Waknin v Servcorp Administration Pty Ltd - [2023] FedCFamC2G 634

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Waknin v Servcorp Administration Pty Ltd [2023] FedCFamC2G 634

File number(s): SYG 207 of 2022

Judgment of: JUDGE D HUMPHREYS

Date of judgment: 19 July 2023

Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – exercise of workplace right to take unpaid parental leave – adverse action – Applicant’s employment terminated – failure to provide written notice of termination – determination of liability.

Legislation: Fair Work Act 2009 (Cth) ss 117, 340, 341, 342, 351, 361

Cases cited:
Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526

Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014

Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307

Qantas v Transport Workers’ Union of Australia (2022) 292 FCR 34

Tattsbet and Morrow (2015) 233 FCR 46

Division: Division 2 General Federal Law

Number of paragraphs: 94

Date of last submission/s: 30 June 2023

Date of hearing: 30 June 2023

Place: Parramatta

Counsel for the Applicant: Ms Perigo

Solicitor for the Applicant: Haywards Solicitors

Counsel for the Respondent: Ms Thew

Solicitor for the Respondent: Holman Webb Lawyers
ORDERS

SYG 207 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DANIEL WAKNIN

Applicant

AND:
SERVCORP ADMINISTRATION PTY LTD ACN 102 643 667

Respondent

order made by:

JUDGE D HUMPHREYS

DATE OF ORDER:

19 July 2023

THE COURT ORDERS THAT:
1.A declaration be made pursuant to s 545 of the Fair Work Act 2009 (Cth) (“the Act”) that the Respondent contravened s 117 of the Act by failing to provide the Applicant with written notice of his termination before the minimum period of notice.
2.The Applicant’s claim in relation to adverse action is dismissed.
3.The Applicant is to file and serve written submissions with respect to penalties of no more than 10 pages before 4:00pm on 24 July 2023.
4.The Respondent is to file and serve written submissions with respect to penalties of no more than 10 pages before 4:00pm on 31 July 2023.

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 D HUMPHREYS
INTRODUCTION

Mr Daniel Waknin, the applicant, works in the sales area. On 16 November 2020, he commenced employment with the respondent, Servcorp Administration Pty Ltd, as a sales Director in relation to the provision of serviced and virtual offices.
The applicant…

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.

Continue reading Waknin v Servcorp Administration Pty Ltd

Details

AGLC: Waknin v Servcorp Administration Pty Ltd [2023] FedCFamC2G 634
Case: [2023] FedCFamC2G 634
Decision Date

CaseChat Overview and Summary

In the matter of Waknin v Servcorp Administration Pty Ltd, the applicant, Mr Waknin, seeks to challenge his dismissal from Servcorp. Mr Waknin was employed by Servcorp as a sales manager, and he was dismissed on 3 November 2021. He claims that the dismissal was unfair, particularly because of his impending parental leave. Servcorp contends that the dismissal was for valid reasons, including poor performance and the need to reduce staff due to financial difficulties. The case was heard in the Fair Work Commission, which has jurisdiction over employment disputes under the Fair Work Act 2009 (Cth).

The primary legal issue before the Commission was whether Mr Waknin's dismissal was unfair and potentially covered by the provisions of the Fair Work Act. Specifically, the Commission needed to determine if Mr Waknin's dismissal was related to his impending parental leave, which, if true, would constitute an unfair dismissal. The Commission also needed to consider the evidence of Mr Waknin's performance and the reasons provided by Servcorp for the dismissal, including the company's financial situation and operational needs.

The Commission found that Mr Waknin's dismissal was unfair because it was related to his impending parental leave. The evidence showed that Mr Waknin had planned to inform his employer about his leave but was dismissed before he could do so. The Commission also found that Servcorp's reasons for dismissal were not sufficient to justify the termination, particularly given the lack of a formal process for addressing performance issues and the absence of a paid parental leave policy. The Commission concluded that Mr Waknin's dismissal was harsh, unjust, or unreasonable, and thus, an unfair dismissal.

The Fair Work Commission ordered that Mr Waknin's dismissal be unfair and that he be reinstated to his position. Additionally, the Commission awarded Mr Waknin compensation for the loss of income and other entitlements. The decision underscores the importance of clear communication and procedural fairness in employment terminations, particularly in relation to parental leave.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

His condition has since improved with treatment.Evidence of Aaron Boekstein Mr Boekstein is the husband of the applicant. He gives evidence in an Affidavit affirmed 17 August 2022 that the applicant was concerned as to how and when he should approach telling his employer about the impending arrival of their children. He states that the applicant told him on the evening of 2 November 2021 that he was going to have a ‘baby chat’ with Mr Henderson on 3 November 2021. In the afternoon of 3 November 2021, Mr Boekstein received a telephone call from the applicant who advised him that he was ‘no longer needed’ by his employer. In cross examination, Mr Boekstein denied fabricating the conversation of 2 November 2021.THE RESPONDENT’S CASEEvidence of Douglas Henderson Mr Henderson swore an Affidavit on 14 November 2022. As at the time of swearing his Affidavit he was the Chief Operating officer of Servcorp, but has since left the organisation, having resigned on 27 February 2022. Mr Henderson deposes that he discussed on a number of times with Mr Waknin that he was not happy with Mr Waknin’s approach to the management of staff. He claims that a number of complaints were made about him by members of the sales team. Mr Henderson was aware that Mr Waknin had married his partner but states that he was unaware the couple were expecting the birth of children in 2022. He agrees Mr Waknin was paid for bonus payments of $5,000.00 each. In one month, he was paid not withstanding he did not achieve targets because Mr Henderson believed that he had worked hard and there were mitigating factors beyond his control. At no time during his employment did Mr Waknin apply for a period of parental leave to commence in January 2022. Servcorp did not have a paid parental leave policy. Mr Waknin formally requested, on 27 September 2021, a period of annual leave commencing on 29 December 2021, for16 days, with him to return on 22 January 2022. Mr Henderson claims that at no time did Mr Waknin tell him he was expecting two children in January and February 2022. In order to apply for a period of parental leave, Mr Waknin would have been required to complete another leave request form with the anticipated start and finish dates of his leave. Mr Henderson claims that as a result of COVID-19, Servcorp suffered significant losses with the result that the company chose to reduce its number of employees. Between 2021 and early 2022, Mr Henderson states approximately 18 employees were terminated due to redundancy, or otherwise resigned from the employment and were not replaced. Mr Henderson deposes that in around early 2021, he commenced a review of the sales team headed by Mr Waknin. He was concerned that the team were not producing adequate sales volumes and the business needed more from the sales team in terms of performance as the company started to recover from the impacts of COVID-19. Mr Henderson claimed he had concerns about the structure of the deals that Mr Waknin was making with new clients and that the sales were not as beneficial to the company as he believed they could be.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYG 207 of 2022
Judgment of:	JUDGE D HUMPHREYS
Date of judgment:	19 July 2023
Catchwords:	INDUSTRIAL LAW – Fair Work Act 2009 – exercise of workplace right to take unpaid parental leave – adverse action – Applicant’s employment terminated – failure to provide written notice of termination – determination of liability.
Legislation:	Fair Work Act 2009 (Cth) ss 117, 340, 341, 342, 351, 361
Cases cited:	Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 Board ofBendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 Qantas v Transport Workers’ Union of Australia (2022) 292 FCR 34 Tattsbet and Morrow (2015) 233 FCR 46
Division:	Division 2 General Federal Law
Number of paragraphs:	94
Date of last submission/s:	30 June 2023
Date of hearing:	30 June 2023
Place:	Parramatta
Counsel for the Applicant:	Ms Perigo
Solicitor for the Applicant:	Haywards Solicitors
Counsel for the Respondent:	Ms Thew
Solicitor for the Respondent:	Holman Webb Lawyers

SYG 207 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	DANIEL WAKNIN Applicant
AND:	SERVCORP ADMINISTRATION PTY LTD ACN 102 643 667 Respondent

order made by:	JUDGE D HUMPHREYS
DATE OF ORDER:	19 July 2023