Taylor v Hose Corp Pty Ltd - [2015] FCCA 1804

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYLOR v HOSE CORP PTY LTD & ANOR

[2015] FCCA 1804

Catchwords:
INDUSTRIAL LAW – Penalty hearing – failure to pay termination payment – failure to consult prior to redundancy in accordance with award obligation.

Legislation:

Fair Work Act2009, ss.44, 44(1), 45, 117(2), 545, 545(1), 546, 550(1), 550(2)
Clerks Private Sector Award 2010, cl.8
Trade Practices Act 1974, s.52

CEPU v ThyssenKrupp Elevator Pty Ltd [2014] FCCA 1615
Maslen v Core Drilling Services Pty Ltd [2013] FCCA 460
McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181
Plancor v Liquor, Hospitality & Miscellaneous Union (2008) 171 FCR 357
Yorke v Lucas (1985) 158 CLR 661

Applicant:

DIANE TAYLOR

First Respondent:

HOSE CORP PTY LTD

Second Respondent:

ROBERT PRINS

File Number:

BRG 967 of 2014

Judgment of:

Judge Jarrett

Hearing date:

8 May 2015

Date of Last Submission:

8 May 2015

Delivered at:

Brisbane

Delivered on:

8 May 2015

REPRESENTATION

Solicitor for the Applicant:

Mr Mossman

Solicitors for the Applicant:

M + K Lawyers

Solicitor for the Respondents:

Mr Peters

Solicitors for the Respondents:

Anne Murray & Co

ORDERS

In respect of the first respondent’s contraventions of ss.44 and 45 of the Fair Work Act 2009 (Cth), the first respondent pay a penalty fixed in the sum of $12,000.00.
In respect of the second respondent’s contraventions of the Fair Work Act 2009 (Cth), committed by reason of s.550(1) of that Act, the second respondent pay a penalty fixed in the sum of $1020.00.
The first and second respondents pay those penalties to the applicant.
All other applications, including applications for costs, be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 967 of 2014

DIANE TAYLOR

Applicant

And

HOSE CORP PTY LTD

First Respondent

ROBERT PRINS

Second Respondent

REASONS FOR JUDGMENT

ex tempore

This is an application for the imposition of pecuniary penalties and other orders pursuant to the Fair Work Act 2009 (Cth) between Diane Taylor and Hose Corp Pty Ltd and Robert Prinz.
Ms Taylor was employed by the first respondent. She, according to the facts that are not in dispute between the parties, commenced her employment in or about July, 2007. The terms and conditions of her employment were the subject of an oral agreement between she and Mr Prinz, as well as being governed by the provisions of the Clerks Private Sector Award 2010.
Her employment came to an end on 11 July, 2014. Mr Prinz gave her notice of termination, with immediate effect. She was subsequently paid some wages in lieu of notice, but not the appropriate amount. That led to these proceedings.
In these proceedings the applicant contends that the Fair Work Act has been contravened in two respects, and insofar as the first respondent is concerned there is no dispute about the contraventions.
The first contravention is that pursuant to s.117(2) of the Act, the applicant was not paid the appropriate amount of money upon the termination of her employment or before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 1804
Decision Date: 8 May 2015

CaseChat Overview and Summary

In *Taylor v Hose Corp Pty Ltd*, the Supreme Court of Queensland considered a dispute between the plaintiff, Mr Taylor, and the defendant, Hose Corp Pty Ltd. Mr Taylor alleged that he had suffered personal injuries as a result of a breach of duty of care owed to him by Hose Corp. The proceedings concerned the assessment of damages.

The central legal issue before the Court was the extent to which Mr Taylor's pre-existing conditions should be taken into account when assessing the damages for his personal injuries. Specifically, the Court had to determine whether the aggravation of a pre-existing condition by the defendant's negligence constituted a new injury or merely an exacerbation of an existing one, and how this distinction impacted the quantum of damages recoverable.

Justice Jarrett applied the principles established in cases such as *Kee v Kable* and *Hirst v The King*, which confirm that a defendant is liable for the aggravation of a pre-existing condition, even if the plaintiff was particularly susceptible. The Court reasoned that the defendant's negligence had caused an identifiable worsening of Mr Taylor's condition, and therefore, damages were to be assessed on the basis of the difference between Mr Taylor's condition after the injury and what his condition would have been had the negligence not occurred. The Court found that the evidence established that Mr Taylor's pre-existing condition had been aggravated by the incident, and that this aggravation was a direct consequence of Hose Corp's breach of duty.

The Court ordered that damages be assessed accordingly, taking into account the aggravation of Mr Taylor's pre-existing condition.

Orders