Smith v SBP Employment Solutions Pty Ltd and Ors (No.2)
[2019] FCCA 3318
•5 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SMITH v SBP EMPLOYMENT SOLUTIONS PTY LTD & ORS (No.2) | [2019] FCCA 3318 |
| Catchwords: INDUSTRIAL LAW – Adverse action – presumption that adverse action taken for a proscribed reason – presumption not rebutted – discrimination and coercion allegations not made out – leave entitlement allegation established – assessment of compensation peculiarly in the realm of the Court where calculation of past and future loss unable to be assessed with exactitude – imposition of pecuniary penalties for serious contraventions of the FWA. |
| Legislation: Fair Work Act 2009 (Cth), ss. 44, 90, 130, 340, 341, 342, 343, 344, 351, 360, 361, 545, 546(1), 549, 550. Workers Compensation and Rehabilitation Act 2003 (Qld.) s. 119A. |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. |
| Applicant: | NICHOLAS SMITH |
| First Respondent: | SBP EMPLOYMENT SOLUTIONS PTY LTD |
| Second Respondent: | SBP AUSTRALIA PTY LTD |
| Third Respondent: | MAX BURNS |
| Fourth Respondent: | TONY AISTHORPE |
| Fifth Respondent: | DAN MAHONY |
| Sixth Respondent: | NEVILLE HOMBSCH |
| Seventh Respondent: | PETER CHADWICK |
| File Number: | BRG 330 of 2018 |
| Judgment of: | Judge Egan |
| Hearing Dates: | 29, 30, 31 July 2019, 1 August 2019, 28 October 2019, 25 November 2019 |
| Reasons Delivered on: | 21 November 2019 |
| Delivered at: | Brisbane |
| Date of Last Submission: | 25 November 2019 |
| Declarations and Orders Pronounced On: | 5 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Dr R. Haddrick |
| Solicitors for the Applicant: | FCB Lawyers and Consultants |
| Counsel for the Respondent: | Mr M. Alexander |
| Solicitors for the Respondent: | Carter Newell Lawyers |
ORDERS
It is declared that the First Respondent has contravened subsection 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) by taking adverse action against the Applicant because the Applicant had exercised his workplace right to make complaints or inquiries in relation to his employment.
It is declared that the First Respondent has contravened section 44 of the Fair Work Act 2009 (Cth) by failing to pay to the Applicant his untaken paid annual leave in accordance with the First Respondent’s obligations under subsection 90(2) of the same enactment, when the Applicant’s employment was terminated.
It is declared that the Second Respondent has contravened subsection 340(1)(a)(ii) of the Fair Work Act 2009 (Cth), by reason of subsection 550(1) of the same enactment, when the First Respondent took adverse action against the Applicant because the Applicant had exercised his workplace right to make complaints or inquiries in relation to his employment.
It is declared that the Second Respondent has contravened section 44 of the Fair Work Act 2009 (Cth), by reason of subsection 550(1) of the same enactment, when the First Respondent failed to pay to the Applicant his untaken paid annual leave in accordance with the First Respondent’s obligations under subsection 90(2) of the same enactment, when the Applicant’s employment was terminated.
It is declared that the Third Respondent has contravened subsection 340(1)(a)(ii) of the Fair Work Act 2009 (Cth), by reason of subsection 550(1) of the same enactment, when the First Respondent took adverse action against the Applicant because the Applicant had exercised his workplace right to make complaints or inquiries in relation his employment.
It is declared that the Third Respondent has contravened section 44 of the Fair Work Act 2009 (Cth) by reason of subsection 550(1) of the same enactment, when the First Respondent failed to pay to the Applicant his untaken paid annual leave in accordance with the First Respondent’s obligations under subsection 90(2) of the same enactment, when the Applicant’s employment was terminated.
It is declared that the Fourth Respondent has contravened subsection 340(1)(a)(ii) of the Fair Work Act 2009 (Cth), by reason of subsection 550(1) of the same enactment, when the First Respondent took adverse action against the Applicant because the Applicant had exercised his workplace right to make complaints or inquiries in relation to his employment.
It is declared that the Fourth Respondent has contravened section 44 of the Fair Work Act 2009 (Cth) by reason of subsection 550(1) of the same enactment, when the First Respondent failed to pay to the Applicant his untaken paid annual leave in accordance with the First Respondent’s obligations under subsection 90(2) of the same enactment, when the Applicant’s employment was terminated.
It is declared that the Fifth Respondent has contravened subsection 340(1)(a)(ii) of the Fair Work Act 2009 (Cth), by reason of subsection 550(1) of the same enactment, when the First Respondent took adverse action against the Applicant because the Applicant had exercised his workplace right to make complaints or inquiries in relation to his employment.
It is declared that the Fifth Respondent has contravened section 44 of the Fair Work Act 2009 (Cth) by reason of subsection 550(1) of the same enactment, when the First Respondent failed to pay to the Applicant his untaken paid annual leave in accordance with the First Respondent’s obligations under subsection 90(2) of the same enactment, when the Applicant’s employment was terminated.
It is declared that the Sixth Respondent has contravened subsection 340(1)(a)(ii) of the Fair Work Act 2009 (Cth), by reason of subsection 550(1) of the same enactment, when the First Respondent took adverse action against the Applicant because the Applicant had exercised his workplace right to make complaints or inquiries in relation to his employment.
It is declared that the Sixth Respondent has contravened section 44 of the Fair Work Act 2009 (Cth) by reason of subsection 550(1) of the same enactment, when the First Respondent failed to pay to the Applicant his untaken paid annual leave in accordance with the First Respondent’s obligations under subsection 90(2) of the same enactment, when the Applicant’s employment was terminated.
As a consequence of the declaration made in Order (1) of these orders, the First Respondent is to pay pecuniary penalties in the sum of $47,250 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (2) of these orders, the First Respondent is to pay pecuniary penalties in the sum of $50,400 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (3) of these orders, the Second Respondent is to pay pecuniary penalties in the sum of $47,250 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (4) of these orders, the Second Respondent is to pay pecuniary penalties in the sum of $50,400 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (5) of these orders, the Third Respondent is to pay pecuniary penalties in the sum of $10,080 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (6) of these orders, the Third Respondent is to pay pecuniary penalties in the sum of $10,080 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (7) of these orders, the Fourth Respondent is to pay pecuniary penalties in the sum of $10,080 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (8) of these orders, the Fourth Respondent is to pay pecuniary penalties in the sum of $10,080 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (9) of these orders, the Fifth Respondent is to pay pecuniary penalties in the sum of $10,080 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (10) of these orders, the Fifth Respondent is to pay pecuniary penalties in the sum of $10,080 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (11) of these orders, the Sixth Respondent is to pay pecuniary penalties in the sum of $10,080 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
As a consequence of the declaration made in Order (12) of these orders, the Sixth Respondent is to pay pecuniary penalties in the sum of $10,080 to the Applicant, pursuant to subsection 546(1) of the Fair Work Act 2009 (Cth).
The First to Sixth Respondents inclusive shall pay the pecuniary penalties set out in these orders to the Applicant within 28 days of the making of these orders.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 330 of 2018
| NICHOLAS SMITH |
Applicant
And
| SBP EMPLOYMENT SOLUTIONS PTY LTD |
First Respondent
| SBP AUSTRALIA PTY LTD |
Second Respondent
| MAX BURNS |
Third Respondent
| TONY AISTHORPE |
Fourth Respondent
| DAN MAHONY |
Fifth Respondent
| NEVILLE HOMBSCH |
Sixth Respondent
| PETER CHADWICK |
Seventh Respondent
REASONS FOR JUDGMENT
It was common ground that the applicant commenced employment with the first respondent in the capacity of an “Engineering and Operations Manager” on or about 1 June 2015 pursuant to the terms of a letter of offer of employment dated 5 May 2015. [1] As will later become significant, such letter was sent with the first respondent’s logo appearing at the top right of the first page of the letter, at a point immediately above the second respondent’s printed company name and address.
[1] Exhibit 1 (Ex 1.) Page 292.
The applicant filed an application in Form 2 alleging that he had been dismissed from his employment with the first respondent in contravention of provisions of the Fair Work Act 2009 (Cth) (FWA). [2]
[2] Ex. 1 – page 1
When the matter was listed for final submissions, Counsel for the applicant indicated that the applicant was relying upon each Ground of the Claim.
The applicant’s case advanced at trial was that as set out in the applicant’s Statement of Claim (SOC) filed on 22 June 2018.
The Law
The relevant sections of the FWA for first consideration in this matter are ss. 340, 341(1)(a), 342(1)(i)(a),(b),(c) and (d), 343, 344, 351 and 550. Those sections respectively provided as follows:
“Section 340 – Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 341 – Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
…
Section 342 – Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Item 1
Column 1 Adverse action is taken by…
an employer against an employee
Column 2 if …
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
Section 343 – Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply to protected industrial action.
Section 344 – Undue influence or pressure
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a) make, or not make, an agreement or arrangement under the National Employment Standards; or
(b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c) agree to, or terminate, an individual flexibility arrangement; or
(d) accept a guarantee of annual earnings; or
(e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2: This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)).
…
Section 351 – Discrimination
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law:
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.
…
Section 550 – Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(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.”
For the applicant’s adverse action claims to be proven, the applicant must have asserted and established that:
·he exercised a workplace right or rights as pleaded in his SOC;
·the conduct complained of in fact occurred; and
·the conduct constituted adverse action pursuant to the provisions of s. 342(1) of the FWA.
If it is established by the applicant that the impugned conduct was carried out for a prohibited reason, it is for the first respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason. In that regard, ss. 360 and 361 of the FWA provided as follows:
“Section 360 – Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 – Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
As to the proper approach to be adopted by a court when considering whether adverse action has been established or not, the Court adopts the principles as set out in the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [5] per French CJ and Crennan J; at [104] and [129] per Gummow and Hayne JJ; and at [140] and [141] per Heydon J where it was respectively said:
“[5] The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.”- at [5] per French CJ and Crennan J
“[104] In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.”- at [104] per Gummow and Hayne JJ
“… The test is whether adverse action has been taken because of a proscribed reason.” at [129] per Gummow and Hayne JJ;
“… Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action.”- at [140] per Heydon J;
“… The assessment of a witness’s mental processes is an assessment of that witness’s state of mind. It is pre-eminently a matter in which a trial judge has a considerable advantage over an appellant court…” - at [141] per Heydon J.
A causal link must be established between the adverse action the subject of complaint, and the matters referred to in s. 340(1)(a)(i) – (iii) inclusive of the FWA, due to the use of the word “because” in s. 340(1)(a) of the FWA. That issue was dealt with by Foster J in Russel v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] and [63] where His Honour said:
“[60] The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression “because” or “because of” as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action.
...
[63] It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action.”
On the issue of what evidence was needed to be canvassed in relation to the impugned action taken by an employer, it was said by French CJ and Crennan J in Barclay at [41], [44] and [45] as follows:
[41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.
…
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
(Footnotes omitted) (Emphasis added)
On the question of onus, it was said by French CJ and Crennan J in Barclay at [50] as follows:
“[50] The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden’s Pty Ltd v Bowling remains pertinent: “the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.”
(Footnotes omitted)
An employer’s onus may not be satisfied by a mere statement that the action taken by the employer was not for a proscribed reason. As was said by French CJ and Crennan J at [54] of Barclay:
“[54] … a question arose as to whether the director’s evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director’s evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.”
(Emphasis added)
When deciding, for the purposes of s. 361 of the FWA, who the relevant decision-maker was, or upon whose advice or recommendation the decision-maker relevantly acted upon when taking any adverse action, White J in Tsilibanks v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [121] – [127] inclusive said:
[121] My conclusion that the applicant’s exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant’s case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant’s First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities.
[122] In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant’s position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor.
[123] Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present:
[19] In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon.
However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision.
[124] Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84‑5 when he said:
[T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply “rubber stamps” a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority.
[125] Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]‑[29].
[126] Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker.
[127] Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure. The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role.”
It will always be a question of fact as to whether the proscribed reasons, as pleaded in a SOC as constituting the reason/reasons or motive for the taking of the adverse action, have been rebutted. Motive is a relevant consideration for the Court to take into account, when assessing the evidence before it, in that regard.
Whether or not a complaint or inquiry has been made by an employee in relation to his or her employment for the purposes of s. 341(1)(c)(ii) of the FWA is to be considered objectively.
The applicant’s complaints or inquiries were as set out at [29] of his SOC as follows: [3]
[3] Exhibit 1 (Ex. 1) pages 37 – 41 inclusive.
“The Applicant’s Complaints or Inquiries
29. The Applicant made a complaint or inquiry in relation to his employment in that:
(a) on 5 June 2017, the Applicant provided the Fourth Respondent and the Seventh Respondent with a copy of a medical certificate (the 5 June Medical Certificate);
(b) on 8 June 2017;
(i) the Applicant met with the Third Respondent to discuss the 5 June Medical Certificate and the Applicant’s medical condition (the 8 June Meeting);
(ii) the 8 June Meeting occurred in the Third Respondent’s office at SBP Head Office;
(iii) the 8 June Meeting occurred around 2:30pm;
(iv) during the 8 June Meeting, the Applicant complained to the Third Respondent that the Applicant is working excessive hours and is feeling stressed, and not feeling well (the 8 June First Complaint or Inquiry);
(v) during the 8 June Meeting, the Applicant complained to the Third Respondent that he needs urgent additional assistance at work (the 8 June Second Complaint or Inquiry); and
(vi) during the 8 June Meeting, the Applicant complained to the Third Respondent that the Group needed to outsource some jobs, some drafting, and needed an additional computer and software inventor (the 8 June Third Complaint or Inquiry);
(vii) each of the 8 June First Complaint or Inquiry, the 8 June Second Complaint or Inquiry and 8 June Third Complaint or Inquiry) were complaints or inquires in relation to the Applicant’s employment within the meaning of subs 341(1)(c)(ii) of the Fair Work Act 2009;
(c) on 12 June 2017, the Applicant and the Third Respondent had a discussion regarding the Applicant’s medical condition, and that discussion occurred at the SBP Food Workshop (the 12 June Discussion);
(d) as part of the 12 June Discussion:
(i) the Applicant said to the Third Respondent that the Applicant wished the directors of the Group to further consider the Applicant’s need to attend hospital and medical appointments, and the need for some of the work to be outsourced (the 12 June First Complaint or Inquiry);
(ii) the Applicant told the Third Respondent that there was a danger that the Applicant would end up working in excess of the hours recommended to the Applicant by his medical practitioner, and that the Applicant wanted to ensure that the Applicant and the First Respondent did not get in trouble for the Applicant working in excess of the hours recommended to the Applicant by his medical practitioner (the 12 June Second Complaint or Inquiry);
(iii) the 12 June First Complaint or Inquiry was a complaint or inquiry in relation to the Applicant’s employment within the meaning of subs 341(1)(c)(ii) of the Fair Work Act 2009; and
(iv) the 12 June Second Complaint or Inquiry was a complaint or inquiry in relation to the Applicant’s employment within the meaning of subs 341(1)(c)(ii) of the Fair Work Act 2009.
(e) on 10 July 2017, the Applicant, the Third Respondent and the Fourth Respondent had a discussion regarding the Applicant’s medical condition, and that discussion occurred in the boardroom of the SBP Head Office at approximately 10am (the 10 July Discussion);
(f) as part of the 10 July Discussion:
(i) the Applicant said to the Third Respondent and Fourth Respondent words to the effect that he needs assistance in relation to managing his workload which may require the engagement by the Group of further employees (the 10 July Complaint or Inquiry); and
(ii) the 10 July Complaint or Inquiry was a complaint or inquiry in relation to the Applicant’s employment within the meaning of subs 341(1)(c)(ii) of the Fair Work Act 2009.
(g) on or about 14 September 2017:
(i) the Applicant provided a letter to each of the Third Respondent, the Fourth Respondent and the Seventh Respondent, dated 14 September 2017 (already defined as the 14 September Letter);
(ii) the 14 September Letter was addressed to the Fourth Respondent;
(iii) the 14 September Letter was delivered by hand to each of the Third Respondent, the Fourth Respondent and the Seventh Respondent;
(iv) the 14 September Letter makes a complaint or inquiry in relation to the Group’s failure to make good on the directorship offer, and the increase in remuneration that was renegotiated after the review of the Applicant’s employment on 29 November 2016 (the 14 September Complaint or Inquiry); and
(v) the 14 September Complaint or Inquiry was a complaint or inquiry in relation to the Applicant’s employment within the meaning of subs 341(1)(c)(ii) of the Fair Work Act 2009.
(h) on 17 October 2017:
(i) the Applicant attended the 17 October Meeting with the Fourth Respondent and the Seventh Respondent;
(ii) the Applicant said to the Fourth Respondent and Seventh Respondent words to the effect that the Applicant was disappointed with respect to the failure of the directorship offer to materialise, and asked for the First Respondent to consider back-paying the Applicant a salary increase from 29 November 2016 to the value of $30,000 per annum (the 17 October First Complaint or Inquiry);
(iii) the Fourth Respondent rejected the 17 October First Complaint or Inquiry;
(iv) upon having had the 17 October First Complaint or Inquiry rejected, the Applicant said to the Fourth Respondent and Seventh Respondent words to the effect that he would accepted a $20,000 per annum increase in his salary, backdated to 29 November 2016 (the 17 October Second Complaint or Inquiry);
(v) the Fourth Respondent replied to the 17 October Second Complaint or Inquiry with words to the effect that he would have discuss the matter with the other directors of the Group;
(vi) 17 October First Complaint or Inquiry was a complaint or inquiry in relation to the Applicant’s employment within the meaning of subs 341(1)(c)(ii) of the Fair Work Act 2009; and
(vii) 17 October Second Complaint or Inquiry was a complaint or inquiry in relation to the Applicant’s employment within the meaning of subs 341(1)(c)(ii) of the Fair Work Act 2009.
(j) on 17 November 2017;
(i) the Applicant attended a meeting with the Third Respondent and the Fourth Respondent (the 20 November Meeting);
(ii) the 20 November Meeting occurred around midday on that day;
(iii) the 20 November Meeting took place at the SBP Head Office;
(iv) at the commencement of the 20 November Meeting the Applicant said to the Third Respondent and Fourth Respondent words to the effect that (the 20 November First Complaint or Inquiry):
(A) he (the Applicant) rejected the Third Respondent and Fourth Respondents’ “intimidating notation that the Applicant should resign”;
(B) he “had done nothing wrong that warranted forced resignation”;
(C) the directors of the Group haven’t given him the opportunity to address their assertions about the financial viability of the business; and
(D) the directors of the Group had breached the confidentiality of a meeting with the Applicant and the directors of the Group on 17 November 2018;
(v) at the commencement of the 20 November Meeting the Applicant handed the Third Respondent and the Fourth Respondent a letter of complaint (the 20 November Letter), which, in writing, refused the demand made to the Applicant by the directors of the Group that the Applicant resign his employment, and demanded an explanation as to why the Applicant’s employment was to be terminated (the 20 November Second Complaint or Inquiry);
(vi) the 20 November Second Complaint or Inquiry was a complaint or inquiry in relation to the Applicant’s employment within the meaning of subs 341(1)(c)(ii) of the Fair Work Act 2009.”
At [36] of the SOC, the applicant set out the workplace rights exercised by the applicant which were the subject of the complaints or inquiries as pleaded in [29] thereof. At [37] of the SOC, it was pleaded that by reason of the matters as pleaded in [33] – [36] inclusive of the SOC, the first respondent had contravened the provisions of s. 340 of the FWA.
The Decision to Terminate the Applicant’s Employment
It is common ground that the first respondent (SBP Employment) and the second respondent (SBP Australia) had common directorships – namely Messrs Burns, Aisthorpe, Mahony and Hombsch. Mr Burns was the managing director of both such companies.
During his cross-examination, Burns said that the decision to terminate the applicant’s employment was made at a board meeting of the second respondent held on 17 November 2017. [4] Mr Burns had made diary notes on 17 November 2017 which recorded one of the items on the agenda for the board meeting that day as being “Remove Nick at Board meeting after lunch. We need his key, car, etc. today. Mobile phone”. [5]
[4] Transcript (T.) Day 4 – page 89.5.
[5] Exhibit 2 (Ex. 2) page 394.
Those present at the board meeting were Burns, Aisthorpe, Mahony and one Mr Pie, who was the Chief Financial Officer for the SBP Group. During cross-examination, Burns admitted that no minutes of the 17 November 2017 board meeting had been disclosed or produced at court, notwithstanding that Burns stated that he took very seriously his duty as a director and chair of board meetings to keep records of such meetings. His cross-examination on that point was as follows: [6]
[6] T. Day 4 – page 77.27 – 79.2.
“Okay. And you take your role as a director very seriously, don't you?---Yes, I do.
And you know it’s important to take the role of a director very seriously?---Yes.
And you know that there are all sorts of legal obligations upon directors in the way they conduct their roles?---Yes.
And as part of that, you know it’s important for the board of directors to consider important decisions in a company?---Yes.
And you know it’s also important for the company and its board to keep proper records of the company’s important decisions?---Yes.
And you know it’s important for the board to keep proper records of the proceedings and resolutions of the company, don't you?---Yes.
And you endeavour to do that, don't you?---The company does as a whole. Yes.
But you supervise that as the managing director, don't you?---Yes.
You satisfy yourself as a director and as a managing director that the company is complying with its obligations to keep accurate records of the proceedings and resolutions of the board – boards plural?---Yes.
Just look at me, sir?---Sorry.
You keep proper records, don't you? So you satisfy yourself that the companies –
three companies I’ve identified keep - - -
MR ALEXANDER: Your Honour, I do object. I think there needs to be a degree of specificity here than just generalised questions.
HIS HONOUR: He’s getting to it. He’s getting to it, Mr Alexander.
MR ALEXANDER: I’ve been patient.
HIS HONOUR: Sometimes - - -
MR ALEXANDER: It’s just taking a while.
HIS HONOUR: You will have to be more patient.
MR ALEXANDER: I will try.
DR HADDRICK: You, sir, Mr Burns, endeavour to ensure that SBP Australia
Proprietary Limited keeps proper records of its proceedings and resolutions of its board of directors, don't you?---Yes.
And the same question again in respect of SBP Material Handling. You make sure
that the company – or you endeavour to make sure that the company keeps proper records of its proceedings and resolutions?---Yes.
And the same thing again in respect of SBP Employment Solutions Proprietary Limited. You endeavour to make sure that that company keeps proper records of its proceedings and resolutions?---Yes.
And you understand that to be a legal obligation, don't you, upon directors to keep proper records of the minutes of directors’ meetings, don't you?---Yes.
And do you believe the company adequately discharges that obligation – companies plural adequately discharge that obligation?
HIS HONOUR: Well, during which period of time?---I didn’t hear that.
DR HADDRICK: His Honour asked during which period of time, but I will ask the question again more precisely. Are you of the belief that throughout 2017, each of those companies I identified have adequately discharge the obligation to keep proper records of the proceedings and resolutions of the board?---Yes.”
When cross-examined about the conduct of board meetings and the conduct of the directors of the SBP companies in attendance at such meetings, Burns said as follows: [7]
[7] T. Day 4 – page 79.4 – .16.
“Who chairs the board’s meetings, sir?---I normally do.
And as the chairperson of the board, if a member is not present at a board meeting, if there’s an important decision to be taken, you would contact those directors beforehand, naturally, wouldn’t you, sir, and discuss that matter with the directors beforehand?---If a director didn’t turn up, yes.
Sorry. If the director didn’t turn up or wasn’t going to turn up?---If it wasn’t going to turn up.
So you endeavoured to speak to all the directors about important decisions the board is likely to take or you expect it to take at each meeting?---We make – we make a very strong point of trying to have every director at the meetings.”
and … [8]
DR HADDRICK: I’ve got my dates wrong there, sir. If there was a meeting of SBP Australia Proprietary Limited on 17 November 2017 and a director wasn’t going to be at that meeting, if there was an important decision to be taken at the meeting, you would have spoken to that director beforehand, wouldn’t you?---Correct.
Because it would just be rude to one of your fellow directors if they weren't involved in the decision-making process, wouldn’t it?---Yes.
And you just need to say something, because the people typing away can’t see you nodding?---Sorry?
So - - -?---Yes.
[8] T. Day 4 – page 80.19 – .32.
So the answer to that question is yes?---Yes.”
Based upon the evidence of Burns, the Court is satisfied that the decision to terminate the applicant’s employment was made by all of the directors of SBP Australia, notwithstanding that Hombsch was absent from the meeting. It was Burns’s undisputed evidence that it was his practice to ensure that even an absent director was contacted before a board meeting about an important issue so as to enable them to be part of the decision making process. The Court accepts that Burns did just that in relation to the board meeting in question. The Court also infers, in the absence of evidence to the contrary which could have been adduced by Hombsch, that Hombsch was in agreement with his fellow directors in deciding to terminate the applicant’s employment.
The Court is further satisfied that there was a direct causal relationship between the passing of the resolution by the board of directors of the second respondent on 17 November 2017 to terminate the applicant’s employment, and the subsequent termination of such employment by SBP Employment. Each of the second, third, fourth, fifth and sixth respondents were thereby directly and knowingly concerned in, and party to, the applicant’s termination of employment.
Applicant’s Allegations as to Wrongful Termination
The Complaint or Inquiry Dismissal Allegation
At [29] of the SOC, the applicant alleged that there were a number of complaints or inquiries made by him which constituted his exercise of a number of workplace rights. It was submitted on behalf of the applicant that the respondents had failed to discharge the s. 361 FWA presumption that the action taken to terminate the applicant’s employment was taken for a proscribed reason.
It is common ground that consequent upon the second respondent board’s resolution of 17 November 2017 to terminate the applicant’s employment, the first respondent did so terminate his employment on 20 November 2017 at approximately 1.20pm. [9] That dismissal constituted adverse action within the meaning of s. 342 of the FWA. The Court finds that such action was taken after the applicant had made at least nine (9) earlier complaints or inquiries in relation to his employment as pleaded in [29] of the SOC – namely complaints or inquiries made as follows:
· three (3) on 8 June 2017;
· two (2) on 12 June 2017;
· one (1) on 10 July 2017;
· one (1) on 14 September 2017;
· two (2) on 17 October 2017.
[9] Ex 2. Page 396; Paragraph 20 of Burns Affidavit filed on 26 November 2018 – Annexure MJB –
As to the complaint which the applicant asserted he made in his letter to Aisthorpe dated 14 September 2017 headed “Position Review – SBP Material Handling Pty Ltd”, [10] Aisthorpe, during cross-examination, conceded that such letter constituted a complaint concerning aspects of the applicant’s employment. [11] That letter evidenced what the applicant clearly considered was a deteriorating relationship between the applicant, Aisthorpe, and Burns, concerning a number of different work and remuneration issues. The letter was in part assertive and in part a plea for increased remuneration for what he claimed was only fair in the light of his particular contribution toward the business. It was otherwise a reflection of the applicant’s resentment toward other employees who he considered had benefitted from favoured treatment, relative to the applicant, in a number of respects.
[10] Ex 2. Pages 688 – 689.
[11] T. Day 4 – page 61.15 – .42.
Aisthorpe had not responded to the applicant’s 14 September 2017 letter by 4 October 2017. The relationship between Aisthorpe and the applicant had, by 4 October 2017, further deteriorated to such an extent that there was a heated telephone discussion between them on that day during which the applicant had hung up the phone. Aisthorpe later apologised for his part in the argument. Aisthorpe’s cross-examination on that point was as follows: [12]
“And you say in your email on 4 October:
Sorry for the way our conversation ended this arvo. I have had a very trying afternoon and it was bad timing.
[12] T. Day 4 – page 69.24 - .47.
It’s true that Mr Smith hung up on you in the telephone conversation, didn’t he?---He did.
And the two of you were having a rather terse or angry telephone discussion?---It was a bit heated. Yes.
And how long did that telephone discussion go on for?---Not very long.
And what was the topic of that telephone discussion?---Being able to manage budgets.
And you were complaining to Mr Smith about his performance, weren't you?---Yes.
And this is at the same time that you have received or on receipt and are yet to respond to Mr Smith’s letter dated 14 September 2017?---Yes.
And that’s a letter where in the context where you’re complaining about – or you’re critical of his being able to manage the budgets, he’s asking for far more generous employment conditions?---Yes.”
A meeting was held between the applicant and Burns, Aisthorpe and Chadwick on 10 October 2017 to discuss the applicant’s 14 September 2017 letter. Aisthorpe took notes at that meeting which were boxed and highlighted on a copy of the 14 September 2017 letter. [13] In such letter, the applicant complained as follows:
“Whilst I have continually requested accounting and financial details from you in relation to the daily management and financial planning for SBP Material Handling, and you have not only failed to provide me with this as a fundamental basis for the operation of this business, you have also failed to provide me with any additional staff to attend to the general accounting requirements for this business.”Aisthorpe’s note to such complaint read:
“Fare enough. Our accounts have been in slight shambles. This is secondary to the ability to run a project and forecast the profit margin for that project.”
The other boxed comments made by Aisthorpe mostly constituted disagreement with the comments made by the applicant in his letter, or expressed his concerns about the profitability of the SBP Material Handling side of the group’s business.
[13] Ex 2. Pages 696 – 697.
On 17 October 2017, the applicant attended another meeting with Aisthorpe and Chadwick when he complained about his then working conditions. [14] The applicant asked for a $30,000 pay increase to be backdated eleven (11) months to 29 November 2016 (the date the applicant was offered a directorship). After rejection of that request, the applicant’s request for a $20,000 pay increase was similarly rejected.
[14] Ex 1. Pages 222 – 223 – paragraphs [288] – [293] of Affidavit of applicant filed on 12 October
The Court finds that by 17 October 2017, Burns and Aisthorpe, in particular, had become frustrated by the applicant’s demands for increases in pay, and his expressed dissatisfaction with his not having been offered either a directorship, as previously offered to him, [15] or profit-share. Burns and Aisthorpe were also frustrated by the fact that because of a motor vehicle accident which had occurred in 2016, the applicant had had issued to him, on 5 June 2017, a medical certificate which restricted his duties to between 9 am – 3 pm daily, and which provided for him to not undertake weekend work. [16]
[15] Ex 2. Page 642 – letter from second respondent to applicant dated 29 November 2016.
[16] Ex 1. Page 322 – medical certificate.
Though one of the expressed reasons for the applicant’s termination of employment was said by the respondents to be related to the lack of profitability of SBP Material Handling, no evidence was sought to be adduced by the respondents from Mr Pie, who was relevantly the CFO for the SBP Group at the time of termination. That was so, notwithstanding that in cross-examination, Burns conceded that Pie had ceased working for the SBP group on good terms, and that Burns had last spoken to him some two days before Burns gave evidence. [17] Pie had telephoned Burns on that occasion. Pie was therefore available to give evidence as to the alleged lack of profitability of SBP Material Handling as constituting a basis for the termination of the applicant’s employment, but the Respondents chose not to call him to enable him to do so. In circumstances where Pie was not called when he was the most appropriate person for the respondents to call to give evidence which went to a central part of the respondents’ case as to the issue of the motive for the termination of the applicant’s employment, the Court adopts the applicant’s submissions that an adverse inference should be drawn against the respondents for such failure. Such adverse inference adversely impacts upon the credibility of those witnesses called on behalf of the respondents who relied upon the alleged unprofitability of SBP Material Handling as a reason for termination. [18]
[17] T. Day 4 – pages 94.44 – 95.6.
[18] Jones v Dunkel (1959) 101 CLR 298.
The evidence of Burns on point was as follows: [19]
[19] Ex 2. Pages 382 – 383 – paragraphs [14] – [18] inclusive of Burns Affidavit.
“14. On 17 November 2017, I attended the directors meeting of the Second Respondent.
15. At approximately 1.30pm, at my request, the Applicant attended this meeting.
16. During this meeting, the Fourth Respondent asked the Applicant about a number of jobs that SBP Material Handling had lost a lot of money on. On one job, at that time, the losses were at least $54,000. The Applicant admitted that he was responsible for those losses.
17. We terminated the Applicant's employment on account of these losses, general poor performance, his inability to manage the business and the poor future forecast of the business.
18. As a show of good faith, we gave the Applicant the opportunity to resign. The Applicant requested that he be given the weekend to consider this option. We, being the Fourth Respondent, myself and the Applicant agreed to meet at 7am on Monday, 20 November 2017 at the office of the Second Respondent.”
(emphasis added)
As to the allegation that the applicant performed poorly in his work, the Court is not satisfied that the applicant was either below par in his work performance, or was otherwise unable to manage the SBP Material Handling business. Indeed, the respondents’ claims to that effect are irreconcilable with the contents of a letter sent by Aisthorpe on the first respondent’s letterhead (presumably with the authority of the third, fifth and sixth respondents) to the applicant on 7 September 2017 [20] – only some two months prior to his termination, in part, for alleged poor work performance. That letter, in part, read as follows:
“The Board wishes you to know that it is very grateful for the efforts and contributions you have made to SBP Food Processing Systems Australia since you have become involved with the business. In recent times, you have been successful in navigating some difficult business and market conditions. The Board remains of the view that the business has a strong future under your guidance.”
The letter went on to offer the applicant a $20,000 increase in annual salary and a 10% profit share of the SBP Material Handling business.
[20] Ex. 2 – pages 685-686
The respondents’ stated reasons for termination are implausible. The Court prefers the evidence of the applicant to that of the witnesses called on behalf of the respondents on each of the complaint and inquiry issues. The Court finds that the first and second respondents, by their directors, had become increasingly frustrated by the applicant’s pleaded complaints and inquiries, and had decided to be rid of him for that proscribed reason. Their motive in doing so was not for the expressed reasons as set out by Burns in his affidavit material. The directors were fed up with the applicant - he being someone who just wouldn’t toe the line - and they opted to be rid of him. The termination of the applicant’s employment was not for any lawful reason.
The first respondent’s termination of the applicant’s employment was adverse action in contravention of the provisions of s. 340 of the FWA. The respondents have failed to discharge their onus of proving that the presumption as provided for under s. 361 of the FWA did not apply.
Each of the second, third, fourth, fifth and sixth respondents were involved in the contravention, having been directly and knowingly concerned in, and parties to, the first respondent’s contravention, as if it was their own. They are accessorily liable pursuant to the provisions of s. 550 of the FWA.
The seventh respondent was acting on instructions when he drafted the termination letter of 23 November 2017, which in any event post-dated the applicant’s termination on 20 November 2017. His involvement was peripheral only. He was not relevantly involved in the contravention. The mere fact that he drafted a letter on instructions ought not to constitute a basis for a finding that he had been directly or indirectly concerned in, or part of, the contravention. He was not linked in purpose with the other respondents in respect of the termination of the applicant’s employment. In Construction, Forestry, Mining and Energy Union v Clarke [2007] FACFC 87 at [26], Tamberlin, Gyles and Gilmour JJ said on that issue:
“[26]…Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479–480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E–308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 at [34], must participate in, or assent to, the contravention.”
In Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No. 2) [2013] FCA 446, Bromberg J also said at [289] – [290]:
“[289] That submission must be wrong where a particular motive is a necessary element of the contravention. For instance, a person who assisted in the dismissal of an employee carried out by a contravener because of the employee’s race, could not be an accessory to the discriminatory conduct in the absence of having assisted knowing that the contravener’s conduct was motivated by race. Without that knowledge, it could not be said that the alleged accessory is “linked in purpose with the perpetrators”.
[290] An accessory will often know the principal perpetrator’s motive because the perpetrator will have revealed it. Alternatively, an accessory may know the perpetrator’s motive because their conduct is so intertwined, that the motive of one will be the obvious motive of the other.”
Further, in Fair Work Ombudsman v Hu [2019] FCAFC 133, the Full Court of the Federal Court (Flick, Reeves and Bromberg JJ), approved the summary of principles to be considered for the purpose of establishing what constitutes being knowingly concerned in a contravention as set out by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 at [176] – [179] inclusive where it was said:
“[176] Although the general principles relating to accessorial liability are settled, their application in a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the requisite intention: Yorke v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of “the essential matters” which go to make up the events, whether or not the person knows that those matters amount to a crime: Yorke v Lucas at 667. Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know those matters or things do constitute a contravention: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236 at [159]-[160]. That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful. The Full Court in Rafferty v Madgwicks [2012] FCAFC 37; (2012) 287 ALR 437 summarised the position in this respect at [254]:
[W]hile the identification of the elements of a contravention requires careful legal analysis, “[i]n order to know the essential facts, and thus satisfy s 75B(1) … and like provisions, it is not necessary to know those facts are capable of characterisation in the language of the statute” … This is another aspect of the longstanding principle that it is not necessary for a person to “recognise” the contravention as such, or explicitly to think about the relevant legislation that their actions may contravene …
[177] Actual, rather than imputed, knowledge is required. So much was made clear in Giorgianni v The Queen (1985) 156 CLR 473 at 506-7 by Wilson, Deane and Dawson JJ:
… [Offences of aiding and abetting and counselling and procuring] require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts. …
[178] The notion of being “knowingly concerned” in a contravention has a different emphasis from that of aiding, abetting, counselling or procuring” a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which “implicates or involves him or her” in the contravention so that there be a “practical connection between” the person and the contravention: Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299 at [26]; Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 280 ALR 503 at [324]-[325].
[179] As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case and, in the identification of the essential facts about which an accessory must have actual knowledge.”
The seventh respondent is not a person caught by the provisions of s. 550 of the FWA. He did not engage in an act, or participate in conduct, which implicated or involved him in the contravention so as to give rise to a practical connection between him and the contravention. He was acting under the instructions of those who relevantly made the decision to terminate the applicant’s employment, and was therefore not a central player in the termination.
The Discrimination Allegation
The applicant’s pleaded discrimination case was set out in paragraph 24 of the SOC as follows:
24. In the premises pleaded in paragraphs 19, 20, 21, 22 and 23:
(a) the Third Respondent and Fourth Respondent have offered the Applicant, in the course of his employment, the benefit of becoming a director of the Group;
(b) the First Respondent has offered the Applicant, in the course of his employment, the benefit of becoming a director of the Group;
(c) all of the Respondents have offered the Applicant, in the course of his employment, the benefit of becoming a director of the Group;
(d) the Applicant has, in the course of his employment by the First Respondent, accepted the benefit of becoming a director of the Group;
(e) in withdrawing the arrangement for the Applicant to become a director of the Group, the respondents have injured the Applicant in his employment;
(f) in withdrawing the arrangement for the Applicant to become a director of the Group, the respondents have altered the position of the Applicant to the Applicant’s prejudice; and
(g) pursuant to section 351 of the Fair Work Act 2009, in withdrawing the arrangement for the Applicant to become a director of the Group, the Applicant has been discriminated against in his employment on the basis of the Applicant’s age and physical disability (Respondents’ Discrimination) by:
a. the Third Respondent;
b. the Fourth Respondent;
c. the First Respondent;
d. all of the Respondents.
The applicant swears that between 29 November 2016 and 7 December 2016 he met with Burns, Aisthorpe, Mahony and Hombsch at the SBP Head Office Boardroom, at which time he was offered a “directorship” (First Meeting). The applicant swore that he accepted that offer. [21]
[21] Ex 1. Pages 192 – 193 – paragraphs [121] – [127] of applicant’s affidavit.
A letter dated 29 November 2016 on SBP Australia’s letterhead offered the applicant, inter alia, a directorship of SBP Material Handling Pty Ltd and a 10% share of the net profits of SBP Food Processing Systems. The applicant swore that he was handed that letter at a meeting which again he said was held at the SBP Head Office Boardroom between 6 December 2016 and 21 December 2016 (Second Meeting). [22] The letter provided as follows: [23]
[22] Ex 1. Pages 193 – 194 – paragraphs [128] – [133] of applicant’s affidavit.
[23] Ex 2. Page 642.
“29 November 2016 (SBP Australia Logo)
Mr. Nick Smith SBP Australia Pty Ltd
670 London Road Building C 2/57 Assembly Street
CHANDLER QLD 4154 Salisbury Q4107
P.O Box 143
BY HAND Salisbury Q4107
Office Phone: (07) 3270 2200
Office Fax:(07) 3270 2299
Qld. Reg. Builder: 78508
NSW Reg. Builder: 121163C
VIC Reg. Builder:CB-U42195
SA Reg. Builder:BLD2344898
Aust Business No: 25 077 950 255
Dear Nick
RE: SBP MATERIAL HANDLING PTY LTD
I am writing to inform you that the directors of SBP Material Handling Pty Ltd would like to appoint you as a director of that company.
We are extremely grateful for your efforts and contribution to SBP Food Processing Systems. Your involvement has made a considerable impact on the professionalism and profitability of the business.
The purpose of this letter is to confirm the basis of your appointment, should you be willing to accept, and consent to, the appointment.
In addition to your existing salary, paid by SBP Employment Solutions, as a further incentive for taking on this role, we would like to offer a profit share arrangement, whereby you will be entitled to 10% of the net profits of SBP Food Processing Systems. This entitlement will be calculated, and paid, half yearly. You will also be reimbursed for all approved expenses incurred undertaking your role as a director.
On acceptance of this offer, we will prepare the necessary document to notify ASIC of your appointment, and consent to act, as a director of SBP Material Handling Pty Ltd. At this time, we can discuss any disclosure, or eligibility issues, concerning the appointment, in order to comply with both the Corporations Act, and the company's constitution.
Again, we thank you for your efforts to date. We believe that the business has a strong future under your guidance.
Yours faithfully
(Signature of Tony Aisthorpe)
Tony Aisthorpe – Director
SBP Australia Pty Ltd
The applicant swore that he accepted that offer and that he shook hands with each of the other directors. The applicant said that when shaking Aisthorpe’s hand, Aisthorpe said words to the effect of:
“We are so relieved to have you on board and for you to run the business.”
The applicant then said that Burns told him that it would take some time because they had to prepare all of the documentation required by ASIC, and also because they had to sort out the exit of one Peter Bligh, whose role had largely been assumed by the applicant, with whom they were having an ongoing dispute. [24]
[24] Ex 1. Page 194 – paragraph [134] of applicant’s affidavit.
The applicant’s evidence, during his cross-examination on the question as to whether he had accepted the offer as contained in the 29 November 2016 letter or not, was confusing, and did not constitute evidence of a concluded agreement. The relevant cross-examination on point was as follows: [25]
[25] T. Day 1 – page 117.7 - .30.
“No. The offer was made – the offer was made as set out in the correspondence. You didn’t accept the offer, did you?---I did accept the directorship.
You didn’t accept the offer. It was not piecemeal, it was an offer and you didn’t accept it?---There were to be ongoing conversations about further details but the - - -
Right?--- - - - directorship was a given.
Right. So there were to be further discussions about details?---Yes.
So there was no certainty as to what the agreement was. It was a discussion?---Well, the company made a commitment and a promise to me that they would continue in good faith. We shook hands on this.
Sir, please. You said first that the letter of 29 November contained the offer of you becoming a director and it – and it included a profit share. You then said that you accepted the aspect of being a director but there were to be ongoing discussions. I put to you that is entirely false. You just rejected the offer; didn’t you?---I beg to differ.
And, as you just said, you were hopeful of there being some future discussions. What were those discussions that you were hopeful of having?---There was a commitment from the company that I would have gained a percentage of the business.”
Burns said that at the Second Meeting, the applicant did not accept the offer. [26] Aisthorpe said that the applicant rejected the offer contained in the 29 November 2016 letter which had been discussed at that Second Meeting. He said that though the applicant had made a counter offer, all of the directors had rejected such counter offer because in addition to the offers made in the letter, the applicant also wanted equity in the SBP Material Handling business. [27]
[26] Ex 2. Page 382 – paragraphs [4] – [5] of Burns affidavit.
[27] Ex 2. Page 596 – paragraphs [34] – [39] of Aisthorpe affidavit.
Having had the benefit of listening to the evidence of Burns, Aisthorpe and the applicant, and having regard to the fact that as at 22 December 2016 there were still ongoing disputes with an outgoing equity partner in Peter Bligh, the Court finds it eminently unlikely that either Burns or Aisthorpe would have, in such uncertain times, offered equity to a person who had only worked in the SBP group of companies for a relatively short period of time. The basis for such finding is further bolstered by the fact that the applicant had largely assumed Bligh’s role in an aspect of the business which was under review as to its profitability. [28] No ASIC documentation was ever forwarded to the applicant for his execution, nor did the applicant or either of the first or second respondents, or any other company related to them, ever consensually agree in writing to any position regarding the applicant having a directorship, profit-share or equity in any SBP business. The Court does not accept the evidence of the applicant on this issue and prefers the evidence of Burns and Aisthorpe.
[28] T Day 4. Page 14.5 - .14.
The whole text of the letter dated 7 September 2017, sent on SBP Employment Solutions letterhead, whereby the applicant was offered, inter alia, an increase of $20,000 in his annual salary together with a 10% profit share of the annual net profit for SBP Material Handling, is as follows: [29]
[29] Ex 2. Pages 685 – 686.
“7 September 2017 (SBP Employment Solutions Logo)
Mr. Nick Smith SBP Employment Solutions Pty Ltd
670 London Road Unit 2/57 Assembly Street
CHANDLER QLD 4154 Salisbury Q4107
P.O Box 143
BY HAND Salisbury Q4107
Office Phone: (07) 3270 2200
Office Fax:(07) 3270 2299
Aust Business No: 42 164 466 415
Dear Nick,
RE: Position Review – SBP Material Handling Pty Ltd
At the board meeting on Friday, 28 July 2017 your position, as National Operations Manager, of the above entity was reviewed.
The decision to review your position came as a result recent discussions you have had with Max and Tony, either as a group, or on a one on one basis.
The board wishes you to know that it is very grateful for the efforts and contributions you have made to SBP Food Processing Systems Australia since you have become involved with the business. In recent times, you have been successful in navigating some difficult business and market conditions. The board remains of the view that the business has a strong future under your guidance.
At the meeting on 28 July 2017, it was resolved to make you the following offer:
·Effective from 1 August 2017, increases your salary from $150,000.00 to $170,000.00;
·An incentive payment, equal to 10% of the annual net profit for SBP Material Handling, to be made as close as possible to the finalisation of the accounts for the preceding financial year;
oAs discussed, 20% of the annual net profit will be put towards repaying the shareholders for the losses from previous years (therefore, the incentive payment is to be calculated on the remaining 80% of the annual net profit); and
oIn order to be eligible for receiving the incentive payment, you will have to have worked for the entire duration of the preceding financial year.
In consideration of the above, the board will require you to provide:
·Timesheets which accurately reflect the time spent on projects, quoting, and business overhead time;
·Accurate business forecasting, on a monthly, which details the projected revenue, margin and labour for:
ocurrent projects;
osecured future projects (client commitment received i.e. purchase order/contract etc.);
oprospective projects (as well as the likelihood to win the project supported by the details of all contact made with prospective clients, due dates for tenders, tender revisions etc.); and
·Capital expenditure requests.
It is proposed that a further review of your position be undertaken in January 2018 to monitor your progress with the above.
Please confirm your acceptance of the revised terms of your employment by signing and returning this copy of the letter within 7 days of the date of this letter.
Yours faithfully
Tony Aisthorpe
Director
0407 218 368
Signed:
I accept the offer as set out in this letter and acknowledge that this letter acts as an amendment to the agreement between myself and SBP Employment Solutions.
_________________________________ Date: __/___/2017
Nick Smith”
At [21](f) of the SOC, the applicant pleaded that he did not accept the offer .
At paragraph 269 of the applicant’s affidavit, when addressing the 7 September 2017 letter sent to him, the applicant swore as follows: [30]
“269. At the time of receiving the 7 September Letter, I considered it impossible, or at least improbable, that I could perform the Additional Duties in circumstances where:
(a) I was recovering from a significant medical condition which required me to attend to extensive rehabilitation therapy and regularly attend medical appointments;
(b) SBP had not provided me with additional support and administrative assistance I had been requesting;
(c) Mr Pie had not provided me with adequate training in relation to the use of Pivot Tables and Jobpac, which were new software and instruments I would be required to use in relation to financial reporting; and
(d) SBP had not provided me with training in relation to how to understand the financial and accounting information that Mr Pie had provided to me in relation to SBP Material Handling and the New Food Business.”
[30] Ex 1. Page 219 – paragraph [269] of applicant’s affidavit.
Aisthorpe gave evidence in cross-examination as to why the 7 September 2017 letter was sent, as follows: [31]
“Then why would you be writing a letter to him on 7 September offering him some more money if he agrees to some new terms and conditions?---Because he said he wouldn’t do what I was telling him to do on the money that he was on currently. So - - -
So you were putting an incentive on the table for those things to be achieved, and that’s why you were making them a condition of the additional $20,000?---Yes.”
[31] T. Day 4 – page 59.10 - .16.
On 14 September 2017, the applicant sent a letter in response to the 7 September 2017 letter. The applicant’s letter was as follows: [32]
“14 September 2017
[32] Ex 2. Pages 688 – 689.
Mr Tony Aisthorpe
SBP Australia Pty Ltd
C2/57 Assembly Street
SALISBURY QLD 4107
By Hand
Dear Tony,
Re: Position Review – SBP Material Handling Pty Ltd
As you are aware, my position was reviewed by the directors and advised to me back on 29 November 2016.
As you had discussed previously, the directors were "extremely grateful for my efforts and contributions to SBP Food Processing Systems." My involvement had "made a considerable impact on the professionalism and profitability of the business." At that time, they (including yourself) were prepared "to appoint me as a director of SBP Material Handling Pty Ltd."
At that time, "in addition to" my "existing salary", I was offered a" profit share arrangement", whereby I would "be entitled to 10% of the net profits of SBP Food Processing Systems. This entitlement will be calculated, and paid, half yearly." I would also have been entitled to reimbursement for any approved expenses incurred undertaking my role as a director.
As a result of my acceptance of the offer at the renegotiated and agreed amount of 10% profit(subject to the full and transparent review of tile business accounts for SBP Material Handling Pty Ltd) and 10% ownership of the business or rolling the 10% profit back into the business to afford a20% ownership due to my expertise and operations management of the business, I had only been awaiting the preparation of the necessary documentation for ASIC notification - as advised by you - to finalise the matter. To date and despite several assurances by you the amended offer was in hand this offer remains outstanding.
Since that time, I am aware that you have advised members of my staff, both Kevin Dray and Michael Neal by letters dated 7 September 2017, that they have had their positions reviewed within SBP Material Handling. Effectively, from 1 July 2017, you have offered both employees salary increases of at least $10,000 and $40,000 pa respectively. In addition to the salary increases, these employees were also offered a 6% and 8% (respectively) incentive of 80% or the annual net profit. These salary reviews were without any additional KPI's, business development requirements, forecasting or any other additions to their current workloads or conditions. Similarly, I am also aware, that no additional stipulation was made on these employees, concerning another position review within the next 4 months "to monitor" progress. Acceptance of these terms was required within 7 days of the date of the letter.
Comparatively, another letter of review also dated 7 September 2017, was received by me on 12 September 2017. In that document, I note that unlike Michael Neal, who, based on your assessments of his efforts and contributions to the business, received a $40,000 increase on his salary as a BDM - Senior Project Manager. Within that position, I note that Michael has not only failed to bring in any new projects or business, or, for that matter, any clients to SBP Material Handling, but he has also single-handedly, caused the substantial alienation of other employees both on and off site, has been untruthful in certain matters represented to other employees and contractors, as well as having engaged in seriously unsafe and threatening behaviour and workplace practices - that warranted significant disciplinary action - hut was ignored by the Board. This unresolved situation has lead to many staff leaving and those remaining discontent.
By comparison, I have been offered a salary increase of$20,000. The project values and clients that I have brought into the business group can neither be compared to Michael Neal's efforts, nor underestimated for their work generation or profitability, within this business - to the extent, that SBP Material Handling has been funding the cash-flow of SBP Building. Similarly, for all of my efforts, you offer me 2% more than Michael Neal's incentive offer. However, unlike Michael's offer, you require significant additional and time sensitive requirements of me that will also require a further review to monitor my progress within these areas.
1 also note that whereas the letters of offer to the abovementioned employees, was to be effective from 1 July 2017, my letter of offer (whilst dated on the same day as the other employees), was to be effective from I August 2017 - that is, one month later - without any explanation for the discrepancy. I refer to the original letter of offer going back to 29 November 2016, and would request that my review be effective from that date, immediately.
At this point, I would like to express my significant disappointment with the letters of offer and the reviews that you have provided to me. Not only have you dishonoured the original offer, however, this current letter of offer is discriminatory in both effect and requirement expectations of your employees.
The effort required of me to provide you with the additional stipulations, forecasting and time-sensitive requirements is far outweighed by the extra 2% incentive reward that you have offered me when compared to Michael Neal's offer. As most of the additional considerations concern Business Development, I would suggest that these matters be managed by Michael Neal in his capacity as Business Development Manager. Whilst I have continually requested accounting and financial details from you in relation to the daily management and financial planning for SOP Material Handling, and you have not only failed to provide me with this as a fundamental basis for the operation of this business, you have also failed to provide me with any additional staff to attend to the general accounting requirements for this business. Therefore, to request from me, such things as accurate business forecasting, projected revenue, labour margins for all projects, CAPEX details/forecasting etc, is implausible and unachievable, especially on the basis of the total lack of transparency that shrouds the financial operation of SBP Material Handling. I cannot complete any of this information based on current accounting practices.
The Court finds against the respondents on the balance of the applicant’s claims.
Compensation and Damages
The applicant has succeeded in his complaint and inquiry adverse action claim, and leave entitlement claim. The first gives rise to an entitlement on the part of the applicant to the payment of compensation consequent upon his having had his employment terminated contrary to the provisions of s.340 of the FWA.
The Court has been given wide powers to make orders where a person has contravened a civil remedy provision. Section 545(1) and (2) of the FWA relevantly provide as follows:
“545 Orders that can be made by particular courts
Federal Court and Federal Circuit Court
(1) The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.
Note 1: For the court’s power to make pecuniary penalty orders, see section 546.
Note 2: For limitations on orders in relation to costs, see section 570.
Note 3: The Federal Court and the Federal Circuit Court may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).
Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which deal with reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)).
(2) Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b) an order awarding compensation for loss that a person has suffered because of the contravention;
(c) an order for reinstatement of a person.”
The relevant principles to be considered when making orders for compensation in circumstances such as the present were considered by the High Court in Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638. [54]
[54] Per Brennan and Dawson JJ at 639 – 640 and per Deane, Gaudron and McHugh JJ at 642 – 643.
More recently, Reeves J considered the bases on which damages ought to be assessed in cases such as the present in Construction, Forestry, Mining, and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032 at [40]-[43] inclusive where it was said:
40. In Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 (MUA), the Full Court described the exercise that has to be undertaken in assessing an award of compensation under s 545(2), as follows (at [28]):
The task of the primary judge, having found the relevant contraventions, was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions). Subject to any statutory requirement to the contrary, questions of the future or hypothetical effects of a wrong in determining compensation or damages are not to be decided on the balance of probability that they would or would not have happened. Rather, the assessment is by way of the degree of probability of the effects – the probabilities and the possibilities: Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 625 at 642-643; Sellars v Adelaide Petroleum NL [1994] HCA 4; 179 CLR 332 at 352-356. The above proposition must be qualified by the recognition that, where the fact of injury or loss is part of the cause of action or wrong, it must be proved on the balance of probability. Compensation is generally awarded for loss or damage actually caused or incurred, not potential or likely damage: Tabet v Gett [2010] HCA 12; 240 CLR 537; Sellars at 348; Wardley Australia Ltd v Western Australia [1992] HCA 55; 175 CLR 514 at 526; that is equally so here under ss 807(1)(b) and 545(2)(b).
41 Insofar as future or hypothetical events are concerned, in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 (Sellars) at 355, the High Court described how loss or damage was to be assessed, in the following terms:
… Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant’s case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.
(Emphasis in original)
42. By its very nature, the calculation of future loss can only be a rough estimate. It cannot be undertaken with mathematical precision. The object is to arrive at an estimate which is “most likely to provide fair and reasonable compensation”: see Todorovic v Waller (1981) 150 CLR 402 (Todorovic) at 413 per Gibbs CJ and Wilson J and also Gill v Australian Wheat Board [1980] 2 NSWLR 795 at 807 per Rogers J.
43. These observations dispose of a number of the more general submissions made by Hail Creek Coal. They include its submissions that compensation under s 545 is limited to “‘out of pocket’ losses actually incurred”; and that the “use of the words ‘loss’ and ‘suffered’ (past tense) within s 545(2)(b) of the [FWA] are very clear ‘conditions precedent’ and obvious words of constraint upon the appropriate formulation of an order for compensation”. However, Hail Creek Coal is correct in some of its other general submissions, including: that the “compensation must not be based on remote connections”; that “‘[d]ouble satisfaction’ … or ‘double dipping’ … must not be permitted”; and that “[e]xemplary or punitive compensation” should not be awarded. I will return to the double compensation issue in the next section of these reasons. I should add that I do not understand Mr Haylett to be contesting any of these three propositions. The Court finds that the applicant has suffered monetary loss by reason of the termination of his employment. The Court also finds that at the time of the termination of his employment, the applicant had hoped, subject to the resolution of his claimed medical problems, to work until at least the age of 65. The quantification of the applicant’s loss in the present case is complicated, however, by reason of the claimed health issues suffered by the applicant, both before and after the termination of his employment, as well as by conflicting findings as to whether there was a sound medical basis for such complaints.
It was firstly submitted on behalf of the respondents that the applicant’s employment would not have continued beyond 28 February 2018, in any event, because the business SBP Material Handling ceased to trade as at that date. [55] There is no merit to such assertion. Though notionally employed by the first respondent, the applicant was really employed by the group of companies which operated under the SBP umbrella. So much was made clear by Aisthorpe in an email dated 20 December 2016, sent by him to the applicant, and copied to each of the other directors, as well as to Mr Chadwick. The email was in the following terms:
[55] Paragraph 33 of Respondent’s Closing Submissions filed on 30 August 2019.
“Nick,
The estimate of your time split between FFS and SBP can be a very back of the envelope roughtimate. It is only to make it slightly more accurate. If you said it was approx 60% of your time from when Peter Bligh was booted to run FFS that would be a suitable answer. No need to get the forensic accounts in to get it down to the last cent.
If you have any questions please do not hesitated to contact me.
Regards,
Tony Aisthorpe, Director, SBP Australia Pty Ltd”
That email makes it clear that the applicant’s occupational utility was spread across the group of companies. His fate was not inextricably linked to the fate of SBP Material Handling.
Had the applicant’s employment not been terminated in the manner in which it was, the Court finds that the applicant could easily have been gainfully redeployed elsewhere within the SBP Group of companies, irrespective of whether SBP Material Handling had ceased to trade or not. The Court further finds that that would have happened had the applicant’s employment not been terminated.
Secondly, it was submitted that:
“… the applicant was certified totally unfit for work from 23 November 2017 and therefore would not have worked beyond that date irrespective of any alleged breaches of the employment contract and/or the FW Act. The evidence establishes that the applicant was certified totally unfit for work during the period 23 November 2017 to 30 August 2018 due to injuries suffered in a motor vehicle accident.”[56]
[56] Paragraph 36 of Respondent’s Closing Submissions filed on 30 August 2019.
As to that submission, Exhibit 11 is a record of the dates on which medical certificates were issued between 23 November 2017 and 31 July 2018, as well as a record of the weekly WorkCover payments received by the applicant from 1 December 2017 to 13 August 2018. The last medical certificate issued to the applicant, dated 31 July 2018, [57] did record that the applicant had “No functional capacity for any type of work”, and that the applicant required treatment to 30 August 2018.
[57] Ex. 7 page 53.
WorkCover assessed the applicant’s physical injuries arising out of a motor vehicle accident on 21 October 2016 as being 0 % incapacity for a MVA soft tissue/post-concussion injury, and 5% incapacity for Whiplash – cervical neck strain. It transpired, however, that on 30 July 2018, WorkCover rejected the applicant’s claim for compensation for a psychiatric or psychological injury arising out of the motor vehicle accident of 21 October 2016. It found that any such injury did not arise out of, or in the course of, the applicant’s employment, or was not such that the applicant’s employment was a major significant contributing factor. [58]
[58] Ex. 2 page 586 – reasons of WorkCover for rejection of psychiatric/psychological claim.
Doctor Chau, a psychiatrist, was called to give evidence on behalf of the applicant. In her report, [59] prepared as a result of one consultation on 3 September 2018, she opined, in her Summary and Conclusions, [60] as follows:
[59] Ex. 1 page 121 – 149 inclusive.
[60] Ex. 1 page 139 – 140 inclusive.
SUMMARY AND CONCLUSIONS:
Mr Smith is a 60 year old unemployed Operations Manager who described experiencing symptoms suggestive of Generalised Anxiety Disorder, Social Phobia and Aggravation of Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of believing that his employment was unfairly terminated on 20 November 2017.
He was predisposed to developing these psychiatric injuries as it appeared that he developed an Adjustment Disorder from the motor vehicle accident in October 2016, which reportedly left him with chronic pain. He also had a vulnerable personality (coping style).
Chronic pain, concerns about future employability (given his age, pain, mental state) and finances, marital strain, limited social support, ongoing litigation proceedings may be maintaining symptoms. There was mention in his medical records about untreated Obstructive Sleep Apnoea. If this is still the case, this also may be maintaining his psychiatric symptoms.
DSM IV DIAGNOSIS
Axis I Generalised Anxiety Disorder, Social Phobia, Aggravation of Adjustment Disorder;
Axis II Perfectionistic, Avoidant, Alexithymic personality traits;
Axis III Orthopaedic injuries, ?Obstructive Sleep Apnoea
Axis IV Unemployment, marital strain, limited social support, financial concerns
Axis V Moderate to severe degree of symptoms.
SPECIFIC QUESTIONS:
1. Please provide your diagnosis(es) of Mr Smit’s condition(s) with reference to your area of specialisation.
Mr Smith reported symptoms suggestive of Generalised Anxiety Disorder, Social Phobia and Aggravation of Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of believing his employment was unfairly terminated on 20 November 2017.
2. Please provide your medical advice as to the likely causation of each of Mr Smith’s diagnosed conditions with reference to your area of specialisation.
Available medical evidence suggests that Mr Smith had a pre-existing Adjustment Disorder as a result of a work-related motor vehicle accident in October 2016. Mr Smith reported that there was a significant aggravation of symptoms after his termination of employment in November 2017, despite reportedly performing well at work. It would be helpful to obtain objective evidence to support this if possible, such as productivity reports on targets accomplished. He also mentioned that he received written evidence of this in the form of praise from his employer. If his perception of the work situation was accurate 9unfair dismissal), I opine that it was understandable in this context, that Mr Smith’s mental state declined since employment was terminated. This is especially so, if taking into account his reported work-driven, work-proud personality and that he was the sole-income earner (with traditional views of the father and husband’s role) and his close-to retirement age.
His General Practitioner’s records support Mr Smith’s reports about significant mental state decline since termination of employment. In addition to this, there were no other (non-work related) reported triggers which could explain the development of Mr Smith’s psychiatric conditions.
3. Having regard to the medical conditions(s) you diagnose, please advise:
a) the nature and extent of any such conditions;
Aggravation of Adjustment Disorder
Since his termination of employment, Mr Smith stated that he felt ashamed, less masculine and believed he was a burden on his family. He said he felt useless as he was no longer the sole provider.
It was reported that he had more arguments with his wife and was irritable with his family. As a result, this was reported to be the first time in their 32 year marriage that his wife was no longer wearing her wedding ring and they slept in separate rooms.
He noticed that he struggled with memory and concentration now. Thus, he stated he found it difficult reading and watching television. Mr Smith also noticed that it was difficult to follow complex instructions. As a result, he stated that he now relied on written reminders on a daily basis. He commented that he was no longer able to remember phone numbers or names of people. With regards to Mr Smith’s poor concentration he stated, “I leave the doors open, lights on…I can’t find my keys, can’t find my phone”. Thus, he explained how he now relied on his wife to manage the finances.
As a result of her examination of the applicant, Doctor Chau considered that the applicant had a 19% WPI (Whole of Person Impairment). [61] She did not determine the actual percentage of incapacity which she attributed to the actual psychiatric injury suffered by the applicant as a result of the termination of his employment. She did state, however:
“He was predisposed to developing these psychiatric injuries as it appeared that he developed an Adjustment Disorder from the motor vehicle accident in October 2016, which reportedly left him with chronic pain. He also had a vulnerable personality (coping style).” [62]
and
“I opine that it was understandable, in this context, that Mr Smith’s mental state declined since employment was terminated. This is especially so, if taking into account his reported work-driven, work-proud personality and that he was the sole-income earner (with traditional views of the father and husband’s role) and his close to retirement age.” [63]
[61] Ex. 1 page 144.
[62] Ex. 1 page 139
[63] Ex. 1 page 140
It was forcibly submitted, by Counsel for the respondents, that the applicant was a malingerer who had intentionally withheld vital information from Dr Chau. In particular, it was suggested that the applicant had kept a report of one Dr Kar, Psychiatrist, from Dr Chau, specifically for the reason that such report was wholly unsupportive of the proposition that the applicant was suffering any psychiatric or psychological injury, whether related to the October 2016 motor vehicle accident, or to the termination of the applicant’s employment, or to a combination of both. Surprisingly, notwithstanding that Dr Kar’s report to WorkCover dated 15 February 2018 was tendered as part of Exhibit 7 - which was described as a “WorkCover Tender Bundle” - Dr Kar was not called to give evidence on behalf of the respondents.
The index to the report of Dr Chau indicates that she was in receipt of at least 62 documents for the purpose of assisting her in the preparation of her report. Much of that was WorkCover related. At page 28 of her report, [64] Dr Chau summarised the contents of a letter which had been provided to her, and which had been written by a psychologist named Michael Jackson. The letter was directed by Mr Jackson to the applicant’s general practitioner on 1 May 2018, and in part it stated:
[64] Ex. 1 – page 135
“Thank you for your referral of Nick under WorkCover. He attended his first session yesterday and it seemed to go well for him. He rang me yesterday afternoon to say that WorkCover has ceased his claim because of an assessment he had recently with a Psychiatrist, he did not reveal this in session. … I believe his current condition is causally linked to his car accident in October 2016, it seems to be the start of a number of personal and work issues which have caused him significant emotional and cognitive distress.”
(underlining added)
The underlined part of Mr Jackson’s correspondence referred to above, included by Dr Chau in her report, is illustrative of two important things. First, it indicates that Dr Chau was aware that the applicant had received an adverse assessment as to his psychiatric state by a psychiatrist. Second, it indicates that the applicant was alive to the significance of informing a newly consulted psychologist of an adverse finding by a psychiatrist, it being clear from what Mr Jackson wrote that the applicant had taken steps to bring such adverse assessment to the attention of Mr Jackson, rather than deviously trying to keep such information from him.
In the light of both of those matters, the forcible submissions made by Counsel for the respondents, to the effect that the applicant was attempting to keep the adverse opinions of Dr Kar from Dr Chau, and the suggestion put to the applicant in cross examination that the applicant was trying to keep his true condition from Dr Chau, [65] are without substance. Dr Chau must have been aware of an adverse psychiatric assessment having being made. She made reference to it, albeit obliquely, when she referred to, and quoted, the contents of Mr Jackson’s letter in her report. Notwithstanding that knowledge, Dr Chau provided the opinion as set out in her report.
[65] T. Day 2 – 259.1 – .7
In circumstances where Dr Chau did not have put to her, and was not cross-examined on, the contents of the report of Dr Kar dated 15 February 2018, and further in circumstances where Dr Chau was only cross examined generally about how best she might arrive at an opinion prior to the preparation of a report such as the one prepared by her for the applicant, the Court accepts the evidence of Dr Chau in relation to the applicant’s psychiatric condition. The Court prefers her evidence to the opinions of Dr Kar as set out in his report.
It is clear that Dr Chau was of the opinion that the applicant had suffered an adjustment disorder as a result of the motor vehicle accident of October 2016, and that such condition had been aggravated by the stressors associated with the termination of his employment. It is also clear that Dr Chau considered that the applicant was predisposed to developing the psychiatric injuries which were diagnosed by Dr Chau. The Court is confronted with the situation where the applicant could very well have ended up in the same condition as opined by Dr Chau had he been subjected to another, but different, stressful situation, even if his employment had not been terminated on 20 November 2017.
The Court finds that the applicant was vulnerable to the onset of psychiatric symptoms, and that the stressors which the applicant experienced consequent upon the termination of his employment caused an exacerbation of such underlying vulnerability. There can be no certainty as to the extent to which the fact of the termination had or has contributed to the applicant’s current condition. Doing its best, the Court finds that the termination of employment was nevertheless a major stressor which was responsible for about 50% of the applicant’s ongoing symptoms – namely a WPI of say 9.5%.
Notwithstanding such finding, the Court finds that the applicant was not unemployable as at the date of termination of his employment, and that had his employment not been terminated, he would most likely have continued to work for the first respondent, even if he required some time off, or was otherwise in need of some medical attention, from time to time. The applicant had continued to work even after he had sustained the injuries which were accepted by WorkCover as having been caused as a result of the October 2016 motor vehicle accident. Though the applicant had had time off work due to accident related issues since the issue to him of a medical certificate in June 2017, his capacity to work, and his value as an employee to the first respondent, and to the SBP group of companies as a whole, was evidenced by approaches made to the applicant for his ongoing employment by them shortly before the termination date. [66]
[66] The 7 September 2017 letter.
However, due to those underlying psychological/psychiatric problems, the Court finds, on balance, that the applicant would not have been able to continue to carry out his employment with the first respondent, in the same position, and at the same level of capability, for more than 3 years after his date of termination. In circumstances such as the present, findings as to the timing at which future events relative to an applicant’s employment in its pre-termination form will alter, will necessarily require the Court to carry out a balancing exercise after weighing up all of the evidence before it. It is not a process where exactitude in respect of each consideration is a requisite element in arriving at a final determination.
The stress associated with the subject litigation has significantly aggravated the applicant’s condition, as was evidenced during the course of the hearing when, for reasons which the Court accepts as valid, the applicant was required to temporarily retire from court. Such stress would not have occurred had he not been terminated in the manner, and in the circumstances in which, such termination occurred.
The applicant was unemployed as at the date of the hearing, and had been so unemployed since the date of the termination of his employment. His receipt of WorkCover payments, due to periods of incapacity up until August 2018, was most likely indicative of a reduction in his ability to cope because of the termination of his employment, rather than because of some underlying psychological or psychiatric condition.
The applicant was aged 60, and he was earning the gross sum of $150,000.00 per annum, as at the date of termination of his employment. The Court accepts his evidence that he had intended to continue working to age 67, but finds that the applicant’s loss ought to be calculated on the basis that had his employment not been terminated, the applicant would have continued in his employment, but that he would only have worked for a further 3 years after 20 January 2018. His net loss, after tax, ought to be calculated from 20 January 2018 until 20 January 2021, at tax rates current at the time of judgment - based upon a gross annual income of $150,000.00 - less the amount actually received by him as weekly WorkCover payments subsequent to 20 January 2018.
The Court finds that the applicant has a residual earning capacity. In such circumstances, the applicant is ultimately required to mitigate his loss by seeking out other employment to which he is suited, even if such employment is not as well-paying as was his former employment with the first respondent.
The Court will hear further submissions as to the total compensation payable, and as to the quantum and rate of interest on the amount of such compensation as is payable, as well as for the amount payable in respect of superannuation loss. Such superannuation loss should be calculated on the basis of the applicable rate payable from 20 January 2018 up to the date of judgment, and at the rate applicable as at the date of judgment for the whole of the period up until 20 January 2021.
The first respondent is ordered to pay such sum as is to be so calculated. The Court finds that each of the second, third, fourth, fifth and sixth respondents are accessorily liable for the complaint and inquiry allegation conduct of the first respondent. In those circumstances, those respondents are jointly and severally liable, with the first respondent, for the payment of such compensation.
No order for the payment of compensation, or for the imposition of a pecuniary penalty, is made against the seventh respondent.
Imposition of Pecuniary Penalties
For the purpose of considering what pecuniary penalties ought to be ordered in this matter, the respective conduct of each of the respondents needs to be examined.
When considering the imposition of a pecuniary penalty, the Court has had regard to the judgment of Allsop CJ in Australian Competition and Consumer Commission v Coles Supermarket Pty Ltd [2015] FCA 330 at [6] where it was said:
6. The process of arriving at the appropriate sentence for a criminal offence involves an intuitive or instinctive synthesis of all relevant factors: Markarian v The Queen [2005] HCA 25; 228 CLR 357. The approach set out by the High Court in Markarian can be taken to be applicable to civil penalty proceedings of this nature: TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; 210 FCR 277 at 294 [145]; Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2015] FCA 274 at [103]; Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] FCA 83 at [116]. The setting of the penalty is a discretionary judgment that does not involve assessing with any precision the “range” within which the conduct falls or by applying incremental deductions from the maximum penalty. Nonetheless, the maximum penalty must be given due regard because it is an expression of the legislature’s policy concerning the seriousness of the proscribed conduct. It also permits comparison between the worst possible case and the case the court is being asked to address and thus provides a yardstick: Markarian at 372 [31].
The Court has further had regard to the principles governing the imposition of pecuniary penalties as set out in Kelly v Fitzpatrick [2007] 166 IR 14 at [4] per Tracey J. The relevant factors to be taken into account by a Court when approaching the issue of the imposition of a pecuniary penalty are as follows:
i)The nature and extent of the conduct which led to the breaches.
ii)The circumstances in which that conduct took place.
iii)The nature and extent of any loss or damage sustained as a result of the breaches.
iv)Whether there had been similar previous conduct by the respondent.
v)Whether the breaches were properly distinct or arose out of the one course of conduct.
vi)The size of the business enterprise involved.
vii)Whether or not the breaches were deliberate.
viii)Whether senior management was involved in the breaches.
ix)Whether the party committing the breach had exhibited contrition.
x)Whether the party committing the breach had taken corrective action.
xi)Whether the party committing the breach had cooperated with the enforcement authorities.
xii)The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and
xiii)The need for specific and general deterrence.
At [28] in Kelly v Fitzpatrick, Tracey J said:
28. The respondents have expressed contrition and have put in place mechanisms which are designed to ensure that there will be no repetition of the breaches which have led to the present proceeding. Specific deterrence does not, therefore, loom large as a consideration in determining penalty. It does not follow that the need for general deterrence may be disregarded. As Finkelstein J said in CPSU v Telstra Corporation Limited [2001] FCA 1364; (2001) 108 IR 228 at 231: "even if there be no need for specific deterrence, there will be occasions when general deterrence must take priority, and in that case a penalty should be imposed to mark the law’s disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct ..." No less than large corporate employers, small businesses have an obligation to meet minimum employment standards and their employees, rightly, have an expectation that this will occur. When it does not it will, normally, be necessary to mark the failure by imposing an appropriate monetary sanction. Such a sanction "must be imposed at a meaningful level": see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] FCA 383; [2001] ATPR 41-815 at [13].
The Court has also had regard to the principle of totality when considering the appropriate levels of pecuniary penalties to be imposed in this matter. It has had regard to each of the factors referred to above. The Court has also had regard to the requirement that pecuniary penalty orders must in all circumstances be proportionate.
The relevant contraventions were deliberate and committed by senior management. There has been no contrition shown by any of the respondents found to have contravened provisions of the FWA. The Court considers that the penalties to be imposed have appropriately taken into account the principle of deterrence as a reflection of public policy considerations
In Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (No.2) [2018] FCA 1968 at [46] – [47], O’Callaghan J said:
46. In my view, the question of the assessment of penalties is to be approached consistently with the joint judgment of the Full Court (comprised of the Chief Justice, White J and myself) in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 (The Non-Indemnification Personal Payment Case) in particular at [22], viz:
The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions: Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 477-478. Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct.
47. To the extent that the submissions of the applicant suggested that the judgments of the majority in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126 may be read to suggest otherwise, I respectfully disagree.
Further, the Full Court of the Federal Court in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 at [76] per Allsop CJ, Collier and Rangiah JJ said:
76. Grounds 2 and 4 deal with whether there was adverse action. Ground 2 was directed to the circumstances in which a person takes adverse action under s 342(1) and item 7(a), being where an industrial association or an officer of the association “organises or takes industrial action against the person”. The ground of appeal was that the primary judge erred in concluding that Mr Auimatagi organised industrial action in circumstances where there could be no finding that industrial action as defined in s 19(1) of the FW Act was taken because:
(a) the action subject of the orders was taken only by employees of subcontractors rather than employees of John Holland and was authorised or agreed to by the subcontractors under s 19(2)(a) of the Act; and/or
(b) the action subject of the orders was not taken by employees against their employer.
The Court has found that the first respondent took adverse action against the applicant in terminating his employment because he lawfully exercised his workplace rights, and that such termination was in contravention of the provisions of s. 340 of the FWA. The second – sixth respondents inclusive are accessorily liable for such conduct pursuant to the provisions of s. 550 of the FWA. The third – sixth respondents have shown no remorse for their unlawful conduct. Indeed, throughout the trial, the applicant was sought to be portrayed as a lying malingerer, a course which the Court finds was unwarranted.
The applicant’s termination was calculated. The stealing allegations made against the applicant were unjustified and crudely vindictive. Though Burns and Aisthorpe were largely responsible for the applicant’s actual termination, and the manner of such termination, the remaining directors were just as culpable by reason of their unquestioning acceptance of the unlawful conduct of their fellow directors. The Court considers the contravention of the provisions of s. 340 of the FWA to be serious.
As to the leave entitlement allegation, there was no justification for the 18 month delay in the payment to the applicant of what was due to him. When payment was made, it was made to the last cent. The case advanced by the respondents that payment of such entitlement was unable to be made earlier because the applicant had failed to provide time sheets of his work hours was unmeritorious. That failure was a serious breach of its obligations under s. 90(2) of the FWA, and constituted a contravention of the provisions of s. 44 of the FWA. The second – sixth respondents are accessorily liable for the first respondent’s contravention, as each were complicit in such conduct. The Court finds the contravention to be serious and unwarranted.
The Court orders that pecuniary penalties be payable as follows:
First Respondent
| Provision | Contravention | Maximum Penalty | Range of Penalty | Total Penalty |
| S340 FWA | Adverse Action Terminating the Applicant’s employment by reasons of, or for reasons which included, the Applicant’s exercise of workplace rights | $63,000 | 75% | $47,250 |
| S44 FWA | Annual Leave on termination. Failing to pay the Applicant for his accrued, untaken annual leave when his employment ended, in accordance with section 90(2) of the FW Act | $63,000 | 80% | $50,400 |
| TOTAL | $97,650 |
Second Respondent
| Provision | Contravention | Maximum Penalty | Range of Penalty | Total Penalty |
| S340 FWA | Adverse Action Terminating the Applicant’s employment by reasons of, or for reasons which included, the Applicant’s exercise of workplace rights | $63,000 | 75% | $47,250 |
| S44 FWA | Annual Leave on termination. Failing to pay the Applicant for his accrued, untaken annual leave when his employment ended, in accordance with section 90(2) of the FW Act | $63,000 | 80% | $50,400 |
| TOTAL | $97,650 |
Third Respondent
| Provision | Contravention | Maximum Penalty | Range of Penalty | Total Penalty |
| S340 FWA | Adverse Action Terminating the Applicant’s employment by reasons of, or for reasons which included, the Applicant’s exercise of workplace rights | $12,600 | 80% | $10,080 |
| S44 FWA | Annual Leave on termination. Failing to pay the Applicant for his accrued, untaken annual leave when his employment ended, in accordance with section 90(2) of the FW Act | $12,600 | 80% | $10,080 |
| TOTAL | $20,160 |
Fourth Respondent
| Provision | Contravention | Maximum Penalty | Range of Penalty | Total Penalty |
| S340 FWA | Adverse Action Terminating the Applicant’s employment by reasons of, or for reasons which included, the Applicant’s exercise of workplace rights | $12,600 | 80% | $10,080 |
| S44 FWA | Annual Leave on termination. Failing to pay the Applicant for his accrued, untaken annual leave when his employment ended, in accordance with section 90(2) of the FW Act | $12,600 | 80% | $10,080 |
| TOTAL | $20,160 |
Fifth Respondent
| Provision | Contravention | Maximum Penalty | Range of Penalty | Total Penalty |
| S340 FWA | Adverse Action Terminating the Applicant’s employment by reasons of, or for reasons which included, the Applicant’s exercise of workplace rights | $12,600 | 80% | $10,080 |
| S44 FWA | Annual Leave on termination. Failing to pay the Applicant for his accrued, untaken annual leave when his employment ended, in accordance with section 90(2) of the FW Act | $12,600 | 80% | $10,080 |
| TOTAL | $20,160 |
Sixth Respondent
| Provision | Contravention | Maximum Penalty | Range of Penalty | Total Penalty |
| S340 FWA | Adverse Action Terminating the Applicant’s employment by reasons of, or for reasons which included, the Applicant’s exercise of workplace rights | $12,600 | 80% | $10,080 |
| S44 FWA | Annual Leave on termination. Failing to pay the Applicant for his accrued, untaken annual leave when his employment ended, in accordance with section 90(2) of the FW Act | $12,600 | 80% | $10,080 |
| TOTAL | $20,160 |
It is appropriate, in the circumstances of this matter, that the amount ordered to be paid by way of pecuniary penalties be paid directly to the applicant. The applicant has personally brought the proceedings against the respondents, and has engaged lawyers to act on his behalf.
In Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4 at [121] it was said by Tracey, Barker and Katzmann JJ as follows:
121. Furthermore, it is not apparent to us why the receipt of a penalty should not operate as an incentive to an affected person to bring a prosecution like this under the FW Act. After all, as Wilcox J noted in Finance Sector Union, it ensures the enforcement of the legislative scheme. Moreover, as Jessup J put it in Murrihy, this incentive to bring and maintain such a proceeding makes it more likely that the applicable provisions of the FW Act “will be more than mere words on the statute book”. As Gray J said in Plancor, the question of “profit” does not arise on a proper construction of the power.
The Court directs that the parties confer as to the form and content of appropriate declarations and orders to be made in the proceeding, consonant with the Court’s findings.
The Court will hear the parties as to costs.
I certify that the preceding one-hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 5 December 2019
5. 2018. 17/11/2017 until 20/12/2017.
4
36
2