FEDERAL COURT OF AUSTRALIA

Kennewell v MG & CG Atkins trading as Cardinia Waste & Recyclers [2015] FCA 716

THE COURT ORDERS THAT:

1.    The respondent pay the applicant $2,900.85.

2.    A penalty of $7,500 be imposed on the respondent for its contravention of the Fair Work Act 2009 (Cth).

3.    The penalty imposed pursuant to Order 2 be paid to the applicant.

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

REASONS FOR JUDGMENT

1    The applicant, Mr Steven Kennewell, commenced employment with MG & CG Atkins trading as Cardinia Waste & Recyclers (“Cardinia Waste”) on 26 March 2014.

2    Mr Kennewell was employed as a truck driver. During the course of his employment, Mr Kennewell made complaints to and inquiries of his supervisor, Mr Brian Moore, about his pay rates and employment status. Mr Moore was, at relevant times, the Site Manager at the Cardinia Waste depot where Mr Kennewell was based.

3    Mr Kennewell’s employment was terminated on 28 April 2014 following an instruction given by Mr Michael Atkins, who was, at that time, the sole director of Cardinia Waste.

4    Mr Kennewell commenced proceedings against Cardinia Waste alleging that it had taken adverse action against him in contravention of s 340 of the Fair Work Act 2009 (Cth) (“the Act”) by dismissing him because he had queried his employment status and rates of pay.

THE EVIDENCE

5    In accordance with orders made by consent, the parties filed outlines of proposed witness evidence on 3 November 2014.

6    According to Cardinia Waste’s outline of evidence, the respondent proposed to call:

    Mr Michael Atkins;

    Mr Moore;

    Mr Scott Atkins, an employee of Cardinia Waste; and

    Ms Marianne Patching, another employee of Cardinia Waste.

7    According to Mr Kennewell’s outline of evidence, he proposed to call:

    Mr Moore; and

    Mrs Christina Atkins, a current Director of Cardinia Waste.

8    At the hearing, Mr Kennewell called only himself and the respondent called Mr Michael Atkins and Mr Scott Atkins. In addition, Mr Chao Fan Ni, the instructing solicitor acting for the respondent, was also called by the respondent in respect of discrete matters relating to Mr Moore.

9    Each of the witnesses gave their evidence in chief orally. Each of them was cross-examined.

10    At the commencement of the hearing, counsel for the applicant indicated that he intended to tender audio recordings of two conversations between Mr Kennewell and Mr Moore on 28 April 2014 and 8 May 2014. Counsel also indicated that he intended to tender transcripts of the recordings prepared by Mr Kennewell. The applicant had not previously informed the respondent of the existence of the recordings or transcripts. Accordingly, the respondent was afforded a short adjournment to allow it to review the material. Following the adjournment and during the course of the proceedings, the transcripts, as amended and agreed between the parties, and a memory stick containing the audio recordings were tendered as exhibits.

MR KENNEWELL’S EVIDENCE

11    Mr Kennewell’s account of the circumstances of his dismissal from Cardinia Waste is set out below from paragraphs [12] to [27].

12    On 26 March 2014, Mr Kennewell commenced employment with Cardinia Waste.

13    He had been hired following an interview with Mr Michael Atkins. During the interview, Mr Kennewell was offered the truck driver position. No other details of the position were provided to Mr Kennewell at that time.

14    Mr Kennewell’s main duties were picking up waste bins from the Cardinia Waste yard, filling them at clients’ premises, driving the bins to the tip, emptying the bins and returning the empty bins to the yard.

15    Following his first full pay, Mr Kennewell researched his employment entitlements and became aware that his employment was covered by the Waste Management Award 2010 (“the Award”). Upon becoming aware of his entitlements under the Award, Mr Kennewell was concerned that he was not being paid correctly. He believed that he was entitled to more generous penalty rates, specifically, double time for over two hours’ overtime, and, if he was a casual, to a casual loading.

16    On or about 9 April 2014, Mr Kennewell mentioned to Mr Moore that his wages did not seem right and, in particular, that he was not being paid the correct penalty rates. At the end of the discussion Mr Kennewell was under the impression that Mr Moore had “taken it on board” and that he would “escalate” the issue.

17    On or about Thursday, 24 April 2014, Mr Kennewell again raised his pay rates queries with Mr Moore. Mr Kennewell asked Mr Moore if he was a casual and, if so, whether he was going to be paid a casual loading. Mr Kennewell also asked about double time for overtime in accordance with the Award. During this discussion, Mr Moore said: “they don’t pay double time … they get rid of people who make problems out of it.”

18    Later that day, Mr Moore asked Mr Kennewell to work on Saturday, 26 April 2014, because the previous day was a public holiday and it was expected that the Saturday was likely to be busier than usual. Mr Kennewell was initially reluctant to work on that day but eventually agreed.

19    On Friday, 25 April 2014, Mr Kennewell did not work.

20    On Saturday 26 April 2014, Mr Kennewell delivered waste bins to Hallam and returned to the yard. He worked for a total of two and a half hours. Mr Kennewell believed that he was entitled, under the Award, to a minimum four hour payment for his work on this day.

21    On the morning of Monday, 28 April 2014, prior to the commencement of his shift, Mr Kennewell had a further discussion with Mr Moore. During the discussion, Mr Kennewell asked Mr Moore to clarify whether or not he was a casual and, if not, whether he was going to be paid for the preceding public holiday. Mr Kennewell again stated that he believed that he was not being paid the correct penalty rates. Mr Moore allegedly responded that he did not know if he (Mr Kennewell) was a casual employee or not and that Mr Kennewell would need to sort it out with Mr Michael Atkins. Mr Kennewell said to him that, as Mr Moore was his manager, he expected him to sort it out or he would take the matter to the Fair Work Commission. Mr Kennewell then left to empty the waste bins and returned at approximately midday.

22    Upon Mr Kennewell’s return to the yard, Mr Moore asked to speak to him in the shed. Mr Kennewell recorded the conversation using a device on his mobile phone.

23    According to the recording and transcript, Mr Moore told Mr Kennewell that he was being terminated because “you are not getting quick enough on the job. You um are not getting the bins done and that. We are way behind…” Mr Kennewell responded that it seemed, “a bit odd mate and especially after talking about not paying bloody penalty rates this morning that you fucking turn around and do that.” Mr Moore denied this. Mr Kennewell continued to press Mr Moore stating, “it makes me wonder because we were only talking about it this morning now I’m getting laid off. It makes me wonder if you were just pretending this morning actually.” Mr Moore added that he had to let Mr Kennewell go “because we’re getting quiet now.” Mr Moore insisted that he was following orders and that he did not know that morning that he would be required to dismiss Mr Kennewell that day.

24    On 8 May 2014, Mr Kennewell returned to Cardinia Waste to collect his employment separation certificate. Mr Kennewell had a discussion with Mr Moore. Mr Kennewell again used the voice recording device on his mobile phone to record the discussion.

25    According to the recording and transcript, Mr Kennewell asked what the real reason was for the termination of his employment. Mr Moore responded, “they reckon you were too slow.” During the discussion Mr Moore mentioned other employees who had issues with Cardinia Waste in the past. Mr Moore stated, “they’ve done it to three or four.”

26    Mr Kennewell described Mr and Mrs Atkins, as “arseholes” and made other offensive remarks about them.

27    Mr Kennewell gave evidence that he had not obtained other employment since the termination of his employment. He indicated that he had a disability that affected the type of work he could do. He said that, despite this, he would be able to return to his position of truck driver at Cardinia Waste, given the limited walking required and given the yard was located close to his home.

MR SCOTT ATKINS’ EVIDENCE

28    Mr Scott Atkins had initially trained Mr Kennewell in his truck driving duties. The training lasted for approximately one week. Following this, Mr Scott Atkins continued to give instructions to Mr Kennewell from time to time.

29    Mr Scott Atkins gave evidence that he had several concerns about Mr Kennewell’s job performance. In particular, Mr Atkins said that Mr Kennewell was slow on the job, argued with customers, damaged company property, refused to wear high visibility clothing, failed to secure the bins and tarpaulins correctly and had left early on a few days for no apparent reason.

30    Mr Scott Atkins stated that he had reported these concerns to Mr Moore and Mr Michael Atkins. Mr Atkins claimed that, within the first two weeks of Mr Kennewell’s employment, he recommended to Mr Michael Atkins and Mr Moore that Mr Kennewell’s employment be terminated. Apart from these discussions, Mr Scott Atkins had no involvement in the decisions relating to Mr Kennewell’s employment, including the decision made by Mr Michael Atkins to terminate Mr Kennewell’s employment in late April 2014.

MR MICHAEL ATKINS’ EVIDENCE

31    Mr Michael Atkins gave evidence that, for personal reasons, his involvement in the operations of Cardinia Waste was limited in March and April 2014. Apart from Mr Atkins’ initial interview with Mr Kennewell, Mr Atkins had had only one other conversation with Mr Kennewell during which Mr Kennewell thanked Mr Atkins for his job.

32    Mr Atkins said that he had received reports from Mr Scott Atkins about his concerns regarding Mr Kennewell’s performance. Mr Michael Atkins wanted to give Mr Kennewell a second chance and therefore kept him on the job despite these concerns.

33    On Saturday, 26 April 2014, Mr Moore reported to Mr Atkins that Mr Kennewell had taken two and a half hours to go to the tip and back, which was one hour longer than the usual duration of the trip. Given the issues that had been building up, Mr Atkins said to Mr Moore, “That’s it. Next time he’s in at work we shall – I will get you to terminate him.”

34    Mr Michael Atkins stated that the reasons for his decision to terminate Mr Kennewell’s employment included that Mr Kennewell:

    had taken too long to perform his duties;

    kept on “disappearing”;

    would refuse to wear high-visibility clothing;

    was a danger to the general public due to the tarpaulins not being used to secure the bin load;

    had a lack of respect for clients; and

    had caused damage to customer property.

Mr Atkins had no direct knowledge of these alleged deficiencies on the part of Mr Kennewell. They had been reported to him by Mr Scott Atkins and Mr Moore.

35    Although Mr Michael Atkins stated that there were “other reasons that don’t come to mind at the moment” for the decision to terminate Mr Kennewell’s employment, he denied that the reasons included Mr Kennewell’s queries about his rate of pay. Mr Atkins denied having any knowledge of these queries. Mr Atkins said that Mr Moore had not raised these matters with him. When asked whether Mr Kennewell was dismissed because the business had gone quiet, Mr Atkins said that the business was doing well and that Mr Kennewell had not been dismissed because of any shortage of work.

36    Under cross-examination, Mr Atkins denied having any familiarity with the provisions of the Award, stating that “wages are not my department”. Mr Atkins admitted that he had recently become aware of the minimum daily engagement for casual employees under the Award. Mr Atkins stated that it was his wife, Mrs Christina Atkins, who was responsible for Award compliance and who had informed him of this requirement.

37    Mr Michael Atkins admitted that there had been other employees who had left the business and subsequently made complaints to the Fair Work Commission regarding underpayments of entitlements. Mr Atkins declined to elaborate on Cardinia Waste’s issues with these employees. The complaints had each been settled on confidential terms. Despite being made aware of underpayment problems, Mr Atkins did not attempt to familiarise himself with Cardinia Waste’s obligations under the Award.

MR MOORE, MRS CHRISTINA ATKINS AND MS MARIANNE PATCHING

38    Upon application by Cardinia Waste, on 23 March 2015, the Court issued a subpoena to Mr Brian Moore requiring his attendance at the proceeding. The subpoena specified that the last date for service was 26 March 2015.

39    At the hearing, Cardinia Waste tendered an affidavit of attempted service, which had been made by Mr Ken Fraser, a process server, on 1 April 2015. Mr Fraser deposed that six attempts of service had been made, the last occurring on 27 March 2015 at 6:20 pm. Mr Fraser also deposed that the subpoena had been left in an envelope in the letter box at Mr Moore’s residence. The date on which this occurred was not specified.

40    Mr Ni gave evidence that he received a letter from Mrs Sandy Moore, Mr Moore’s wife, in the week before the hearing. The letter stated that, due to Mr Moore’s health and wellbeing, he did not intend to attend the proceeding. Upon receiving the letter, Mr Ni rang Mrs Moore to encourage Mr Moore’s attendance at Court. During the course of this conversation Mrs Moore again said that Mr Moore would not attend the hearing. She informed Mr Ni that she would forward to him medical certificates relating to Mr Moore’s state of health.

41    On 2 April 2015, Mr Ni received a fax from Mrs Moore enclosing a medical certificate which stated, “Brian Moore is suffering from medical condition [sic] and is unable to attend the court hearing on the 7th and 8th of April 2015.”

42    Mr Moore was called on the second day of the hearing but he did not appear. The respondent’s witnesses gave evidence that Mr Moore had resigned from his employment with Cardinia Waste earlier in the year.

43    Mrs Christina Atkins and Ms Marianne Patching did not attend Court.

44    Mr Scott Atkins gave evidence that Ms Patching was no longer an employee of Cardinia Waste and was overseas at the time of the hearing.

45    At no point did the respondent indicate that it intended to call Mrs Atkins. Mr Scott Atkins gave evidence that Mrs Atkins was at the office on the day of the hearing. During cross-examination of Mr Kennewell, the respondent tendered an undertaking, given by Mr Kennewell and signed on 13 August 2014, in which Mr Kennewell undertook not to stalk, assault, harass, threaten or intimidate Mrs Atkins. Further, Mr Kennewell undertook not to approach, or remain within five metres of Mrs Atkins, not to go to or remain within 200 metres of an address in Pakenham or any place where Mrs Atkins lived and not to go to or remain within three metres of Mrs Atkins’ work address. Mr Kennewell’s explanation for the undertaking was that he provided it in response to an application for an intervention order filed by Mrs Atkins following his attempts to serve court documents on Cardinia Waste.

THE LEGISLATION

46    Section 340(1) of the Act provides that a person must not take adverse action against another person because that other person has a workplace right or has, or has not, exercised a workplace right. Section 341(1)(c) relevantly defines a ‘workplace right’ as one, pursuant to which a person is able to make a complaint or inquiry to a person or body which has the capacity, under the Act, to seek compliance with the Act or an instrument made under it.

47    Adverse action is relevantly defined in Item 1(a) of the table sub-joined to s 342(1) of the Act. Under that Item an employer takes adverse action against an employee if the employer dismisses the employee.

48    Section 360 of the Act provides that “a person takes action for a particular reason if the reasons for the action include that reason.”

49    Section 361 provides that, if it is alleged that a person took action for a particular reason or with a particular intent “it is presumed that the action was … taken for that reason or with that intent, unless the person proves otherwise.”

CONSIDERATION

50    There was no challenge to Mr Kennewell’s claim to have exercised a workplace right within the meaning of s 341(1)(c) of the Act. Further, there was no dispute that Cardinia Waste had taken “adverse action”, within the meaning of s 342(1) of the Act, against Mr Kennewell when it dismissed him on 28 April 2014. What was in dispute was whether Cardinia Waste had taken the “adverse action” against him “because” he had exercised a workplace right.

51    Cardinia Waste will have contravened s 340(1) if “a substantial and operative” reason for its decision to terminate Mr Kennewell’s employment was that he had made inquiries and complaints about his workplace entitlements: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 522-4 (French CJ and Crennan J); 535 (Gummow and Hayne JJ).

52    Section 361 of the Act creates a statutory presumption that any such adverse action was taken for such a proscribed reason unless Cardinia Waste proves otherwise: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [191]-[192].

53    Cardinia Waste relied on the evidence of Mr Michael Atkins who had made the relevant decision: cf Barclay at 524 (French CJ and Crennan J); 542 (Gummow and Hayne JJ). Mr Atkins denied having any knowledge of Mr Kennewell’s complaints and inquiries regarding his pay rates and employment status. He further denied that the decision to terminate his employment was because of Mr Kennewell’s exercise of his workplace rights. This denial is not determinative: Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 at [61] (Bromberg J). It must be considered in the light of all relevant circumstances: Barclay at 517 (French CJ and Crennan J); 542 (Gummow and Hayne JJ).

54    I am not satisfied that Cardinia Waste has satisfied the onus which falls on it.

55    I have no doubt that Mr Kennewell created problems for management from an early stage of his employment with the company. He was assertive and self-opinionated. He was abrupt and forthright when dealing with others. He would not have been inclined to accept criticism of his performance or readily comply with instructions. He may well have responded gruffly or rudely to customers who complained about the quality of service being provided by the company or him personally. From time to time he used inappropriate language when speaking to Mr Moore.

56    Mr Kennewell had a keen appreciation of his entitlements as an employee. He took the trouble to obtain a copy of and read the Award. Having done so he was concerned to have his status as an employee clarified. If he was a casual employee he was entitled to loadings which, he asserted, he was not being paid. He also had other entitlements such as loadings for overtime and minimum length shifts. He believed that he was not being paid these entitlements. He repeatedly took this issue up with Mr Moore who tended to brush off his queries, telling Mr Kennewell that employees of the company raised similar concerns “all the time” and by promising to “sort out” the issue. Mr Moore never honoured these promises.

57    Mr Michael Atkins denied that he had ever been informed of Mr Kennewell’s complaints to Mr Moore relating to underpayment of entitlements and said that any such complaints had played no part in his decision to terminate Mr Kennewell’s employment.

58    I do not accept these denials.

59    There had been a number of previous instances in which employees, who had complained about the company failing to pay them their Award entitlements, had been dismissed. They had taken their cases to the Fair Work Commission. Each of those cases had been settled on confidential terms. As the director of the company Mr Atkins must have been aware of these proceedings and given instructions in relation to their settlement. Mr Scott Atkins and Mr Moore were also aware of these earlier cases. In these circumstances Mr Scott Atkins and Mr Moore would have been conscious that any repetition could also place the company in jeopardy of further proceedings in the Commission. Once Mr Kennewell had forcefully asserted that he was not being paid money to which he was entitled, I consider it highly unlikely that either or both of these managers, would not have advised Mr Michael Atkins that Mr Kennewell had raised issues relating to his Award entitlements.

60    The Award provided (in clause 11) that employees could be in one of three categories: full-time, part-time or casual. Mr Michael Atkins had interviewed and employed Mr Kennewell. He had asserted that Mr Kennewell was employed as a casual employee.

61    Clause 14.2 provided that, “[a]t the time of engagement the employer must inform the employee that they are to be employed as a casual, by whom they are to be employed and their classification, minimum wage and duties.” By clause 14.6 the minimum daily engagement of a casual was four hours and, by clause 14.4, their hourly rate was 1/38th of the relevant minimum weekly wage plus 25%.

62    Mr Kennewell was provided with a document which was said to constitute “a record of our agreement or understanding …” It recorded that Mr Kennewell’s position was as “a casual”. It advised him that any overtime worked by him would be paid at the “rate of time and a half”. It also advised that Mr Kennewell would be paid the “normal 3 month trial rate of pay … $22.00 per hour”. After three months the rate of pay would increase to $25.41 per hour. The document was dated 26 March 2014. Although invited to sign it Mr Kennewell repeatedly refused or failed to do so.

63    As will be seen the hourly rate on offer to Mr Kennewell, as a casual employee, was lower than that prescribed by the Award. This, of course, had implications for the calculations of the amount payable for overtime work.

64    Given the company’s recent history of respondency in the Fair Work Commission to complaints that it had not met its Award obligations, I find it incredible that Mr Michael Atkins claimed to have no knowledge of Award provisions. Mr Atkins’ conduct is more consistent with one who is generally aware of his company’s obligations but who wished to engage employees on terms which he considered to be fair and who was prepared to take the risk that an employee will accept what is offered without complaint. Any employee who chose to make an issue of Award entitlements was to be regarded as troublesome and dismissed on contrived conduct grounds.

65    Mr Kennewell had renewed his complaints to Mr Moore on the morning of 28 April 2014. Mr Kennewell then embarked on his rounds. When he returned to the yard at about midday Mr Moore told him that he had been dismissed and said that there was not enough work and that Mr Kennewell had been too slow in performing his duties. I consider it to be highly improbable that the temporal proximity of Mr Kennewell’s renewed complaints and the termination was purely coincidental.

66    In its defence Cardinia Waste made no reference to shortage of work and, indeed, in his evidence Mr Michael Atkins said that there was no shortage of work at the time and that Mr Scott Atkins had taken over the work previously performed by Mr Kennewell.

67    The company’s defence was that Mr Kennewell had been dismissed for serious misconduct and unsatisfactory performance of duty.

68    Mr Michael Atkins elaborated on these claims in his evidence. He said that Mr Kennewell’s conduct and performance were deficient in the ways set out above at [34].

69    I accept that some of these claims may, to some extent, have been justified. Mr Kennewell, for example, conceded that he may not have, on occasions, secured the tarpaulins on his truck. He attributed this to difficulty in reaching the tarpaulin knots. He also conceded that he had been asked, at least once, to put on a fluorescent vest which he should have been, but was not, wearing in the yard. He was not, however, at any time reprimanded or given a formal warning in respect of any of these matters.

70    I consider that Mr Kennewell’s complaints about the failure by Cardinia Waste to pay him what he asserted were his full entitlements under the Award was a substantial and operative reason for Mr Michael Atkins’ decision to terminate his employment.

RELIEF

71    Mr Kennewell sought three remedies under ss 545(2) and 546(1) of the Act. They were: reinstatement, compensation and the imposition of a pecuniary penalty on the company.

72    Each of these remedies is discretionary in nature and their content, in any given case, depends on what the Court considers “appropriate” in the circumstances: ss 545(1) and 546(1).

Reinstatement

73    Mr Kennewell acknowledged that he had a poor opinion of Mr Michael Atkins and Mrs Atkins. He had referred to them as “arseholes” and in other intemperate terms. He was angry with them for the way he had been treated. He said that, despite this, “bygones [should] be bygones.” He wished to resume his former employment. Cardinia Waste’s yard was close to his home and he was able to do the work despite certain disabilities.

74    In final submissions counsel for Mr Kennewell contended that these factors tended in favour of reinstatement. He added that the nature of Mr Kennewell’s employment did not import a “trust and confidence” relationship between him and his employer and that, given much of Mr Kennewell’s working time was spent on the road, there was little scope for close personal interaction between him and senior managers.

75    In Slonim v Fellows (1984) 154 CLR 505 at 515 Wilson J (with whom Mason and Deane JJ agreed) said that:

“ … the power to direct that A employ B is a very drastic one … it will always be a power to be exercised with caution having regard to the circumstances of the case. There will be many cases where the working relationship of employer and employee is so close that to impose such a relationship by an award would be quite destructive of industrial harmony.”

76    Notwithstanding these cautionary admonitions, there have been decisions in this Court which are supportive of the proposition that reinstatement is appropriate “in the ordinary case” in which an applicant’s employment has been terminated for a proscribed reason: see Independent Education Union v Geelong Grammar School [2000] FCA 557 at [34]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 at 237. The position remains, however, that the discretion, vested in the Court by s 545, falls to be exercised in the peculiar circumstances of each case.

77    Cardinia Waste is a small company. It has only up to 16 employees at any given time. Whilst most of Mr Kennewell’s duties involved him driving alone, he was in regular contact with supervisors such as Mr Moore and Mr Scott Atkins. He was assigned work by them. He drove a company truck. He had to deal, on behalf of the company, with customers and with those managing waste disposal sites. He was, therefore, an “ambassador” for the company. To this extent, at least, the company placed trust and confidence in him.

78    That trust and confidence was lost when customers complained about his attitude and he failed to follow instructions relating to the securing of his loads and the wearing of safety vests in and around the yard. His attitude to Mr Michael Atkins and Mrs Atkins, whilst to some degree understandable, would not be conducive to the restoration of an employment relationship in the small company operated by them. He referred to them with foul mouthed disdain.

79    An order for reinstatement is not appropriate in the circumstances.

Compensation

80    Mr Kennewell’s casual employment with Cardinia Waste lasted for 4.7 weeks. During this time he had an entitlement under the Award to a base rate of $705.00 per week: see Determination – Annual Wage Review 2012-13 [PR536708]. When an industry allowance and a 25% casual loading were added his weekly entitlement was $980.77 per week: see Waste Management Award 2010, clauses 14.4 and 20.6.

81    During his employment Mr Kennewell averaged 10.38 hours of overtime per week. When additional remuneration for this work was brought into account Mr Kennewell had average earnings of $1,327.62 per week: see Waste Management Award 2010, clauses 14.5, 20.6 and 30.1.

82    On 1 July 2014 the base rate under the Award increased by 3%. When the industry allowance and casual loading were added Mr Kennewell, had he still been working, would have been entitled to $1,010.26 per week: see Determination – Annual Wage Review 2013-14 [PR551631]. Had he continued to work an average of 10.38 hours per week of overtime his weekly entitlement would have risen to $1,367.53 per week: see Waste Management Award 2010, clauses 14.5, 20.6 and 30.1.

83    Prior to 1 July 2014 Cardinia Waste was required to make a superannuation guarantee contribution of 9.25% of Mr Kennewell’s earnings to his credit in a superannuation fund. On and after 1 July 2014 this percentage rose to 9.5%.

84    After his employment was terminated Mr Kennewell made a number of applications to previous employers in the hope of getting work. He was unsuccessful. He suffers from a disability which limits his work capacity. He cannot stand for long periods and has trouble with his balance.

85    Mr Kennewell sought an order for compensation calculated on the basis of wages lost on a continuing basis on and after 28 April 2014.

86    Section 545(2)(b) of the Act provides that the Court may make “an order awarding compensation for loss that a person has suffered because of [a] contravention.” There must, therefore, be “an appropriate causal connection between the contravention and the loss claimed”: see Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at 592 (Barker J).

87    In Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch (1995) 63 IR 1 Lee J considered one of the forerunners of s 545. That provision was s 170EE of the Industrial Relations Act 1988 (Cth). His Honour said (at 9) that:

“In assessing the compensation that is appropriate 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.”

88    The claim for compensation advanced by Mr Kennewell assumes that, but for the contravention by Cardinia Waste of s 340 of the Act, his employment would have continued indefinitely and, at the least, up to judgment. This assumption is not warranted.

89    Mr Kennewell had worked for the company for only a few weeks when he was dismissed. He was a casual employee. It was open to the company to terminate his services lawfully with little or no notice: cf Dafallah v Fair Work Commission (2014) 225 FCR 559 at 597 (Mortimer J).

90    Whether justified or not, Mr Scott Atkins had formed an adverse view about the manner in which Mr Kennewell performed some of his duties and dealt with customers. Mr Atkins was available to take over the work assigned to Mr Kennewell and did so in the wake of Mr Kennewell’s termination. As already noted, Mr Kennewell had spoken of Mrs and Mr Atkins senior in abusive terms. Mrs Atkins had applied for an intervention order against Mr Kennewell. Whether she was justified in so doing or not, her action strongly suggests that she had no wish to have any dealings with Mr Kennewell in the future.

91    In these circumstances I consider it highly likely that the company would have terminated Mr Kennewell’s services lawfully within a relatively short period. I would allow compensation under this head of the equivalent of two weeks’ wages plus a superannuation contribution of 9.25% of that total. An order will be made that Mr Kennewell be paid $2,900.85 by way of compensation for Cardinia Waste’s contravention of s 340 of the Act.

Pecuniary penalty

92    Section 340 of the Act is a civil remedy provision. A contravention attracts a maximum penalty of 60 penalty units: see s 539. The value of a penalty unit is $170: see s 12 of the Act and Crimes Act 1914 (Cth), s 4AA(1). As a result, the maximum penalty which might be imposed on a corporation for such a contravention at relevant times was $51,000: see s 546(2)(b). Mr Kennewell sought the imposition of a pecuniary penalty on Cardinia Waste.

93    The company resisted this claim, principally on the basis that Mr Kennewell had not sought such relief in his application.

94    Mr Kennewell’s application had been prepared by him without legal assistance. In his application, under the heading “Other relief” paragraph 1 read:

“That the court imposes a fine on the company to deter the directors from continuing with their business model of stealing from their workers and disregarding their legal obligations to pay the appropriate rates of pay.”

95    Although Mr Kennewell spoke in terms of the imposition of a “fine” rather than a “pecuniary penalty”, I consider that his application made it clear enough to the company that he was wishing a pecuniary penalty to be imposed on the company for its contravention of the Act.

96    Cardinia Waste led very little evidence relating to matters relevant to the fixing of a pecuniary penalty. It was a small company with limited resources. It failed to give proper attention to its obligations to employees and to ensure compliance with the Award. It certainly adopted a cavalier approach when dealing with Mr Kennewell’s complaints about his entitlements. It simply fobbed him off and made no serious attempt to confirm whether or not his complaints had substance. Rather than do this it chose to dismiss him because he had raised the issues.

97    There was, however, no evidence before the Court to suggest that the company had been found, on previous occasions, to have contravened any of the general protections provisions of the Act.

98    A pecuniary penalty of $7,500 should be imposed on the company. Mr Kennewell has borne the cost of bringing this proceeding himself. In doing so he has not served only his personal interests: he has also served a public interest in bringing to attention Cardinia Waste’s contravening conduct. In doing so he has incurred legal expenses. There should be an order that the pecuniary penalty be paid to him: see s 546(3)(c) of the Act.

Associate:

Dated:    16 July 2015