United Workers' Union v Bervar Pty Ltd (No 2) - [2023] FedCFamC2G 251

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

United Workers' Union v Bervar Pty Ltd (No 2) [2023] FedCFamC2G 251

File number:	MLG 3047 of 2020
Judgment of:	JUDGE BLAKE
Date of judgment:	4 April 2023
Catchwords:	INDUSTRIAL LAW – practice and procedure – compensation – where applicant commenced proceedings using Form 4 – where Form 4 specified damages claims but was not amended - where employer contended employee cannot recover compensation in excess of what is set out in the Form 4 or what the applicant told the trial judge on the first day of hearing – HELD claim for compensation not limited to what is contained in the Form 4. INDUSTRIAL LAW – adverse action – compensation – whether compensation payable for dismissal of employee in contravention of section 340(1) of the Fair Work Act 2009 (Cth) (‘Act’) – principles relating to award of compensation considered – whether compensation for economic loss should be awarded – whether necessary for employee to mitigate losses – HELD it is necessary to consider attempts to mitigate when ordering compensation under section 545 of the Act - where employee is entitled to damages for economic and non-economic loss - HELD compensation ordered. INDUSTRIAL LAW – pecuniary penalties – single contravention by employer and single contravention by employee involved in the contravention – factors considered – HELD pecuniary penalties ordered in the circumstances.
Legislation:	Fair Work Act 2009 (Cth) ss 340, 340(1), 392(2), 545, 545(1), 545(2), 545(2)(b), 546(1), 547, 547(2). Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO(4). Industrial Relations Act 1988 (Cth) s 170EE.
Cases cited:	Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1 Australian Building and Construction Commissioner v Pattinson (2022) 314 IR 301 Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 Dafallah v Fair Work Commission [2014] FCA 328 Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317 Kennewell v MG & GG Atkins (t/as Cardinia Waste & Recyclers) [2015] FCA 716 Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 Qantas Airways Ltd v Gama (2008) 167 FCR 537 RailPro Services Pty Ltd v Flavel [2015] FCA 504 United Workers’ Union v Bervar Pty Ltd [2022] FedCFamC2G 418
Division:	Division 2 General Federal Law
Number of paragraphs:	74
Date of hearing:	6 February 2023
Place:	Melbourne
Advocate for the Applicant:	Mr Pefanis
Solicitor for the Applicant:	United Workers Union
Counsel for the Respondent:	Ms Bingham
Solicitor for the Respondent:	Davies Lawyers

ORDERS

MLG 3047 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	UNITED WORKERS' UNION Applicant
AND:	BERVAR PTY LTD (T/AS DELLA ROSA FRESH FOODS) First Respondent PASCUAL GIGLIOTTI Second Respondent CAMERON BLEWETT Third Respondent

order made by:	JUDGE BLAKE
DATE OF ORDER:	4 April 2023

THE COURT ORDERS THAT:

Compensation

Pursuant to section 545(2)(b) of the Fair Work Act 2009 (Cth) (‘Act’) the First Respondent pay to the Applicant (for the benefit of Talwinder Kaur (‘Ms Kaur’) compensation in the amount of:
(a)$47,834.26 for economic loss; and
(b)$9,000 as general damages,
within 28 days of the date of this Order.
Pursuant to section 547(2) of the Act the First Respondent pay pre-judgment interest to the Applicant, for Ms Kaur, on the amount owed pursuant to Order 1 above within 28 days of the date of this Order, with the interest to be calculated:
(a)In accordance with the applicable pre-judgment interest rate prescribed by the Federal Court of Australia; and
(b)From 6 May 2020, being the date the cause of action arose, to the date of this Order.
The Applicant must pay the amount in Orders 1 and 2 above to Ms Kaur within 7 days of receipt of the payment.

Pecuniary Penalties

Pursuant to section 546(1) of the Act, the First Respondent pay a pecuniary penalty of $37,800 in respect of the contravention the subject of the Declaration made by the Court on 31 May 2022.
Pursuant to section 546(1) of the Act, the Third Respondent pay a pecuniary penalty of $7,560 in respect of the contravention the subject of the Declaration made by the Court on 31 May 2022.
The penalties in Orders 4 and 5 above be paid to the Applicant within 28 days of the date of these Orders.
The Applicant have liberty to apply on seven days notice in the event that the preceding Orders are not complied with.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BLAKE:

On 31 May 2022, I delivered judgment in the matter of United Workers’ Union v Bervar Pty Ltd [2022] FedCFamC2G 418 (‘Liability Judgment’). In the Liability Judgment, I held that the First Respondent, Bervar Pty Ltd (‘Bervar’) dismissed Talwinder Kaur (‘Ms Kaur’) from her employment in contravention of section 340(1) of the Fair Work Act 2009 (Cth) (‘Act’). I also held that the Third Respondent, Cameron Blewett (‘Mr Blewett’) was involved in the contravention by the First Respondent of section 340(1) of the Act. I made declarations to give effect to the findings I have noted above.
This judgment is concerned with the amount of compensation that ought to be paid (if any) to Ms Kaur and the amount of pecuniary penalty (if any) that ought to be imposed on Bervar and Mr Blewett.
The relevant background facts are set out in the Liability Judgment. For the hearing on compensation and penalty, the Applicant filed a second affidavit of Ms Kaur on 3 October 2022 and a third affidavit of Ms Kaur on 14 November 2022. Bervar filed on its behalf and on behalf of Mr Blewett, an affidavit from Mr Blewett dated 17 November 2022. Subject to rulings on the admissibility of evidence, each of the affidavits referred to above were read into evidence and each of Ms Kaur and Mr Blewett were subject to cross examination. Each of the parties also filed written outlines of submissions, with the Applicant filing written submissions in reply.

RELEVANT PRINCIPLES

Compensation

The power of the Court to make orders for compensation is set out in section 545 of the Act. Section 545(1) of the Act relevantly provides that this Court may make any order that it considers appropriate if the Court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. Section 545(2) sets out examples of the orders this Court may make. Relevantly in this matter, subsection (2)(b) provides that the Court may make ‘an order awarding compensation for loss that a person has suffered because of the contravention’.
In Dafallah v Fair Work Commission [2014] FCA 328 (‘Dafallah’), Mortimer J stated the following in relation to section 545 and the power of the Court to award compensation:
[148]The language of s 545 is broad, allowing the Court to provide remedies which meet the circumstances of any given contravention, taking into account the range of parties who may have brought proceedings in relation to the contravention, and the actions which might in any given circumstance be required to remedy the contravention, or to ensure it does not occur again. Awarding compensation for loss is but one example and may not be appropriate, depending on what other action has been taken in respect of any losses. Each case will turn on its facts in that sense.
[149]Fixing compensation under s 545 is a statutory task, and the Court must not substitute that task with approaches derived from the general law: Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [2004] HCA 3 at [44]; Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ.
…
[157]Further, the width of the power conferred by s 545(1) also allows for compensation which may not fully compensate a person for the loss suffered: see Gama (2008) 167 FCR 537; [2008] FCAFC 69 at [94] per French and Jacobson JJ, where their Honours were considering similar statutory compensation provisions under s 46PO(4) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). In my opinion, that approach is available under s 545(1) because, as their Honours pointed out in Gama at [94], an award of compensation is discretionary. In s 545(1), the governing consideration is what the Court considers “appropriate”, and this in my opinion leaves room for a Court to find in a given case that less than full compensation might be appropriate.
[158]While by no means operating as a mandatory approach to a discretion such as that conferred by s 545(1), with respect I adopt the remarks of Lee J in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1, considering factors relevant to an award of compensation under s 170EE of the then Industrial Relations Act 1988 (Cth). His Honour said (at 9), that the Court will
have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened … The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.
[159]One of the principal tasks, if compensation is to be awarded, is to ensure that there is the appropriate causal connection between the contravention and the loss claimed: Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526; [2011] FCA 333 at [423] per Barker J.
The statement of Lee J in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia-Western Australian Branch (1995) 63 IR 1 to which Mortimer J refers in the passages above was also endorsed by Tracey J in Kennewell v MG & GG Atkins (t/as Cardinia Waste & Recyclers) [2015] FCA 716 (‘Kennewell’) at [87]. Tracey J in Kennewell also referred to a statement of Barker J in Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 that there must be ‘an appropriate causal connection between the contravention and the loss claimed’ at [86].
I adopt the statements referred to above and intend to apply them in this matter.

Pecuniary Penalty

Section 340 of the Act is a civil remedy provision. Section 546(1) of the Act provides that this Court may, on application, order a person to pay a pecuniary penalty that the Court considers is appropriate, if the Court is satisfied that the person has contravened a civil remedy provision.
In Australian Building and Construction Commissioner v Pattinson (2022) 314 IR 301 (‘Pattinson’), the High Court emphasised that ‘civil penalties are imposed primarily, if not solely, for the purpose of deterrence’ at [15]. The task of the Court is to determine an ‘appropriate’ penalty in the circumstances of the particular case (Pattinson at [19]) and not apply a ‘rigid catalogue of matters for attention as if it were a “legal check list”’ (Pattinson at [19]). The Court is to strike ‘a reasonable balance between deterrence and oppressive severity’ (Pattinson at [41]).
The approach to fixing penalty after the decision of the High Court in Pattinson has recently been set out by Katzmann J in Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 at [24]-[36].

FACTS

The following facts are taken and summarised for convenience from the Liability Judgment:
(a)Ms Kaur is 31 years of age. She emigrated from India to Australia in 2013. English is not her first language and I observed that she sometimes has difficulty understanding English.
(b)Ms Kaur commenced work with Bervar on 11 August 2015. At the time of the termination of her employment, she had therefore worked for Bervar for approximately 4 years, 9 months.
(c)In her time at Bervar, Ms Kaur had progressed through the ranks. She commenced work as a Level 1 production worker on a casual basis. She obtained a part-time position at Level 2 within a month or so of her commencement, and her hours were subsequently increased, including to take on night shift work. She ultimately obtained full-time employment with Bervar on 5 July 2017 and on 21 March 2018 became employed as a Level 3 full-time production worker.
(d)There was a discussion in early March 2020 between Mr Gigliotti and Ms Kaur in relation to the role of a production worker. There is limited evidence about what occurred during that conversation.
(e)Mr Gigliotti had at various points during Ms Kaur’s employment, approved additional leave for her, even though she had not accrued leave to take.
(f)On around 27 March 2020, Mr Gigliotti approached Ms Kaur and persuaded her to undertake additional overtime duties.
(g)On 5 May 2020, Ms Kaur complained to another employee, Ms Aleman, that a task she had been assigned was difficult for her. Ms Aleman told Ms Kaur to do other work. Ms Aleman subsequently told Mr Gigliotti that Ms Kaur was not rotating through the positions on the production line and that she was refusing to load boxes onto pallets.
(h)On 6 May 2020, Ms Kaur attended a meeting with Mr Gigliotti, Ms Aleman, Mr Blewett and Mr Kohli. She was not given any notice of the meeting nor was she offered a support person. The meeting was called to discuss whether Ms Kaur was performing all of the work of a production worker. The discussion covered the events of the previous day between Ms Kaur and Ms Aleman. In effect, Mr Gigliotti asked Ms Kaur why she had refused to perform her duties. Ms Kaur was told she had to perform all of the tasks of a production worker. Mr Gigliotti spoke directly and forcefully to Ms Kaur about this, and also told Ms Kaur that she had to follow the instructions of Ms Aleman.
(i)Approximately 2 hours after the meeting occurred, Ms Kaur left work part way through her shift. She did not clock off as she left work.
(j)Subsequent to this, Ms Kaur’s employment was terminated in contravention of section 340 of the Act. The full circumstances of the termination are set out in the Liability Judgment. In particular, Ms Kaur’s employment ended because Mr Blewett purported to accept Ms Kaur’s resignation from employment. Ms Kaur never spoke to Mr Blewett directly about this. Instead, Mr Blewett spoke to Ms Kaur’s husband, assuming that he had authority to speak for Ms Kaur. Despite knowing that Ms Kaur was complaining about bullying, Mr Blewett took no action to identify from her the precise nature of her complaint. He never followed her up. His only action appears to have been to call the medical practice from which Ms Kaur had obtained a medical certificate because he had concerns about the certificate. Mr Blewett terminated Ms Kaur’s employment because he was concerned Ms Kaur would make an application to ‘Fair Work’ and because he was keen to avoid a drawn out process.

POSITION OF THE PARTIES

Claim for compensation

The Applicant seeks compensation for Ms Kaur for economic loss in the amount of 24 months pay. The Applicant also seeks for Ms Kaur, compensation for non-economic loss in the amount of $75,000.
The Respondents submit that compensation for economic loss should be limited to 4 weeks pay (in lieu of notice). That submission is advanced on the basis that had Ms Kaur returned to work, she would likely have been dismissed on or around 18 May 2020. The Respondents submitted that any compensation for non-economic loss ‘must be modest’.

Pecuniary Penalty

The Applicant seeks that the maximum pecuniary penalties should be imposed on Bervar and Mr Blewett, being an amount of $63,000 for Bervar and an amount of $12,600 for Mr Blewett.
The Respondents submitted, among other things, that neither of them had previously contravened the Act and for that reason, among others, any penalty imposed should be at the ‘lower end of the range’.

THE CLAIM FOR COMPENSATION

At the outset, Bervar submitted Ms Kaur ought not receive an award of compensation in excess of the amount set out in the Form 4 Claim document. In the Form 4, the Applicant claimed, on behalf of Ms Kaur, 15 weeks lost income of approximately $11,867.40 as well as damages for hurt, humiliation and distress in the amount of $50,000.
Bervar contended that the Applicant had never sought to amend the amount of compensation pursued in the Form 4. Bervar also submitted that, when asked by me at the start of the hearing on liability what the claim was worth, the representative for the Applicant provided an estimate of loss broadly consistent with what is set out in the Form 4. Bervar’s argument is therefore a straightforward one: the Applicant should be held to the claim as ‘pleaded’ or represented.
There are three reasons why this submission is rejected.
First, the Applicant made clear that the economic losses claimed in the Form 4 were ‘Projected to continue’. The Form 4 itself therefore contemplated, and signalled to the Respondents, that the amount of compensation sought (at the time the claim was filed) was likely to grow. The Respondents cannot now complain to have been prejudiced or surprised.
Second, this case did not proceed on the pleadings. Had it done so, the submission by Bervar may have carried significantly more weight given the rules that apply to pleadings. Instead, the relevant Court forms were used. The Form 4 is a recognised method of instituting proceedings in this Court. It is well recognised that an object of this Court is to ensure that justice is delivered effectively and efficiently. The Form 4 is one way in which the Court seeks to meet that object. I am unaware of any case in which the Form 4 has been treated as an equal to a pleading, or any case in which a party was held to the claim for damages set out in the Form 4. Counsel for the Respondents did not point to any authority to that effect. It would run counter to the object of effective and efficient administration of justice if the Court were to treat the Form 4 as a pleading and give it the same standing as a pleading without notice to all parties.
Finally, the Applicant filed its outline of submissions on 22 November 2022. The Respondents have known since that time how the claim for damages was framed. They cannot be heard now to have been taken by surprise or to have suffered prejudice. They have known for approximately 10 weeks prior to the hearing, the case they needed to meet.
The next matters to consider are whether there is a causal connection between the termination of employment and Ms Kaur’s loss of income and claim for general damages, and if there is, what compensation should flow.
It is plainly the case that the contravention of section 340 by Bervar brought the employment of Ms Kaur to an end. As a result of that action, she ceased to receive an income. There is a causal connection between the dismissal and the loss claimed.
There are various matters that suggest Ms Kaur’s employment was likely to continue with Bervar for some period of time, had she not been dismissed.
Ms Kaur is a reasonably recent immigrant to this country. Her English language skills are not strong. She has children and a husband. In her affidavit, she deposes that she never thought to change jobs as she was providing for her family by working at Bervar. I accept that evidence. It reinforces my own view of Ms Kaur. Having seen her twice in the witness box, she presents as shy and lacking in confidence. It is unlikely that she would have actively sought to change jobs had her employment with Bervar not ended.

Ms Kaur had been employed for over 4 years by Bervar. She had progressed through the ranks in two significant ways. First, she started as a casual employee, and was able to work her way up to full-time employment. She was called for overtime from time to time. Second, she progressed from a Level 1 production worker to a Level 3 production worker. This time frame and progression suggests she was a valued worker with some degree of security in her employment.
There is also other evidence before the Court that Ms Kaur was a valued employee. In a letter Mr Blewett sent to Ms Kaur on 6 May 2020 purporting to accept her resignation, he stated that ‘Della Rosa Fresh Foods appreciates the contribution that you have made to our business in the time that you have been with us, and always considered you a valuable part of the production team’. Mr Blewett was questioned about this evidence during the liability hearing. He agreed Ms Kaur was a good worker prior to the conversations had with her in May 2020, and that he had never received any complaints up to that time. I note Mr Blewett’s evidence now differs from what he said in the letter – that Ms Kaur was ‘always’ considered a valuable part of the team. I therefore give little weight to Mr Blewett’s evidence now, and do not accept it.
I infer that Mr Gigliotti regarded Ms Kaur as a valued employee, at least up until May 2020. After all, he had allowed her to take additional leave when she had not accrued it, and he had approached her to work additional overtime, thereby giving her the opportunity to increase her wages.
Despite the matters to which I have referred above, Bervar sought to counter any notion that Ms Kaur might continue to be employed with it on a long-term basis, and contended her employment would have ended soon. Mr Blewett gave evidence that Ms Kaur had been subject to two disciplinary meetings, one in March 2020 and the other on 6 May 2020, relating to her workplace performance and also insubordination.
There is limited evidence before the Court as to what exactly occurred at the meeting in March 2020. It is apparent that a discussion took place about the role of a production worker, but there is no evidence as to the specifics of what was discussed at that meeting. I therefore do not accept that the meeting was a disciplinary meeting, or that Ms Kaur was warned about her workplace performance in the sense of being told her employment would be in jeopardy if she did not improve some aspect of her performance or conduct.
There is then the meeting of 6 May 2020. It is clear that at that meeting, Ms Kaur was told directly and in clear terms that she had to perform all the work of a production worker, and that she had to follow the instructions of Ms Aleman. On one view, this might be characterised as a disciplinary meeting, however, I have come to the view it was not. I have reached that conclusion for the following reasons. First, while Mr Blewett describes the meeting in his most recent affidavit as a disciplinary meeting relating to workplace performance and also insubordination, that is not how he described the meeting to this Court during the hearing on liability. On that occasion, Mr Blewett told the Court that the meeting on 6 May 2020 was not a disciplinary meeting. Again, Mr Blewett’s evidence now conflicts with his earlier statements, and I therefore do not accept his change of story. Second, there is no evidence before the Court that Mr Blewett did any of the things an experienced Human Resources Manager might be expected to do during, or at the conclusion of, such a disciplinary meeting. There is no evidence before the Court that Ms Kaur was placed on a performance plan. There is no evidence before me that Ms Kaur was informed that her employment would be in jeopardy if she failed to address the issues that were being raised with her. Third, Mr Blewett was aware of what occurred on 6 May 2020 (the meeting held with Ms Kaur and her departure from work) when he wrote the letter of 6 May 2020 to Ms Kaur, purportedly accepting her resignation. Despite his knowledge of these matters, in the letter, he stated Ms Kaur was ‘always’ a valued employee, without any qualification.
Furthermore, even if contrary to what I have stated, this could be regarded as a disciplinary meeting, it cannot be assumed that Ms Kaur’s performance or conduct would not have improved.
Another basis on which Bervar contended that Ms Kaur’s employment was likely to end shortly, relates to Ms Kaur’s leaving the worksite on 6 May 2020. Mr Blewett deposed that Ms Kaur left the factory without informing her supervisors. Mr Blewett says that the failure by Ms Kaur to notify her supervisor ‘could have compromised Bervar’s emergency evacuation procedure’ and put the lives of others at risk. His evidence was to the effect that the failure to clock off also compromised Bervar’s ability to comply with those provisions of the Act dealing with the maintenance of time and attendance records. Mr Blewett says that this issue, along with the performance issues examined earlier, means that Ms Kaur’s employment would have ended very soon after 6 May 2020 or at the very latest on her return to work on 18 May 2020 due to a combination of her performance and conduct.
I do not accept that the matters to which Mr Blewett refers would have resulted in Ms Kaur’s employment ending at the very latest on her return to work on 18 May 2020. I have come to this view for the following reasons. First, the evidence Mr Blewett gives now about these matters is inconsistent with what Mr Blewett said in the letter he wrote to Ms Kaur on 6 May 2020 when he said Ms Kaur was ‘always’ valued. As already noted above, Mr Blewett was aware at the time he wrote the letter that Ms Kaur had left work without informing her supervisors, and he was aware of what had happened at the meeting on 6 May 2020. Despite his knowledge of those matters, he praised Ms Kaur as a valuable employee in the letter. He would not have done so had he held genuine concerns about her conduct or performance. Second, Ms Kaur says she informed her supervisors as to what she was doing. At the very least then, there is a contest on the facts as to what happened, and whether Ms Kaur had notified someone she was leaving. As much as Bervar and Mr Blewett might assert that Ms Kaur would be found not to have notified a supervisor, it is equally the case that she might have been proved right, in which case no further disciplinary action or termination of employment would follow. Third, in assessing what happened on 6 May 2020 and the surrounding circumstances, Bervar and Mr Blewett would have to have given some consideration to the medical certificate produced by Ms Kaur as an explanation for her leaving work early. No account has been taken by Bervar or Mr Blewett of that fact, which renders the potential termination of Ms Kaur’s employment in May 2020 for leaving the factory without notification much less certain. Fourth, as Mr Blewett himself acknowledged during cross examination, the outcome of any disciplinary process is of itself not certain.
I am prepared to accept that the events of 6 May 2020 may have caused Bervar and Mr Blewett to reconsider Ms Kaur’s performance as an employee. That reassessment might have resulted in a range of outcomes, including matters such as Ms Kaur no longer being offered overtime, Ms Kaur being placed on a performance plan, Ms Kaur being given a warning, or Ms Kaur no longer being given additional leave by Mr Gigliotti when she had not accrued it. It may be that one or all of these things may have made Ms Kaur’s employment less secure then it had been to that point, and that is a matter I will weigh. All of that is, however, far removed from any prospect that her employment was to be terminated on or around 18 May 2020. I consider that there is not any reasonable prospect of Ms Kaur’s employment ending on around 18 May 2020 when she was scheduled to return to work.
There is a question as to whether Ms Kaur would have returned to work on 18 May 2020. The Respondents point out that Ms Kaur had exhausted her personal leave and if she had no capacity for work but remained in employment after 18 May 2020, she would have remained unpaid. They also say any anxiety or stress suffered by Ms Kaur (which may have rendered her unable to work) was caused by the meeting of 6 May 2020, not the dismissal.
I accepted in the Liability Judgment that Ms Kaur was spoken to forcefully and directly by Mr Gigliotti in the meeting of 6 May 2020 about the need to perform all the work of a production worker at [62]. I accepted that Ms Kaur was distressed by the meeting at [63]. I also found, however, that what occurred at the meeting of 6 May 2020 was not unlawful.
The Respondents submit that Ms Kaur is not entitled to compensation arising from the events that occurred at the meeting of 6 May 2020. They submit that Ms Kaur is only entitled to compensation flowing from and caused by the dismissal. I accept that submission. On this issue, the Respondents submit that Ms Kaur was not predominantly upset by the termination of her employment or the manner of it. They submit that there is no evidence to support a finding that Ms Kaur was upset or distressed because of the termination.
Ms Kaur’s evidence on what she says caused her distress is as follows. In her affidavit material, Ms Kaur says that for around eight months from 6 May 2020, her anxiety and stress levels were uncontrollable. She says that she could not contemplate working at all, could not sleep and would have nightmares. She was prescribed melatonin for a period of time following the dismissal in order to help her sleep. She says that she worried she would not be able to provide emotionally or financially for her family, she did not talk to her children for long periods of time, had difficulty concentrating and would not socialise when people came over to her home. She says she suffered low self-confidence. In oral examination in chief, Ms Kaur stated, among other things, that the dismissal impacted her a lot, that she used to buy her children toys but the loss of her job affected the whole family. She also stated ‘because I was the girl who was thinking for self-respect and my own work, my own job. But when I lose my job, it impact me a lot’.
There is then the medical certificate obtained by Ms Kaur on 6 May 2020. Under that certificate, Ms Kaur was certified as unfit for work until 17 May 2020. The certificate was issued after the meeting on 6 May 2020, but before the termination. The inference to be drawn is that Ms Kaur was able to attend work from 18 May 2020 had the termination not occurred.
When all of the evidence and circumstances are considered, I am prepared to accept that while Ms Kaur was distressed and anxious following the meeting of 6 May 2020, Ms Kaur also suffered stress and anxiety as a result of her dismissal. She is able to claim compensation for this. She has given evidence about the impact on her, including her loss of self-confidence and self-respect, and the impact on her family, and I accept that evidence. There is independent evidence that before the dismissal occurred, Ms Kaur was only regarded as unfit for work until 17 May 2020. I am also prepared to infer that Ms Kaur was distressed and humiliated by the dismissal. Despite being one party to an employment contract, Ms Kaur was not spoken to about the decision to end the contract. She was never afforded any opportunity to speak directly to Mr Blewett. The Respondents assumed her husband spoke for her. It is difficult to think in the modern age of anything more humiliating, or destructive of the self-confidence, than for a female employee with low self-confidence to have her employment ended by an employer assuming a husband has an authority to determine contractual relations for his wife. I find it was humiliating, distressing and hurtful as well as destructive of Ms Kaur’s sense of self-respect and confidence. The way in which things unfolded means that I consider there is something more than the usual element of distress accompanying most terminations in the sense noted by Perry J in RailPro Services Pty Ltd v Flavel [2015] FCA 504 (‘RailPro’) at [176]. I am also satisfied that there is a causal connection between the dismissal and the anxiety, distress, humiliation and loss of self-confidence suffered by Ms Kaur.
When all of the evidence is weighed (including the medical certificate of 6 May 2020), I consider it more likely than not that Ms Kaur would have returned to work on or shortly after 18 May 2020, if her employment had not been terminated.
The question then arises as to whether Ms Kaur has sought to mitigate her losses and whether she has earned remuneration from other employment. It appears necessary to take these matters into account: see Dafallah at [160] where Mortimer J says it is appropriate to consider factors similar to those set out in section 392(2) of the Act, and also the statement of Perry J (sitting alone in an appellate capacity) in RailPro at [173], where Her Honour accepted that the primary judge had erred by failing to discount an award of damages by reference to workers compensation payments which mitigated the loss.
Ms Kaur says that her stress and anxiety were uncontrollable for eight months following the dismissal. There is no medical evidence before me to support that assertion, and I do not accept it. I accept, however, that the distress, humiliation and anxiety suffered by Ms Kaur (along with her loss of self-confidence) would have made it very difficult for her to pursue employment in the months after her dismissal. I accept Ms Kaur was prescribed melatonin for her sleep. I accept that she would have been worried about financially and emotionally providing for her family. I note her evidence, which I accept, that she and her husband were unable, given their financial circumstances, to afford to see a psychologist. I infer from all of this it was not possible for her to mitigate her losses for a considerable period following the dismissal.
Ms Kaur says in her affidavit dated 30 October 2022 that she has not fully recovered from the events of 6 May 2020 and remains unable to work. She says that she feels she will be well enough to work again when her family returns from an overseas trip later this year. If that were accepted, it would mean accepting that the dismissal has rendered Ms Kaur unable to work for over three years. I do not accept this evidence. It is not supported by any medical opinion. Moreover, the statement by Ms Kaur that she will be able to return to work following an overseas trip has the ring of a statement of convenience.
Ms Kaur admitted under cross examination that she had not sought employment at all in any field, nor sought any further qualifications, since 6 May 2020. Clearly, no attempts have been made by her to mitigate loss. Ms Kaur has not earned any remuneration since the dismissal occurred. In my view, the failure to mitigate loss for the entire period of three years since the dismissal is a matter that points towards a discount on any award of compensation. In saying that however, I am prepared to accept that Ms Kaur was not in a position to mitigate her loss for some considerable period following the dismissal, and this too needs to be taken into account.
It is always difficult to balance the evidence, exercise the discretion, and arrive at a conclusion as to what is reasonable in the circumstances and what would have been likely to occur had the Act not been contravened. The governing consideration under section 545 of the Act is always what is ‘appropriate’. In this matter, Ms Kaur’s employment ended when Bervar terminated her employment unlawfully. It is the dismissal that has caused Ms Kaur to suffer both economic and non-economic loss. Had the dismissal not occurred, it is likely that Ms Kaur would have remained in employment for some time, potentially some years. She had been in employment with Bervar for over four years. She had progressed through the ranks. She had obtained full time employment. She was providing for her family.
Against those matters, there is some prospect that the relationship between Bervar and Ms Kaur was experiencing some difficulty, and her employment may have become less secure. The ultimate outcome of those difficulties cannot be predicted. I do not accept her employment would have ended on or shortly after 18 May 2020. Some adjustment and discount to damages needs to be made, however, for the uncertainties that were arising in the relationship, and a discount needs to be applied given Ms Kaur’s failure to mitigate loss.
In my view, when these factors are balanced and weighed, I am of the view that Ms Kaur is entitled to damages for economic loss equal to 12 months pay. That is an appropriate amount in all the circumstances.
At the urging of the Court, the parties produced a table outlining the amounts Ms Kaur would be owed for wages, superannuation contributions, annual leave, and annual leave loading over a 12 month period. The total equates to $47,834.26. That is the amount of damages that Ms Kaur should be paid by the First Respondent in respect of economic loss, plus interest.
There is a dispute between the parties as to whether Ms Kaur would be entitled to overtime payments as part of the compensation referred to above. I consider it unlikely that Ms Kaur would be asked to work overtime given what I have said above about the state of the relationship between Bervar and Ms Kaur. Accordingly, I make no award of compensation for lost overtime.
Insofar as damages for hurt, humiliation and distress are concerned, I note that the Applicant has failed to produce any independent medical evidence supporting any hurt suffered by Ms Kaur. As I have noted above, however, Ms Kaur’s dismissal was humiliating, hurtful and distressing for her. The Applicant claims damages in the amount of $75,000. That amount, is in my view excessive, given there is no expert evidence of lasting psychological damage. The Respondents say any damages award should be modest. In my view, for the reasons set out earlier in relation to what Ms Kaur endured, damages for non-economic loss should be set at $9,000, payable by the First Respondent. Interest should be paid by the First Respondent on this amount and the amounts awarded for economic loss in accordance with section 547 of the Act.

WHETHER PECUNIARY PENALTIES SHOULD BE IMPOSED

Nature and extent of the contravening conduct

Bervar committed a single contravention of section 340 of the Act. Mr Blewett committed a single contravention of the Act because of his involvement in the breach of the Act committed by Bervar.
I have commented in the Liability Judgment and also in this judgment about the nature and extent of the contravening conduct and the circumstances in which it took place. I rely upon those comments. I note that Ms Kaur was a vulnerable employee and a relatively recent immigrant with a poor command of English. She was disempowered and humiliated by the termination, and it has clearly shaken her already low levels of confidence.

Amount of loss and damage caused

I have made findings above as to the economic and non-economic loss suffered by Ms Kaur. I rely on those findings. The loss and damage sustained by Ms Kaur, a relatively low paid employee, is significant.

Whether the conduct was deliberate

I refer to paragraphs [85]-[92] of the Liability Judgment. The conduct of Mr Blewett was deliberate. He was concerned that Ms Kaur would exercise her workplace rights. He was concerned that if she did, there would be a drawn out process. Faced with that dilemma, Mr Blewett availed himself of the opportunity to remove Ms Kaur from the business.
Mr Blewett filed an affidavit after the Liability Judgment, but before the hearing on penalty and compensation. He had the opportunity to explain his conduct or to state in clear terms that he had made a mistake. He did neither of these things.

The size of the contravening company

Mr Blewett’s evidence is that Bervar operates a ready-made pizza production business. It is a family run business that presently employs around 105 people. On that information, it may be accepted that Bervar is neither a large business nor a small business.
Bervar has not filed any evidence as to its financial circumstances, including any evidence as to its assets, liabilities, profits or losses. It has filed no evidence as to whether or not it has the capacity to bear the maximum fine, or indeed any fine. Likewise, Mr Blewett has not filed any evidence as to his personal financial circumstances. It is therefore not possible to assess what impact the imposition of any fine will have on the Respondents or whether such fines may be oppressive.

Involvement of senior management

Ms Kaur’s employment was terminated by Mr Blewett. At the time of the contravening conduct, Mr Blewett was employed by Bervar as its Human Resources Manager. There is no detailed evidence before the Court of the management structure or the status of the Human Resources Manager within that structure. I infer, however, that the Human Resources Manager was a position within the senior management of Bervar on the following bases. First, Bervar is not a large corporation and as such is likely to have relatively few positions in managerial roles. Second, Mr Blewett says that his role is commensurate with that of Production Manager, which I infer is a reasonably senior role within the organisation given the importance of production to the business. Third, Mr Blewett had the authority to dismiss employees. That is not a power given to employees who do not hold senior roles, particularly in businesses the size of Bervar’s business.

Whether the Respondents have engaged in similar conduct previously

Neither Bervar nor Mr Blewett have been found to have previously contravened any provision of the Act. The Applicant submitted, however, that neither Bervar nor Mr Blewett should be cast as ‘naïve ingenue’ in regards to industrial relations disputation. The Applicant submitted that Bervar and/or Mr Blewett have been involved in other litigation, including before the Victorian Civil and Administrative Tribunal and the Fair Work Commission. The Applicant submitted that the Court should have regard to these matters in determining penalty.
I decline to place any weight on other matters Bervar and Mr Blewett have been involved in, whether in the Fair Work Commission or the Victorian Civil and Administrative Tribunal. The proceeding in the Victorian Civil and Administrative Tribunal is a matter concerning sexual harassment and unfavourable treatment of an employee. The proceedings in the Fair Work Commission relate to a range of what might be described as industrial relations matters. None of these proceedings to which the Applicant refers relate to a contravention of section 340 of the Act, or a contravention of any civil remedy provision in the Act.

Contrition and corrective action

Neither Bervar nor Mr Blewett have expressed any contrition or remorse for dismissing Ms Kaur from employment. Bervar and Mr Blewett have instead fought this proceeding to the end. This has included taking the position that Ms Kaur would have been dismissed had she returned to work in May 2020.
It is appropriate to record that there has been limited cooperation given by Bervar. Cooperation arose only when the Court requested that the parties reach an agreement as to the amount of Ms Kaur’s weekly or monthly wage. I acknowledge the cooperation given, and the Court is grateful for it, but it is limited cooperation in the scheme of this case, and only came very late in the piece after the Court directly intervened and requested it.

Corporate culture conducive to compliance with the Act

Bervar had the opportunity to lead evidence on this issue. It has not done so.
The Applicant submitted that the only evidence of Bervar’s corporate culture was that of, among other things, anti-unionism. That submission was based on decisions in the Victorian Civil and Administrative Tribunal and the Fair Work Commission to which I have referred earlier. I have considered those submissions and reject them. Those decisions do not constitute any evidence of the attitude or culture within Bervar to compliance or otherwise with the provisions contained within Part 3-1 of the Act.

Deterrence

As noted in Pattinson, the purpose of the civil penalty regime, provided by the Act, is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act.
Specific deterrence is warranted in this case. Bervar continues to operate its business. Mr Blewett continues to be responsible for Human Resources matters within Bervar, albeit as a consultant. There has been no remorse or contrition demonstrated by either Respondent. There is no evidence before the Court of any steps being taken by either Respondent to minimise the prospect of further contraventions of the Act occurring.
There is also a need for general deterrence in this case. The circumstances of this case are somewhat egregious. A vulnerable employee with limited English language skills had her employment terminated for an unlawful reason (considering taking the matter to ‘Fair Work’) in circumstances where she had every reason to expect, given her employment history and her progression within the company, that her employment would continue. She had no opportunity to speak to her employer about her dismissal, with her employer simply assuming she resigned. That is conduct that cannot be condoned by the Court. It is important that the Court set the penalty at a level that is likely to deter others from engaging in similar conduct.
I note for completeness that the Applicant submitted that there was a particular need for general deterrence in the food manufacturing industry. In making that submission, the Applicant relied on the comments of Bromwich J in Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2022] FCA 1317 at [34]. I do not accept the Applicant’s submission. In his reasons, Bromwich J makes clear that any such submission needs to be supported by evidence of, among other things, industry profiles. No such evidence is before me.

Assessment

This is a case in which the imposition of pecuniary penalties on both Respondents is warranted. There is a high need for deterrence in this case, both specific deterrence and general deterrence. The nature of the contravention and the circumstances in which it occurred were serious. Senior management was involved. No contrition has been shown. The Respondents have fought the case to the end. The losses sustained by Ms Kaur were significant. There is no evidence to suggest that the imposition of the maximum penalty on either Bervar or Mr Blewett would be crushing or oppressive. Having said that, however, neither Bervar nor Mr Blewett have previously contravened section 340 of the Act, or any other civil remedy provision of the Act. Some discount to the penalty should be given in light of this being a first offence for each of the Respondents.
In all of the circumstances of this case, it is appropriate to fix the penalty for each Respondent at 60% of the maximum. Bervar should pay a penalty of $37,800. Mr Blewett should pay a penalty of $7,560.
I have considered whether these penalties would be crushing or oppressive, and whether any further discount is warranted in light of the application of the totality principle. In my view, given the state of the evidence and my findings, no further discount to the penalty is warranted.
The Applicant sought that the penalties be paid to it. The Respondents did not submit otherwise. In the circumstances I will order the penalty to be paid to the Applicant.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated: 4 April 2023