Tran v Macquarie University (No.3) - [2020] FCCA 1010

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAN v MACQUARIE UNIVERSITY (No.3)

[2020] FCCA 1010

Catchwords:
INDUSTRIAL LAW –Contravention under s.340 of the Fair Work Act 2009 (Cth) – response to the Respondent’s final submissions re remedy (RFS) – application for reinstatement – approach to compensation – Applicant exercised a workplace right – where the Respondent contravened the Enterprise Agreement – whether or not the breaches were deliberate – orders made.

Legislation:

Crimes Act 1914 (Cth) s.4AA

Fair Work Act 2009 (Cth), ss.50, 340, 360, 545, 546, 557, 570

Federal Circuit Court Act 1999 (Cth), s.76

Cases cited:

Australian Licensed Aircraft Engineers Association v International Aviation

Service Assistance Pty Ltd (2011) 193 FCR 526

Dafallah v Fair Work Commission [2014] FCA 328

Fair Work Ombudsman v Nobrace Centre Pty Ltd (in Liquidation) (ACN 121

556 447) & ORS (No.2) [2019] FCCA 2970

Fair Work Ombudsman v NSH North Pty Ltd t/as New Shanghai Charlestown

[2017] FCA 1301

Flavel v Railpro Services Pty Ltd. (No 2) [2013] FCCA 1449

Independent Education Union v Geelong Grammar School [2000] FCA 557

Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120

Mason v Harrington Corporation Pty Ltd t/as Pangaea Restaurant & Bar

[2007] FMCA 7

Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221

National Tertiary Education Union v Royal Melbourne Institute of Technology

(2013) 234 IR 139

Port Kembla Coal Terminal Ltd v Construction, Forestry Mining and Energy

Union (2016) 248 FCR 18

Quinn v Overland (2010) 199 IR 40

Ridd v James Cook University (No 2) [2019] FCCA 2489

Ryan v Primesafe (2015) 323 ALR 107

Applicant:

HEIN MINH TRAN

Respondent:

MACQUARIE UNIVERSITY

File Number:

SYG 3084 of 2017

Judgment of:

Judge Humphreys

Hearing date:

23 January 2020 – 24 January 2020

Date of Last Submission:

23 January 2020 – 24 January 2020

Delivered at:

Parramatta

Delivered on:

6 May 2020

REPRESENTATION

Counsel for the Applicant:

Ms Doust

Solicitors for the Applicant:

Hall Payne Lawyers

Counsel for the Respondent:

Mr Brotherson

Solicitors for the Respondent:

HWL Ebsworth

ORDERS

The Respondent pay pecuniary penalties as follows:
(a)$20,000.00 for the two breaches under the s.50 of the Fair Work Act 2009 (Cth). Each breach being $10,000.00.
(b)$15,000.00 for the breach under s.340 of the Fair Work Act 2009 (Cth), in refusing to redeploy the Applicant.
(c)$10,000.00 for the breach under s.340 of the Fair Work Act 2009 (Cth), in dismissing the Applicant.
Being a total of $45,000.00. Pursuant to s.546(3)(c) of the Fair Work Act 2009 (Cth), the Court orders that the penalties be paid to the Applicant.
The Court declines to order reinstatement.
The Respondent is to pay the sum of $221,163.45 as compensation for lost wages.
The Respondent is to pay the sum of $55,156.19 in lost superannuation payments.
The Applicant and Respondent are to confer and approach the relevant superannuation fund to ascertain the benefit lost from that having not been invested in, over the relevant period. The amount of $55,156.19 and any amount lost in investment return is to…

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: [2020] FCCA 1010
Decision Date: 6 May 2020

CaseChat Overview and Summary

In *Tran v Macquarie University (No.3)*, Judge Humphreys of the Federal Circuit and Family Court of Australia considered a dispute between an applicant and Macquarie University concerning alleged contraventions of the *Fair Work Act 2009* (Cth). The applicant sought remedies including reinstatement and compensation, alleging the University had contravened the Act and its Enterprise Agreement.

The court was required to determine whether Macquarie University had contravened section 340 of the *Fair Work Act 2009* (Cth) by refusing to redeploy and subsequently dismissing the applicant, and whether these actions were taken because the applicant had exercised a workplace right. Additionally, the court considered contraventions of section 50 of the Act and the terms of the Enterprise Agreement, and whether these breaches were deliberate. The court also had to decide on the appropriate remedies, including pecuniary penalties, compensation for lost wages and superannuation, future economic loss, non-economic loss, and the question of reinstatement.

Judge Humphreys found that Macquarie University had contravened the *Fair Work Act 2009* (Cth) and the Enterprise Agreement. The court determined that the University contravened section 50 of the Act on two occasions, with each breach attracting a penalty of $10,000.00. Further, the University contravened section 340 of the Act by refusing to redeploy the applicant, attracting a penalty of $15,000.00, and by dismissing the applicant, attracting a penalty of $10,000.00. In total, pecuniary penalties of $45,000.00 were ordered to be paid to the applicant. The court declined to order reinstatement. Significant compensation was awarded, including $221,163.45 for lost wages, $55,156.19 for lost superannuation payments (with further orders to ascertain and pay lost investment returns), $278,282.00 for future economic loss, and $15,000.00 for non-economic loss, with interest. The court declined to make an order as to costs.

Orders

Orders of the court

ORDERS

1. The Respondent pay pecuniary penalties as follows:

1. (a) $20,000.00 for the two breaches under the s.50 of the Fair Work Act 2009 (Cth). Each breach being $10,000.00.

1. (b) $15,000.00 for the breach under s.340 of the Fair Work Act 2009 (Cth), in refusing to redeploy the Applicant.

1. (c) $10,000.00 for the breach under s.340 of the Fair Work Act 2009 (Cth), in dismissing the Applicant.

1. Being a total of $45,000.00. Pursuant to s.546(3)(c) of the Fair Work Act 2009 (Cth), the Court orders that the penalties be paid to the Applicant.

2. The Court declines to order reinstatement.

3. The Respondent is to pay the sum of $221,163.45 as compensation for lost wages.

4. The Respondent is to pay the sum of $55,156.19 in lost superannuation payments.

5. The Applicant and Respondent are to confer and approach the relevant superannuation fund to ascertain the benefit lost from that having not been invested in, over the relevant period. The amount of $55,156.19 and any amount lost in investment return is to be paid to the Applicant’s superannuation fund.

6. The Respondent to pay a sum fixed in the amount $278,282.00, as compensation for future economic loss.

7. The Respondent to pay a sum fixed in the amount of $15,000.00, as compensation for non-economic loss. Interest at the applicable Court rate is to be paid on this amount.

8. The Court declines to make an order as to costs.

9. Liberty to restore on 2 days’ notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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