Surivi v Green Light PS Pty Ltd

[2019] FCCA 2027

FEDERAL CIRCUIT COURT OF AUSTRALIA

SURIVI v GREEN LIGHT PS PTY LTD [2019] FCCA 2027

Catchwords:
INDUSTRIAL LAW – Whether the respondent contravened s 340 of the Fair Work Act 2009 (Cth) – whether the applicant exercised a workplace right – whether the applicant was terminated in accordance with the termination clause – applicant entitled to relief by reason of the contravention – no application for penalty.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 545, 566

Applicant: HARI KRISHNA SURIVI

Respondent: GREEN LIGHT PS PTY LTD

File Number: PEG 530 of 2017

Judgment of: Judge Street

Hearing date: 24 July 2019

Date of Last Submission: 24 July 2019

Delivered at: Perth

Delivered on: 24 July 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms T Hatelie
MGM O'Connor Lawyers

DECLARATIONS

1. The respondent has contravened section 340 of the Fair Work Act 2009 (Cth).

ORDERS

1. Grant leave to the respondent to file in Court the affidavit of Tara Cox affirmed 24 July 2019.

2. The respondent to pay the applicant the sum of $9,335.48 within 28 days.

3. The respondent to pay interest on the set amount from 1 July 2017 at the same rate as would apply if this was a Judgment in the Supreme Court of Western Australia within 28 days.

DATE OF ORDER: 24 July 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 530 of 2017

HARI KRISHNA SURIVI

Applicant

And

GREEN LIGHT PS PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is an application for relief within the Court’s jurisdiction under s 566 of the Fair Work Act 2009 (Cth) (“the Act”) for alleged contravention of s 341 of the Act because the applicant exercised a workplace right.

2. The applicant entered into an agreement with the first respondent in writing as a casual employee commencing on 1 April 2017 for a period until 1 July 2017. The agreement identified that the core business hours are a minimum four hours daily. The agreement provided that the applicant might be required to perform hours outside that time. The agreement provided for an hourly rate and payment and identified an end user. There was an obligation upon the applicant to deliver the services to the End User in accordance with the terms of agreement.

3. The agreement had a termination clause in addition to the provisions set out in clause 11 of the General Terms of Contract for Service Providers that the agreement may be terminated for convenience by agreement by serving one week’s written notice on the applicant. No such written notice was given purporting to terminate the contract.

4. The applicant commenced work for the End User and performed work in carrying out scoping for which he was paid for six hours. Communications took place on 7 April 2017 which the respondent alleges gave rise to the respondent terminating the agreement under clause 11 of the General Terms of Contract for Service Providers as incorporated in the agreement.

5. Clause 11 provides as follows:

   11 TERMINATION

   11.1 Subject to the termination provisions set out in clause 11.2 below, the Services will be provided from (and including) the Start Date:

   (a) until and including the End Date; or

   (b) until and including such later date (the Extension Date) as may be agreed by the parties in accordance with Clause 16.1 below.

   11.2 This Agreement may be terminated:

   (a) as provided in Section 4 of the Schedule of Services; or

   (b) immediately on written or other notice by Green Light directly or indirectly:

   (i) if the Service Provider is in breach of any material term(s) of this Agreement that in the reasonable opinion of Green Light, is incapable of remedy; or

   (ii) if the Service Provider breaches any material term of this agreement capable in the opinion of Green Light of remedy and fails to remedy such breach to the satisfaction of Green Light within seven days of it's request so to do; or

   (iii) if for any reason the End User:

   1. terminates its corresponding agreement with a Green Light Company; or

   2. cancels its requirement for the Services prior to the start date or otherwise; or

   3. requests that any Nominated Person be removed or replaced as Nominated Person; and, for the avoidance of doubt, Green Light will incur no liability for losses or notice periods in connection with any such termination; or

   (iv) if it considers the Service Provider and/or Nominated Person's performance to be unacceptable; or

   (v) if the Service Provider is:

   1. dishonest or incompetent or negligent; or

   2. is convicted of any indictable criminal offence;

   (b) by either party if the other becomes bankrupt or enters into administration or has an external controller appointed to it or makes any composition with its creditors or order is made or resolution is passed for its winding up or otherwise becomes unable to pay its debts; or

   (c) if, in accordance with clause 4.2, a replacement Nominated Person is not accepted by Green Light, or a replacement Nominated Person is not available.

6. The respondent contends that the applicant was informed on 7 April 2017 that the End User no longer wished Green Light to provide services and, accordingly, that the respondent was entitled to terminate the agreement immediately as the End User has cancelled its requirement for services or as otherwise terminated its agreement with the Green Light. No written notice of termination was sent to the applicant on 7 April 2017.

7. There was a contest between the evidence of Ms Cox, an employee of the respondent, and the applicant as to what occurred on 7 April 2017. Ms Cox contended that the applicant was informed that the End User no longer required services from Green Light and that the applicant agreed to terminate the agreement.

8. The applicant is an engineer and it is apparent that he is astute and there is no apparent reason why the applicant would have taken that course on that day further. A contention of a termination by agreement by the applicant is not supported by documents that are not contemporaneous. There was a communication sent on 19 May 2017 in relation to the termination which relevantly provided:

   Good Afternoon Hari,

   I do hope you're well.

   Further to your recent conversations with both Tara Cox and Judith Fernandes, the attached contract has terminated by yourself on 7th April due to you being unable to commit to the additional hours needed. Further to this, Frontline Services discontinued the service with Green Light and was managed internally.

   Your Work As A Service contract dated 24th November 2016 with Green Light still remains in place.

   Should you have any queries, please do not hesitate to contact me.

   Kind regards,

   Charlie Pearce

9. That email was sent as a result of conversations with two persons, being Tara Cox and Judith Fernandes. No evidence has been adduced from Judith Fernandes.

10. The applicant has given evidence, that the Court accepts, that he did not terminate the contract on 7 April 2017 or agreed to terminate the same, and there is no logical basis on why he would do so. The reference to the termination being “due to being unable to commit for two additional hours” on his face reflects a workplace right.

11. The Court does not accept that there was any communication sent to the applicant on 7 April 2017 that the agreement was terminated. The Court finds that there is a purported termination on 19 May 2017 by the sending of the email purporting to record that there had been a termination on 7 April 2017. That termination was one in respect of which the reference to being “unable to commit to the additional hours needed” is not consistent with the evidence given by Ms Cox. The communications that Ms Cox acknowledges took place was that the applicant was informed that he would not be required to perform the four hours a day and that he might be required to perform on an ad hoc basis.

12. The applicant maintained on 7 April 2017 that he wanted to be paid his four hours. The communications that took place on 7 April 2017 concerned a workplace right, being the applicant’s entitlement to be paid in accordance with the agreement.

13. Whether there had been a termination on 7 April 2017 or on 19 May 2017, it would still have amounted to adverse action within s 340 of the Act, being a termination relating to a workplace right. No other termination was affected by the respondent. The fact that the respondent may have been entitled to terminate the matter on one week’s notice or to terminate it under clause 11 of the General Terms of Contract for Service Providers does not mean that the respondent in fact did so. In those circumstances the applicant has, in relation to the contravention under s 340 of the Act, the benefit of the presumption. That presumption has not been displaced by the evidence of the respondent.

14. Accordingly, the Court finds that the respondent contravened s 340 of the Act.

15. The Court has taken into account the objects of the Act, as well as the terms of s 341 of the Act. It follows that the applicant is entitled to relief by reason of the contravention. The applicant submitted that he was entitled to the full amount of 90 days reflecting the period of the fixed term agreement as compensation for the contravention and termination of the agreement.

16. The Court takes into account the terms of s 545 of the Act in relation to making an order that the Court considers as appropriate. The applicant’s contention that he should be paid for 90 days is contrary to the fact that the applicant was in full-time work and has not sought to bring to account the wages he received during the weekdays. The applicant contends that the benefit of the contract was one in which he was to receive the four hours’ daily in addition to his employment. The applicant undertook no work and there is no substance in the contention that the applicant was prevented from undertaking other work beyond the full-time work that he had with his employer.

17. The Court accepts the respondent’s contention that the applicant must bring to account the benefit he received from his full-time work. In these circumstances, the Court is not persuaded that the applicant is entitled to recover any amount in respect of the four hours alleged daily. The Court accepts that on the face of the construction of the agreement that “daily” includes weekends.

18. The Court accepts that the applicant is entitled to appropriate compensation for the loss of four hours over 24 days, plus a further two hours. This amounts to $9,335.48.

19. The Court notes that the applicant did not seek to press the Court to make a determination as to whether there should be any penalty imposed. The circumstances of the present case are not ones where, as a matter of discretion, the Court would have found it appropriate to impose any penalty. The agreement was the subject of terms that would have permitted the respondent to terminate the same on 7 April 2017 had the respondent taken the appropriate steps to do so.

20. In those circumstances, the Court is not satisfied where there was a genuine dispute at issue in respect of the termination and whether the termination had in fact taken place on 7 April 2017 that it is an appropriate case for the Court to embark upon any issue of penalty. The Court has a discretion in that regard and the Court would not be inclined to exercise the discretion in respect of the penalty provisions in the circumstances of the present case.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 5 September 2019