Rybinski v Geocore Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Rybinski v Geocore Pty Ltd [2024] FedCFamC2G 177

File number: MLG 1411 of 2023
Judgment of: JUDGE FORBES
Date of judgment: 1 February 2024
Catchwords: FAIR WORK – application for default judgment against respondents – where applicant unlawfully stood down from full-time employment – where applicant filed application in Fair Work Commission – where FWC ordered reinstatement – where respondents did not comply with FWC order –claims for unpaid payment of accrued annual leave– respondents failed to engage in proceedings – default judgment ordered

Legislation:

Fair Work Act 2009 (Cth) s 90, 527, 536, 550

Cases cited:

Crawford v Geocore Pty Ltd [2024] FedCFamC2G 176

Division: Division 2 General Federal Law
Number of paragraphs: 21
Date of hearing: 1 February 2024
Place: Melbourne
Solicitor for the Applicant: Sparke Helmore
Respondents: No appearance

ORDERS

MLG 1411 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

KELLIE RYBINSKI

Applicant
AND:

GEOCORE PTY LTD

First Respondent

AMANDA BROWN

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

1 FEBRUARY 2024

UPON the admissions the First Respondent is taken to have made, consequent upon default by the First Respondent pursuant to rule 13.04(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCA Rules) and

UPON the admissions the Second Respondent is taken to have made, consequent upon default by the Second Respondent pursuant to rule 13.04(2) of the FCFCA Rules, and the Second Respondent being taken to have admitted to being involved in the contraventions of the Fair Work Act 2009 (Cth) (FW Act) of the First Respondent pursuant to section 550 of the FW Act

THE COURT ORDERS THAT:

Judgment

1.Default judgment is entered for the Applicant against the Respondents pursuant to sub-rule 13.05(2)(c) of the FCFCA Rules.

Compensation

2.Pursuant to section 545(2)(b) of the FW Act:

(a)the First Respondent and Second Respondent, jointly and severally pay to the Applicant the total of $2,322.09 within 14 days, less applicable taxation, in respect of the accrued but untaken annual leave (and annual leave loading) payable to the Applicant upon the termination of employment; and

(b)the First Respondent and Second Respondent, jointly and severally pay to the Applicant the total of $14,021.98 within 14 days, less applicable taxation, as compensation for the economic loss arising from the failure to comply with the order of Commissioner Mirabella dated 21 October 2023 (FWC Order); and

(c)the First Respondent and Second Respondent, jointly and severally pay to the Applicant superannuation on the amount in Order 2(b).

3.Pursuant to section 44(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act), the First Respondent pay to the Applicant the total of

$20,064 within 14 days, less applicable taxation with respect to amounts that were payable to the Applicant under her contract of employment provided that she was ready, willing and able to work.

4.Pursuant to…

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Details
Case
[2024] FedCFamC2G 177
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Rybinski v Geocore Pty Ltd involves a claim by Kellie Rybinski against Geocore Pty Ltd and its manager, Ms Brown. Rybinski, an Office Manager, alleges that she was unlawfully stood down from her full-time employment, leading her to file a complaint with the Fair Work Commission (FWC). The FWC ruled that the stand-down was unlawful and ordered her reinstatement, which Geocore failed to comply with. Consequently, Rybinski did not return to work and seeks unpaid leave payments and other relief under the Fair Work Act 2009 (Cth). The respondents have not engaged in the proceedings, prompting Rybinski to apply for default judgment.

The court needed to determine whether the conditions for granting default judgment were met. Specifically, it had to assess if Rybinski appeared entitled to the relief she sought and if her claims were within the court's jurisdiction. The court also needed to consider whether there were any obvious defences that might prevent the granting of default judgment. Additionally, the court had to examine if Ms Brown could be held liable as an accessory under section 550(1) of the FW Act.

After considering the evidence and submissions, the court found that Rybinski had made out a prima facie case for her claims. The respondents had failed to file any defences or evidence, and the court was satisfied that Rybinski appeared entitled to the relief sought. The claims fell within the court’s jurisdiction, and there were no obvious defences presented. Consequently, the court exercised its discretion to grant default judgment in Rybinski’s favour. The court found that Ms Brown could potentially be held liable as an accessory if Rybinski’s claims were proven at trial.

The court ordered that default judgment be entered in favour of Rybinski against both Geocore Pty Ltd and Ms Brown. Rybinski was awarded unpaid leave payments and other relief as pleaded in her statement of claim. The court also ordered that Ms Brown could be held liable as an accessory if the claims were proven at trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The written outline was further developed orally by the applicant’s solicitor, Mr Sherr, at the hearing of the default judgment application.BACKGROUND In the substantive matter before the Court, Ms Rybinski alleges that she was a full-time employee of Geocore working as an Office Manager. Ms Rybinski commenced employment in or around September 2021 after another employee resigned. The applicant was covered by the Clerks – Private Sector Award 2020. She performed work including answering incoming telephone calls and emails, providing job quotes, handling customer complaints, managing job files on a range of other administrative and support functions. During the course of Ms Rybinski’s employment she was subjected to an unlawful stand-down. This occurred in circumstances where the manager of the business, the second respondent Ms Brown, informed Ms Rybinski and another colleague Ms Crawford, that they were stood down until further notice following an allegation that they had engaged in “unprofessional” behaviour. Ms Rybinski and her co-worker were informed that Ms Brown’s lawyer was looking into things and that they would be notified in due course. The unlawful stand-down necessitated Ms Rybinski to make an application to the Fair Work Commission (FWC). Subsequently, a finding was made by Commissioner Mirabella, which deemed the stand-down to be unlawful and an order was made on 21 October 2022 for Geocore to return Ms Rybinski to work[1]. [1] Affidavit of Kellie Rybinski affirmed on 17 November 2023 annexure KR-12 Following Commissioner Mirabella’s orders, Ms Rybinski did not receive any further communication from Geocore or Ms Brown. Needless to say, Ms Rybinski did not return to work at Geocore. Ms Rybinski remained ready willing and available to work at all times and was ready willing and available to return following Commissioner Mirabella’s order. The applicant contends that she stood ready to resume work until she was able to obtain alternative full-time employment on or about 1 February 2023. As a result of the stand-down, the company stopped paying Ms Rybinski. She did not receive any payment from the respondents from 6 July 2022 onwards. She now seeks to be paid in accordance with her then contract of employment, including entitlements arising from its termination. As a result of the events pleaded in the statement of claim, various causes of action are alleged. Those causes of action include:(1)a failure to comply with FWC orders pursuant to section 527 of the FW Act; (2)a failure on the part of Geocore to pay Ms Rybinski her accrued but untaken annual leave on termination pursuant to section 90 of the FW Act; and (3)that Geocore issued false or misleading pay slips in contravention of section 536 of the FW Act. Ms Rybinski’s also alleged that Ms Brown was involved these the above causes of action alleged by virtue of section 550(1) of the FW Act. The application for default judgment has been made on the grounds that the first respondent, Geocore, and the second respondent, Ms Brown, have failed to engage in this proceeding in accordance with the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules) and have failed to comply with various orders made by me during the course of these proceedings.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

There has been a complete failure on the part of the two respondents to engage in the litigation. Despite the applications having been served, the respondents have not filed notices of address for service and have not filed responses or defences. The respondents have failed to attend the various directions hearings which have been listed.CONSIDERATION As I explained in ex tempore reasons in the related proceedings, Crawford v Geocore Pty Ltd [2024] FedCFamC2G 176 (Crawford), the requirements for default judgment have been met[2]. I am satisfied that the respondents are in default within the terms of rule 13.04 of the Rules. As a consequence of that default, my discretion is enlivened to make orders pursuant to rule 13.05, including giving judgment for the applicant for the relief sought in the application. [2] Crawford v Geocore Pty Ltd [2024] FedCFamC2G 176 at [10]-[14] As mentioned in Crawford, for a Court to grant default judgment pursuant to rule 13.05 for a proceeding commenced by an application supported by a statement of claim, it must be satisfied that the applicant appears to be entitled to the remedies that she seeks or the relief that she seeks as pleaded in that statement of claim. I must also be satisfied that the relief sought by Ms Rybinski is within the power of the Court to grant. This power is discretionary and I must use that discretion with caution. In my view, the application has been made appropriately and in accordance with the rules. Ms Rybinski is not required to prove the claim which she has sought to advanced by way of evidence, however the Court does have to be satisfied on the face of the statement of claim that the applicant appears entitled to the relief claimed. I am satisfied that I have power to grant that relief sought by the statement of claim. This Court plainly has statutory power to make orders relating to contraventions of the FW Act and an associated jurisdiction to make orders for breaches of contract. I am satisfied that each element of the various causes of action have been properly pleaded in the statement of claim. I am also satisfied that the statement of claim complies with the rules of pleadings and properly pleads the various causes of actions. Of course, in this case, the respondents have not filed any defence or any evidence, so it is unnecessary for me to speculate about what the respondents might say if they had engaged in this proceeding. However, having read the outline of submissions filed in this application and the affidavit in support, I am satisfied that there is no obvious defence which would prevent me from making the orders for default judgment. As to the liability of the second respondent, Ms Brown, I accept the submissions that the statement of claim pleads a case, which, if it was proven at trial, would give rise to a finding of accessorial liability against her pursuant to section 550(1) of the FW Act. I am satisfied that the orders proposed by the applicant’s solicitor Mr Sherr should be made and default judgment entered for the applicant.