Smith v Prescott
[2008] FMCA 1672
•15 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SMITH v PRESCOTT & ORS [2008] FMCA 1672
INDUSTRIAL LAW – Application for penalties – admission of contravention and agreement on penalty – consideration of agreement on penalty – penalty not “out of bounds”.
Workplace Relations Act1996 (Cth) ss.400(5), 792(1), 793, 809
Minister for Industry, Tourism & Resources v Mobil Oil Australia [2004] FCAFC 72
ASIC v Vizard (2005) 219 ALR 714
Brobell v Darrell Lea Chocolate Shops Pty Ltd [2008] FMCA 714
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
Smith v Granada Tavern & Ors (No.3) [2007] FMCA 1548
Hanley v AMWU (2000) 100 FCR 530
Applicant: RAYMOND MURRAY SMITH
First Respondent: GREGORY PRESCOTT
Second Respondent: MICHAEL HIBBERD
Third Respondent: JOCELYN BERECHREE
File Number: MLG 1364 of 2007
Judgment of: O’Sullivan FM
Hearing date: 8 December 2008
Date of Last Submission: 8 December 2008
Delivered at: Melbourne via telephone link
Delivered on: 15 December 2008 REPRESENTATION
Counsel for the Applicant: Mr Bourke
Solicitors for the Applicant: Clayton Utz
Counsel for the Second Respondent: Mr Livermore
Solicitors for the Second Respondent: Simmons Wolfhagen ORDERS
(1)The second respondent pay within 14 days to the consolidated revenue fund by way of penalty for a contravention on 11 August 2006 of s.792 of the WR Act the sum of $1,900.00.
(2)The application dated 5 October 2007 be otherwise dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBARTMLG 1364 of 2007
RAYMOND MURRAY SMITH Applicant
And
GREGORY PRESCOTT First Respondent
MICHAEL HIBBERD Second Respondent
JOCELYN MAREE BERECHREE Third Respondent
REASONS FOR JUDGMENT
Introduction
1.By application filed 5 October 2007 penalties were sought as against the first, second and third respondents for contraventions of s.400(5) and s.792(1) of the Workplace Relations Act 1996 (“the WR Act”).
2.The applicant, who is a workplace inspector under the WR Act, brought these proceedings in connection with events involving Angela Byard a chef and the third respondent (who was the manager) at the Club Hotel in Glenorchy, Tasmania in late 2006.
3.The second respondent (who was a partner in the business that ran inter alia the Club Hotel with the first respondent) took a “hands on” managerial role at the Club Hotel.
4.There have been separate proceedings involving the same respondents, albeit in a different business owned by the first and second respondents[1].
[1] see Smith v Granada Tavern & Ors (No3) [2007] FMCA 1548
5.The current proceedings were commenced to deal with allegations raised in the above mentioned proceedings concerning Ms Byard.
6.Following the application being filed, there were orders and directions made for hearing on 16 November 2007 and further orders and directions on 6 May 2008. The matter was fixed for hearing on 8 December 2008 in Hobart.
7.Ultimately the second respondent made admissions regarding a contravention of s.792(1) of the WR Act and the applicant withdrew the other claims. The matter proceeded as a penalty hearing only.
8.At the hearing on 8 December 2008 the applicant was represented by Mr Bourke of Counsel and the second respondent by Mr Livermore of Counsel. The applicant relied inter alia on the following:
a)an affidavit of Angela Byard and exhibits;[2]
b)an affidavit of Karen Crawford and exhibits[3]; and
c)Exhibits A1 to A13.
[2] Affidavit of Angela Byard exhibit A2
[3] Affidavit of Karen Crawford exhibit A5
9.There was no issue regarding the ownership of the Club Hotel or that the award that applied to Ms Byard’s employment was the Hospitality Industry Accommodation Hotels Resorts & Gaming Award.[4]
[4] Exhibit A11 – A13
10.As matters transpired at the hearing the parties made submissions in support of a monetary figure by way of penalty that the parties had agreed was appropriate in the circumstances.
Background
11.The applicant, whose appointment and standing to bring these proceedings (exhibit A8 & A9) was not in issue, prepared a chronology (which was agreed) that is Annexure A to these reasons. I am satisfied that chronology accurately sets out the background to the matter.
12.The applicant also prepared written submissions that helpfully summarised the background to this matter as follows:
“13.On 27 August 2002, Byard commenced employment at the Club Hotel. She was initially employed as a cook on a casual basis. In April 2003, she commenced an apprenticeship as a chef whilst working at the Club Hotel (CB9).
14.On 11 July 2006, Berechree offered Byard permanent part time employment with the Club Hotel and gave her a letter of appointment confirming this arrangement (CB10).
15.On 13 July 2006, Byard signed this letter of appointment and returned it to Berechree.
16.At all material times, Byard’s employment was covered by the Award (clause 15.4).
17.From August 2002, Karen Crawford (Crawford) also worked at the Club Hotel as a cook on a casual basis.
The AWA threat
18.On 11 August 2006, there was a meeting involving Berechree, Byard and Crawford at the Club Hotel. Berechree provided Byard and Crawford with new AWAs (CB12) and a deed of release (CB11).
19.During this meeting Byard asked Berechree whether if she did not sign the AWA, would she then be employed under an award. Berechree replied by saying that it was in Byard’s best interests to sign the AWA. Berechree then made the AWA threat, stating:
“If you do not sign the AWA, then I could lose the letter that made you a permanent employee.”
20.As at August 2006, in the absence of Byard signing an AWA, her employment would have been subject to the Award (clause 15.4).”
The legislation
13.The second respondent has admitted a contravention of s.792(1) of the WR Act which inter alia prohibits injuring or altering the position of an employee to their prejudice for reasons including that the employee is entitled to the benefit of an industrial instrument.
14.Section 792(1) provides:
“(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c)alter the position of an employee to the employee’s prejudice;
(d) refuse to employ another person as an employee;
(e)discriminate against another person in the terms or conditions on which the employer offers to employ the other person as an employee.”
15.Section 793(1)(i) provides:
“Conduct referred to in subsection 792 (1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
…
(i)is entitled to the benefit of an industrial instrument, and order of an industrial body or the Australian Fair Pay and Conditions Standard
…”
16.Section 809 provides:
“Proof not required of the reason for, or the intention of, conduct
(1) If:
(a) in an application under section 807 relating to a person’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b)for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise.
(2)This section does not apply in relation to the granting of an interim injunction.”
Approach to penalty
17.The approach to be followed in penalty proceedings has been well established[5]. The considerations so far as they are relevant for the assessment of penalty are as follows:
[5] see inter alia Mason v Harrington Corp Pty Ltd t/as Pangaea Restaurant & Bar [2007]
a)the nature and extent of the conduct which led to the contraventions;
b)the circumstances of the conduct (including deliberate defiance or disregard of the WR Act);
c)relevant record of civil penalty contraventions;
d)whether the contraventions are distinct or arise from a single course of conduct;
e)the consequences of the contravening conduct;
f)deterrence, both general and specific;
g)the objects of the WR Act;
h)the size and financial resources of the contravener;
i)co-operation with regulatory authorities;
j)the contravener’s contrition;
k)the size of the prescribed penalty, and any recent increases to that prescription; and
l)the totality principle.
18.In Brobell v Darrell Lea Chocolate Shops Pty Ltd [2008] FMCA 714 Burchardt FM said at [33]:
“33.In Mason v Harrington Corp Pty Ltd t/as Pangaea Restaurant & Bar [2007] FMCA 7 at [26]-[55], Mowbray FM set out a number of factors which are relevant for consideration in cases such as these. Those indicia were adopted by Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14.
34.While no-one that I am aware of has yet asserted that the matters set out by Mowbray FM and adopted by Tracey J are inappropriate, I bear in mind the qualification stated by Buchanan J in Australia Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 (“Ophthalmic Supplies”) at [91] to this effect:
‘Checklists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.’
19.Mindful of the approach to the consideration of the penalty to be imposed in proceedings of this sort set out above the Court now turns to the contravention involved and the parties submissions in support of the agreed penalty.
Consideration of penalty
20.Ms Byard had deposed in her affidavit that:[6]
[6] Exhibit A2
“21.On the morning of 11 August 2006, myself, Ms Crawford and Ms Berechree met. The meeting was held at a table in dining room area.
22.Ms Berechree handed Ms Crawford and I one big envelope each. She told us that the envelopes contained our new AWA. Ms Berechree then started explaining to us that our old AWAs had expired as they only ran for three years. She then explained that the new AWAs were about 8 months overdue because Mr Hibberd was unaware that it was time for the AWAs to be re-done. At this time, Ms Berechree’s tone of voice was explanatory and pleasant.
23.At the meeting I opened the envelope and pulled out the documentation, but did not read through it carefully at that stage. I remember that there was no name on the document and there was no pay rate included either. Ms Berechree said that the name and the pay rate would be inserted into the AWA at the time of signing.
24.Ms Berechree then said to me that as I was a permanent part time employee, there would not be much change to my employment conditions if I signed the AWA. However, Ms Berechree directed me to look at the annual leave and sick leave entitlements in the AWA. Ms Berechree told Ms Crawford to read her AWA more carefully as she was a casual employee.
First contravention: 11 August 2006 – Berechree’s duress of Byard to sign an AWA
25.I asked Ms Berechree whether if I did not sign the AWA, would I then be employed under an award. Ms Berechree responded to this by saying that it was in my best interests to sign the AWA. She then said words to the effect:
‘If you do not sign the AWA then I could lose the letter that made you a permanent employee.’
…”
21.The applicant submitted:
“21.By Berechree, as an employee of the Club Hotel, engaging in the conduct referred to above, Hibberd, as employer, has for a prohibited reason, or for reasons that include a prohibited reason, done or threatened to have done the following in respect of Byard:
(a)injure Byard in respect of her employment, by threatening to discard her letter of appointment; and/or
(b)alter the position of Byard to her prejudice, namely, by threatening to discard Byard’s letter of appointment (s.792(1)(b) and (c)).
22.To meet the requirements of s.792(1)(b) or (c) involves a very low threshold.[7]
23.The prohibited reason in this proceeding was that Byard, in the absence of signing the AWA, was entitled to the benefit of an industrial instrument, namely, the Award (s.793(1)(i)) (the Award entitlement).
24.The AWA threat was made to pressure Byard to sign an AWA and thus remove the Award entitlement she would otherwise have enjoyed.
25.Having regard to the relevant factual matrix, the Award entitlement of Byard was the sole or dominant reason for Berechree engaging in the AWA threat. There was thereby a contravention of s.792(1)(b) and (c).[8]
26.By reason of the matters above, Hibberd has committed the s.792 contravention.
[7] see Patrick Stevedores v MUA (1998) 195 CLR 1 at [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).
[8] It is a requirement of s.792(8) that where the prohibited reason involves s.793(1)(i) of the Act, it needs to be established that this prohibited reason was the sole or dominant reason. see also s.809.
22.The first respondent and the second respondent were in a partnership and operated the Club Hotel together, though it is agreed the second respondent (not the first respondent) took a “hands on” managerial role.
23.The third respondent was the Manager of the Club Hotel and an employee of the first and second respondent.
24.The third respondent engaged in the conduct referred to in paragraph 25 of the affidavit of Ms Byard. In particular, the third respondent told Ms Byard that “If you don’t sign the AWA then I’ll lose the letter that made you a permanent employee.”
25.In Hanley v AMWU (2000) 100 FCR 530 the Full Court of the Federal Court discussed the issue of vicarious liability (where for example an employer is liable for the actions of employee) in the context of a proceeding involving a civil penalty. At [75] – [76] the Full Court said:
“…Consequently, to establish vicarious liability under s 170NC it is necessary to adduce evidence which establishes, on the balance of probabilities, that the act complained of was authorised. To use the language of Pincus JA, neither “inferences from what [the relevant employees] generally do” nor “judicial knowledge” are sufficient. That approach accords generally with observations of Moore J made in Kelly v Construction Forestry Mining and Energy Union (1994) 129 ALR 109 at 118.
76.In light of the requirement to prove authority to establish either vicarious liability or liability under s 349, it is next necessary to consider what kind of authority must be proved in each case. If it is sought to be proved that an act was authorised, actual authority must be shown, although the authority might be a broad one, encompassing a class of acts into which the act complained of falls. Furthermore, it is well established that, once authority to engage in certain tasks is proved, vicarious liability extends to unauthorised modes of performing those tasks: see Macken, O'Grady and Sappideen The Law of Employment 4th ed., 1997 pp. 356 and 360. If it is sought to be proved that the employer is liable because he or she failed to take proper to steps to prevent the acts complained of (in, for example, contempt proceedings involving breaches of an undertaking), it must be shown that there were circumstances which required the employer to take steps and that the steps, if any, taken by the employer were insufficient to avoid vicarious liability.
…”
26.Given this, and as the parties had agreed, the Court is satisfied the second respondent was at all material times vicariously liable for conduct of the third respondent (who was the manager) that is made out on the evidence in this matter to the requisite standard.
27.That conduct constituted a threat by the third respondent for and on behalf of the second respondent that was to:
(a)injure Ms Byard in her employment (s.792(1)(b)); and/or
(b)alter the position of Ms Byard to her prejudice (s.792(1)(c)) –
for a prohibited reason or for reasons that included a prohibited reason.
28.The prohibited reason was that Ms Byard was entitled to the benefit of an industrial instrument, namely, the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award.
29.By reason of the above matters the second respondent has properly accepted he contravened s.792.
30.Save for the matters referred to in submissions there was no explanation given for the applicant’s decision not to proceed as against the first and third respondents or against the second respondent in relation to s.792 only. However the parties have compromised the matter.
31.It was submitted that the conduct the second respondent had admitted he was liable for, was not his own, despite being a “hands on manager”. It was submitted he was not directly involved in conduct which arose out of the same set of circumstances that he had already been punished for[9]. It was submitted that in so far as specific and general deterrence were warranted in relation to this contravention, by virtue of the penalty that had already been imposed, along with that the parties contended for here, the need to deter such conduct was met.
[9] see Smith v Granada Tavern & Ors (No3) [2007] FMCA 1548
32.The applicant also submitted that having regard to the admission made the above matters and the size of the maximum penalty, that a penalty in the range of the lower third of the maximum was appropriate.
33.Ultimately the applicant submitted that the result of the consideration of the relevant factors in the particular circumstances of this matter would lead the Court to a penalty comparable to that the parties had agreed on. It was submitted the agreed penalty was therefore within the permissible range.
34.Counsel for the second respondent was ad idem with the submissions made on behalf of the applicant. Counsel for the second respondent submitted the contravention involved here was at the lower end of the scale, there was no other threat or follow up and that whilst his client had acknowledged liability for the conduct he was not party to it.
35.As is clear from the above, the position of the parties before the Court was that the penalty that should be imposed on the second respondent should be at the “lower end of the scale”. The parties asked the Court to accept the penalty that had been agreed on was within the ‘permissible range’.
36.In support of this position the Court was referred to the decision in ASIC v Vizard (2005) 219 ALR 714 at [45]:
“[45]Second, there is the submission by ASIC, supported as it is by the defendant, that the appropriate penalty for each contravention is $130,000. The cases, including decisions of the Federal Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) FCR 285; 141 ALR 640 and Australia Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (2002) ATPR 41-880; [2002] FCA 619, hold that I should not depart from the penalty recommended by the parties unless it is clearly out of bounds. The proposed penalty is certainly low. Left uninstructed I would have imposed a higher penalty, but not substantially different from that suggested. If this penalty is insufficient, parliament should increase the maximum. The current amount has been in place for more than 13 years and may require review”.
37.The Court was also referred to the decision in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51]:
“[51]The following propositions emerge from the reasoning in NW Frozen Foods:
(i)It is the reasonability of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act.
(ii)Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another.
(iii)There is a public interest in promotion settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravener have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed.
(iv)The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC’s views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more “subjective” matters.
(v)In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so.
(vi)Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court’s view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range.
38.The threats the second respondent has accepted responsibility for, strike at the heart of the legislative scheme of the WR Act. It is important that all employees, particularly young employees be protected from conduct that infringes the protections embodied in the freedom of association provisions of the WR Act. It is also important that employees can discuss employment arrangements freed from any unlawful threats to their entitlements under the relevant award or other provisions of the WR Act.
39.In determining the final amount of penalty the Court takes account of the need for specific and general deterrence. The contravention involved here concerned conduct against a vulnerable and young employee. The second respondent has accepted responsibility for the author of that conduct given his position as the “hands on” employer who is liable for the threat that was made. The recognition of that responsibility and acceptance of the penalty to be applied in the circumstances is important.
40.The second respondent has admitted the contravention and saved the cost of a contested hearing in this matter.
41.It is against that background and the reality that the maximum penalty for the admitted contravention is $6,600.00 that the Court considered the following submissions made by the parties on this issue:
“28.The Applicant submits that the contravention by Hibberd of s.792 of the Act should be at the “lower end of the scale” for the following reasons:
(a)Hibberd has already been punished for similar conduct that occurred in similar circumstances and within the same time frame in proceeding No. LNG39/2006;[10]
(b)Hibberd is vicariously liable and not directly liable for the s.792 contravention; and
(c)the admission made by Hibberd of the s.792 contravention (albeit made only a few days prior to trial).
29.In all the circumstances, it is the submission of both the Applicant and Hibberd that the appropriate quantum of penalty for this contravention is $1,900.00 (28.8% of the maximum).”
[10] see Smith v Granada Tavern [2007] FMCA 904 and Smith v Granada Tavern (No. 3) [2007] FMCA 1548. Hibberd received a penalty for a contravention of s.400(5) of the Act of $4,950.00.
42.Given the position of the parties, the Court accepts the submission made that the conduct involved here is far from the worst category of case involved in contraventions of this sort. The Court has also taken into account the agreed position of the parties that some regard should be had to the fact that this proceeding involved conduct that was the subject of the sanction in other proceedings and there is a degree of overlap given the common businesses owned by the first and second respondent.
Conclusion
43.As a review of the relevant considerations in this matter makes clear, and for the reasons set out above, the Court is satisfied the agreement of the parties on penalty is “not out of bounds.” The agreed penalty is calculated at 28.8% of the maximum. Balancing the considerations including that the contravention is of a law for which the maximum penalty is $6,600.00 the Court is satisfied the penalty sought is reasonable.
44.
As the parties agreed at the hearing the second respondent will have
14 days to make the payment by way of penalty to consolidated revenue.
45.It is therefore appropriate to make the orders as set out at the beginning of these reasons.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Deputy Associate: Haylee Hobbs
Date: 19 December 2008
ANNEXURE A
APPLICANT’S CHRONOLOLY OF EVENTS
| Date | Event | Ref. |
| At all material times | The Club Hotel was a respondent to the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 (the Award). | CB19-21 |
| 3 December 2001 | The first Respondent (Prescott) and the second Respondent (Hibberd), in partnership, commence business trading as the Club Hotel in Glenorchy. | CB18 |
| 27 August 2002 | Angela Byard (Byard) commences employment at the Club Hotel in Glenorchy in Tasmania. She was initially employed on a casual basis as a Kitchen Hand. | Byard 3 |
| August 2002 | Karen Crawford (Crawford) commences employment as a cook on a casual basis at the Club Hotel. When Crawford started at the Club Hotel, she signed an AWA. | Crawford 2-3 |
| Approx. January 2003 | (c) Byard offered an apprentice chef position by her then immediate supervisor and Head Chef, Barbara Beechey (Beechey). (d) At the time Byard was offered an apprenticeship, Beechey advised her that her employment status would not change and that she would remain a casual employee and that she would have to sign an AWA if she wanted to do an apprenticeship and Byard agreed to sign an AWA. | Byard 9-11 |
| 16 April 2003 | Byard attends a meeting at the Club Hotel to complete her paperwork for an apprenticeship. Byard signs her apprenticeship documentation at this meeting. | Byard 14 |
| 11 July 2006 | Byard has a meeting with the third Respondent (Berechree).[11] Berechree offers Byard permanent part time employment with the Club Hotel and gives her a letter of appointment confirming this arrangement. The letter of appointment is signed by Berechree as “Hotels Manager”. | Byard 15 |
| 13 July 2006 | Byard signs her letter of appointment and returns it to Berechree. | Byard 16 |
| 17 July 2006 | Pursuant to the letter of appointment, Byard becomes a permanent part time employee of the Club Hotel from this date and is subject to a three month probation period. | Byard 16 |
| 7 August 2006 | A staff meeting is conducted at the Club Hotel. Berechree was at this meeting. Byard and Crawford did not attend this meeting. | Crawford 8-9 |
| 9 August 2006 | Berechree comes into the kitchen area where Byard is working and says that she wants to have a meeting in relation to AWAs and that she wants to know why Byard and Crawford did not attend an earlier general staff meeting. A meeting is organised for 11 August 2006. | Byard 20 |
| 11 August 2006 | The s.792 contravention (a) Meeting between Berechree, Byard and Crawford at a table in the dining room area of the Club Hotel. (b) Berechree hands Byard and Crawford a big envelope and tells them that the envelopes contain their new AWA (CB12) and a deed of release (CB11). (c) Berechree says that their old AWAs had expired as they only ran for 3 years. Berechree says that the new AWAs were about 8 months overdue because Hibberd was unaware it was time for the AWAs to be redone. (d) Byard opens up her envelope and sees that it contains an AWA but that it does not have her name on it or a rate of pay inserted. Berechree says to Byard that as she is a permanent part time employee, there would not be much change in her employment conditions if she signed the AWA. Berechree tells Crawford to read her AWA more carefully as she was a casual employee. (e) Byard asks Berechree whether if she did not sign the AWA, would she then be employed under an award. Berechree says that it is in Byard’s best interests to sign the AWA. Berechree then says: “If you do not sign the AWA then I could lose the letter that made you a permanent employee.” (f) Crawford asks whether it is possible to negotiate the contents of the AWA. Berechree says that was. | Byard 21-32 |
| 22 August 2006 | Byard signs the AWA. | Byard 35-36 |
| October 2006 | Crawford signs the AWA. | Crawford 18 |
| 5 October 2006 | Berechree signs off Byard’s apprenticeship. | Byard 38 |
| 17 October 2006 | Application in Proceeding LNG39/2006 (the first proceeding) in respect of matters concerning both Granada Tavern and the Club Hotel. | CB13 |
| 28 March 2007 | Affidavits of Byard and Crawford in the first proceeding. | CB5 and 6 |
| 3 April 2007 | Ruling of his Honour, Burchardt, FM removing the matters the subject of the Club Hotel from the first proceeding. | CB17 |
| 5 October 2007 | Application by the Applicant against each of the Respondents for contraventions of s.400(5) and s.792 of the Workplace Relations Act 1996.[12] | CB1 |
| 5 October 2007 | Affidavit of Luke Travis Connolly. | CB4 |
| 30 October 2007 | Respondents’ Response. | CB2 |
[11] Byard considered that the third Respondent was Manager of the Club Hotel and that Hibberd was co-Manager of the Club Hotel, both people being based in the office (Byard 5). Crawford knew that Berechree was manager of both the Club Hotel and the Granada Tavern (Crawford 4). Crawford knew Hibberd as the “owner” of the Club Hotel. Berechree and Hibberd were based in the office (Crawford 5).
[12] See also the Applicant’s Further and Better Particulars of Claim dated 14 October 2008 (CB3).
Kelly v Fitzpatrick (2007) 166 IR14
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