Seyer v Gatwood Management Pty Ltd
[2023] FedCFamC2G 345
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Seyer v Gatwood Management Pty Ltd [2023] FedCFamC2G 345
File number(s): SYG 515 of 2022 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 May 2023 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – determination of liability – termination without notice – failure to pay entitlements – failure to issue proper payslips. Legislation: Fair Work Act 2009 (Cth) ss 44, 323, 536
Corporations Act 2001 (Cth) s 440D
Electronic Transactions Act 1999 (Cth) s 9
Fair Work Regulations 2009 (Cth) reg 3.46
Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 9.03, 11.07, 13.06
Cases cited: Ayub v NSW Trains [2016] FWCFB 5500
Fair Work Ombudsman v Bikaner India (WA) Pty Ltd [2023] FedCFamC2G 20
Ostle v Wilson Mining Pty Ltd [2022] FedCFamC2G 109
Quinn v Jack Chia (Australia) Ltd (1991) 43 IR 91
Veeraragoo v Goldbreak Holdings Pty Ltd (No 2) [2018] FCA 1448
Division: Division 2 General Federal Law Number of paragraphs: 64 Date of last submission/s: 19 April 2023 Date of hearing: 19 April 2023 Place: Parramatta Counsel for the Applicant: Ms Doust Solicitor for the Applicant: AEN Legal Solicitor for the Second Respondent: There being no appearance by or on behalf of the Second Respondent ORDERS
SYG 515 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KARL SEYER
Applicant
AND: GATWOOD MANAGEMENT PTY LTD ABN 59 147 501 835
First Respondent
RABI MALASS
Second Respondent
order made by:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 MAY 2023
THE COURT ORDERS THAT:
1.It is declared pursuant to s 545 of the Fair Work Act 2009 (Cth) (“the Act”) that the Second Respondent contravened ss 44, 90(2), 117, 323 and 536 of the Act by:
(a)failing to give the Applicant written notice of the day of his termination;
(b)failing to pay the Applicant the amount owed in lieu of notice of termination;
(c)failing to pay the Applicant his accrued annual leave entitlements; and
(d)failing to provide the Applicant payslips in accordance with s 536 of the Act.
2.The Applicant to file submissions, and any evidence as to penalty and compensation by 17 May 2023.
3.The Second Respondent to file submissions, and any evidence as to penalty and compensation by 31 May 2023.
4.The matter is listed for a Directions Hearing at 9:30am on 2 June 2023.
5.Liberty to apply on 1 days’ notice.
THE COURT NOTES THAT:
A.Should the Second Respondent fail to file any submissions, the Court may consider the matter on the papers.
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 D HUMPHREYS
INTRODUCTION
In a Statement of Claim, filed with the Court on 6 April 2022, Mr Seyer sought declarations that Gatwood Management Pty Ltd (“Gatwood”) and Mr Malass, as Gatwood’s Managing Director, contravened ss 44, 323 and 536 of the Fair Work Act 2009 (Cth) (“the Act”). In the case of ss 44 and 323 of the Act, more than one breach was pleaded with a total of eight contraventions alleged.
Orders were also sought for the imposition of pecuniary penalties against Gatwood and Mr Malass, together with an order for compensation and payment of a reasonable notice period to Mr Seyer pursuant to s 545 of the Act, plus interest and costs.
Gatwood has now been placed into administration and the proceedings against it cannot proceed by virtue of s 440D of the Corporations Act 2001 (Cth). Accordingly, the proceedings continued against Mr Malass on the basis of his alleged accessorial liability for the breaches of the Act pleaded.
PRELIMINARY PROCEEDINGS
The matter was listed for final hearing on 19-20 April 2023. On Friday 14 April 2023, Mr Malass filed an Application in a Case seeking orders that first, a Litigation Guardian be appointed for him, second, that the final hearing listed for 19-20 April 2023 be vacated and third, that his solicitor be allowed leave to withdraw from the matter notwithstanding the provisions of r 9.03(2) of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”).That application was heard on 17 April 2023 and all the orders sought were refused.
The Court was not satisfied on the very limited evidence before it, that Mr Malass was a person in need of a Litigation Guardian pursuant to r 11.07 of the Rules. The Court was not satisfied that there were sufficient reasons for the final hearing to be adjourned or, that Mr Malass’ current solicitor should be allowed leave to withdraw at this late stage of the proceedings.
At the commencement of the final hearing on 19 April 2023, Mr Malass’ Solicitor advised the Court he had been informed that Mr Malass had told him that he would not be appearing before the Court. He advised the Court that he had received a medical certificate that Mr Malass was suffering from a respiratory condition and was unfit to attend work, but the medical certificate was silent as to his capacity to attend Court either in person or remotely via a video conferencing facility. The medical certificate was not tendered to the Court.
On the application of Mr Seyer, the Court ordered pursuant to r 13.06(1)(e) of the Rules that the hearing proceed generally on an undefended basis notwithstanding the absence of Mr Malass.
EVIDENCE BEFORE THE COURT
The following evidence was tendered to the Court:
a. Affidavit of Karl Seyer affirmed 27 January 2023;
b. Bundle of payslips relating to Mr Seyer’s employment;
c. Affidavit of Emma Seyer affirmed 27 January 2023; and
d. Report of Daniel Friskin, Administrator of Gatwood Pty Ltd dated 3 April 2023.
In his Affidavit, Mr Seyer deposes that he commenced work with Rabs Plumbing, a company controlled by Mr Malass, as a licensed plumber/foreman around July 2014. The terms and conditions of his employment were orally agreed between himself and Mr Malass as follows;
a. salary of gross $150,000 per annum;
b. company provided mobile phone;
c. full use of a company provided vehicle together with fuels and tolls; and
d. provision of a laptop.
In around November 2017, Mr Malass terminated Mr Seyer’s employment with Rabs Plumbing over a dispute on the sign off of the certification for an apprentice plumber. However, in January 2018, Mr Seyer received a telephone call from Mr Malass who requested Mr Seyer to recommence employment.
In his final payslip in November 2017, Mr Seyer was shown to have 81.81 hours accrued annual leave and 126.57 hours accrued personal leave.
Following acceptance of re-employment, in the first payslip sent to him, it showed annual leave accrued of 51.05 hours and a sick leave balance of 131.19 hours.
In his new position, Mr Seyer was employed as an estimator with Rabs Plumbing. In or around November 2018, Mr Seyer noticed that his payslip had been changed from the name of Rab’s plumbing to Gatwood Management. When he asked about the change, Mr Malass told him it was about keeping separate companies to mitigate risk and that nothing would change.
In or around May 2021, Mr Seyer states he was directed by Mr Malass to start working on a project at the HMAS Watson naval base. Rab’s Plumbing and Gatwood had approximately 20 to 30 employees working on the project, as a subcontractor to Lendlease.
Mr Seyer’s responsibilities increased to include coordination, including organising, planning and scheduling of materials and work and general project management.
In July 2021, following a series of discussions with Mr Malass and his brother, Mahmoud Malass, who was the General Manager of Gatwood, Mr Seyer’s salary was increased to $171,808.00 per annum. Mr Seyer continued to receive the additional benefits of a company phone, a fully maintained vehicle and a laptop.
Mr Seyer deposes he worked very long hours on the project of between 10 to 12 hours per day on the site, together with administration completed after hours. During this period of time, Mr Seyer, who lived on the Central Coast of New South Wales, was provided with accommodation near the project from Monday night till Friday morning.
On 25 September 2021, a Saturday, Mr Seyer received a text message from Mr Malass. It read: “Karl who ordered concrete so late ??? Who’s paying for all this over time”.
Mr Seyer responded:
Hi Rabi,
How are you?
The concrete was ordered for midday originally. 2pm is all Trent could get. Then Concright was 1 ½ hours late. Phil said we had to make it happen to hit LL/ Defence agreement. Was out of my control.”
Following that text message Mr Malass rang Mr Seyer and a conversation took place as to the cost of the overtime associated with the late pour of the concrete. That conversation ended with the following:
Mr Malass: Karl, are you going against me?
Mr Seyer: I am disagreeing with you.
Mr Malass:You’re going against me you mother fucker? You fucking pick. You can fucking stay at home and not go to work.
Mr Seyer: Fine.
Shortly thereafter, Mr Malass sent Mr Seyer a text in the following terms as sent:
Drop of the Ute. FUCKING NIW RUDE PRICK.
The Court interprets the word “NIW” as set out above as a typographical error and it should read NOW. Mr Seyer deposes he interpreted the conversation and the text message to mean that he had been dismissed. At around 5.00pm that day, Mr Seyer sent a message to the Rabs Plumbing/Gatwood Management WhatsApp group advising that he had been terminated from his employment.
At 5:53pm, Mr Malass sent an email to Mr Seyer with three others copied in headed “Company Thief”. That email disputed Mr Seyer had been terminated and stated that Mr Seyer had resigned from his employment. It asked him to work for 4 weeks to transition his position to another person. Interestingly, it finished with the following:
This is going to be a big deal for me for what you said to me and how you sent messages I’ll make sure everyone understands the next time someone decides to do something like this to me it will cost them a lot of time and money to move away from all of this.
Mr Seyer deposes that at about 6:16pm, there was a knock on his front door. An employee of Rab’s Plumbing by the name of Clint was at the door. He advised Mr Seyer that Mr Malass had asked him to come over and get the Ute and his work stuff. Mr Seyer handed over the keys and loaded all work equipment into the Ute except his work phone. He told Clint he would sent it back after he had downloaded some photographs and other personal information.
At around 7:26pm on 25 September 2021, Mr Malass again rang Mr Seyer. Mr Malass stated in reference to the message left on WhatsApp by Mr Seyer, “Take it down. Take that message down now you dog”. Mr Seyer advised he was unable to do so. Mr Malass replied: “if you don’t get back on it and delete it, I’ll destroy you. You and your family’s life.”
Mr Malass then asked to speak to Mr Seyer’s wife. Mr Malass then said “Karl (Mr Seyer) has been doing drugs and partying at the Watsons bay. He’s disgusting. A dog. That’s why I sent him home. He’s always asking for money. Why? Karl’s being doing cocaine at work”. Mr Seyer replied “That is not true Rabi”. Mr Malass then said “You are a fucking dog. I am going to make your like hell. I’ve been carrying you for years. I should have gotten rid of you years ago. You fucking dog”.
Mr Seyer deposes he found further emails had been sent to him by Mr Malass. These are attached to his Affidavit. These emails include threats to tell Mr Seyer’s wife Mr Seyer had been using cocaine. One email included the following “This will be my punishment to you for being a dog”.
Over the following days, Mr Seyer sent a number of emails to Ms Margaret Loumbos, the Human Resources Manager for Rabs Plumbing. These emails clearly set out Mr Seyers’s version of events that his employment was terminated by Mr Malass.
On 27 September 2021, Ms Loumbos sent a letter to Mr Seyer stating that his resignation had been accepted. It went on to state that as Mr Seyer had declined to work the requisite 4 weeks’ notice period he would be paid only until last day of employment along with any outstanding pay and entitlements.
Ms Emma Seyer is the spouse of the applicant, Karl Seyer. In her Affidavit, Ms Seyer deposes that at no point prior to 25 September 2021 did her husband tell her that he had resigned his employment with Gatwood.
She overheard a conversation that was on speaker between her husband and Mr Malass about issues with concrete being poured late and over time. She deposes as to a second conversation that occurred shortly after the first conversation which ended with Mr Malass telling her husband that he could stay at home the next week and not go to work. She confirms her husband received a message which indicated him that he was to return his work vehicle. She confirms she had a conversation that afternoon with Ms Loumbos in which she said to Ms Loumbos with respect to what Mr Malass had said earlier that day “it was disgusting how he spoke to Karl, as it was on speaker I heard everything. It was unprofessional and I was horrified”. Ms Loumbos replied “We all know what he is like it. He’ll calm down”.
Ms Seyer confirms that at around 6:00pm or 6:30pm on the afternoon of 25 September 2021 a man knocked on their door. She recognised him as Clint. He told them he had been directed by Mr Malass to come to their home and to pick up the work Ute.
Ms Seyer also confirms a further conversation at around 7:26pm when Mr Malass rang on Ms Seyer’s phone. A conversation took place as outlined previously in which Mr Malass threatened her husband that he would tell her (Ms Seyer) what he had been doing at Watson’s Bay. Later in the conversation, Mr Malass spoke to her directly and said that Mr Seyer had been drinking on the job and doing drugs. At the end of the conversation, Mr Malass said to Mr Seyer, “You are a dog and I will never speak to you again”.
Attached to her Affidavit is a text message sent to her phone at 8:01pm on 25 September 2021 which states:
Your disgusting.
I’m jumping in my car now to come to your house if you don’t delete it right now
You are a fuck wit
Get me the Ute ready I’m coming to yours right now
FINDINGS OF FACT
On behalf of Mr Seyer, it was submitted that he had a contract of employment that dated back to July 2014 and thus, at the time of his termination, had seven years of service. The Court does not accept this submission. On Mr Seyer’s own evidence, there was a break in his employment of a few months from November 2017 to January 2018. It appears however, upon being reemployed, Mr Seyer was credited with an amount of accrued annual leave and sick leave. The basis upon which these accruals occurred is puzzling, however the Court is satisfied there was a break in Mr Seyer’s employment.
The Court is reasonably satisfied that upon being reemployed, the contract of employment included an implied term that the contract was terminable by either party giving reasonably notice. It will be a matter for the Court to determine in all the circumstances what length of notice was reasonable.
The Court is satisfied and accepts the account of the events of 25 September 2021 deposed to by Mr Seyer and Ms Seyer. Their version of events are consistent with the documentary evidence consisting of various text messages and the emails from Mr Malass sent to Mr Seyer. The Court is satisfied that Mr Malass terminated Mr Seyer’s employment with the statement: “You can fucking stay home and not go to work” followed by the demand that Mr Seyer was to return his work Ute immediately. The Court is satisfied that a reasonable person receiving that communication, followed by the text message demanding the return of the work Ute, would be interpreted as bringing the employment relationship to an end: (see; Ayub v NSW Trains [2016] FWCFB 5500 at [17]).
The Court rejects the version of events as contained in the letter of 27 September 2021 from Ms Loumbos to Mr Seyer, advising that his resignation had been accepted. In the Court’s view, this letter is an attempt to rewrite history to a version which suits the respondent and is in no way reflective of what actually took place on 25 September 2021.
The various threats made by Mr Malass, which had been set out above, also support the version of events given by Mr Seyer and his wife. In the light of those threats, any evidence to the contrary as to the version of events given by Mr Seyer needs to be treated with the greatest of caution and indeed, a degree of scepticism.
IS MR MALASS LIABLE AS AN ACCESSORY TO THE PLEADED CONTRAVENTIONS?
In Fair Work Ombudsman v Bikaner India (WA) Pty Ltd [2023] FedCFamC2G 20 at [134]-[143], the Court set out the principles in relation to liability of a person to breaches of the Act as an accessory. It is as follows:
Accessorial liability is covered by s 550 of the Act. That section reads as follows:
1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
a)has aided, abetted, counselled or procured the contravention; or
b)has induced the contravention, whether by threats or promises or otherwise; or
c)has been in any way, by act or omission, directly or indirectly knowingly concerned in or party to the contravention; or
d)has conspired with others to effect the contravention.
…
There is some difference in the authorities as to what is required to prove knowledge. In Fair Work Ombudsman v Blue Impression Pty Ltd [2017] FCCA 810 at [25] (“Blue Impression”) Judge O’Sullivan held that:
The authorities established that, in order for a person have accessorial liability, he or she must be a knowing participant or, in other words:
a.have knowledge of the essential facts constituting the contravention;
b.must be knowingly concerned in the contravention;
c.must be an intentional participant in the contravention based on actual not constructive knowledge of the essential facts constituting the contravention – although constructive knowledge may be sufficient under s550(2)(c) of the FW Act in cases of wilful blindness; and
d.need not know the matters in question constituted a contravention.
In relation to the requirement of knowledge, in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342 at [400] per White J, the following was said:
Proof that a person had actual knowledge of each of the essential elements making up the contravention may be derived from direct evidence but more commonly will be a matter of inference from all the circumstances found to be proved. In some cases, actual knowledge can be inferred from the combination of a defendant’s knowledge of suspicious circumstances and the decision by the defendant not to make inquiries to remove those suspicions. The High Court referred to knowledge in these circumstances in Pereira v Director of Public Prosecutions (1988) 82 ALR 217 at 220:
[A] combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer’s shorthand, be referred to as “wilful blindness”. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt.
…
In Fair Work Ombudsman v Chatime Australia Pty Ltd [2022] FedCFamCG2 934 at [90] (“Chatime”), Judge Manousaridis had the following to say as to knowledge (citations omitted):
Mr Zhao submits that the view expressed by Katzmann J in Grouped Property Services is obiter, whereas in Potter, Cowdroy J relied on the view that it was necessary to prove knowledge of an award before a person could be held to be involved in a contravention of the award; and, for that reason, this Court is bound to follow Potter.[151] On a strict application of the principles of precedent, Mr Zhao is correct.
The above should be compared with what His Honour said in Fair Work Ombudsman v A to Z Catering Solution Pty Limited & Anor (No 2) [2018] FCCA 2299 at [267]-[282].
The Court’s view, is that it should not follow Chatime, but follow the line of authority that commences with Grouped and Parker as the Full Federal Court endorsed the view of Flick J in Ezy Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 at [14]. In Parker, Flick J concluded at [128]:
… Where the contravention in question is a contravention of s 50, that section does not
Fair Work Ombudsman v Bikaner India (WA) Pty Ltd [2023] FedCFamC2G 20 22
require the person contravening a term of an enterprise agreement to have any knowledge of the existence of an enterprise agreement and does not require knowledge of the term being contravened or the fact that the act of contravention is in fact contravening conduct. If the “elements” of s 50 do not encompass those matters, it is — with respect — difficult to see why an accessory need have any greater knowledge. For a person to contravene s 50, it is sufficient to prove that conduct took place which was in fact a contravention of a term of an enterprise agreement. For the purposes of accessorial liability, all that need be proved is that the accessory had knowledge of the conduct. (emphasis added).
In the Court’s view, the decision of Flick J in Parker is the better alternative, that it is not necessary for the accessory to be shown to have knowledge of the relevant Award.
Even if the Court is wrong in this, it is reasonably satisfied, based on the totality of the evidence, that Mr Kumar had actual knowledge of the relevant Award, the business affairs as they pertain to the running of Bricklane at the relevant times and was knowingly involved in the relevant decisions as they relate to the pleaded breaches.
Based on the totality of the evidence, the Court is reasonably satisfied that Mr Malass, as the Managing Director of Gatwood, and a number of other companies, had actual knowledge of the requirements under the Act in relation to the rights and obligations of employees and employers in the termination of employment. The Court is satisfied that Mr Malass was intimately and knowingly involved in the relevant decisions as they relate to the pleaded contraventions.
CONTRAVENTION OF SS 44 AND 117(1) OF THE ACT
Section 117(1) of the Act reads as follows:
An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of termination (which cannot be before the day the notice is given).
On behalf of Mr Seyer, it was submitted that no such written notice was given. Even if it might be argued that the text message about the Ute constituted “notice of the day of termination” comprehended in s 117(1) of the Act, it was submitted that was not open to the employer to give that notice by electronic means without the consent of the applicant: s 9(1)(d) of the Electronic Transactions Act 1999 (Cth).
As s 117(1) of the Act is a provision of the National Employment Standards, the contravention is also a contravention of s 44 of the Act. It was submitted that while the obligation under
s 117(1) of the Act rested with Gatwood, Mr Malass contravened the provision by reason of his involvement in that contravention by being directly or indirectly being concerned in the contravention pursuant to s 550(2)(c) of the Act. As the Managing Director of Gatwood, it was his conduct that brought about the termination of Mr Seyer’s employment. The Court is satisfied he was knowingly concerned and therefore involved in that contravention. The contravention is made out.
CONTRAVENTION OF SS 44, 90(2) AND 323 OF THE ACT
Gatwood was also obliged by s 117(2) of the Act, because it did not give the applicant at least the amount of notice specified in that subsection, to pay the applicant the amount it would have been liable to pay him had he worked out that period. Given the applicant’s period of service, Gatwood was obliged to give or pay the applicant at least four weeks’ pay in lieu of notice.
Based on the payslips, together with the evidence of Mr Seyer, which the Court accepts without reservation, the Court is satisfied that Gatwood has not paid the applicant any money in lieu of notice and contravened ss 117(2) and 323 of the Act.
The Court is also satisfied that the letter of 27 September 2021 from Gatwood sought to falsely re-characterise the termination as a resignation such that the obligations under s 117 of the Act do not arise.
Given his position as Managing Director of Gatwood, and the totality of the evidence as to his involvement in the termination of Mr Seyer, the Court is satisfied that Mr Malass was an accessory to the contravention by Gatwood by reason of his involvement with the contravention. The contravention is made out
CONTRAVENTIONS OF SS 44 AND 90(2) OF THE ACT
Gatwood was also obliged by s 90(2) of the Act to pay Mr Seyer, when his employment ended, any accrued annual leave. Gatwood did not do so when Mr Seyer’s employment ended as was required. Payment was not made until more than a month later on 29 October 2021. The Court is satisfied that the failure of the first respondent to make the payment when the employment ended is a contravention of ss 44 and 90(2) of the Act.
For similar reasons, as set out above, by reason of his involvement with Gatwood’s contravention, Mr Malass also contravened ss 44, 90(2), and 323 of the Act. The Contravention is made out.
CONTRAVENTION OF S 536 OF THE ACT
It was submitted that Gatwood was obliged under s 536(2)(b) of the Act to provide the applicant within one working day of payment the payslip which specified, amongst other things, the employer’s name and Australian Business Number: Reg 3.46 of the Fair Work Regulations 2009 (Cth).
It was submitted that during the employment, between November 2018 and October 2021, Gatwood provided payslips to the applicant which referred to the employer as “Gatwood” (payslips from 23 Nov 18 to 07 May 20), and Gatwood Management Pty Ltd (payslips from 14 May 20 onwards)
Gatwood Management Pty Ltd ACN is shown on the report of Mr Frisken, the Administrator of the Company as 147 501 835.
The Court is satisfied that the payslips until 7 May 2020 simply referred to the employer as “Gatwood” not “Gatwood Management Pty Ltd” noting that the same ABN of 59 147 501 835 is used both before and after 7 May 2020. The Court is satisfied, although it is a technical breachonly that the payslips prior to 7 May 2020 should have referred to Gatwood Management Pty Ltd.
Puzzlingly, the payslips from 2 September 2021 onwards refer to Gatwood Management Pty Ltd, but with an ABN of 572 328 995. Either the employer had changed or the ABN had changed, however there is no explanation as to why there would be a change in the ABN post to September 2021.
The Court is reasonably satisfied that there was a breach of s 536 of the Act at least in the period prior to 7 May 2020. The Court cannot be satisfied in the absence of more information that there were contraventions post that period. It is a matter for the applicant to show the contraventions and the Court is not persuaded, based on the limited information it has available, the contravention is made out in that regard.
RELIEF
As the Court is satisfied that the contraventions have been made out, the Court will make the declaration sought in the Initiating Application.
The Court notes that Gatwood Management Pty Ltd is now in administration and it is unlikely, based on the report of the administrator, that the applicant will be able to obtain compensation from Gatwood Management Pty Ltd. The Court is satisfied that it is thus appropriate that Mr Malass be ordered to pay compensation for the losses suffered by the applicant as a result of his contravening conduct: (see; Veeraragoo v Goldbreak Holdings Pty Ltd (No 2) [2018] FCA 1448 at [48]-[59]).
On behalf of the applicant, it was submitted that a reasonable period of notice was nine months’ salary, being an amount of $128,856.00. The Court does not accept this submission. Reasonable notice is to be determined as at the date when the notice is given and not when the contract is entered into: (see; Quinn v Jack Chia (Australia) Ltd (1991) 43 IR 91 at 103).
The Court accepts based on the termination of the applicant on 21 September 2021, he was entitled at a minimum under s 117 of the Act to a minimum of 4 weeks’ notice.
However, the employment contract between the applicant and Gatwood was partly written and partly oral. The Court accepts that Mr Seyer is entitled to claim for a longer period of Notice based on common law rights. In Ostle v Wilson Mining Pty Ltd [2022] FedCFamC2G 109 (“Ostle”) at [30]-[36] the Court found that s 117 of the Act is a safety net and does not replace an implied condition of reasonable notice in an oral contract. The amount of notice will be a matter of fact to be decided in the light of the objective circumstances as they exist as at the time of termination.
The factors to be considered in determining what is reasonable are as follows: Ostle at [38]:
· the length of service of the employee;
· the professional standing of the employee;
· the employee’s age;
· his or her degree of job mobility;
· the expected period of time it would take the employee to obtain alternative employment;
· the period it was likely, apart from the dismissal, the employee would have continued in the employment;
· what the employee gave up to come to the present employer (for example, a long-standing job); and
· the employees prospective pension or other rights.
While some of the above matters were dealt with in oral submissions, the Court is of the view that it would be preferable for Affidavit evidence to be provided to the Court that deals with all of the above matters. Compensation can then be assessed as part of the penalty phase of the proceedings.
The Court will make directions for the filing of any evidence and submissions in relation to penalty. Mr Malass will be given a short period to file any evidence in response. Should he fail to do so, the Court is prepared to consider the issues of penalty and compensation on the papers in chambers, unless a hearing is sought by either party.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Deputy Associate:
Dated: 5 May 2023
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