from 7 October 2009 to 30 June 2010 is 38 weeks, Mr Lintott's expected earnings under that hourly rate from 7 October 2009 until 30 June 2010 were $31,031, (with $11,432 to carry over into the next financial year up until 6 October 2010) to which I added the 13 weeks' expected earnings between 7 July 2009 and 6 October 2009 ‑ $20,276 ‑ and therefore assessed that Mr Lintott could have expected to earn $51,307 for the period 7 July 2009 to 30 June 2010 the first week having been covered by his payout.
For the financial year ending 30 June 2010, Mr Lintott's actual taxable income was $63,239, a gain of $11,932 over what he could have expected to earn, had he stayed at Harvey Beef. I did not count superannuation in the calculations, given that either employer was obliged to make those contributions.
For the following financial year, he could have expected to have earned $11,432 from 30 June 2010 to 6 October 2010 at the previous rate calculated above. The next hourly rate for 7 October 2010 to 3 July 2011 was $20.68. Following the same methodology, that base rate with leave loading on four weeks' annual leave, and working a quarter of shifts as afternoon shift and working five public holidays, would have resulted in an annual income of $43,732. For the period 7 October 2010 to 30 June 2011 (38 weeks) he could have expected to earn $31,958 which, when added to the $11,432, resulted in an expected income for the financial year ending 30 June 2011 of $43,390. That expected income was rather lower than the financial year before because the entire year was pursuant to the lower earning potential under the 2009 collective agreement, while part of the previous financial year had still been under the 2006 collective agreement.
For the financial year ending 30 June 2011, Mr Lintott's actual taxable income was $82,598, a gain of $39,208 over what he could have expected to have earned, had he stayed.
Given that the next hourly rate commenced only a few days later, pursuant to the Harvey Industries Group Pty Ltd Meat Processing & By‑Products Union Collective Agreement 2011, I proceeded straight to that higher rate. Mr Lintott would have been subject to the Level 5 extra incentive rate from 4 July 2011 which was current until 1 July 2012. Pursuant to that agreement, leave loading and shift and public holiday penalty rates remained the same. That hourly rate of $21.46, following the same methodology employed above, would have resulted in a base salary of $42,405 which, after adding in the other items, resulted in an expected annual income from 1 July 2011 to 30 June 2012 of $45,381.
For the financial year ending 30 June 2012, Mr Lintott's actual taxable income was $69,655, a gain of $24,274 over what he could have expected to have earned at Harvey Beef, had he stayed.
The next hourly rate for 2 July 2012 to 30 June 2013 was $22.21. Following the same methodology, that base rate would have resulted in a base salary of $43,887 which, after adding in the other items, resulted in an expected annual income from 1 July 2012 to 30 June 2013 of $46,967.
Mr Lintott's actual taxable income for the financial year ending 30 June 2013 was $41,415, a loss of $5,552 over what he could have expected to have earned, had he stayed. On that figure he had also lost $500 in superannuation contributions, bringing the total loss in that financial year to $6,052. That was the only year in which he earned less that he could have earned, had he stayed at Harvey Beef.
The next hourly rate for 1 July 2013 to 30 June 2014 (and beyond) was $23.04. Following the same methodology, that base rate would have resulted in a base salary of $45,527 which, after adding in the other items, resulted in an expected annual income from 1 July 2013 to 30 June 2014 of $48,722.
Mr Lintott's actual taxable income for the financial year ending 30 June 2014, based on his amended notice of assessment, was $79,314, a gain of $30,592 over what he could have expected to have earned, had he stayed at Harvey Beef.
From 1 July 2014 to 21 October 2014 (16 weeks) Mr Lintott would have still been subject to that same hourly rate of $23.04 and the same expected annual income calculated above which, over 16 weeks, would have resulted in an expected income of $14,991. Then, from 22 October 2014, the Harvey Industries Group Pty Ltd Meat Processing & By‑Products Union Collective Agreement 2014 came into operation, and Mr Lintott's hourly rate would then have increased to the Level 5 extra incentive rate of $23.67, which was in place until 30 June 2015 and beyond. That rate would have resulted in an expected base rate annual income of $46,772 which, after adding the other items, resulted in an expected annual income of $50,055, and therefore an expected income for the remaining 36 weeks of that financial year of $34,653, meaning that his expected income for the period 1 July 2014 to 30 June 2015 was $49,644.
Mr Lintott's actual taxable income for the financial year ending 30 June 2015 was $114,567, a gain of $64,923 over what he could have expected to have earned, had he stayed at Harvey Beef. That was the year he worked on the mines on a 'fly‑in fly‑out' basis.
From 1 July 2015 to 21 October 2015 (16 weeks) Mr Lintott would have still been subject to that same hourly rate of $23.67 and the same expected annual income calculated above - $50,055 - which, over 16 weeks, would have resulted in an expected income of $15,402. Then, from 22 October 2015, his hourly rate would have increased to the Level 5 extra incentive rate of $24.38 which was in place until 30 June 2016 and well beyond. That rate would have resulted in an expected base rate annual income of $48,175 which, after adding the other items, resulted in an expected annual income of $51,557, and therefore an expected income for the remaining 36 weeks of that financial year of $35,693, meaning that his expected income for the period 1 July 2015 to 30 June 2016 was $51,095.
His notice of income tax assessment for the financial year ending 30 June 2016 was not before the court. He recalled having started work at Goodchild Meats during 2016. Between any income on the mines that year and his next job at Goodchild Meats he is unlikely to have earned less than he could have earned at Harvey Beef. No loss was demonstrated.
From 1 July 2016 to 30 June 2017 and beyond, Mr Lintott would still have been subject to that same hourly rate of $24.38 and the same expected annual income calculated above, so that his expected income for the period 1 July 2016 to 30 June 2017 was $51,577.
For the 2017 financial year, the addition of two different payment summaries, being from Goodchild Meats and Bluewood Industries, indicated that his actual taxable income had totalled $75,638, a gain of $24,061 over what he could have expected to have earned, had he stayed at Harvey Beef.
From 1 July 2017 to 30 June 2018 and beyond, Mr Lintott would still have been subject to that same hourly rate of $24.38 and the same expected annual income calculated above, so that his expected income for the period 1 July 2017 to 30 June 2018 was $51,577.
From 1 July 2018 to 4 September 2018 (9 weeks) Mr Lintott would still have been subject to that same hourly rate of $24.38 and the same expected annual income calculated above, so that his expected income for that 9-week period was $8,927. Then, on 5 September 2018, the Harvey Industries Group Pty Ltd Meat Processing & By‑Products Union Enterprise Agreement 2018 came into operation, and Mr Lintott would have been subject to the Level 5 extra incentive rate of $24.74 for the remaining 43 weeks of that financial year, and beyond. That rate would have resulted in an expected base rate annual income of $48,886 which, after adding the other items, resulted in an expected annual income of $52,317, and therefore an expected income for the remaining 43 weeks of that financial year of $43,262, meaning that his expected income for the period 1 July 2018 to 30 June 2019 was $52,189.
The 2018 enterprise agreement was the most recent agreement put before the court. It notionally expired on 30 September 2018. If the hourly rate had stayed the same, then Mr Lintott's expected earnings from 1 July 2019 to 30 June 2020 and beyond would have been $52,317. But the pattern of his expected earnings had he stayed at Harvey Beef had generally seen his annual income rise by between $1,500 ‑ $2,000 each year, suggesting an expected income of about $54,000 in the financial year ending 30 June 2020 and $55,500 in the financial year ending 30 June 2021.
Mr Lintott's income tax assessments for the financial years ending 30 June 2018, 2019, 2020 and 2021 were not before the court and there were no other records from which his actual income could have been calculated but in cross‑examination he agreed that, more recently, he had been earning a little bit more in his forestry job at Wilsons than he had at Harvey Beef and said his annual income was roughly between $85,000 and $90,000 gross. He agreed that, if the court had been given his assessments for the financial years 2018, 2019, 2020 and 2021, it would have seen an income of between $85,000 and $90,000 per year.
On that basis, Mr Lintott made a gain of at least $33,423 for the financial year ending 30 June 2018, a gain of at least $32,811 for the financial year ending 30 June 2019, a gain of at least $31,000 for the financial year ending 30 June 2020 and a gain of at least $30,000 for the financial year ending 30 June 2021.

Since his position at Harvey Beef had been made redundant, there was only the one year, being the financial year ending 30 June 2013, in which he had earned less than he could have expected to have earned at Harvey Beef, resulting in that estimated loss of $6,052. That loss was consumed by the remaining years which had left him demonstrably ahead, and significantly so ‑ in excess of $310,000 better off as a result of having left Harvey Beef, without counting in the likely additional gain made in 2016. There was certainly no reason to infer that he had lost income in 2016 and, on the figures of the other years, he was so far ahead that he could not have demonstrated an overall loss even if he had earned no income in 2016.
Mr Lintott accepted the proposition that, if one took all the money he had earned since he had left Harvey Beef including his more recent work, and compared that with the money he would have earned if he had been subject to the collective agreements that had operated at Harvey Beef since he left, then he had actually earned more than he would have at Harvey Beef. The hours may not have been as good, and the various jobs may not have been as convenient to him, but his claim was based on loss of earnings and he failed to prove any past loss of earnings.
I was also satisfied that Mr Lintott would not likely have remained at Harvey Beef for too long in any event, once the 2009 collective agreement had been voted in and eventually certified. He is clearly employable for better money than he could have earned had he stayed, and he has earned better money than he could have earned, had he stayed.
Given the figures, and the fact that Mr Lintott is now still only 46, and appeared content in his current employment in forestry, there was no reason to assume that he would not continue to be employed at a similar level of income to that which he currently earns, whether in that job or another, allowing for increases over time. There was no evidentiary basis upon which to draw the inference that his future earnings had suffered as a result of the termination of his employment. Even if Mr Lintott's claim based on the alleged express non‑discrimination term had succeeded, he did not prove that he had suffered a loss. Consequently, I would not have awarded damages for loss of income, past or future.
His actual earnings also consumed the modest provisional assessment I had made in the judgment in Panetta v Harvey Industries Group Pty Ltd [891] concerning the loss of four days' wages due to the defendant's failure to provide the required information in writing to the affected employees in advance (in case I was wrong in finding that the 2006 collective agreement had not formed part of the employment contract). Consequently, I would not have made any award of damages.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DD
Associate to Judge Sweeney
6 MARCH 2024