Penttila v Woolworths Ltd - [2022] FedCFamC2G 480

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Penttila v Woolworths Ltd [2022] FedCFamC2G 480

File number(s): BRG 67 of 2020

Judgment of: JUDGE EGAN

Date of judgment: 29 June 2022

Catchwords: INDUSTRIAL LAW – Claims by applicant that he was underpaid by respondent – failure by applicant to adduce evidence probative of his claims – Amended Statement of Claim dismissed.

Legislation: Evidence Act 1995 (Cth) s. 140.

Cases cited: Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Aust) Pty Ltd (No. 4) [2011] FCA 578

Division: Division 2 General Federal Law

Number of paragraphs: 35

Date of last submission/s: 14 June 2022

Date of hearing: 14 June 2022

Place: Brisbane

The Applicant: Self-represented

Counsel for the Respondent: Mr M Mckechnie

Solicitor for the Respondent: Minter Ellison
ORDERS

BRG 67 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
RUSSELL PENTTILA

Applicant

AND:
WOOLWORTH LTD ABN 88 000 014 675

Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

29 JUNE 2022

THE COURT ORDERS THAT:
1.The Application in a Case filed on 9 December 2021 be dismissed.
2.The Application in a Case filed on 9 April 2022 be dismissed.
3.The Originating Application filed on 3 February 2020 be dismissed.

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 Egan
Introduction

By an Amended Statement of Claim filed on 11 May 2020, the applicant sought the following orders:
“[158] An order pursuant to section 545(1) of the FW Act that, within 28 days of the date of this order, the First Respondent, pay to the applicant the amount of $81,197.57 being the sum of the underpayment amounts set out at paragraph 153
[159] An order pursuant to section 547(2) of the FW Act that, within 28 days of the date of this order, the First Respondent, pay to the Applicant $28,446.04 in interest at the applicable pre-judgement interest rate on the underpayment amounts set out at paragraph 152
[160] An order pursuant to section 547(2) of the FW Act that, within 28 days of the date of this order, the First Respondent, pay to the applicant the amount of $63,720 being the sum of the pleading amounts set out at paragraph 156
[161] An order that within 14 days of receipt of the amounts referred to at paragraphs 158,159 and 160, the respondent will
a. pay
i. $173,363.61 to the applicant
b.In the event that the respondent cannot locate the applicant, pay the amount received to the Commonwealth with a further 7 days
[162]An order that the applicant have liberty to apply on…

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: [2022] FedCFamC2G 480
Decision Date

CaseChat Overview and Summary

The applicant, Mr Penttila, brought proceedings against Woolworths Ltd alleging that he had been underpaid during two periods of employment. The first period of employment was as a part-time console operator between 17 January 2014 and 30 November 2015. The second period of employment was as a full-time assistant store manager between 30 November 2015 and 15 June 2017. Woolworths Ltd denied that it had underpaid the applicant. The applicant also filed two applications in a case seeking summary judgment and default judgment against Woolworths Ltd. Woolworths Ltd opposed the applicant's claims and the applications in a case. The Court dismissed the Amended Statement of Claim and the applications in a case. The applicant failed to prove his claims on the balance of probabilities. In respect of the first employment period, the applicant had failed to provide evidence going to his pleaded claims. The applicant's claim for underpayment in the first employment period was accordingly dismissed. In respect of the second employment period, the Court found that the provisions of the enterprise agreement did not form part of the applicant's contract of employment and that Clause 6 of such contract specifically excluded the application of the enterprise agreement to the applicant's contract of employment. The applicant was duly paid in accordance with his contract. The applicant's claim for underpayment in the second employment period was accordingly dismissed.

Orders