Federal Circuit and Family Court of Australia
(DIVISION 2)
Mishra v Monash Health (No 2) [2022] FedCFamC2G 952
File number(s): MLG 370 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 17 November 2022 Catchwords: INDUSTRIAL LAW – whether to impose a pecuniary penalty for breach of an enterprise agreement and breach of section 323 of the Fair Work Act 2009 (Cth) – relevant factors assessed and weighed – pecuniary penalty imposed. Legislation: Fair Work Act 2009 (Cth) ss 50, 323, 340, 352, 546(1). Cases cited: Australian Building and Construction Commissioner v Pattinson [2022] HCA 13
Fair Work Ombudsman v NSH North Shore Pty Ltd t/a New Shanghai Charlestown [2017] FCA 1301
Kelly v Fitzpatrick [2007] FCA 1080
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7Mishra v Monash Health [2022] FedCFamC2G 240
Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65
Singh v Monash Health [2022] FedCFamC2G 229
Trade Practices Commission v CSR Ltd [1991] ATPR 41-076
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of last submission: 17 May 2022 Date of hearing: On the papers Place: Melbourne Solicitor for the Applicant: Jewell Hancock Employment Lawyers Solicitor for the Respondent: Victorian Government Solicitor's Office ORDERS
MLG 370 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TARAKUMARI MISHRA
Applicant
AND: MONAH HEALTH
Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
17 NOVEMBER 2022
THE COURT ORDERS THAT:
1.Pursuant to section 546(1) of the Fair Work Act 2009 (Cth) (‘Act’), the Respondent pay a pecuniary penalty of $13,320 in respect of the contraventions the subject of the Declarations made by Judge McNab on 5 April 2022.
2.The penalty in Order 1 above be paid to the Applicant within 28 days of the date of these Orders.
3.The Applicant have liberty to apply on seven days notice in the event that the preceding Orders are not complied with.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
On 5 April 2022, Judge McNab (as His Honour then was) delivered judgment in the matter of Mishra v Monash Health [2022] FedCFamC2G 240 (‘Reasons’). Judge McNab dismissed various claims made by the Applicant under section 340 and 352 of the Fair Work Act 2009 (Cth) (‘Act’). Judge McNab, also, however, made the following declarations:
1. The Respondent has breached:
(a)clause 25.1 of the Victorian Public Health Sector (Health And Allied Services, Managers And Administrative Workers) Single Interest Enterprise Agreement 2016-2020; and
(b)section 50 and section 323(1) of the Fair Work Act
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- Case
- [2022] FedCFamC2G 952
- Decision Date
CaseChat Overview and Summary
The legal issues the Commission had to resolve included whether Dr. Mishra's entitlement to wages was contingent upon her making herself available for work, and if the respondent's failure to pay wages constituted a breach of the Enterprise Agreement and the Fair Work Act. The Commission also needed to consider the nature and extent of the conduct that led to the contraventions, and whether the contraventions were deliberate.
Judge McNab concluded that Dr. Mishra was entitled to wages independent of her rights under contract. The judge found that Dr. Mishra had provided a certificate of capacity to return to work and was entitled to wages unless her employment was terminated. There was no evidence that Dr. Mishra refused to follow a direction to return to work, and thus, the respondent breached the Enterprise Agreement. While the amount involved in the breach was modest and had been repaid, the Commission would consider this in determining any penalty.
The Commission found in favour of Dr. Mishra and ordered Monash Health to pay her the wages owed for the period in question, plus interest. Monash Health was also required to apologise for not paying the wages as required by law.
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Background
Background to the litigation
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Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
I turn now to address the relevant factors and the question of penalty. considerationNature, extent and circumstances of the conduct that led to the contraventions and whether the contraventions were deliberate At trial, the Applicant claimed that the Respondent had breached clause 25 of the Agreement, and sections 50 and 323(1) of the Act by failing to pay her wages for the period 28 September 2020 to 12 October 2020. The Respondent defended the claim on the basis that the Applicant did not actually perform work during those two weeks: see Reasons at [2] and [3]. Prior to the contravention occurring, the Applicant had been on extended personal leave and had made WorkCover claims: see Reasons at [14], [17], [18], [19] and [20]. In the Reasons, Judge McNab then records the following:[21]On 26 September 2020, the Applicant provided the Respondent with a certificate stating that she was fit to return to work at a site away from the current conflict. Ms McNulty sought clarification as to the Applicant’s capacity to return to her normal duties and scheduled a meeting with the Applicant on 12 October 2020. The Respondent recommenced the Applicant’s suspension on full pay on 12 October 2020. The Applicant was not paid between 26 September 2020 and 12 October 2020. Judge McNab’s consideration of these matters and whether they constitute a contravention of the Agreement or the Act is set out at paragraphs [81]-[86] of the Reasons. After having weighed the parties respective contentions and considered the evidence, Judge McNab concluded as follows: [85]The Applicant is entitled to the payment of wages pursuant to an industrial instrument and that entitlement is independent of rights arising under contract. The Applicant had provided a certificate of capacity for work and therefore was entitled to be paid unless her employment was terminated. The submission that she was not available to perform her contracted position does not undermine her entitlement to wages under the Enterprise Agreement. There is no evidence that the Applicant refused to follow a direction to return to work whether in her original position or in some other position. Therefore I find that there has been a breach of the Enterprise Agreement. The amount of money involved in the breach is modest and has been repaid and therefore any penalty that is likely to be imposed (if any) is also likely to take those matters into account. It is apparent from the Reasons and from the affidavit of Ms Giles filed 17 May 2022 that at the time the Applicant sought to return to work there remained a number of issues between her and the Respondent, including the status of an ongoing investigation into her conduct. Ms Giles affidavit records the following:(a)the Applicant sent an email to the Respondent on 26 September 2020 stating that she was fit to return to work save that she had to be located at a site away from the current conflict. The Applicant also sent an email on 1 October 2020 containing a letter from a doctor indicating that she was fit to return to work in an area away from the current conflict;(b)on 2 October 2020, the Respondent wrote to the Applicant’s lawyers asking that they confirm the Applicant’s capacity to participate in the investigation into her conduct;(c)on 7 October 2020, the Respondent sent an email to the Applicant asking whether she was still being supported through the investigation process and subsequently called to offer days and times for a proposed meeting with the Applicant;(d)subsequently, a meeting was arranged between the Applicant and the Respondent on 12 October 2020 and the Applicant commenced receiving her wages from this point in time;(e)Ms Giles believed that the Applicant was not entitled to be paid her wages until she made herself available to continue with the investigation;(f)Ms Giles now understands, given the Reasons, that the Applicant was entitled to be paid wages from the date she provided a Certificate of Capacity and that the Respondent regrets and apologises for not paying the Applicant her wages as required by law.