Tahi v Oxican Pty Ltd (No.2)
[2018] FCCA 3904
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAHI v OXICAN PTY LTD (No.2) | [2018] FCCA 3904 |
| Catchwords: INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – course of conduct. INDUSTRIAL LAW – Commonwealth – compliance and enforcement – civil remedies – pecuniary penalty orders – amount of penalty – totality and proportionality. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 351, 557 Federal Circuit Court Rules2001 |
| Construction, Forestry, Mining and Energy Union v BHP Coal Proprietary Limited (No.5) [2013] FCA 1384 Jetgo Australia Holdings Pty Ltd v Goodsall [2015] FCCA 1378 McIver v Healey [2008] FCA 425 Rocky Holdings Pty Limited v Fair Work Ombudsman (2014) 221 FCR 153 Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 949 Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 |
| Applicant: | KERRY TAHI |
| Respondent: | OXICAN PTY LTD |
| File Number: | BRG 1125 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 21 December 2018 |
| Date of Last Submission: | 21 December 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondent: | Carter Newell Lawyers |
ORDERS
Pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules2001 order 1 of the orders made on 13 December, 2018 be amended so as to read: The respondent pay to the applicant the sum of $4,223.75 within 30 days of the date of these orders.
A corrigendum to my reasons for judgment delivered on 13 December 2018 be issued which replaces the reference in paragraph 159 with the correct amount of $4,223.75.
Pursuant to s.546(1) of the Fair Work Act 2009 the respondent pay a pecuniary penalty of $10,800 to the applicant.
In the event that the respondent seeks a costs order on a different basis to that of costs fixed in the sum of $16,953.50 then it must notify the applicant of its intention to seek a different order by no later than 4:00pm on 11 January, 2019.
By no later than 4:00pm on 25 January, 2019 the applicant shall file and serve:
(a)written submissions in response to the respondent’s application for costs, either in the terms of the application in a case filed on 19 December, 2019 or as may be communicated by the respondent in accordance with order 2 hereof; and
(b)any affidavit upon which she intends to rely in support of those written submissions.
The respondent may file and serve any reply to the applicant’s written submissions by no later than 4:00pm on 1 February, 2019.
Otherwise judgment on the question of costs is adjourned to a date to be fixed.
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRG 1125 of 2016
| KERRY TAHI |
Applicant
And
| OXICAN PTY LTD |
Respondent
REASONS FOR JUDGMENT
On 13 December 2018, I delivered some reasons for judgment in which I found that the respondent had contravened some provisions of the Fair Work Act 2009 (Cth). The purpose of this hearing and these reasons is to fix a penalty payable by the respondent for those contraventions. In the principal proceedings, the applicant claimed that the Fair Work Act had been breached by reason of four instances of adverse action that she claimed the respondent had committed in respect of her employment with the respondent. I found two of those occasions proved, in a general sense.
The first was an occasion when the applicant was required to take two weeks of unpaid leave. I found that that action contravened s.351 of the Fair Work Act which proscribes an employer from taking adverse action against a person who is an employee because of, amongst many other things, that employee’s family or carer’s responsibilities. I also found that the same acts did not contravene s.340 of the Fair Work Act which is the general provision that proscribes an employer from taking adverse action against an employee because the employee has a workplace right, or has or has not exercised a workplace right, or proposes not to exercise a workplace right or to prevent an exercise of a workplace right. So in respect of the two weeks of leave, there was one finding that s.351 of the Act had been contravened.
In respect of the other finding concerning the applicant’s dismissal, I was satisfied – and this appears at paragraph 126 of my judgment – I was satisfied that the termination of the applicant’s employment on 1 September was adverse action that the respondent took because the applicant attempted to exercise a workplace right to take unpaid carer’s leave. That is to say there was a contravention of s.340 of the Act. That conduct also constituted a contravention of s.351 of the Act.
So in terms of the first general step in conducting or determining a penalty, the contraventions to be dealt with here are a contravention of s.351 in respect of the two weeks of unpaid leave, a contravention of s.340 and a contravention of s.351 in respect of a dismissal. There are accordingly, three contraventions.
Section 557 of the Fair Work Act provides that in respect of certain prescribed sections of the Act, the Court must treat as a single contravention multiple contraventions of the same provision where those contraventions are committed by the same person and the contraventions arose out of a course of conduct by the person. Neither s.340 or s.351 are prescribed sections for the purposes of s.557(1). So there is no reduction in the number of contraventions to be dealt with by reason of an application of that subsection.
However, the authorities make it clear that the Court can treat as a single contravention – some authorities cavil with the proposition, but nonetheless recognise that it is appropriate to treat individual contraventions that constitute a course of conduct differentially so that an offender who has committed multiple contraventions of the same provision or different provisions, but where those contraventions arise out of a course of conduct as, essentially, a single contravention. That is a very inelegant way of expressing what appears from cases like Rocky Holdings Pty Limited v Fair Work Ombudsman (2014) 221 FCR 153.
Here, the first respondent argues that there is a course of conduct which would mean that I should impose a single penalty for all of the contraventions. The first respondent says there are only two, but for the reasons that I have explained, I think there are three. Nonetheless, the first respondent’s submission is that I should treat them as a single contravention. There can be no doubt that the contravention of ss.351 and 340 arising out of the dismissal contain common elements. It is the same conduct that gives rise to the contraventions of two provisions of the Act. It is necessary to avoid punishing the first respondent twice for that same conduct.
For that reason, it seems to me to be appropriate to impose a penalty in respect of the contravention of s.351 of the Act and either no or a much smaller penalty in respect of s.340 of the Act. In that way, the question of punishing the first respondent for the same conduct twice does not arise. That is consistent with the approach taken by Marshall J in McIver v Healey [2008] FCA 425.
As to the first contravention in relation to the two weeks leave, it was argued that that too, arose out of a common course of conduct. Certainly, it was an Act that was committed by the same respondent, the same person, the same entity, but in my view, it did not arise out of a course of conduct.
The reasoning process, as was submitted, which actuated Ms Early to make the decisions that she did was the same in each case, it seems. The applicant had some responsibilities that she needed to take care of that made her attendance at work unreliable and which caused difficulties for the first respondent for the conduct of its business, and so she made a decision, it seemed based on that, on each occasion as I have reflected in my reasons for judgment. But I do not think the common course of conduct principles are intended to apply in that way and not intended to apply to treat as one, multiple instances of offending conduct where there is really no course of conduct but rather, disconnected contraventions of the same nature. That is what I think has occurred here. There are two instances of the same type of contravention, rather than there being a connection via a course of conduct between the two even though they are temporally close. They are two separate instances of the same type of contravention.
I intend to impose a penalty in respect of the first contravention relating to the two weeks leave and the second two contraventions together in respect of the dismissal.
I have outlined the circumstances of the offending conduct in my reasons for judgment in the principal matter. It is right to say, I think, that it is likely that the first respondent’s agent acted out of frustration and acted out of a desire to try and regularise the working arrangements within the first respondent’s office for the applicant.
I also accept that the first respondent’s business was best characterised as a small business, but it is often said in the cases, the employees of small concerns are entitled to the protections of the Fair Work Act just as much as employees of large concerns are. It is not suggested that by reason of the financial circumstances of the respondent that there was some special consideration that was necessary in fixing a penalty.
The breaches were deliberate in the sense that the conduct which constitutes them was deliberately taken. It is probably right to say that they were not deliberate in the sense that Ms Early, when she took the action, knew that it was a contravention of the Fair Work Act and that she deliberately set about flouting the terms of the industrial legislation.
There is no evidence before me that there has ever been any similar conduct by the respondent in respect of this employee or any others about which there have been findings made.
Ms Tahi suffered some loss as a result of the offending conduct. I have assessed that loss, doing the best I can, and my reasons for that assessment are set out in my reasons for judgment. It is the case, as has been pointed out by the solicitor for the respondent, that there is an arithmetical error in the calculation of that loss. There is an application before me for an amendment for a correction of that error. An order was published, and it will be found on the Commonwealth Court’s Portal and the e-file for this matter, on 13 December whereby there was an order that the respondent pay to the applicant the sum of $5040 within the 30 days of the date of the orders.
ORDERS DELIVERED
RECORDED: NOT TRANSCRIBED
ORDERS DELIVERED
In each of these cases dealing with penalty, there is always a need for deterrence. That need for deterrence, which is reflected in the penalty that is imposed, varies from case to case. The respondent continues to operate its business, as far as I can tell. There is no submission to the contrary, and in those circumstances, it is necessary for the penalty to have some deterrent effect on the respondent so that the offending conduct is not repeated.
The respondent argues that whilst there is no expression of contrition, there have been a number of attempts to settle the proceedings more generally and that ought to be taken into account on the fixing of penalty. I am not so sure that I can accept that submission because, first, the proceedings concerned both orders for compensation and the imposition of a pecuniary penalty. Second, the offers of compromise dealt only with the question of compensation, it seems. I draw that inference, first of all, from the terms in which the offers were made and, secondly, from the submissions made today that if there were to be penalty imposed in this case, it ought to be paid to the Commonwealth. And, third, it would have been possible, for the proceedings to be compromised between the parties by a payment from the respondent to the applicant and for the applicant to discontinue the proceedings all together and, thereby, withdraw from the Court the proceedings for the pecuniary penalty.
But in the absence of an agreement to do that, the Court was seized of the application for the fixing of penalties, and even if the parties had come to an agreement about the amount of the penalty, the Court would not have been bound by that agreement in any event. There are a range of authorities that deal with that. So to the extent that attempts to compromise the proceedings might have led to a truncation of the proceedings by reason of there not having to be a hearing at least in respect of questions of liability, the offers of compromise might have had an effect, but there was and they represent no unequivocal acceptance by the respondent of responsibility for the contravening conduct, and so, in my view, the weight of those offers is relatively small.
The question of fixing a penalty is not an exercise in the review of authorities although reference to decisions in respect of similar matters can be of some assistance. But as the High Court has emphasised on more than one occasion, each case needs to be dealt with according to its own facts. I agree with the submissions for the respondent that the offending here might be characterised as at the lower end of the scale, at least insofar as, objectively, one might look at it. From the applicant’s point of view, however, one could not imagine a worse case. She was dismissed from her employment. It does not get much worse than that. So these things are, of course, all relative.
Once the Court fixes a penalty for each of the contraventions under consideration, it then needs to look at the totality of the penalty that is imposed and consider whether it is a reasonable response to the offending conduct. The exercise is one of “instinctive synthesis”.
Here, whilst I accept, as I have already said, that the offending is at the lower end of the scale, in my view, an appropriate penalty in respect of each of the two contraventions that I have earlier identified is $5400 for each, that is, 10 per cent of the maximum in respect of each of them. The total penalty, then, would be $10,800, and that is, in my view, an appropriate response to the offending conduct in this case.
It recognises that there were two occasions in respect of which there was adverse action taken in breach of s.351 of the Act against the applicant by the respondent.
A question arises as to where the penalty ought to be paid. I was taken to the decisions of Judge Vasta in Jetgo Australia Holdings Pty Ltd v Goodsall [2015] FCCA 1378 in which his Honour there ordered the payment of penalties in the particular circumstances of the case to the Commonwealth. However, in Construction, Forestry, Mining and Energy Union v BHP Coal Proprietary Limited (No.5) [2013] FCA 1384, Collier J observed at [25]:
There is extensive authority supporting the proposition that, in circumstances where penalty proceedings in an industrial context were commenced by a party other than an enforcement agency, any pecuniary penalties ordered payable by the Court are ordinarily be paid to the party prosecuting the proceedings. Such an order has been referred to as the usual order …
See also Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 949 at [148]; Gibbs v The Mayor, Councillors and Citizens of the City of Altona (1992) 37 FCR 216 at 223 and the other authorities her Honour cites there. I think it is the case that that is the usual rule and, here, there is no reason not to apply it.
The applicant herself says that some of the penalty ought to be paid to the Commonwealth because she says that other employers ought to know that it is not appropriate to do what it is that was done in this case. But with all due respect to the applicant, that submission misconceives the purpose of where the penalty is to be paid, and I do not intend to act on her submission.
The penalty should be paid to the applicant in its entirety, and so there will be orders to that effect.
RECORDED : NOT TRANSCRIBED
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 9 January 2019
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