MOORE v Slondia Nominees Pty Ltd (No.2) - [2012] FMCA 989

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOORE v SLONDIA NOMINEES PTY LTD (No.2)

[2012] FMCA 989

INDUSTRIAL LAW – Penalty imposed in respect of contravention arising from dismissal of employee on account of exercise of workplace right – calculation of compensation for loss suffered – sentencing principles – whether pecuniary penalty should be imposed – to whom penalty should be paid.

Fair Work Act 2009 (Cth), ss. 360, 361, 539, 545, 546, 547, 550, 570 & Division 2 Part 4.1
Crimes Act 1914 (Cth), s.4AA

Barclay & The Board of Bendigo Regional Institute of Technical Education [2011] FCAFC 14
Barclay & The Board of Bendigo Regional Institute of Technical Education [2012] HCA 32
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
Kelly v Fitzpatrick [2007] FCA 1080
Ponzio v B and P Caelli Constructions Pty Ltd & Anors [2007] FCAFC 65
Sharpe v Dogma Enterprises Pty Ltd [2007] FCA 1550

Applicant:

SANDY MOORE

Respondent:

SLONDIA NOMINEES PTY LTD

File Number:

ADG 44 of 2011

Judgment of:

Lindsay FM

Hearing date:

28 May 2012

Date of Last Submission:

8 June 2012

Delivered at:

Adelaide

Delivered on:

31 October 2012

REPRESENTATION

Counsel for the Applicant:

Mr Colgrave

Solicitors for the Applicant:

Bourne Lawyers

Counsel for the Respondent:

Mr Manuel

Solicitors for the Respondent:

Fox Tucker Lawyers

ORDERS

That in respect of the contravention referred to in the orders of the Court of 4 April 2012:
(a)Pursuant to s.545(2)(b) of the Fair Work Act 2009 that there be an order awarding compensation for the loss that the applicant has suffered because of the contravention in the amount of TWENTY THOUSAND DOLLARS ($20,000.00);
(b)Pursuant to s.546 of the Fair Work Act 2009 there be a pecuniary penalty imposed on the respondent in the amount of FIFTEEN THOUSAND DOLLARS ($15,000.00); and
(c)Pursuant to s.546(3) of the Fair Work Act 2009 the pecuniary penalty referred to in (b) hereof be paid:
(i)As to the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) to the Commonwealth; and
(ii)As to the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) to the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 44 of 2011

SANDY MOORE

Applicant

And

SLONDIA NOMINEES PTY LTD

Respondent

REASONS FOR JUDGMENT

On 4 April 2012 I gave Reasons for being satisfied that the respondent contravened the civil remedy provisions referred to in s.539 of the Fair Work Act 2009 (“the Act”) in the manner specified in the application filed on 24 February 2011.
I found that the respondent employer had taken adverse action against the applicant employee because she sought to exercise a workplace right. The workplace right she was exercising was the bringing of an application in the relevant State Court for monies she said were owing to her under her contract of employment.
The ostensible reason the employer gave for the termination of her employment was a general downturn in its business. I found that the real reason for the termination was that the employee was exercising her workplace right aforesaid.
In…

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: [2012] FMCA 989
Decision Date: 31 October 2012

CaseChat Overview and Summary

In the matter of Moore v Slondia Nominees Pty Ltd, the Federal Circuit Court of Australia addressed a dispute arising from alleged contraventions of the Fair Work Act 2009. Moore, the applicant, sought compensation and penalties for the respondent, Slondia Nominees Pty Ltd, for failing to comply with previous court orders. The relief sought included compensation for losses suffered by Moore and the imposition of a pecuniary penalty on Slondia.

The court had to determine the quantum of compensation to be awarded to Moore for the loss suffered due to the contravention of the court’s orders, as well as the appropriate amount of pecuniary penalty to impose on Slondia. Additionally, the court needed to decide how the pecuniary penalty should be distributed, specifically between the Commonwealth and Moore.

The court found that Moore had suffered a loss of $20,000 due to the contravention and awarded this amount as compensation. In determining the pecuniary penalty, the court considered the seriousness of the contravention and the need for deterrence. The court imposed a penalty of $15,000 on Slondia, to be split equally between the Commonwealth and Moore. This distribution was deemed appropriate to reflect the dual objectives of punishment and compensation.

Orders

Orders of the court

That in respect of the contravention referred to in the orders of the Court of 4 April 2012:

(a) Pursuant to s.545(2)(b) of the Fair Work Act 2009 that there be an order awarding compensation for the loss that the applicant has suffered because of the contravention in the amount of TWENTY THOUSAND DOLLARS ($20,000.00);

(b) Pursuant to s.546 of the Fair Work Act 2009 there be a pecuniary penalty imposed on the respondent in the amount of FIFTEEN THOUSAND DOLLARS ($15,000.00); and

(i) As to the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) to the Commonwealth; and

(ii) As to the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) to the applicant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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