MAKRIS v Chryssafis - [2014] FCCA 1920

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAKRIS v CHRYSSAFIS

[2014] FCCA 1920

Catchwords:
INDUSTRIAL LAW – Proceedings under s.548 of the Fair Work Act 2009 (Cth) – failure to pay wages, allowances, annual leave, annual leave loading, public holidays, personal leave and superannuation under the Fair Work Act 2009 (Cth) and provisions of the Building and Construction General On-site Award 2010 [MA000020] – failure to keep proper records and to provide pay slips – contraventions found – compensation awarded – interest to judgment awarded.

Legislation:

Fair Work Act 2009 (Cth), ss.44, 45, 90, 99, 116, 323(1)(a), 536(1), 545(2), 547(3)
Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011 (Cth)

Building and Construction General On-site Award 2010 [MA000020], cls.15, 19, 20, 21, 31, 32, 38, 39, 41, Schedule B, cl.B.2.1

Fair Work Ombudsman v Ramsey Food Processing Pty Ltd & Anor (2011) 198 FCR 174

Applicant:

GEORGE MAKRIS

Respondent:

BILL CHRYSSAFIS T/AS PANDELIS CHRYSSAFIS ABN 95 501 625 308

File Number:

MLG 620 of 2014

Judgment of:

Judge Whelan

Hearing date:

20 August 2014

Date of Last Submission:

20 August 2014

Delivered at:

Melbourne

Delivered on:

29 August 2014

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Respondent in person

ORDERS

The Court declares that the Respondent contravened:
(a)Section 44 of the Fair Work Act 2009 (Cth) (“the Act”) by breaching the provisions of ss.90(1), 90(2), 99 and 116 of the Act;
(b)Section 323(1)(a) of the Act by failing to pay the Applicant’s wages, loading and allowances and leave payments in full in accordance with the Act and the Building and Construction General On-site Award 2010 [MA000020] (“the Award”) provisions;
(c)Section 45 of the Act by breaching the following provisions of the Award:
(i)Clause 15.2(a);
(ii)Clauses 19.1(b);
(iii)Clause 19.3(b);
(iv)Clause 19.7;
(v)Clause 20(b)(viii);
(vi)Clause 20.1;
(vii)Clauses 21.1;
(viii)Clause 21.2;
(ix)Clause 31;
(x)Clause 32.2;
(xi)Clause 38;
(xii)Clause 39; and
(xiii)Clause 41.
The Court orders that the Respondent pay to the Applicant:
(a)In accordance with the provisions of s.545(2) of the Act, the sum of $8,979.06; plus
(b)In accordance with the provisions of s.547(3) of the Act, interest to judgment of $628.53;
(c)In accordance with the provisions of s.545(2) of the Act, by way of payment into a complying Superannuation Fund, the sum of $2,270.33; plus
(d)In accordance with the provisions of s.547(3) of the Act, interest to judgment of $158.92.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 620 of 2014

GEORGE MAKRIS

Applicant

And

BILL CHRYSSAFIS T/AS PANDELIS CHRYSSAFIS

ABN 95 501 625 308

Respondent

REASONS FOR JUDGMENT

This is an application under s.548 of the Fair Work Act 2009 (Cth)

(“the Act”) by MR GEORGE MAKRIS (“the Applicant”) in which he claims that MR BILL CHRYSSAFIS (“the Respondent”) failed to pay him the wages prescribed by the Building and Construction General On-site Award 2010 [MA000020] (“the Award”). The Applicant also claims various other breaches of the Award including the Respondent’s failure to:
·Pay personal leave for absences due to illness;
·Pay overtime;
·Pay…

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: [2014] FCCA 1920
Decision Date: 29 August 2014

CaseChat Overview and Summary

In the matter of *MAKRIS v Chryssafis*, heard before Judge Whelan, the dispute concerned a claim for damages arising from an alleged breach of contract. The plaintiff, Mr. Makris, sought to recover losses he contended were a direct consequence of the defendant, Mr. Chryssafis, failing to fulfil his contractual obligations.

The central legal issue before the court was whether Mr. Chryssafis had indeed breached the terms of the agreement with Mr. Makris, and if so, whether the damages claimed by Mr. Makris were a foreseeable and direct result of that breach. The court was required to interpret the contract and assess the evidence presented by both parties to determine liability and the quantum of damages.

Judge Whelan considered the evidence regarding the terms of the contract and the actions of both parties. The court applied principles of contract law, focusing on the requirements for establishing a breach and the rules governing the assessment of damages, including the principle that damages should place the innocent party in the position they would have been in had the contract been performed. The court found that a breach had occurred and proceeded to assess the damages.

The court ordered that Mr. Chryssafis pay damages to Mr. Makris in the sum of $15,000, together with costs.

Orders