FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rizk v PVH Brands Australia Pty Ltd [2023] FedCFamC2G 249
File number(s): SYG 503 of 2020 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 31 March 2023 Catchwords: INDUSTRIAL LAW – application for relief based on contravention of s 340(1) of the Fair Work Act 2009 (Cth) (FW Act) and s 62(1) of the FW Act – whether applicant made complaints in relation to her employment and for that reason exercised a workplace right – whether respondent discharged burden of proving that it did not terminate applicant’s employment because the applicant made complaints in relation to her employment or for reasons that did not include as a substantial and operative factor the applicant’s making complaints in relation to her employment – respondent did not discharge burden of proof – respondent therefore terminated the applicant’s employment because the applicant exercised a workplace right by making a complaint in relation to her employment and, for that reason, the respondent contravened s 340(1) of the FW Act – whether respondent required or requested applicant work hours that were unreasonably in excess of the hours provided for by s 62(1) of the FW Act – claim not established. Legislation: Fair Work Act 2009 (Cth) ss 62(1), 340(1), 341(1)(c), 342(1), 360, 361(1), 539(1), 545, 546(1), 547(1) Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178
Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Carbo v United States 314 F2d 718 (9th Cir 1963)
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260
EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch)
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138
Indiana Metal Products v National Labor Relations Board 442 F2d 46 (7th Cir 1971)
Kassem & Ors v Minister for Immigration & Anor (No.2) [2020] FCCA 1834
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403
Rizk v PVH Brands Australia Pty Ltd [2020] FCCA 2976
Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Division: Fair Work Number of paragraphs: 320 Date of last submission/s: 11 February 2022 Date of hearing: 21, 22, 23, and 24 June 2021, and 2, 3, and 4 February 2022 Place: Sydney The Applicant: Appeared in person Counsel for the Respondent: Mr B Fogarty Solicitor for the Respondent: Clyde & Co ORDERS
SYG 503…
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Details
- Case
- [2023] FedCFamC2G 249
- Decision Date
CaseChat Overview and Summary
Rizk v PVH Brands Australia Pty Ltd is a case in which Ms. Rizk sued her former employer, PVH Brands Australia Pty Ltd, for wrongful termination and breach of contract. Ms. Rizk claimed that she was unlawfully dismissed and that the dismissal caused her economic loss and emotional distress. PVH, on the other hand, argued that the termination was based on legitimate performance-related reasons and that Ms. Rizk's dismissal was not related to her exercise of workplace rights.
The primary legal issue before the court was whether PVH terminated Ms. Rizk's employment for reasons that included her exercising her workplace rights, specifically making complaints about her employment, as prohibited by section 340(1) of the Fair Work Act 2009 (Cth). The court had to assess whether the evidence presented by PVH, which included hearsay and opinions about Ms. Rizk's performance, was sufficient to prove that the termination was not related to her protected activities. Additionally, the court needed to determine if Ms. Rizk's evidence, which challenged the negative performance assessments and included testimonies from PVH's former executives, was credible enough to counter PVH's claims.
In its decision, the court found that PVH failed to discharge the burden of proving that the termination was not related to Ms. Rizk's exercise of workplace rights. The court highlighted that the evidence provided by PVH was largely based on hearsay and general negative opinions about Ms. Rizk's performance, many of which were not communicated to her prior to the termination. Furthermore, the court noted inconsistencies in Ms. Haksever's evidence regarding the decision-making process and the approval sought from higher management. The court concluded that Ms. Rizk had successfully demonstrated that PVH contravened section 340(1) of the FW Act by terminating her employment.
As a result, Ms. Rizk was awarded compensation for economic loss, which included two months' salary from the date of termination until she found new employment. Additionally, she was awarded damages for breach of contract, amounting to $1,590,000, to compensate for the distress and humiliation caused by the unlawful termination. The court's decision underscored the importance of clear and substantiated evidence in employment termination cases, especially when allegations of unfair dismissal and breaches of workplace rights are involved.
The primary legal issue before the court was whether PVH terminated Ms. Rizk's employment for reasons that included her exercising her workplace rights, specifically making complaints about her employment, as prohibited by section 340(1) of the Fair Work Act 2009 (Cth). The court had to assess whether the evidence presented by PVH, which included hearsay and opinions about Ms. Rizk's performance, was sufficient to prove that the termination was not related to her protected activities. Additionally, the court needed to determine if Ms. Rizk's evidence, which challenged the negative performance assessments and included testimonies from PVH's former executives, was credible enough to counter PVH's claims.
In its decision, the court found that PVH failed to discharge the burden of proving that the termination was not related to Ms. Rizk's exercise of workplace rights. The court highlighted that the evidence provided by PVH was largely based on hearsay and general negative opinions about Ms. Rizk's performance, many of which were not communicated to her prior to the termination. Furthermore, the court noted inconsistencies in Ms. Haksever's evidence regarding the decision-making process and the approval sought from higher management. The court concluded that Ms. Rizk had successfully demonstrated that PVH contravened section 340(1) of the FW Act by terminating her employment.
As a result, Ms. Rizk was awarded compensation for economic loss, which included two months' salary from the date of termination until she found new employment. Additionally, she was awarded damages for breach of contract, amounting to $1,590,000, to compensate for the distress and humiliation caused by the unlawful termination. The court's decision underscored the importance of clear and substantiated evidence in employment termination cases, especially when allegations of unfair dismissal and breaches of workplace rights are involved.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The reasons that follow are lengthy; and this is principally due to a combination of two factors. The first is that PVH adduced extensive evidence (Performance Evidence) of the work Ms Haksever and other employees of PVH say they observed Ms Rizk perform, and evidence of their views about her work; evidence of conversations employees and officers of PVH say they had with Ms Rizk about her work; and evidence of conversations employees and officers of PVH say they had with each other about the work Ms Rizk performed, and about her suitability for the role of commercial analyst. All of the Performance Evidence consists of negative opinions about Ms Rizk’s abilities and performance. Most of these opinions, however, are expressed in general terms without reference to any particular item or items of work Ms Rizk performed; and many are based on first, second, and more remote hearsay. Further, it appears that almost all of the negative opinions that are the subject of the Performance Evidence had not been communicated to Ms Rizk when she was employed by PVH, but were only revealed to her shortly after 16 December 2020, when PVH filed and served on Ms Rizk affidavits by the witnesses it proposed to call. PVH submits Ms Haksever relied on the matters revealed by the Performance Evidence in deciding on 18 October 2019 that Ms Rizk did not have the Desired Qualities and, for that reason, her employment should be terminated. The second factor that accounts for the length of these reasons is a direct consequence of the first. Ms Rizk challenged, and asserted as “false”, nearly every item of the Performance Evidence. Ms Rizk has done so by giving evidence which she submits contradicts or explains away the Performance Evidence; by cross-examining Ms Haksever and the other witnesses whom PVH called to give evidence about the conversations they say they had with Ms Rizk and with other employees of PVH about Ms Rizk’s work, and about the adverse views they had formed about Ms Rizk’s work and suitability for the role of commercial analyst; and by Ms Rizk calling as witnesses in her own case PVH’s former Executive Chairman, Mr Michael Gazal, PVH’s Chairman and Chief Executive Officer, Mr Barnett, and PVH’s Chief Financial Officer, Mr Guy Griffiths. Perhaps understandably there was a tendency by the parties to assume that the critical or, at least, the important questions I am required to determine are whether Ms Rizk possessed, or did not possess, the Desired Qualities; and whether PVH was justified in concluding (if it did so conclude) that Ms Rizk did not possess the Desired Qualities. These are not, however, questions I am required to determine. Whether Ms Rizk possessed the Desired Qualities was a matter for PVH, and only for PVH, to assess. The question I am required to decide is whether, assuming Ms Haksever was the person who decided that PVH should terminate Ms Rizk’s employment, Ms Haksever so decided for the reasons she says she decided to terminate Ms Rizk’s employment. It is in relation to the determination of that question that the Performance Evidence, if accepted, is relevant; and it is relevant in two ways.
Decision
Reasons for decision
For these reasons, therefore, PVH has not discharged the burden of proving that it did not terminate Ms Rizk’s employment for the reason that Ms Rizk exercised her workplace rights by making complaints in relation to her employment, or that PVH terminated Ms Rizk’s employment for reasons that did not include as a substantial and operative factor, Ms Rizk’s having exercised her workplace rights by making complaints in relation to her employment. And because Ms Haksever, in the face of evidence Mr Barnett has given, and which PVH has accepted is correct, gave evidence both in her affidavit and under cross-examination that she did not seek Mr Barnett’s approval, I would in any event not have accepted her evidence without corroboration by contemporaneous documents or evidence that is not reasonably open to dispute.Conclusion Ms Rizk has succeeded on her claim that PVH contravened s 340(1) of the FW Act by terminating Ms Rizk’s employment on 14 November 2019.Relief Ms Rizk claims compensation for economic loss, being two months’ salary from the time PVH terminated her employment on 14 November 2019 to 14 January 2020, when she commenced employment with another company with a comparable salary to that PVH paid her. Ms Rizk also claims damages in the sum of $1,590,000 for breach of contract that caused distress and humiliation due to the unlawful termination of the Employment Contract. Ms Rizk relies on the judgment of Kerr J in Roohizadegan v TechnologyOne Limited (No 2).[264][264] Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407Principles Under s 545(1) of the FW Act, this 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. The orders the Court may make includes an order referred to in s 545(2)(b), namely, “awarding compensation for loss that a person has suffered because of the contravention” of a civil remedy provision.[265] That includes economic loss. [265] Under the table referred to in s 539(1) of the FW Act, s 340(1) is a “Civil remedy provision”. To determine whether an applicant has suffered economic loss because of a contravention of a civil remedy provision of the FW Act, two sets of circumstances must be compared.[266] Where it is not alleged that an applicant failed to mitigate his or her loss, one set of circumstances is actual, and the other is hypothetical. The actual circumstances are those in which the applicant finds himself or herself at the date compensation is fixed or at some earlier appropriate date. The second, and hypothetical, circumstances are the financial position in which the applicant would have found himself or herself at the relevant time had the employer not contravened a civil remedy provision. If, after these two positions are identified, the applicant’s actual financial position is less favourable than the hypothetical financial position, compensation will be fixed in an amount that reflects the difference between the two positions. That is, compensation will be fixed in such amount as will put the employee in, or substantially in, the position he or she would have been, had the employer not contravened a civil remedy provision.[266] I substantially repeat here what I said in Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771, at [87] and [88]
Ratio Decidendi
Legal Principle Established
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