Turnbull v Symantec (Australia) Pty Ltd (No.2)
[2013] FCCA 2023
•29 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TURNBULL v SYMANTEC (AUSTRALIA) PTY LTD (No.2) | [2013] FCCA 2023 |
| Catchwords: INDUSTRIAL LAW – Penalty hearing for contravention of s.536 of the Fair Work Act2009 (Cth) relevant factors. |
| Legislation: Fair Work Act 2009 (Cth), s.536 |
| Fair Work Ombudsman v Alarcorp Pty Ltd & Anor [2013] FCCA 1748 Kelly v Fitzpatrick [2007] FCA 1080 Lai v Symantec (Australia) Pty Ltd [2013] FCCA 625 Mason v Harrington Corporation Pty Ltd [2007] FMCA 7 Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771 Wells v Locarno Management Pty Ltd [2008] FCA 1034 Workplace Ombudsman v NMD Investments Pty Ltd & Placanica [2009] SAIRC 71 |
| Applicant: | SARAH TURNBULL |
| Respondent: | SYMANTEC (AUSTRALIA) PTY LTD |
| File Number: | SYG 792 of 2012 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 26 August 2013 |
| Date of Last Submission: | 22 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr I. Latham |
| Solicitors for the Applicant: | James Tuite & Associates Lawyers |
| Counsel for the Respondent: | Ms E. Raper |
| Solicitors for the Respondent: | Baker & McKenzie |
THE COURT DECLARES THAT
Symantec (Australia) Pty Ltd contravened s.536 of the Fair Work Act 2009 (Cth) by failing to give a pay slip to the applicant within one working day of paying to the applicant on 7 March 2012 an amount in relation to the performance of work.
THE COURT ORDERS THAT
The respondent pay a penalty in the amount of $1,000 on account of the contravention referred to in paragraph 1.
The respondent pay the penalty referred to in paragraph 2 to the applicant within 28 days after the date these orders are pronounced.
The claims for relief made by the applicant are otherwise dismissed.
THE COURT NOTES THAT
Neither party has applied for an order that one party pay the costs of the other party.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 792 of 2012
| SARAH TURNBULL |
Applicant
And
| SYMANTEC (AUSTRALIA) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
On 1 November 2013 I delivered my reasons for judgment in this matter (earlier reasons),[1] indicating that I proposed to dismiss all but one of the claims for relief made by the applicant (Ms Turnbull) against the respondent (Symantec) under the Fair Work Act 2009 (Cth) (Act). I directed the parties to provide submissions on the claim based on Symantec’s failure to comply with s.536 of the Act. As I noted in my earlier reasons, Symantec does not dispute it contravened s.536 of the Act.
[1] Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771 (1 November 2013)
Counsel for Ms Turnbull provided written submissions on the penalty that should be imposed on account of Symantec’s contravention of s.536 of the Act. Ms Turnbull submits that I should impose a penalty of $1,000, and that I should order that this amount be paid to Ms Turnbull. Ms Turnbull also submits that no order should be made requiring one party to pay the other party’s costs. Symantec does not disagree with the orders proposed by Ms Turnbull.
For the reasons set out below, I propose to make the orders Ms Turnbull submits I should make. I also propose to otherwise dismiss Ms Turnbull’s claims for relief.
The contravention
As I noted in my earlier reasons, s.536 of the Act obliges an employer to give a pay slip to each of its employees within one working day of paying an amount to each employee in relation to the performance of work. Ms Turnbull says that Symantec failed to do that in relation to the $68,828.54 Symantec paid to Ms Turnbull on 7 March 2012.
The undisputed evidence is that on 7 March 2012 Symantec paid to Ms Turnbull by electronic transfer the sum of $68,828.54.[2] No document in relation to that payment was provided to Ms Turnbull within one working day of the payment being made. The matters to which the payment related are stated in a Symantec generated document titled “Pay Advice March, 2012”.[3] Based on this evidence, I am satisfied that the payment of $68,828.54 was made in relation to the performance of work by Ms Turnbull. I am also satisfied that Symantec did not provide a pay slip to Ms Turnbull within one day of the payment and that, therefore, Symantec contravened s.536 of the Act.
[2] Exhibit F vol 2 p 576
[3] Exhibit F vol 2 p 577
Penalty - approach
Although the parties have not agreed on the amount of the penalty the Court should impose, Symantec does not disagree with the amount proposed by Ms Turnbull. In these circumstances, I propose to assess the penalty using the same approach as has been held courts should adopt when assessing penalties where the parties have agreed on the amount of the penalty. That approach was described by Jessup J in Wells v Locarno Management Pty Ltd:[4]
The court is not bound by the agreement of the parties as to the level of penalty which should be imposed in a case such as the present. However, the court will not depart from an agreed figure merely because it might otherwise have been disposed to award some other figure. The predictability involved in the resolution of penal proceedings in accordance with a pre-trial agreement reached by the parties is something which should, as a matter of public policy, be regarded as beneficial. Only where the agreed penalty falls outside the permissible range should the court depart from the figure agreed by the parties. In this context, the permissible range is the range which would be permitted by the court, that is, a range within which the penalty is neither manifestly inadequate nor manifestly excessive. See NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, 290-91; Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] ATPR 41-993, [53]; Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543, 565; and Hills v Sutton (2007) 169 IR 327, 329.
[4] [2008] FCA 1034 at [23]
As was noted by Judge Raphael in Fair Work Ombudsman v Alarcorp Pty Ltd & Anor,[5] the matters the Court should take into account when considering the imposition of a penalty under the Act were summarised by Mowbray FM in Mason v Harrington Corporation Pty Ltd.[6] These matters were identified as “a non-exhaustive range of considerations to which regard may be had in determining whether particular conduct calls for the imposition of a penalty, and if it does the amount of the penalty”[7]. In Kelly v Fitzpatrick[8] Kenny J adopted this same list of factors as “potentially relevant and applicable”.
[5] [2013] FCCA 1748 at [6]
[6] [2007] FMCA 7
[7] [2007] FMCA 7 at [24]
[8] [2007] FCA 1080 at [14]
The potentially relevant factors are
a)The nature and extent of the conduct which led to the breaches.
b)The circumstances in which that conduct took place.
c)The nature and extent of any loss or damage sustained as a result of the breaches.
d)Whether there had been similar previous conduct by the respondent.
e)Whether the breaches were properly distinct or arose out of the one course of conduct.
f)The size of the business enterprise involved.
g)Whether or not the breaches were deliberate.
h)Whether senior management was involved in the breaches.
i)Whether the party committing the breach had exhibited contrition.
j)Whether the party committing the breach had taken corrective action.
k)Whether the party committing the breach had cooperated with the enforcement authorities.
l)The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.
m)The need for specific and general deterrence.
I make the following findings in relation to these matters:
a)As to the matters referred to in paragraphs 8(a), (b), (e) and (g), the contravening conduct was an omission. There is nothing to suggest the omission was anything other than an oversight. Nor is there anything to suggest that the omission was deliberate.
b)As to the matter referred to in paragraph 8(c), there is no evidence that Ms Turnbull suffered any loss or damage as a result of the contravention.
c)As to the matter in paragraph 8(d), Symantec has engaged in at least one other contravention of s.536 of the Act. That is the subject of a decision of this Court in Lai v Symantec (Australia) Pty Ltd.[9]
d)As to the matters referred to in paragraphs 8(f) and (m), it is reasonable to infer that Symantec’s omission arose out of its not having a procedure for the issuing of payment slips for termination payments. The imposition of a penalty will act as a reminder to all businesses, including large businesses, of the need to have systems in place for the issuing of payment slips for all payments that relate to work.
e)As to the matters referred to in paragraphs 8(h), (i), and (k), there is no evidence, and it is not alleged, that senior management was involved in the contravention. As I have mentioned earlier, the contravention was constituted by an inadvertent omission. Further, Symantec has acknowledged it contravened s.536 of the Act.
f)As to the matter referred to in paragraph 8(j), there is no evidence that Symantec has taken any corrective action. It is reasonable to infer, however, and I do infer, that, having acknowledged it contravened s.536 of the Act, and having been adjudged in Lai to have contravened s.536 of the Act, Symantec will have put in place procedures to avoid future contraventions.
g)As to the matter referred to in paragraph 8(l), the “failure to issue payslips is serious in that payslips are an important tool for ensuring compliance with legislative requirements in that they are at once evidence and an explanation of payment and of assistance to both the employee and a workplace inspector”.[10]
[9] [2013] FCCA 625 (Judge Altobelli)
[10] Workplace Ombudsman v NMD Investments Pty Ltd & Placanica [2009] SAIRC 71 at [63] (Industrial Magistrate R E Hardy)
The maximum penalty for contravention of s.536 of the Act is 30 penalty units.[11] At the time of the contravention, a penalty unit was $110.[12] In my opinion, having regard to the matters I have identified in paragraph 9, the amount of the penalty proposed by Ms Turnbull falls within the permissible range of what would be an appropriate penalty for Symantec’s contravention.
[11] Section 539 of the Act
[12] Section 12 of the Act (definition of “penalty unit”); s.4AA Crimes Act 1914 (Cth)
Disposition
Accordingly, I propose to make a declaration that Symantec contravened s.536 of the Act and order that Symantec pay to Ms Turnbull a penalty in the sum of $1,000 on account of that contravention. I propose to order that Symantec pay the amount within 28 days. I also propose to order that Ms Turnbull’s application be otherwise dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 29 November 2013
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