FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rybinski v Geocore Pty Ltd (No 2) [2024] FedCFamC2G 644
ORDERS
MLG1411 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KELLIE RYBINSKI
Applicant
AND: GEOCORE PTY LTD
First Respondent
AMANDA…
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- Case
- [2024] FedCFamC2G 644
- Decision Date
CaseChat Overview and Summary
The primary legal issues involved assessing the appropriate level of penalties and whether the applicant should be awarded indemnity costs. The court had to balance the need for deterrence against the potential oppressiveness of the penalties and consider the conduct of the respondents in determining the appropriate level of indemnity costs. The court was required to evaluate the totality of the respondents' contravening conduct, their engagement in the proceedings, and their compliance with the minimum standards set by the Fair Work Act.
In determining the penalties, the court found that while the respondents' conduct was serious, the penalties sought by the applicant were excessive. The court inferred that the business was relatively small and that there was no prior history of offending by the respondents. The court considered that the respondents were first-time offenders and should be afforded some leniency. However, the court also noted that the respondents had not engaged in the proceedings, offered any explanation for their conduct, or demonstrated any remorse. The court concluded that the penalties should reflect the need for general deterrence while avoiding oppressive severity. The court ordered penalties of $106,000 for the first respondent and $26,400 for the second respondent. Regarding costs, the court held that the respondents’ lack of engagement in the proceedings and their failure to offer any explanation justified awarding indemnity costs to the applicant. The court ordered the respondents to pay the applicant's costs on a scale.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
There is no direct evidence before the Court regarding the size of the business, but I infer that Geocore is relatively small in size.Corrective action and cooperation As mentioned above, Geocore and Ms Brown have failed to engage in proceedings and have not taken any steps to correct the contraventions. They have not displayed any remorse or contrition for their actions.Compliance with minimum standards The applicant submits that each of the respondents’ contraventions offend against the minimum standards provided by the FW Act. In this matter, the respondents acted contrary to the purpose of the FW Act, which is to provide a guaranteed set of fair, relevant and enforceable terms and conditions of employment and protect the applicant’s ability to enforce these standards. Ms Rybinski contends that the respondents’ failure to comply with the FWC order goes against the basic concept of the rule of law[11], and that the respondents should be penalised appropriately.[11] Fair Work Ombudsman v Raimondi Investments Pty Ltd [2016] FCCA 1398 at [29]Conclusion on penalty The applicant seeks penalties in the range of $132,000 to $152,625 for the first respondent and $26,400 to $30,525 for the second respondent for contravening ss 44, 527 and 536. This amounts to an overall penalty of 53-62% of the maximum available penalties. In my view the penalties sought by the applicant are excessive and do not strike a proper balance between deterrence and oppressive severity. In determining the penalties to be ordered against the respondents, this Court must have regard to the totality of the contravening conduct to ensure that any penalty ordered is not crushing or oppressive[12].[12] Pattinson at [110] The applicant submits, and I accept, that there is no evidence before the Court about the respondents’ financial capacity and therefore no way of assessing what might be crushing or oppressive to them. However, I infer from the evidence that the business was relatively small and that it was not trading as it had prior to the death of the second respondents husband. There is no evidence before the Court that the respondents or either of them have a prior history of offending. I therefore assess penalty on the premise that the respondents are first time offenders and should be afforded some leniency in that regard. The respondents have done themselves no favours by not engaging in the proceedings or offering any explanation for their conduct. By placing their head in the sand and choosing not to engage with the allegations against them, the respondents invite the Court to infer that they have no defence and that their conduct has been wilful. The overall impression from the facts presented by the applicant, is that the respondents adopted a course of action which was wilfully blind to the legal obligations they were bound to observe. The order of the Fair Work Commission was simply ignored and the respondents took matters into their own hands, believing that the employee was guilty of some act of misconduct. This was not a case in which the employer was unable to meet its obligations; it simply chose not to do so. This was a serious contravention and the need for general deterrence weighs as a heavy consideration in fixing penalty.