Sayed v Construction, Forestry, Mining and Energy Union

Case [2015] FCA 338

FEDERAL COURT OF AUSTRALIA

Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338

Citation: Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338
Parties: MUHAMMED ALI SAYED v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
File number: VID 1072 of 2013
Judge: MORTIMER J
Date of judgment: 13 April 2015
Catchwords: INDUSTRIAL LAW – penalties – adverse action because of employee’s political opinion – three contraventions of s 351 of the Fair Work Act 2009 (Cth) – whether contraventions formed one course of conduct – relevant factors in assessment of penalties – seriousness of contraventions – discrimination on basis of political opinion to be subject to strong disapproval – “common informer” rationale for payment of penalties to particular persons or organisations under Fair Work Act 2009 (Cth) s 546(3) – whether penalties and compensation should be ordered to be paid to the same person
Legislation: Fair Work Act 2009 (Cth) ss 351, 539, 545, 546, 546(3), 557(1), 570
Cases cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Attorney-General (SA) v Tichy (1982) 30 SASR 84
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560; [2008] FCAFC 8
Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461; [2010] FCAFC 39
Construction, Forestry, Mining and Energy Union v Williams (2009) 262 ALR 417; [2009] FCAFC 171
CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364
Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328
Fair Work Ombudsman v Australian Shooting Academy Pty Ltd [2011] FCA 1064
Fair Work Ombudsman v Maclean Bay Pty Ltd (No 2) [2012] FCA 557
Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275
Fair Work Ombudsman v W.K.O. Pty Ltd [2012] FCA 1129
Gibbs v The Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216
Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15
Kelly v Fitzpatrick (2007) 166 IR 14; [2007] FCA 1080
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mason v Harrington Corporation Pty Ltd [2007] FMCA 7
McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181; [2006] FCA 1302
Mill v The Queen (1988) 166 CLR 59
Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383; [2008] FCAFC 70
Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118; [2013] FCA 1146
National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; [2013] FCA 451
Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; [2008] FCAFC 170
QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2010) 204 IR 142; [2010] FCAFC 150
R v Faulkner (1972) 56 Cr App R 594
R v Knight (1981) 26 SASR 573
Royer v Western Australia (2009) 197 A Crim…

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Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338
Case
[2015] FCA 338
Decision Date

CaseChat Overview and Summary

In the case of Sayed v Construction, Forestry, Mining and Energy Union, the applicant brought an action against the respondent for contraventions of section 351 of the Fair Work Act 2009 (Cth). The applicant alleged that he was subjected to adverse action, including redeployment, suspension, and dismissal, due to his political opinion, in contravention of section 351 of the Act. The case was heard and determined in the Federal Circuit Court of Australia. The primary legal issues before the court were whether penalties should be imposed on the respondent for the contraventions, if the contraventions constituted a single course of conduct for penalty assessment purposes, the appropriate amount of the penalty, and whether the penalties should be payable to the applicant.

The court found that penalties should indeed be imposed on the respondent for the contraventions, as the respondent's conduct was discriminatory and should be subject to strong disapproval. The court considered the three contraventions separately, finding that different penalties were justified for each contravention due to their nature and effect. For the redeployment, the court imposed a penalty of $20,000, while for the suspension, a penalty of $10,000 was imposed. Lastly, for the dismissal, the court imposed a penalty of $15,000. The court determined that the penalties should not be payable to the applicant, as this would represent a windfall to him, in light of the conclusions reached about his failure to adduce evidence of loss and damage. Instead, the penalties should be payable to the Commonwealth.

The court made several orders, including that the respondent pay a penalty of $20,000 for the contravention of s 351 by redeploying the applicant, a penalty of $10,000 for the contravention of s 351 by suspending the applicant, and a penalty of $15,000 for the contravention of s 351 by dismissing the applicant. The penalties were to be paid to the Commonwealth on or before 18 May 2015. The entry of orders is governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. In respect of the contravention of s 351 of the Fair Work Act 2009 (Cth) by redeploying the applicant, the respondent pay a penalty of $20,000.

2. In respect of the contravention of s 351 of the Fair Work Act 2009 (Cth) by suspending the applicant, the respondent pay a penalty of $10,000.

3. In respect of the contravention of s 351 of the Fair Work Act 2009 (Cth) by dismissing the applicant, the respondent pay a penalty of $15,000.

4. The penalties payable by reason of paragraphs 1 to 3 inclusive of these orders be payable to the Commonwealth, on or before 18 May 2015.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accepting the need for powers to be exercised fairly, reasonably and judicially, this task nevertheless remains highly intuitive. Part of the judicial task, and the reason it is reposed in judges, is to bring to bear a detached sense of what is fair and just, to the community, the victim and the perpetrator, doing the best one can to balance what are inevitably conflicting interests.Conclusion on the amount which should be fixed as a penalty for each contravention Given there are three contraventions for which I have found penalties should be imposed separately, the theoretical maximum penalty that could be imposed is $51,000 for each contravention, making a total of $153,000. In addition to the features of the respondent’s conduct, through Mr Vickers, that I have set out above, I make the following additional findings. In my opinion, different penalties for each contravention are justified because of the nature and effect of each contravention. For the contravention of s 351 by the redeployment of the applicant I consider a penalty of $20,000 should be imposed. Although it was the contravention with the least permanent effect, the redeployment was the decision which set the scene for the remainder of the conduct against the applicant. It set Mr Vickers on a path from which he scarcely considered deviating. It was at this point that the prohibited reason operated with greatest effect. Mr Vickers was barely persuaded to keep the applicant on at all after the 18 July 2013 meeting. His views of the applicant, informed and actuated by his views about the applicant’s political opinion, were fairly well cast after the redeployment decision. Had Mr Vickers put out of his mind the prohibited reasons and approached the complaints of Mr Howes and the AWU in a different manner, the outcome for the applicant – at least in the medium term – would most likely have been quite different. In my opinion, the redeployment decision was the one with less non-prohibited justifications, on any objective view. It was the one most closely connected with the complaint of Mr Howes that the applicant was “a Trot”. For the contravention of s 351 by the suspension of the applicant, I have imposed a penalty of $10,000. The suspension decision was an immediate reaction to the discovery of the applicant’s lies about his involvement with the Socialist Alliance, and Mr Vickers’ mistaken impression of what was meant in the Facebook post. Its hasty and judgmental nature reflected the playing out of the views Mr Vickers had already formed about the applicant’s allegiances. The suspension lasted for a brief period of time. It did not result in any relocation for the applicant. He was suspended on pay. It certainly made it clear his employment was at risk, and he was subjected to what was no doubt a difficult and confrontational meeting on 26 July 2013 in Sydney. Although serious, its effects were short-term. In the whole context, it is the least serious of the three contraventions.

Ratio Decidendi

Legal Principle Established

In reply, the applicant submitted that the only non-prohibited reason identified in the Court’s judgment – the fact the applicant lied to Mr Vickers – was linked to the prohibited reason because of the subject matter of the lie. He submitted the respondent’s position that no penalty should be imposed was also evidence of its lack of contrition, as was its submission that the applicant’s conduct contributed to the adverse actions. He maintained there were three separate contraventions and the “course of conduct” approach should not be adopted. The applicant submitted the Court’s findings that the applicant would not have lasted longer than a further six months were not relevant to penalty, and submitted that finding did not absolve the respondent from the consequences of its unlawful conduct. The applicant generally took issue with most of the respondent’s submissions.CONSIDERATION There are four principal matters for determination: whether a penalty should be imposed on the respondent at all; if so, is there only one “course of conduct” to be assessed for penalty purposes; what should be the amount of that penalty; and, finally, whether the penalty (if ordered) should be made payable to the applicant. In my opinion penalties should be imposed on the respondent. They should be significant, and imposed separately in respect of each contravention. The penalties should not be payable to the applicant, as this would represent a windfall to him, in light of the conclusions I reached in my reasons on 30 January 2015 about his failure to adduce evidence of loss and damage. No evidence was adduced in respect of penalty by either party. That has some consequences for them both, to which I refer below. In reaching my conclusion, I have not taken into account anything submitted by the applicant at [37] of his submissions. As the respondent correctly pointed out, this paragraph seeks, at the least, to have the Court draw inferences from the conciliation process before the Fair Work Commission. The paragraph will be disregarded. Further, there were aspects of the applicant’s submissions which depended on factual assertions for which no evidence is currently before the Court. For example, at [19] of his written submissions the applicant submitted he is “yet to find alternate employment” (that is, as at the date of the written submissions, namely 13 February 2015) and at [20] he submitted he “incurred considerable expense in relocating to Queensland”. There is no evidence to support these assertions and I have disregarded them. Penalties should be imposed The respondent’s submission that no penalties should be imposed fails to recognise sufficiently the findings the Court has made. There were clear findings that the applicant was treated as he was because of his political opinion. Making decisions which result in a person losing his employment because of his allegiance and membership of a political party should be the kind of conduct which simply does not occur in the Australian community any more. It should be subject to strong disapproval by the courts. That it should occur within a union which, from the tenor of Mr Vickers’ evidence, places great store in the rights to freedom of speech and freedom of conscience, emphasises why this Court must mark its disapproval of the respondent’s conduct by the imposition of penalties.