Pavolvich and Atlantic Contractors Pty Ltd
[2012] FMCA 1080
•26 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PAVOLVICH & ATLANTIC CONTRACTORS PTY LTD | [2012] FMCA 1080 |
| INDUSTRIAL LAW – Claim alleging dismissal in contravention of a general protection – applicant claims terminated because of temporary absence from work because of illness – default hearing – termination in breach of general protection – fixing of pecuniary penalty. |
| Federal Magistrates Court Rules 2001, rr.4.01, 13.03A(2), 13.03B(2)(c), 13.03B(2)(d), 45.06 Fair Work Act 2009, ss.351, 352, 361, 539, 546 Fair Work Regulations 2009, reg.3.01 |
| Kelly v Fitzpatrick (2007) 166 IR 14 Mason v Harrington Corporation Limited [2007] FMCA 7 National Tertiary Education Industry Union v Central Queensland University [2008] FCA 481 |
| Applicant: | PAUL M PAVOLVICH |
| Respondent: | ATLANTIC CONTRACTORS PTY LIMITED |
| File Number: | BRG 343 of 2012 |
| Judgment of: | Jarrett FM |
| Hearing date: | 26 October 2012 |
| Date of Last Submission: | 26 October 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 26 October 2012 |
REPRESENTATION
| Representative for the Applicant: | Mr Crank |
| Representatives for the Applicant: | Construction, Forestry, Mining and Energy Union |
| The Respondent appeared by its director, Mr Brites |
ORDERS
THE COURT ORDERS DECLARES THAT:
Atlantic Contractors Pty Ltd contravened:
a.s.351 of the Fair Work Act 2009 in that the respondent dismissed the applicant from its employment because he had a physical disability which made the applicant temporarily unable to perform work;
b.s.352 of the Fair Work Act 2009 in that the respondent dismissed the applicant from its employment because he was temporarily absent from work by reason of that disability.
THE COURT ORDERS THAT:
The respondent pay a pecuniary penalty of $16,500.00 for its contravention of the Fair Work Act 2009 such penalty to be paid to the Construction, Forestry, Mining and Energy Union within three (3) months of the date of this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
No. BRG 343 of 2012
| PAUL M PAVOLVICH |
Applicant
And
| ATLANTIC CONTRACTORS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Ex tempore
In this matter the application was filed on 24 April, 2012. The application and the form 2 claim that accompanied it were served by post whereby the relevant documents were sent to 832 Beaudesert Road, Coopers Plains, Queensland. That address is the registered office of Atlantic Contractors Pty Ltd. The affidavit of Michelle Claire filed by leave on 24 May, 2012 appends to it a search of the relevant database maintained by ASIC which indicates that at the relevant time, the current registered office of the company was 832 Beaudesert Road, Coopers Plains.
This morning a person appears on behalf of the respondent claiming to be a director of that company – Mr Brites. Mr Brites confirms that 832 Beaudesert Road, Coopers Plains, is the registered office of the respondent company. I am satisfied in those circumstances that the company was properly served and that the relevant documents were brought to the attention of the respondent as provided for in both the rules of the Federal Magistrates Court and the Corporations Act 2011.
Since the proceedings were filed, the matter has been before this Court on three occasions: 24 May, 12 June and 6 September, 2012. On 24 May, there was no appearance for the respondent; on 12 June, there was no appearance for the respondent although the person who now appears for the company says that he was present at court and waited outside and did not know that the matter had been dealt with. Upon inquiry he was told, apparently, by my Associate, that the matter had been dealt with and adjourned to 6 September.
Notwithstanding that, on 6 September there was no appearance by the respondent. The person who seeks to appear for the company says that he, or the company received no paperwork in respect of the 6 September. Just what paperwork he was expecting to receive is not clear. What is clear is that he knew that the matter was adjourned to 6 September, because he had been told that. On 6 September, the matter was adjourned to today and the applicant was given leave to proceed today on a default hearing in respect of the claims brought by the applicant.
The orders made on 6 September, provided for the applicant to file and serve upon the respondent, a copy of the order and the evidence upon which the applicant seeks to rely on today. I have another affidavit of Michelle Claire which I will now give leave to read and file. In that affidavit, Ms Claire deposes that she sent to 832 Beaudesert Road, Coopers Plains, a copy of the order of 12 June and the order of 12 May, via post on 18 September. She deposes that she also served a copy of the order dated 12 June and 24 May, in this matter, upon the company electronically by email on 18 September and she appends some email correspondence that she received from the respondent. Indeed, the email correspondence annexed to Ms Claire’s affidavit reveals that on Wednesday, 6 June, the respondent acknowledged that documentation dated 24 April, 2012 in the matter of “Paul Pavolvich v Atlantic Contractors Pty Ltd” was received from the Builders’ Labourers’ Federation on Wednesday, 6 June 2012, at 11:18 am.
So one way or the other, the respondent has had very clear notice of these proceedings. Despite all of that, the respondent has never participated in the proceedings and he has filed no response to the material filed by the applicant. The applicant says in those circumstances the application should proceed. The respondent ought not be heard in respect of the issues of liability but the respondent might be heard in respect of the issue of penalty.
I agree. The respondent has had ample opportunity to place before the Court any material which the respondent has wished to do. It is clear from the material before me, that even taking the most benevolent view for the respondent, the respondent received the material in this case on 6 June, and it is now 26 October. No explanation is offered as to why nothing has been done. In those circumstances, I intend to proceed with the default hearing. I intend to give the person who claims to be a director of Atlantic Contractor Pty Ltd leave to appear for the company for the purposes of making submissions about penalty.
RECORDED: NOT TRANSCRIBED
This is an application for findings of contravention of the Fair Work Act 2009 and consequent imposition of pecuniary penalties on the respondent for breaches of the Act. Although the proceedings seek orders for compensation and the imposition of a pecuniary penalty, only the latter was pursued. The former was abandoned.
I have already re-counted in separate reasons, delivered this morning, the history of these proceedings. The respondent has never filed a response to the application and claim that have been filed in this matter. It is only for the first time today, that somebody seeks to appear on behalf of the respondent.
The applicant says that the matter should proceed to finality today. Division 13.1A of the Federal Magistrates Court Rules 2001 provides for orders or judgments on default. By rule 13.03A(2):
(2) For rule 13.03B, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claim; and
(b) fails to:
(i) give an address for service before the time for the respondent to give an address has expired; or
(ii) file a response before the time for the respondent to file a response has expired; or
(iii) comply with an order of the Court in the proceeding; or
(iv) file and serve a document required under these Rules; or
(v) produce a document as required by Part 14; or
(vi) do any act required to be done by these Rules; or
(vii) defend the proceeding with due diligence.
The respondent in this case might be said to have done all of those things. It has not filed a response before the time for the respondent to file a response has expired. It has not defended the proceedings with due diligence. It has not filed and served a document required under the rules. I am satisfied that the respondent is, for the purposes of rule 13.03A(2), in default.
Rule 13.03B(2) provides that,
(2) If a respondent is in default, the Court may:
(a) order that a step in the proceeding be taken within the time limited in the order; or
(b) if the claim against the respondent is for a debt or liquidated damages — grant leave to the applicant to enter judgment against the respondent for:
(i) the debt or liquidated damages; and
(ii) if appropriate — costs; or
(c) if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings — give judgment against the respondent for the relief that:
(i) the applicant appears entitled to on the statement of claim; and
(ii) the Court is satisfied it has power to grant; or
(d) give judgment or make any other order against the respondent; or
(e) make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.
The applicant in this case, seems to press its claim for judgment by default under rule 13.03B(2)(c), that is, the rule that applies to proceedings that were “commenced by an application supported by a statement of claim”. I am not certain that these proceedings meet that description. These proceedings were commenced by an application and a claim authorised by FMCR 45.06, not a statement of claim. I am troubled about whether there is a difference but on balance, I think that there is. A statement of claim is a document which is ordinarily considered, by lawyers at least, to be what is described as a pleading.
That is a document, which irrespective of what Court that it is filed in, generally meets certain characteristics. It is generally as brief as the circumstances permit and it is essentially is a series of factual allegations. To state it simply, however, belies the difficulty that is often attendant upon properly pleading a claim or defence. Conclusions of law and conclusions of fact generally have no place in a pleading. It is of note that rule 13.03B(2)(c) also deals with proceedings where the Court has ordered that the proceedings continue on pleadings. That tends to suggest that the reference to a statement of claim earlier in that sentence was intended to refer to a pleading. I do not think it is intended that the claim delivered with an application filed pursuant to FMCR 45.06 is a statement of claim in the pleading sense, although it may exhibit some of those characteristics.
The claim in this case, the form 2 that was filed, is not a statement of claim as traditionally viewed. It is not a document which is required to be filed by rule 4.01 and so it seems to me that it is inappropriate to proceed under rule 13.03B(2)(c) because this is not a proceeding commenced by an application supported by a statement of claim.
It is an application, however, which can proceed to a default hearing under 13.03B(2)(d) that is – the court may give judgment or make any other order against the respondent. Ordinarily, to proceed in such a fashion, the Court would need to be satisfied by evidence of the relevant factual matters that are required to be proved to give the applicant its relief. In this case, most of the allegations are contained in the claim filed on 24 April, 2012. It is not a sworn document – it is signed but it is signed by the authorised representative of the applicant. And so in my view it has no evidential value: it is a claim; an allegation; an assertion.
Part G of the claim form sets out the contraventions that are alleged, and it does so in a narrative form which looks a bit like evidence. Were it the case that the claim was a sworn document it may well be that the Court could treat it as evidence. But it is not.
However, there is some sworn evidence before the Court in relation to the claim. The affidavit of Mr Miles filed 8 June, 2012 contains some evidence. Relevantly in that affidavit, Mr Miles says this:
On or about 18 October 2011, Paul Pavolvich telephoned me and told me that he had been sacked by Atlantic Contractors because he had been off work, sick. I asked Paul who told him he was sacked and what was that bloke’s phone number. And Paul replied, ‘A foreman called John’, and he gave me John’s phone number.
I do not treat that evidence as evidence that goes to the truth of the things that Paul Pavolvich said to Mr Miles. The evidence is hearsay. But it is evidence that there was contact between Mr Pavolvich and Mr Miles. Paragraph 3 of the affidavit goes on:
I telephoned John, the Atlantic foreman, on or about 18 October 2011, soon after speaking to Paul. I asked John why Paul was sacked. John told me that Paul was meant to be a formwork labourer but he was not. I said Paul is a formwork labourer and worked as such on the Law Courts for 12 months. John replied, ‘Paul was always sick. I should of have got rid of him ages ago. I gave him chances. He fucked around. I don’t want him.’ I replied, ‘You can’t sack people because they are sick.’ John then repeated some of what he had previously said to me. I realised I would not be able to change John’s mind about sacking Paul. I finished the conversation by saying, ‘All right. We’ll take it from there.’
To the extent that that evidence sets out what John, the foreman, said to Mr Miles – that evidence is hearsay. But the evidence is admissible as to the truth of what John said because it forms an exception to the hearsay rule. The statements by John are statements against the respondent’s interest, that is, they seem to be admissions that Mr Pavolvich was sacked for particular reasons. I can take them into account if I am satisfied that John was, indeed, a foreman from Atlantic Contractors.
Mr Miles, in his affidavit, says that he was given that number and he telephoned John, the Atlantic foreman. The terms of the conversation recorded by Mr Miles seem to bear out the notion that the person with whom Mr Miles was speaking was indeed somebody who was familiar with Mr Pavolvich – had indeed sacked him and was therefore, part of the respondent’s organisation. I am satisfied, then, of the facts set out in Mr Miles’ affidavit.
The question is: does that entitle the applicant to any relief. Section 352 of the Fair Work Act 2009 provides that: “An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.” The applicant, in the very useful written submissions that have been handed up, points out that reg.3.01 of the Fair Work Regulations 2009, prescribes the kinds of illness or injury for s.352 of the Act. I will not repeat what the regulation provides but what is clear here, according to the words of John, the foreman, is that Paul was always “sick”, and he should have got rid of him “ages ago”. When challenged by Mr Miles that you cannot sack people because they are sick, John apparently repeated what he had said.
Although, it is very thin on the ground, I am on the balance of probabilities, satisfied that the employer in this case, Atlantic Contractors Pty Ltd, dismissed Mr Pavolvich because he was temporarily absent from work because he was sick. To do that was to breach s.352 of the Fair Work Act 2009 and amounted to the taking of adverse action against Mr Pavolvich by Atlantic Contractors Pty Ltd, in breach of the Fair Work Act 2009.
Certainly, it is the case that the facts set out in Mr Miles’ affidavit, as scant as they are, tend to raise for answer a case as I have just described, that is to say, a breach of s.352 and the taking of adverse action against Mr Pavolvich. Once such a case is raised on the evidence, there is an onus on the respondent to prove that the adverse action was not taken against the employee for a proscribed reason, see s.361 of the Fair Work Act 2009. The respondent does not discharge the onus upon it. The respondent has chosen not to respond to the proceedings.
Section 351 of the Fair Work Act 2009 provides as follows:
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 responsibilies, pregnancy, religion, political opinion, national extraction or social origin.
In this case, the applicant argues that the employer in this case took adverse action against Mr Pavolvich because of a physical disability, namely, sickness. The applicant points out in written submissions that a physical or mental disability is not confined to permanent disability. I accept that argument. There seems to be no particular reason why one ought to read down the otherwise remedial provisions of s.351 of the Fair Work Act 2009 in such a way. A physical disability can, of course, be temporary or permanent. In the case of sickness, the disability may only last for as long as the sickness lasts. For the reasons that I have already expressed in respect of s.352, it seems to me that there has also been a breach of s.351.
The question of fixing penalty to be imposed under the Fair Work Act 2009 is one of discretion. The court has an unfettered discretion in fixing the appropriate penalties. The process to be adopted is generally seen as authoritatively stated in Mason v Harrington Corporation Limited [2007] FMCA 7 and Kelly v Fitzpatrick (2007) 166 IR 14.
The first step is generally seen as identifying the separate contraventions involved. Each breach of a separate obligation of the Fair Work Act 2009 is a separate contravention. I can, however, treat multiple contraventions together as categories of breach where those breaches arise out of the same or a similar course of conduct. In doing that, the Court avoids double punishment of the respondent and the Court can take into account the common elements between the contraventions and fix an appropriate penalty.
The Court needs to consider an appropriate penalty in respect of the course of conduct concerned, having regard to all of the circumstances of the case. In this case, as I have said, there are two contraventions but they arise out of the same conduct. Indeed, the submissions handed up for the respondent suggest that there really is only one contravention for which the respondent should be penalised.
In this case, the applicant submits that the conduct which led to the breaches in this case was blatant. The applicant submits that the dismissal of Mr Pavolvich was a significant matter. It deprived him of his livelihood and within the range of the types of adverse action that might be taken by an employer against an employee, I accept the dismissal is at, or near the top of that range. There are a broad range of actions that might fall within the description of adverse action for the purposes of the Fair Work Act 2009, which, in terms of the consequences for the employee fall well below dismissal from employment. It is relevant, however, to consider that the employment in this case was of limited duration and was only about 10 days old when the dismissal occurred.
The applicant fairly concedes that there is no suggestion that the respondent in this case has been found to have contravened the Fair Work Act 2009 in any similar way in the past.
There is no evidence before me about the size of the respondent’s business. The applicant suspects, according to the written submissions, that it is a small to medium-sized enterprise. The statements made by the person who now seeks to represents the company, is consistent with that although I was told from the bar table that the business no longer trades. But as the applicant has pointed out and as I have pointed out in the past, the size of a particular employer is really of very little relevance. Employees who are in employed by a small business are just as much entitled to the protections of the Fair Work Act 2009 and the industrial relations system, as employees of large concerns. Employees of BHP are in no better position, or no worse position, than a single employee of another person when it comes to their rights, entitlements and obligations under the Fair Work Act 2009.
I accept that, in this case, the respondent acted in disregard of the obligations cast on it by the Fair Work Act 2009. There is no evidence that the respondent sought to undo what it did by seeking to reinstate Mr Pavolvich or indeed offering any form of apology. There is no evidence of contrition from the respondent, no statement of regret in relation to the contravention of the Act.
The statements made by the person who now seeks to represent the company, Mr Brites, tend to suggest that he was the person described as “John” in Mr Miles’ affidavit. I draw that inference from his statements that he did not swear and used the word “fucked” to Mr Miles, as Mr Miles alleges in his affidavit. Mr Brites claims also to be a director of the company. That tends to suggest that this contravention has been committed by somebody in a senior managerial position in this company. That is of some significance.
There has been no cooperation at all between the applicant, or those that represent the applicant, and the respondent. The respondent has consistently ignored these proceedings until today. There has been no compliance with the requirements on the respondent to file a response and there has been no attempt to place evidence before the Court in the way in which it ought to have been.
I accept that general deterrence has a place to play when fixing a pecuniary penalty for a contravention of the Act. In cases like this, general deterrence is of particular relevance.
The maximum penalty that can be imposed in this case is $33,000 in respect of each contravention. I derive that figure from a combination of the fixing of a penalty unit at $110 by the Crimes Act 1900 and the provisions made in s.546 of the Fair Work Act 2009, and s.539 of the Fair Work Act 2009. But as I have already indicated, I ought to deal with the contraventions as arising out of the same course of conduct. On that basis that the maximum penalty that might be imposed in this case is $33,000.
The conduct is, for the reasons that I have given, conduct which is significant and which warrants an appropriate penalty. The applicant argues that the penalty ought to be in the order of $22,000 which is more than 50 per cent of the maximum. The applicant suggests that it should at the mid to upper end of the range – at about two-thirds of the maximum.
However, I disagree. Although there is considerable reason to be concerned about this conduct, it does seem to be one off – there is no other history. In those circumstances to which I have referred in these reasons, in my view, the penalty ought to be fixed at 50 per cent of the maximum. In those circumstances, the penalty will be fixed at $16,500.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
I have power under the Fair Work Act 2009, to order that the penalty be paid to the Union. Having regard to the written submissions handed up, and the decision of Logan J in National Tertiary Education Industry Union v Central Queensland University [2008] FCA 481 I will order that the penalty be paid to the Union that represents the applicant.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Jarrett FM.
Date: 20 November 2012
4
3