Power v BOC Pty Ltd and Ors (No.2) - [2017] FCCA 2387

FEDERAL CIRCUIT COURT OF AUSTRALIA

POWER v BOC PTY LTD & ORS (No.2)

[2017] FCCA 2387

Catchwords:
INDUSTRIAL LAW –Assessment of compensation for breach of s.340 of Fair Work Act 2009 (Cth) – whether employer can dismiss an employee when on maternity leave – pecuniary penalty.

Legislation:

Fair Work Act 2009 (Cth), ss.70, 71, 75, 79, 83, 84, 340, 545
Workplace Relations Act1996 (Cth) ss.265, 279, 280

Cases cited:

Stanley v Service to Youth Council Incorporated [2014] FCA 643
Liquor, Hospitality and Miscellaneous Union v Cuddles Management Pty Ltd [2009] FMCA 463

Commonwealth of Australia v Director, Fair Work Building Industry Assessment [2015] HCA 46

Mason & Harrington Corporation Pty Ltd t/as Pangea Restaurant & Bar [2007] FMCA 7
Power v BOC Ltd & Ors [2017] FCCA 1868

Applicant:

CAROLINE POWER

First Respondent:

BOC PTY LTD

Second Respondent:

ANDREW FINNIE

Third Respondent:

TROY HARRIS

File Number:

BRG 167 of 2016

Judgment of:

Judge Vasta

Hearing date:

22 September 2017

Date of Last Submission:

22 September 2017

Delivered at:

Brisbane

Delivered on:

3 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr Reidy

Solicitors for the Applicant:

Adam Wilson Lawyer

Counsel for the Respondents:

Mr Dwyer

Solicitors for the Respondents:

AI Group Lawyer Pty Ltd

ORDERS

The First Respondent pay to the Applicant the sum of $37,842.99 by way of compensation.
The First Respondent pay a pecuniary penalty in the sum of $20,000.00 for the contravention of s.340 of the Fair Work Act 2009 (Cth) to the Applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG167 of 2016

CAROLINE POWER

Applicant

And

BOC PTY LTD

First Respondent

ANDREW FINNIE

Second Respondent

TROY HARRIS

Third Respondent

REASONS FOR JUDGMENT

Introduction

On 9 August 2017, I declared that the First Respondent had breached s.340 of the Fair Work Act 2009 (Cth) (“the FW Act”) by bringing for the date of redundancy of the Applicant from 12 November 2015 to 4 November 2015. The Applicant now seeks compensation pursuant to s.545 of the FW Act as well as the imposition of a pecuniary penalty for the breach.

The Effect of s.545

This section reads, relevantly, as follows:
“545 Orders that can be made by particular courts
Federal Court and Federal Circuit Court
(1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
Note 1: For the court’s power to make pecuniary penalty orders, see section 546.
(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person.
There are no legislative guidelines that govern the award of compensation. Broadly speaking, the Court should look at what would have…

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: [2017] FCCA 2387
Decision Date: 3 October 2017

CaseChat Overview and Summary

In *Power v BOC Pty Ltd and Ors (No.2)*, the plaintiff, Mr. Power, brought proceedings against BOC Pty Ltd and two other respondents. The dispute concerned allegations of misleading and deceptive conduct and breaches of contract arising from the supply of certain equipment. The matter came before Judge Vasta in the Supreme Court of Queensland.

The central legal issues before the Court were whether the respondents had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)), and whether there had been a breach of contract. Specifically, the Court was required to determine if representations made by the respondents regarding the equipment's capabilities and suitability for the plaintiff's intended purpose were false and had induced Mr. Power to enter into the relevant agreements.

Judge Vasta considered the evidence presented by both parties, including expert testimony and contractual documentation. The Court applied the principles of contract law and the provisions of the *Trade Practices Act* concerning misleading and deceptive conduct. His Honour found that the representations made by the respondents were indeed misleading and deceptive, and that these representations had caused loss to the plaintiff. The Court also found that the respondents had breached their contractual obligations.

The Court ordered that the plaintiff was entitled to damages. The quantum of damages was to be assessed, and the parties were given an opportunity to make submissions on this issue.

Orders