Rybinski v Geocore Pty Ltd
[2024] FedCFamC2G 177
•1 February 2024
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 section 547 of the FW Act, the First Respondent and Second Respondent jointly and severally pay, within 14 days:
(a)interest in the amount of $141.65 in respect of the amount at Order 2(a) above; and
(b)interest in the amount of $956.46 in respect of the amount at Order 2(b) above.
5.Pursuant to section 211 of the FCFCA Act, the First Respondent pay interest on the amount identified at Order 3 above, being the amount of $2,026.46.
Penalties and costs
6.In relation to the contraventions of the FW Act that the Respondents are taken to have admitted as set out at paragraphs 7 and 8 below:
(a)the Applicant is to file and serve any submissions, evidence and any other material it wishes to rely on in relation to the issues of penalties and costs by 4:00pm on 15 February 2024;
(b)the Respondents are to file and serve any submissions, evidence and any other material it wishes to rely on in relation to the issues of penalties and costs by 4:00pm on 29 February 2024; and
(c)the questions of penalties and costs be determined on the papers.
AND THE COURT DECLARES THAT:
7.The First Respondent contravened the following civil remedy provisions:
(a)section 44 of the FW Act by failing to pay the Applicant an amount to satisfy her entitlement to accrued but untaken annual leave and annual leave loading upon the end of her employment as required by section 90 of the FW Act;
(b)section 536(3) of the FW Act by providing the Applicant with a payslip which was false or misleading in a material particular; and
(c)section 527 of the FW Act by failing to comply with the FWC Order.
8.The Second Respondent is taken to have contravened the following civil remedy provisions:
(a)section 44 of the FW Act by failing to pay the Applicant an amount to satisfy her entitlement to accrued but untaken annual leave and annual leave loading upon the end of her employment as required by section 90 of the FW Act;
(b)section 536(3) of the FW Act by providing the Applicant with a payslip which was false or misleading in a material particular; and
(c)section 527 of the FW Act by failing to comply with the FWC Order
AND THE COURT ALSO ORDERS THAT:
Service
9.The Applicant is to serve a copy of these orders on the Respondents via express post and email to [email protected] by 4:00pm on 13 February 2023.
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 FORBES
INTRODUCTION
By an application made on 17 November 2023, the applicant, Ms Kellie Rybinski seeks judgment in default against the two respondents in this matter, Geocore Pty Ltd (Geocore) and Ms Amanda Brown.
In support of the application the applicant relies on the following material which I have read and considered:
(1)application and statement of claim dated 7 August 2023;
(2)application for default judgment filed on 17 November 2023;
(3)affidavit of Kellie Rybinski affirmed on 16 November 2023;
(4)various affidavits of service; and
(5)detailed written outline of submissions in support of the application for default judgment.
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.
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.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 1 February 2024
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