FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v A Dalley Holdings Pty Ltd [2013] FCA 509

THE COURT DECLARES THAT:

1.    The First Respondent contravened:

(a)    section 44(1) of the Fair Work Act 2009 (Cth) (FW Act), by reason of its contravention of section 83 of the FW Act, in that the First Respondent did not take all reasonable steps to give Carolyn Jelcic (Jelcic) information about, and an opportunity to discuss, the effect of decisions which the First Respondent made while Jelcic was on maternity leave and which had a significant effect on the status or pay of Jelcic’s pre-parental leave position;

(b)    section 44(1) of the FW Act, by reason of its contravention of section 84 of the FW Act, in that the First Respondent failed to permit Jelcic to return to her pre-parental leave position upon completion of her maternity leave;

(c)    section 44(1) of the FW Act, by reason of its contravention of section 84 of the FW Act, in that the First Respondent required Jelcic to perform only sleepover shifts in order to return to work upon completion of her maternity leave;

(d)    section 340(1) of the FW Act, by taking adverse action against Jelcic because of Jelcic’s exercise of her workplace right to continue maternity leave, by failing to take all reasonable steps to give Jelcic information about, and an opportunity to discuss, the effect of decisions which the First Respondent made while Jelcic was on maternity leave and which had a significant effect on the status or pay of Jelcic’s pre-parental leave position;

(e)    section 340(1) of the FW Act, by taking adverse action against Jelcic because of Jelcic’s exercise of her workplace right to continue maternity leave, by failing to permit her to return to her pre-parental leave position upon completion of her maternity leave;

(f)    section 340(1) of the FW Act, by taking adverse action against Jelcic because of Jelcic’s exercise of her workplace right to continue maternity leave, by requiring that Jelcic perform only sleepover shifts in order to return to work upon completion of her maternity leave;

(g)    section 351(1) of the FW Act, by taking adverse action against Jelcic because of Jelcic’s pregnancy, by failing to take all reasonable steps to give Jelcic information about and an opportunity to discuss, the effect of decisions which the First Respondent made while Jelcic was on maternity leave and which had a significant effect on the status or pay of Jelcic’s pre-parental leave position;

(h)    section 351(1) of the FW Act, by taking adverse action against Jelcic because of Jelcic’s pregnancy, by failing to permit her to return to her pre-parental leave position upon completion of her maternity leave; and

(i)    section 351(1) of the FW Act, by taking adverse action against Jelcic because of Jelcic’s family or carer’s responsibilities, by requiring that Jelcic perform only sleepover shifts in order to return to work upon completion of her maternity leave.

2.    The Second Respondent was involved in each of the First Respondent’s contraventions set out above and pursuant to section 550 of the FW Act is thereby taken to have contravened the same provisions of the FW Act.

NOTING THE CONSENT OF THE PARTIES THE COURT ORDERS THAT:

1.    The First Respondent pay a pecuniary penalty of $27,720.

2.    The Second Respondent pay a pecuniary penalty of $3,168.

3.    The penalties imposed upon the First and Second Respondents be paid to the Commonwealth within 28 days of the making of these orders.

4.    The Respondents pay compensation to Carolyn Jelcic in the amount of $5,000 within 28 days of the making of these orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This proceeding concerns a failure by an employer to consult with and return an employee on maternity leave to her pre-parental leave position. It raises contraventions of the National Employment Standards and the adverse action provisions of the Fair Work Act 2009 (Cth) (“the FW Act”). The contraventions alleged have been admitted. The main question for the Court is whether the penalties proposed by the parties are appropriate.

2    The applicant (“the Fair Work Ombudsman”) is a statutory appointee of the Commonwealth under s 687 of the FW Act, a Fair Work Inspector under s 701 of the FW Act and a person with standing and authority to bring these proceedings pursuant to s 539 of the FW Act. At all relevant times from about 6 January 2010, the first respondent (“Dalley Holdings”), was a corporation that operated a supported aged care facility in Victoria (“the facility”). Dalley Holdings was from about 6 January 2010, an employer within the meaning of ss 12, 14, 15(2), 42 and 335 of the FW Act and the employer of Ms Carolyn Jelcic from about 6 January 2010 until about 15 September 2010.

3     Ms Jelcic was employed at the facility as a personal care assistant. At all relevant times the second respondent (“Mr Dalley”) was the sole director of Dalley Holdings, one of two of its shareholders, and responsible for the employment, management and control of employees at the facility. Mr Dalley was at all times acting as an officer of Dalley Holdings, so that under s 793(1) of the FW Act conduct engaged in by him is also taken to have been engaged in by Dalley Holdings.

4    The facts I have referred to and other facts and admissions, to which I will shortly refer, are set out in a Statement of Agreed Facts and Admissions and Recommendations as to Penalty (“the Statement”), which the parties have jointly filed. The Statement will be attached to these reasons.

5    The basic facts upon which the Fair Work Ombudsman relies are as follows. Prior to commencing a period of unpaid maternity leave on 8 October 2009, Ms Jelcic worked hours in accordance with a fortnightly roster which generally included six regular afternoon shifts per fortnight and in the two years prior to her taking maternity leave, also included approximately one sleepover shift per fortnight. Whilst Ms Jelcic was on maternity leave, Dalley Holdings took over the running of the facility and became Ms Jelcic’s employer, and her employment continued on similar terms and conditions of employment.

6    By operation of s 69 of the FW Act, Ms Jelcic was entitled to continue her maternity leave. Without any consultation with Ms Jelcic, Dalley Holdings made a number of decisions which impacted upon the pre-paternal leave position of Ms Jelcic. First, a decision was made to reallocate Ms Jelcic’s pre-parental leave 1 pm to 6 pm afternoon shifts and second, a decision was made to combine Ms Jelcic’s pre-parental leave 5 pm to 8 pm afternoon shifts with sleepover shifts and reallocate them on an ongoing basis to other employees.

7    Ms Jelcic was due to return to work on 8 September 2010 and she informed Dalley Holdings of her intention to do so in early August 2010. Some discussions then ensued about the shifts that Ms Jelcic would be offered on her return to work. In the end, she was only offered two sleepover shifts per fortnight. Ms Jelcic complained that she could not return to work performing sleepover shifts due to her family commitments. She sought more suitable hours of work. Dalley Holdings was unmoved. Ms Jelcic was informed that the hours which had been allocated to her previously had now been absorbed by other staff and that Dalley Holdings was unable to offer Ms Jelcic her preferred shifts. If she chose to decline the offer of sleepover shifts, Dalley Holdings advised that her refusal would be treated as her resignation. Ms Jelcic did not respond and it is agreed that Dalley Holdings then constructively dismissed her from its employment.

8    On the basis of the agreed facts and the admissions contained in the Statement, I am satisfied that Dalley Holdings and Mr Dalley have contravened the FW Act. Three kinds of contraventions have occurred. The first relates to contraventions of the National Employment Standards provided by Part 2-2 of the FW Act and which include parental leave and related entitlements. I am satisfied of three contraventions of s 44(1) of the FW Act have occurred by reason of:

(a)    the contravention of s 83 of the FW Act, in that Dalley Holdings did not take all reasonable steps to give Ms Jelcic information about and an opportunity to discuss the effect of decisions which Dalley Holdings made whilst Ms Jelcic was on maternity leave, and which had a significant effect on the status or pay of Ms Jelcic’s pre-parental leave position;

(b)    the contravention of s 84 of the FW Act, in that Dalley Holdings failed to permit Ms Jelcic to return to her pre-parental leave position upon completion of her maternity leave; and

(c)    the contravention of s 84 of the FW Act, in that Dalley Holdings required Ms Jelcic to perform only sleepover shifts in order to return to work upon completion of her maternity leave.

9    Secondly, contraventions have occurred in respect of s 340(1) of the FW Act, which prohibits adverse action being taken against an employee by reason of the workplace rights of that employee. I am satisfied of three contraventions of s 340(1) of the FW Act as follows:

(a)    Dalley Holdings took adverse action against Ms Jelcic because of Ms Jelcic’s exercise of her workplace rights to continue maternity leave, by failing to take all reasonable steps to give Ms Jelcic information about and an opportunity to discuss the effect of decisions which Dalley Holdings made whilst Ms Jelcic was on maternity leave, and which had a significant effect on the status or pay of Ms Jelcic’s pre-parental leave position;

(b)    Dalley Holdings took adverse action against Ms Jelcic because of Ms Jelcic’s exercise of her workplace right to continue maternity leave by failing to permit her to return to her pre-parental leave position upon completion of her maternity leave; and

(c)    Dalley Holdings took adverse action against Ms Jelcic because of Ms Jelcic’s exercise of her workplace right to continue maternity leave by requiring that Ms Jelcic perform only sleepover shifts in order to return to work upon completion of her maternity leave.

10    Thirdly, s 351(1) of the FW Act prohibits the taking of adverse action against an employee, including because of an employee’s pregnancy and because of an employee’s family responsibilities. I am satisfied of three contraventions of s 351(1) of the FW Act as follows:

(a)    Dalley Holdings took adverse action against Ms Jelcic because of Ms Jelcic’s pregnancy by failing to take all reasonable steps to give Ms Jelcic information about and an opportunity to discuss the effect of decisions which Dalley Holdings made while Ms Jelcic was on maternity leave, and which had a significant effect on the status or pay of Ms Jelcic’s pre-parental leave position;

(b)    Dalley Holdings took adverse action against Ms Jelcic because of Ms Jelcic’s pregnancy by failing to permit her to return to her pre-parental leave position upon completion of her maternity leave; and

(c)    Dalley Holdings took adverse action against Ms Jelcic because of Ms Jelcic’s family or carer’s responsibilities by requiring that Ms Jelcic perform only sleepover shifts in order to return to work upon completion of her maternity leave.

11    Mr Dalley admits that he was involved in each of the above contraventions of Dalley Holdings for the purposes of s 550 of the FW Act. He is thereby taken to have contravened the same provisions of the FW Act as has Dalley Holdings. In total, Dalley Holdings and Mr Dalley have each contravened nine provisions of the FW Act. However, many of those contraventions arise out of the same course of conduct and it is appropriate that the contraventions be grouped into three categories.

12    In Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479, a case which also involved a failure to consult with and return an employee on maternity leave to her pre-parental leave position, I set out the relevant legal principles relating to the grouping of contraventions at paragraphs [24] to [25]. I adopt the principles there set out without repeating them here.

13    I agree with the submissions of the parties that it is appropriate to group the contraventions into the following three categories:

(a)    conduct regarding a failure to consult Ms Jelcic while she was on a period of maternity leave, resulting in contraventions of ss 44(1), 340(1) and s 351 of the FW Act;

(b)    conduct regarding a failure to return Ms Jelcic to her pre parental leave position, resulting in contraventions of ss 44(1), 340(1) and s 351(1) of the FW Act; and

(c)    conduct regarding a requirement that Ms Jelcic perform only sleepover shifts at the facility in order for her to return to work, resulting in contraventions of ss 44(1), 340(1) and s 351(1) of the FW Act.

14    Adopting the grouping approach outlined above, which groups the contraventions into three groups, the maximum available penalty which could be imposed on Dalley Holdings is $99,000, and the maximum available penalty which could be imposed upon Mr Dalley is $19,800.

15    The relevant principles to be applied in the assessment of an appropriate penalty in a case like the present, have been discussed at length by this Court and need not be fully canvassed again here: see Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 at [40] (Tracey J); Temple v Powell (2008) 169 FCR 169 at [56] to [78] (Dowsett J); Cahill v Construction, Forestry, Mining and Energy Union (No 4) (2009) 189 IR 304 (Kenny J).

16    A summary of the considerations that the Court may take into account is set out in Stuart and Mahoney at [40] as follows:

    the nature and extent of the conduct which led to the breaches;

    the circumstances in which that relevant conduct took place;

    the nature and extent of any loss or damage sustained as a result of the breaches;

    whether there had been similar previous conduct by the respondent;

    whether the breaches were properly distinct or arose out of the one course of conduct;

    the size of the business enterprise involved;

    whether or not the breaches were deliberate;

    whether senior management was involved in the breaches;

    whether the party committing the breach had exhibited contrition;

    whether the party committing the breach had taken corrective action;

    whether the party committing the breach had cooperated with the enforcement authorities;

    the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and

    the need for specific and general deterrence.

17    As the parties proposed an agreed penalty, the relevant question for the Court is whether the agreed penalty is appropriate in all the circumstances: Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 at [51] (Branson, Sackville and Gyles JJ), where the Full Court adopted the reasoning of Burchett and Kiefel  JJ (with whom Carr J agreed) in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285. In Mobil at [51], the Full Court listed the principles enunciated in NW Frozen Foods, including that a penalty will be appropriate if it falls within the permissible range.

18    The permissible range of penalties refers to that range in which a penalty imposed would be neither manifestly inadequate nor manifestly excessive. Only where the agreed penalty proposed by the parties falls outside the permissible range should the Court depart from the figure agreed by the parties: see Wells v Locarno Management Pty Ltd [2008] FCA 1034 at [23] (Jessup J); Ponzio v B & P Caelli Constructions (2007) 158 FCR 543 at [129] (Jessup J); and Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556 at [68] (Tracey J).

19    I agree with and adopt the submissions of the parties as to how the relevant considerations as to penalty apply in this case. I will briefly refer to the main considerations I have taken into account. They are as follows:

(1)    Nature and extent of the conduct which led to the contraventions –

The contravening conduct in this matter represents a failure to provide basic and important conditions and entitlements under the FW Act to an employee seeking to return to work from parental leave. The fundamental nature of the contravening conduct displays the respondents’ lack of understanding of their statutory obligations in respect of Ms Jelcic’s right to return to her pre-parental leave position, and to be consulted in respect of any significant changes to it.

(2)    The nature and extent of loss or damage –

It is agreed that had the contraventions not taken place, Ms Jelcic would have returned to her pre parental leave position. Ms Jelcic has not been employed since her employment with Dalley Holdings came to an end, and has therefore suffered economic loss as a result. It is agreed that Ms Jelcic also suffered non-economic loss and damage as a result of the contraventions in being denied the opportunity to remain in part time employment with Dalley Holdings. The parties agreed that the loss to Ms Jelcic is $5000.

(3)    Similar previous conduct –

There is no evidence of any previous findings of contraventions of Commonwealth workplace laws by either respondent.

(4)    Size of business –

The business operated by Dalley Holdings is a small business operating in the aged care industry, which is not an industry in which high earnings or large profits are generally generated by small operators such as Dalley Holdings.

(5)     Deliberateness of the contraventions –

There is no evidence that the respondents deliberately set out to contravene the FW Act. It is submitted, and I accept, that the respondents were reckless in the contravening conduct.

(6)    Contrition, cooperation with enforcement authority and corrective action –

There has been acceptance of wrongdoing by the respondents, as shown by the admissions made. The admissions of liability and the agreement that it is appropriate for Ms Jelcic to receive a payment of compensation as a measure of corrective action, demonstrates a degree of contrition on the part of the respondents for the contravening conduct. I also take into account that the respondents have cooperated with the Fair Work Ombudsman during the Ombudsman’s investigations. Their preparedness to agree to relevant facts and make admissions has eliminated the need for a contested hearing on liability.

(7)    Ensuring compliance with minimum standards –

In imposing a penalty, it is imperative for the Court to impose a penalty that reinforces the fundamental importance of compliance with the safety net of entitlements specified by the National Employment Standards and the general protection provisions of the FW Act. Further, it is important that employers comply with minimum standards in respect of consulting employees on parental leave about matters that will have a significant effect on the status, pay or location of an employee’s pre-parental leave position, or the return to work guarantee, so that employees absent from the workplace on a period of unpaid parental leave are not deprived of the benefits of those entitlements.

(8)    General and specific deterrence –

Both general and specific deterrence are important in the present case. It is well established that the need for specific and general deterrence is a factor that is relevant to the imposition of an appropriate penalty.

20    The parties jointly propose that a penalty of $27,720 be imposed against Dalley Holdings and a penalty of $3,168 be imposed against Mr Dalley. On the basis of the grouping of contraventions, the parties have agreed to penalties of 35 per cent of the maximum penalty against Dalley Holdings and 20 per cent of the maximum penalty which could be imposed against Mr Dalley.

21    The imposition of a penalty is a discretionary exercise involving the synthesis of relevant factors in order to arrive at a conclusion as to where the contravener’s conduct sits on a scale of wrong doing set by reference to the maximum penalty which could be imposed. Taking that approach to the question of whether the proposed penalty is appropriate in the context of the relevant principles and the considerations which I have identified, I have concluded that it is. I regard the proposed penalty as neither manifestly inadequate, nor manifestly excessive.

22    I will make orders imposing penalties of $27,720 on Dalley Holdings and $3,168 on Mr Dalley. The parties seek an order pursuant to s 546(3)(a) of the FW Act that the penalties imposed be paid to the Commonwealth. I will make that order. Further, the parties jointly recommend that pursuant to s 545(2)(b) of the FW Act, the Court should order that the respondents make a compensation payment to Ms Jelcic of $5,000 gross for economic and non-economic loss suffered as a result of the contraventions of the FW Act. I will make that order.

23    Lastly, the parties have agreed to seek the making of declarations set out in the Statement. I am satisfied that it is appropriate, including by reason of the educative purpose of declarations, that the declarations sought be made in this case.

Associate:

Dated:    11 June 2013

Annexure

STATEMENT OF AGREED FACTS, ADMISSIONS AND RECOMMENDATION AS TO PENALTY

The parties

1.    The Applicant is and has been since 1 July 2009:

(a)    appointed by the Governor-General by written instrument to the office of the Fair Work Ombudsman, pursuant to section 687 of the Fair Work Act 2009 (Cth) (FW Act);

(b)    a Fair Work Inspector pursuant to section 701 of the FW Act; and

(c)    a person with standing and authority to bring this application pursuant to section 539 of the FW Act for orders, including penalties and compensation, in relation to contraventions of sections 44(1), 340(1), and 351(1) of the FW Act.

2.    The First Respondent:

(a)    is and was at all relevant times a body corporate for the purposes of the Corporations Act 2001 (Cth);

(b)    is and was at all relevant times capable of being sued in its corporate name;

(c)    was at all relevant times, from about 6 January 2010, an employer within the meaning of sections 12, 14, 15(2), 42 and 335 of the FW Act;

(d)    was at all relevant times, from about 6 January 2010, carrying on the business of a Supported Residential Aged Care Services Facility, known as Bellarine Court, at 6 Townsend Road, St Albans Park in the State of Victoria (Business); and

(e)    was the employer of Carolyn Jelcic (Jelcic), from about 6 January 2010 until about 15 September 2010.

3.    The Second Respondent is and was at all relevant times:

(a)    the sole director of the First Respondent;

(b)    one of two shareholders of the First Respondent;

(c)    involved in the day to day operation of the Business;

(d)    responsible for the employment, management and control of employees of the Business, including determining employees’ hours of work;

(e)    responsible for the overall direction, management and supervision of the First Respondent’s operations; and

(f)    an official of the First Respondent for the purposes of section 793 of the FW Act.

JELCIC’S PREVIOUS EMPLOYMENT WITH TORKAR

4.    Torkar Pty Ltd (In Liquidation) (ACN 078 684 796) (formerly called Razak Corporation Pty Ltd) (Torkar):

(a)    was at all relevant times a body corporate for the purposes of the Corporations Act 2001 (Cth);

(b)    operated the Business, relevantly, from about September 2005 until about 5 January 2010;

(c)    was at all relevant times until 31 December 2009 an employer within the meaning of section 6(1) of the Workplace Relations Act 1996 (WR Act) for the purposes of the Australian Fair Pay and Conditions Standard (AFPCS);

(d)    was at all relevant times from 1 January 2010 to about 5 January 2010 an employer within the meaning of sections 12, 14, 15(2) and 42 of the FW Act for the purposes of the National Employment Standards (NES);

(e)    employed Jelcic as a personal care assistant from about 25 September 2005 until about 5 January 2010; and

(f)    went into external administration under the Corporations Act 2001 (Cth) in or about June 2009.

5.    Torkar employed Jelcic on terms which included:

(a)    from about 25 September 2005, Jelcic would be engaged as a personal care assistant on a casual basis for a period of approximately 12 months to work at the Business;

(b)    from about September 2006, Jelcic would be engaged as a personal care assistant on a permanent part-time basis to work at the Business;

(c)    Jelcic held a Certificate III qualification in aged care and her duties would include assisting residents with medication, preparing meals, laundry, cleaning, weighing residents, taking blood pressure and general monitoring of resident’s health; and

(d)    Jelcic would work hours in accordance with a fortnightly roster which generally included:

i.    six regular afternoon shifts per fortnight, being:

A.    week 1 Tuesday 1pm-6pm;

B.    week 1 Wednesday 5pm-8pm;

C.    week 1 Thursday 1pm-6pm;

D.    week 2 Tuesday 1pm-6pm;

E.    week 2 Wednesday 5pm-8pm;

F.    week 2 Friday 5pm-8pm;

and;

ii.    from in or about 2007 to in or about June 2009, approximately once a fortnight a sleepover shift from 5pm-10pm Saturday to 6.30am-9.30am Sunday.

JELCIC’S PREGNANCY AND MATERNITY LEAVE

6.    In or around February 2009, Jelcic informed Lynette Faulmann (Faulmann), a manager of Torkar, that she was pregnant.

7.    In or about June 2009, because she was in the later stages of her pregnancy, Jelcic ceased working the sleepover shift referred to in paragraph 5(d)(ii) above.

8.    On or about 4 September 2009, Jelcic sent a letter dated 4 September 2009 to Faulmann, for Torkar, which set out that she intended to take unpaid maternity leave from 8 October 2009 to 2 September 2010.

9.    On 8 October 2009, Jelcic commenced her period of unpaid maternity leave and on 15 October 2009, Jelcic gave birth to her baby.

10.    When Jelcic commenced her period of unpaid maternity leave, she was entitled to the maternity leave guarantee in section 265 of the WR Act, which formed part of the AFPCS in Division 7 of the WR Act, and took her maternity leave under the AFPCS.

11.    On 1 January 2010, by operation of Schedule 4 item 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Jelcic was entitled to, and did, continue her maternity leave under the parental leave entitlement in the NES, contained in Part 2-2 Division 5 of the FW Act.

TRANSFER OF JELCIC’S EMPLOYMENT FROM TORKAR TO THE FIRST RESPONDENT

12.    On or around 27 November 2009, the First Respondent entered into a Business Sale Agreement with Torkar to purchase the Business as a going concern.

13.    On 6 January 2010:

(a)    the purchase of the Business by the First Respondent was completed;

(b)    the First Respondent commenced operating the Business;

(c)    Jelcic’s employment transferred from Torkar to the First Respondent; and

(d)    the First Respondent employed Jelcic as a personal care assistant pursuant to a letter of offer dated 18 December 2009 (Employment Agreement).

14.    The terms of the Employment Agreement included that:

(a)    the employment would be upon terms and conditions which when considered on an overall basis were substantially similar and no less favourable than the terms of her employment with Torkar;

(b)    Jelcic would need to resign from her employment with Torkar and her entitlements would be transferred to the First Respondent as if continuously employed by the First Respondent; and

(c)    Jelcic would remain on unpaid maternity leave and return to work on or about 2 September 2010.

15.    By reason of the matters set out in paragraphs 12 to 14 above, on 6 January 2010:

(a)    there was a transfer of business within the meaning of section 311(1) of the FW Act, namely the transfer of the Business from Torkar to the First Respondent;

(b)    Jelcic was a transferring employee in relation to that transfer of business, within the meaning of section 311(2) of the FW Act;

(c)    there was a transfer of employment within the meaning of section 22(7)(b) of the FW Act, namely the transfer of Jelcic’s employment from Torkar to the First Respondent, in that:

i.    Jelcic was a transferring employee in relation to a transfer of business from Torkar to the First Respondent; and

ii.    Torkar and the First Respondent were not associated entities when Jelcic became employed by the First Respondent.

16.    By operation of section 69 of the FW Act, and by reason of the matters set out in paragraph 15 above, Jelcic was entitled to, and did, continue her maternity leave under the NES when her employment transferred to the First Respondent.

JELCIC’S ENTITLEMENTS AS AN EMPLOYEE OF THE FIRST RESPONDENT

17.    From 6 January 2010, the Aged Care Award 2010 (Award) applied to the First Respondent and Jelcic in relation to Jelcic’s employment.

18.    By operation of section 83 of the FW Act, if, while Jelcic was on maternity leave, the First Respondent made a decision that would have a significant effect on the status or pay of Jelcic’s pre-parental leave position, then the First Respondent was obliged to take all reasonable steps to give Jelcic information about, and an opportunity to discuss, the effect of the decision on that position.

19.    By operation of section 84 of the FW Act, on ending her maternity leave, Jelcic was entitled to return to:

(a)    her pre-parental leave position; or

(b)    if that position no longer existed, an available position for which she was qualified and suited nearest in status and pay to her pre-parental leave position.

20.    For the purposes of sections 83 and 84 of the FW Act, Jelcic’s pre-parental leave position was her permanent part-time position as a personal care assistant and included the afternoon shifts she regularly worked before she commenced maternity leave, set out in paragraph 5(d)(i) above (Jelcic’s pre-parental leave afternoon shifts).

21.    By reason of the matters agreed in paragraph 11 and 16 above:

(a)    at all relevant times the right to take or continue maternity leave under the NES was a workplace right of Jelcic within the meaning of section 341(1)(a) of the FW Act; and

(b)    by taking or continuing maternity leave under the NES, Jelcic exercised that workplace right, within the meaning of section 340(1)(a)(ii) of the FW Act.

CONDUCT BY THE FIRST RESPONDENT INVOLVING JELCIC

22.    From the commencement of Jelcic’s maternity leave until about 8 June 2010, most of Jelcic’s pre-parental leave afternoon shifts were worked by Sandra Purcell (Purcell), who was another personal care assistant then engaged on a casual basis.

23.    From about 8 June 2010, the First Respondent decided to, and did, introduce a new roster in which it:

(a)    re-allocated, on an ongoing basis, Jelcic’s pre-parental leave 1pm-6pm afternoon shifts to three other personal care assistants employed by the First Respondent, namely Cindy Edwards, Colleen Forster and Purcell; and

(b)    combined Jelcic’s pre-parental leave 5pm-8pm afternoon shifts with sleepover shifts and re-allocated them to two other personal care assistants employed by the First Respondent, namely Ruth Smith and Purcell.

24.    On 5 August 2010, Jelcic met with Faulmann, for the First Respondent, during which:

(a)    Jelcic informed Faulmann of her intention to return to work from maternity leave on 8 September 2010.

(b)    Faulmann informed Jelcic that the Second Respondent had changed employee shifts to more evenly distribute the different types of shifts (morning, afternoon and sleepover shifts) among the personal care assistants.

(c)    Faulmann informed Jelcic of the residents who were new to, remained at or were no longer at the business and that the number of residents remained low, as it was prior to Jelcic going on maternity leave.

(d)    Jelcic asked Faulmann for confirmation of her hours of work.

(e)    Jelcic hand delivered a letter dated 4 August 2010 to Faulmann at the meeting giving 4 weeks’ notice of her intention to return to work and her readiness to return to her shifts on 8 September 2010.

25.    On 10 August 2010, Faulmann, on behalf of the First Respondent, sent Jelcic an email to the effect that she had spoken to the Second Respondent and the First Respondent could not at that stage offer her any hours of work and they would be in touch.

26.    On or about 3 August 2010, the First Respondent decided to, and did, convert Purcell’s employment status from casual to part-time.

27.    On or about 3 September 2010, Jelcic and a person, on behalf of the First Respondent, had a discussion in which:

(a)    Jelcic was offered one sleepover shift per fortnight; and

(b)    Jelcic informed the First Respondent that she had previously worked afternoon shifts as she had small children.

28.    On 8 September 2010, the Second Respondent, on behalf of the First Respondent, sent Jelcic an email to the effect that:

(a)    Jelcic had previously worked sleepover shifts on a Saturday, although acknowledging that she did not do so during the later stages of her pregnancy;

(b)    the level of occupancy at the Business had declined which made it hard to accommodate all employees’ hours of work;

(c)    an offer was being made of two sleepover shifts per fortnight alternating between a Saturday and a Thursday; and

(d)    if the shifts were accepted, two weeks’ notice would be required to reorganise the roster.

29.    On 10 September 2010, Jelcic sent an email to the Second Respondent to the effect that:

(a)    she could not return to work performing sleepover shifts due to her family commitments;

(b)    she felt that her maternity leave had put her at a disadvantage given the offer of the two sleepover shifts;

(c)    she acknowledged that she previously had been rostered to work a sleepover shift but that in the five years during which she had been employed at the Business she had only ever permanently been rostered to work afternoon shifts due to her family commitments;

(d)    her request not to work the sleepover shifts offered was out of necessity not want; and

(e)    she would give the First Respondent seven days to respond and either to give her more suitable hours or terminate her employment.

30.    On 17 September 2010, the Second Respondent, on behalf of the First Respondent, sent an email to Jelcic to the effect that:

(a)    staffing levels had remained unchanged since Jelcic commenced maternity leave;

(b)    the hours that had been allocated to Jelcic had been absorbed by the remaining staff;

(c)    it would be unfair to other staff members to disrupt the roster beyond the proposed changes;

(d)    the First Respondent was unable to offer Jelcic her preferred shifts; and

(e)    if Jelcic chose to decline the offer it would be taken as her resignation.

31.    On 20 October 2010, the Second Respondent, on behalf of the First Respondent, sent an email to Jelcic to the effect that:

(a)    it had not heard from Jelcic in relation to the offer, and could only conclude that she would not be accepting their proposal; and

(b)    Jelcic should let them know within seven days if she were planning to recommence her employment, or forward her bank details so that the First Respondent could forward the balance of her entitlements.

32.    On or about 8 March 2011, the First Respondent paid Jelcic her accrued annual leave entitlements in the amount of approximately $1600 net.

AGREED CONTRAVENTIONS AND ADMISSIONS

Failure to consult during maternity leave

33.    The First Respondent’s decisions to:

(a)    re-allocate Jelcic’s pre-parental leave 1pm-6pm afternoon shifts (first decision), and

(b)    combine Jelcic’s pre-parental leave 5pm-8pm afternoon shifts with sleepover shifts and re-allocate them (second decision);

were decisions that would have a significant effect on the status and pay of Jelcic’s pre-parental leave position.

34.    The First Respondent did not take any, or any reasonable, steps to give Jelcic information about, and an opportunity to discuss, the effect of the first and second decisions on Jelcic’s pre-parental leave position.

35.    Further, the First Respondent’s decision to convert Purcell’s employment status from casual to part-time (third decision) was a decision that would have a significant effect on the status and pay of Jelcic’s pre-parental leave position.

36.    The First Respondent did not take any, or any reasonable, steps to give Jelcic information about, and an opportunity to discuss, the effect of the third decision on Jelcic’s pre-parental leave position.

37.    By reason of the matters agreed in paragraphs 33 to 36 above, the First Respondent admits that it committed a contravention of section 83, and therefore section 44, of the FW Act.

Contraventions of return to work guarantee

38.    By acting as set out in paragraphs 25 and 27 to 32 above, the First Respondent failed to provide Jelcic with her entitlement under section 84 of the FW Act to return to work by:

(a)    failing to return Jelcic to her pre-parental leave position; and

(b)    requiring that Jelcic perform only sleepover shifts in order to return to work.

39.    By reason of the matters agreed in paragraph 38 above, the First Respondent admits to two contraventions of section 84, and therefore section 44, of the FW Act.

Contraventions of general protection provisions

Adverse action taken by the First Respondent

i.    Injuring Jelcic in her employment

40.    The First Respondent injured Jelcic in her employment and thereby took adverse action against Jelcic within the meaning of section 342(1) item 1(b) by:

(a)    contravening sections 44 and 83 of the FW Act, as set out in paragraphs 33 to 37 above; and

(b)    by contravening sections 44 and 84 of the FW Act, as set out in paragraphs 38 and 39 above.

ii.    Prejudicial alteration of Jelcic’s position

41.    Further, the First Respondent altered Jelcic’s position to her prejudice and thereby took adverse action against Jelcic within the meaning of section 342(1) item 1(c) by:

(a)    on or about 8 June 2010, introducing a new roster that:

i.    re-allocated Jelcic’s pre-parental leave 1pm-6pm afternoon shifts on an ongoing basis;

ii.    combined Jelcic’s pre-parental leave 5pm-8pm afternoon shifts with sleepover shifts and re-allocated them on an ongoing basis; and

iii.    made no allowance for Jelcic’s scheduled return to work from maternity leave in September 2010;

(b)    on or about 3 August 2010, changing Purcell’s employment status from casual to part-time while Jelcic was on maternity leave;

(c)    failing to take all reasonable steps to give Jelcic information about the changes referred to in sub-paragraphs (a) to (b) above and an opportunity to discuss their effect on her pre-parental leave position; and

(d)    in or about September 2010, requiring that Jelcic return to work only sleepover shifts, or resign from her employment.

iii.    Discrimination

42.    Further, the First Respondent discriminated between Jelcic and other employees of the First Respondent, and thereby took adverse action against Jelcic within the meaning of section 342(1) item 1(d), by:

(a)    on or about 8 June 2010, introducing a new roster that:

i.    re-allocated Jelcic’s pre-parental leave 1pm-6pm afternoon shifts on an ongoing basis;

ii.    combined Jelcic’s pre-parental leave 5pm-8pm afternoon shifts with sleepover shifts and re-allocated them on an ongoing basis; and

iii.    made no allowance for Jelcic;

(b)    on or about 8 June 2010, failing to take all reasonable steps to provide Jelcic with information about, and an opportunity discuss, the impact of the changes referred to in sub-paragraph (a) on her pre-parental leave position;

(c)    by:

i.    changing Purcell’s employment status from casual to part-time while Jelcic was on maternity leave; and

ii.    offering Jelcic less favourable shifts (in particular fewer hours and only sleepover shifts) at the end of her maternity leave than those offered to Purcell;

(d)    at the end of Jelcic’s maternity leave, offering Jelcic less favourable shifts (in particular fewer hours and only sleepover shifts) than those offered to the other part-time personal care assistants at the Business.

iv.    Dismissal

43.    The First Respondent constructively dismissed Jelcic from her employment and thereby took adverse action against Jelcic within the meaning of section 342(1) item 1(a) of the FW Act.

Reasons for the adverse action

i.    Exercise of a workplace right (maternity leave) – FW Act section 340(1)

44.    The First Respondent took the adverse action set out in paragraphs 40 to 43 above because of Jelcic’s exercise of her workplace right, within the meaning of section 341(1)(a) of the FW Act as set out at paragraph 21 above, to continue maternity leave under the NES.

45.    By reason of the matters agreed in paragraph 44, the First Respondent admits that it contravened section 340(1)(a)(ii) of the FW Act three times by taking adverse action as follows:

(a)    by failing to consult Jelcic while she was on maternity leave as referred to in paragraphs 40(a)-(b), 41(a)-(c) and 42(a)-(c)(i);

(b)    by failing to return Jelcic to her pre-parental leave position as referred to in paragraphs 40(c), 41(a), 42(a), 42(c)(i)-(d) and 43; and

(c)    by requiring that Jelcic perform only sleepover shifts in order to return to work as referred to in paragraphs 41(d), and 43.

ii.    Pregnancy – FW Act section 351(1)

46.    Further, the First Respondent took the adverse action set out in paragraphs 42 to 43 above because of Jelcic’s pregnancy.

47.    By reason of the matters agreed in paragraph 46, the First Respondent admits that it contravened section 351(1) of the FW Act two times by taking adverse action as follows:

(a)    by failing to consult Jelcic while she was on maternity leave as referred to in paragraphs 40(a)-(b), 41(a)-(c) and 42(a)-(c)(i); and

(b)    by failing to return Jelcic to her pre-parental leave position as referred to in paragraphs 40(c), 41(a), 42(a), 42(c)(i)-(d) and 43.

iii.    Family or carer’s responsibilities – FW Act section 351(1)

48.    Further, the First Respondent took the adverse action set out in sub-paragraph 42(a) to (d) and paragraph 43 above because of Jelcic’s family or carer’s responsibilities.

49.    By reason of the matters agreed in paragraph 48, the First Respondent admits that it committed a contravention of section 351(1) of the FW Act by taking adverse action by requiring that Jelcic perform sleepover shifts in order to return to work as referred to in paragraphs 41(d) and 43.

LIABILITY OF THE SECOND RESPONDENT

50.    The Second Respondent admits that he was involved in each of the contraventions referred to in paragraphs 37, 39, 45, 47 and 49 above within the meaning of section 550 of the FW Act and is taken to have contravened the provisions himself.

The Second Respondent’s involvement in the contraventions

51.    In relation to the contraventions of sections 44, 83 and 84 of the FW Act, the Second Respondent:

(a)    had actual knowledge that Jelcic was on maternity leave;

(b)    had actual knowledge that the First Respondent re-allocated and combined Jelcic’s pre-parental leave afternoon shifts while Jelcic was on maternity leave, that those actions would have a significant effect on the status and pay of Jelcic’s pre-parental leave position, and that the First Respondent had not informed Jelcic of, or provided her with an opportunity to discuss, the change;

(c)    had actual knowledge that the First Respondent converted Purcell’s employment status from casual to part-time while Jelcic was on maternity leave, that that action would have a significant effect on the status and pay of Jelcic’s pre-parental leave position, and that the First Respondent had not informed Jelcic of, or provided her with an opportunity to discuss, the change;

(d)    had actual knowledge that:

i.    when Jelcic’s maternity leave ended, her pre-parental leave position (as set out in paragraph 20 above) still existed; and

ii.    the First Respondent failed to return Jelcic to her pre-parental leave position after her maternity leave ended by acting as set out in paragraphs 25 and 27 to 32 above.

(e)    had actual knowledge that the First Respondent required Jelcic to accept its proposed hours or resign from her employment; and

(f)    was, by reason of the matters set out in paragraphs 3 and 51(a) to (e) above, directly and indirectly knowingly concerned in the First Respondent’s contraventions of sections 44, 83 and 84 of the FW Act.

52.    In relation to the contravention of sections 340(1) and 351(1) of the FW Act, the Second Respondent:

(a)    had actual knowledge of the adverse action taken by the First Respondent set out in paragraphs 40 to 43 above;

(b)    had actual knowledge of the reasons for the adverse action set out in paragraphs 44 to 49; and

(c)    was, by reason of the matters set out in paragraphs 3 and 52(a) and (b) above, directly and indirectly knowingly concerned in the First Respondent’s contraventions of sections 340(1) and 351(1) of the FW Act.

AGREED RECOMMENDATIONS

Penalty

53.    The Applicant and the Respondents agree to recommend to the Court that the nine admitted contraventions of the FW Act referred to in paragraphs 37, 39, 45, 47 and 49 above fall into three groups of contraventions based on three courses of conduct and the total penalty to be imposed by the Court in relation to the three groups of contraventions on the:

(a)    First Respondent should be $27,720; and

(b)    Second Respondent should be $3,168.

Compensation

54.    As a result of the contraventions of the First Respondent, Jelcic has suffered economic and non-economic loss and damage.

55.    Had the contraventions not taken place, Jelcic would have returned to her pre-parental leave position in the Business.

56.    Since her employment with the First Respondent came to an end, Jelcic has not been employed.

57.    Jelcic has suffered loss as a result of the contraventions and the Respondents have (with the consent of the Applicant) agreed to submit to an order pursuant to section 545 (2)(b) of the FW Act to jointly and severally make a compensation payment to Jelcic of $5,000 (gross).

Orders

58.    The Applicant and the Respondents have agreed to recommend to the Court that the appropriate orders in this matter are:

A. Declarations that the First Respondent contravened:

i.    section 44(1) of the FW Act, by reason of its contravention of section 83 of the FW Act, in that the First Respondent did not take all reasonable steps to give Carolyn Jelcic (‘Jelcic’) information about, and an opportunity to discuss, the effect of decisions which the First Respondent made while Jelcic was on maternity leave and which had a significant effect on the status or pay of Jelcic’s pre-parental leave position. 

ii.    section 44(1) of the FW Act, by reason of its contravention section 84 of the FW Act, in that the First Respondent failed to permit Jelcic to return to her pre-parental leave position upon completion of her maternity leave. 

iii.    section 44(1) of the FW Act, by reason of its contravention of section 84 of the FW Act, in that the First Respondent required Jelcic to perform only sleepover shifts in order to return to work upon completion of her maternity leave.

iv.    section 340(1) of the FW Act, in that the First Respondent took adverse action against Jelcic because of Jelcic’s exercise of her workplace right to continue maternity leave, by failing to take all reasonable steps to give Jelcic information about, and an opportunity to discuss, the effect of decisions which the First Respondent made while Jelcic was on maternity leave and which had a significant effect on the status or pay of Jelcic’s pre-parental leave position.

v.    section 340(1) of the FW Act, in that the First Respondent took adverse action against Jelcic because of Jelcic’s exercise of her workplace right to continue maternity leave, by failing to permit her to return to her pre-parental leave position upon completion of her maternity leave.

vi.    section 340(1) of the FW Act, in that the First Respondent took adverse action against Jelcic because of Jelcic’s exercise of her workplace right to continue maternity leave by requiring that Jelcic perform only sleepover shifts in order to return to work upon completion of her maternity leave.

vii.    section 351(1) of the FW Act, in that the First Respondent took adverse action against Jelcic because of Jelcic’s pregnancy by failing to take all reasonable steps to give Jelcic information about, and an opportunity to discuss, the effect of decisions which the First Respondent made while Jelcic was on maternity leave and which had a significant effect on the status or pay of Jelcic’s pre-parental leave position.

viii.    section 351(1) of the FW Act, in that the First Respondent took adverse action against Jelcic because of Jelcic’s pregnancy by failing to permit her to return to her pre-parental leave position upon completion of her maternity leave.

ix.    section 351(1) of the FW Act, in that the First Respondent took adverse action against Jelcic because of Jelcic’s family or carer’s responsibilities by requiring that Jelcic perform only sleepover shifts in order to return to work upon completion of her maternity leave.

B.      A declaration that for the purpose of section 550 of the FW Act, the Second Respondent was involved in each of the contraventions of the First Respondent set out in the declarations above, and thereby contravened the same provisions of the FW Act as the First Respondent.

C.   Orders pursuant to section 546 of the FW Act that the First and Second Respondents pay penalties in respect of the contraventions set out in A above as agreed in paragraph 53 herein.

D.   An Order pursuant to section 546(3) of the FW Act that penalties imposed on the First and Second Respondents be paid to the Consolidated Revenue Fund of the Commonwealth.

E.      An order, by consent, pursuant to section 545(2)(b) of the FW Act that the Respondents jointly and severally pay compensation to Jelcic for the loss that she has suffered because of the contraventions, in the amount of $5,000 (gross).

F. Any such further or other orders as the Court deems necessary.