Federal Court of Australia

Gavin v Svitzer Australia Pty Ltd (Relief) [2026] FCA 1582

ORDERS

THE COURT ORDERS THAT:

1.    The parties provide draft orders reflecting the Court’s reasons on relief, and disposing of the proceedings, via email to chambers at Associate.NeedhamJ@fedcourt.gov.au within 14 days of the date of these orders.

2.    The parties have liberty to apply on 3 days’ notice via email to chambers.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    On 18 December 2025, I gave reasons in Gavin v Svitzer Australia Pty Ltd [2025] FCA 1623 (the liability judgment). I will use the same defined terms as are used in the liability judgment. I made declarations that:

(a)    Svitzer dismissed Geophrey Gavin from his employment because of Mr Gavin’s exercise of a workplace right within the meaning of s 341 of the FW Act, and thus in contravention of s 340 of the FW Act.

(b)    Svitzer restructured its operations in a manner which made Mr Gavin’s position redundant and thus altered his position to his detriment and injured him in his employment because he had exercised a workplace right within the meaning of s 341 of the FW Act, and thus in contravention of s 340 of the FW Act.

2    I also made orders that the question of relief consequent upon the declarations be the subject of conferral between the parties on or before 6 February 2026. The parties have now conferred, and each has prepared submissions on remedy and penalty. The question of appropriate relief was argued on 21 May 2026 and I reserved my decision.

3    On 19 August 2026, when my reasons for judgment were reasonably advanced, Mr Gavin’s solicitors filed an interlocutory application seeking leave to re-open his case to tender two documents to demonstrate that he was made redundant from the role he had obtained with Thales after his dismissal from Svitzer. The matter was listed for argument, but the parties resolved the issue by the respondent consenting to the tender of the two letters, and by the applicant consenting to the filing of a further affidavit of Mr Sheehan dated 23 September 2026. I made orders to that effect on 3 September 2026 and, on 30 September 2026, Mr Gavin’s solicitors confirmed there were no objections to Mr Sheehan’s September affidavit. I will mark the two letters from Thales to Mr Gavin as Exhibit A15 (letter of 22 July 2026) and Exhibit A16 (letter of 29 July 2026) and have read the further affidavit of Mr Sheehan.

4    I now turn to the question of damages, and to final orders disposing of the proceedings.

The parties’ positions on relief

5    The applicant proposed two orders. First, that Svitzer reinstate Mr Gavin to his employment in a position involving the same or similar duties and responsibilities to that held previously, with the same remuneration, location, and grade. Second, that he be compensated for economic and non-economic loss to the date of reinstatement, calculated at approximately $150,000-$200,000 (subject to timing), and that he receive a further amount “akin to aggravated damages and interest”.

6    Mr Gavin submitted that in the alternative, should I not be minded to order reinstatement, it would be appropriate for me to make an order compensating him for past and future economic loss estimated at $500,000, plus a further amount “akin to aggravated damages and interest”. In either case, he seeks a civil penalty to be paid to him.

7    The applicant relied on an affidavit of Mr Gavin dated 18 March 2026 setting out his work history, the personal impact of his dismissal from his employment of nearly six years in a specialised industry in a regional town, the psychological and financial consequences of his dismissal, and his employment on contract with Thales after a short period of unemployment. Mr Gavin worked at Thales from August 2023, until he was made redundant from that position on 29 July 2026. He is now 49 years old.

8    Mr Gavin said that his responsibilities at Thales were confined to the management of one specific programme, that he had no direct reports, and that the work was more limited both in scope and timeframe than his role at Svitzer. In his affidavit he expressed concerns about redundancy, which, as noted above, were realised earlier this year.

9    Mr Gavin said that his professional reputation has been affected by his dismissal from Svitzer, that his finances were affected by his taking a less senior role at Thales with a lower rate of pay and bonuses, and that he wishes to be reinstated to a senior management position at the respondent’s Newcastle Port.

10    The respondent resisted reinstatement and the making of any award of economic loss, and contended that Mr Gavin’s loss was around $20,000 to $25,000 of non-economic loss. Svitzer submitted that the two contraventions of the FW Act are “within the low end of the penalty scale” and should, as they contain common elements, be heard together and determined as one.

Remedies under the FW Act

11    The Court has a power to make any order remedying the effects of the contravention, including reinstatement, and to award compensation. The power to make non-penal remedial orders arises under s 545 of the FW Act. Section 545(1)-(2), relevantly, states:

545 Orders that can be made by particular courts

Federal Court and Federal Circuit and Family Court of Australia (Division 2)

(1)    The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

(2)    Without limiting subsection (1), orders the Federal Court or Federal Circuit and Family Court of Australia (Division 2) may make include the following:

(a)    an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b)    an order awarding compensation for loss that a person has suffered because of the contravention;

(c)    an order for reinstatement of a person;

(d)    an order requiring a person to comply, either wholly or partly, with a notice (other than an infringement notice) given to the person by an inspector or the Fair Work Ombudsman.

(notes omitted)

12    Whether an order is “appropriate” is to be determined having regard to s 336(1) of the FW Act, which sets out the objects of Part 3-1 of that Act including “to protect workplace rights” and “to provide effective relief for persons who have been discriminated against, victimised, or otherwise adversely affected as a result of contraventions of this Part” (see Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71; 292 FCR 34 (Bromberg, Rangiah and Bromwich JJ) at [321]).

13    Section 546 of the FW Act provides:

546 Pecuniary penalty orders

(1) The Federal Court, the Federal Circuit and Family Court of Australia (Division 2) or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

…

Payment of penalty

(3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

(a) the Commonwealth; or

(b) a particular organisation; or

(c) a particular person.

Recovery of penalty

(4) The pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.

No limitation on orders

(5) To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

(notes omitted)

14    This section gives the Court the power to impose pecuniary penalties on Svitzer up to a prescribed maximum number of penalty units (sub-s 2). Mr Gavin submits that he is the appropriate person to whom the penalty should be paid (see Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4; 239 FCR 336 at [72] per Tracey, Barker and Katzmann JJ), a position with which Svitzer did not cavil.

Reinstatement

15    Mr Gavin primarily seeks to be reinstated to his old position, or a position with the same remuneration, location and grade, and with the same or similar duties and responsibilities, as his previous Port and Operations Manager role at the Newcastle Port operation of the respondent.

Principles relating to reinstatement

16    In Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; 221 CLR 539, McHugh J (at [14]) said:

To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his “job” at the same place and with the same duties, remuneration and working conditions as existed before the termination.

17    Kirby J (at [28]) said:

The fact that, for a very long time, Australian statute law has provided for orders of reinstatement in circumstances such as those in this case illustrates the exceptional but settled character of such orders – intruding as they do into the personal relationship of employer and employee. Such intrusion is deliberate and envisaged by the Act.

(footnotes omitted)

18    The purpose of reinstatement orders was said in Bowling v General Motors-Holdens Ltd [1980] FCA 143; 50 FLR 79 (Sweeney, Evatt and Northrop JJ) at 94 to be that “an employer convicted of an offence against the section should not benefit from that offence by ridding itself of an employee …”. Accordingly, once an employer has been found to contravene a section such as s 545 of the FW Act, “the court should give a direction to reinstate the employee unless there are good reasons why the employee should not be reinstated, for example if the employee does not desire to be reinstated” (at 94). In Qantas Airways, at [350], the Full Court said:

It is more apt to say that the preventative, remedial and compensatory purposes of s 545(1) of the FW Act are informed by a policy that a contravener should not benefit from their own contravention at the cost of the person subjected to the contravention. However, even this policy is not absolute. Otherwise, a reinstatement order would have to be made in every case where a person’s employment has been unlawfully terminated and the person seeks that remedy.

19    An exception to reinstatement is where such an order would impose a significant burden on the employer. As an example, the workers in Qantas Airways were many in number, and the arm of the business of in-house ground handling from which their employment was made redundant no longer existed. The appeal against the primary judge’s finding that the cost and inconvenience to Qantas of recreating that business function told against reinstatement was not upheld (at [361]). At [329] the Full Court said:

There may be cases where the cost to an employer of recreating a business function in order to reinstate an employee is so disproportionate to the benefit to the employees that it would be inappropriate to order reinstatement … These cases demonstrate that whether a remedy is appropriate may be influenced by the burden to the contravener of implementing the remedy.

20    Each application for reinstatement must be looked at in relation to its own circumstances. Reinstatement will not be ordered at least where:

(a)    the relationship of trust and confidence between the employer and the employee has broken down irretrievably (see Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 314 ALR 346 at [850]-[866] (Dodds-Streeton J));

(b)    the employee does not wish to be reinstated; or

(c)    the employee is unable to resume employment with the employer (see Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; 193 FCR 526, 590 at [411]-[413] (Barker J), where the employee no longer possessed a valid visa to work in Australia).

21    Where none of those circumstances applies (or there are other reasons which tend against reinstatement, as the class of cases is not closed; see Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 2) [2020] FCA 1215 (O’Callaghan J) at [9]), an order for reinstatement is the normal consequence of an applicant’s dismissal for a prohibited reason, in the absence of some particular reason why such an order should not be made: cf Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218; 228 IR 195, 237 at [125] (Jessup J) in relation to a successful applicant under s 346 of the FW Act; Independent Education Union v Geelong Grammar School [2000] FCA 557 at [34] (Finkelstein J).

Why, or why not, is reinstatement “appropriate”?

22    The applicant submitted that the prima facie position in dismissal cases favours reinstatement. Mr Gavin contended that such an approach, while not absolute, “will ordinarily be apt to achieve” the purpose of protecting the future exercise of workplace rights in circumstances where the contravention has led to termination of employment. He submitted that reinstatement, either to his former or to a like role, would appropriately remediate his loss and that there is not “any compelling factor in the matter which tells against the prima facie position”.

23    Svitzer relied, when it came to reinstatement, on Mr Sheehan’s affidavits of 22 April 2026 and 23 September 2026. Mr Sheehan is currently General Manager - East and leads six Operations, Port and Regional Managers across nine ports on the east coast of Australia, as well as the ECOC (located at the Newcastle Port and formerly managed by Mr Gavin). In his April affidavit, Mr Sheehan set out the management structure of the Newcastle Port, with Ms Munro as Port Manager, and six persons reporting into her. Mr Gavin’s old role had not been re-established, and was not intended to be re-established. Ms Munro’s salary was less than Mr Gavin’s salary was in his role of Port and Operations Manager.

24    Mr Sheehan said that there was no operational need for the role previously offered to Mr Gavin, being Operations and Strategic Projects Manager, and the projects which were intended to be managed by him in that role have now completed or not been pursued.

25    In his September affidavit, Mr Sheehan gave evidence about the appointment of a new employee in ECOC Management, which employee had taken the only current vacancy referred to by Mr Sheehan in his April affidavit. That position was not a comparable position, offering significantly lower remuneration than either of Mr Gavin’s previous role or the Port Manager role (and, indeed, than the new role which was offered to him and which he declined partly on a salary basis – see [41]-[43] of the liability judgment). Mr Sheehan indicated that there were no comparable vacancies under Svitzer’s current “settled structure” and Svitzer was not recruiting, either for the Newcastle Port or for the ECOC. Mr Sheehan annexed documents demonstrating that the new employee was engaged on a permanent basis.

26    Svitzer disagreed that reinstatement was appropriate. It contended that a reinstatement order may not be appropriate if it would impose a significant burden on an employer, and that this might occur where the business or business function in which the person was employed no longer exists. Svitzer’s current review of its operations has not “identif[ied] an operational need for an additional management position at the Port of Newcastle”. Svitzer noted that the only way to add a position to the management in the Newcastle Port or the ECOC would be, in short summary, to remove an existing employee or to duplicate existing employees’ duties.

27    In addition, the respondent contended that the fact that Mr Gavin had been unhappy in his role and sought to relinquish responsibility for the ECOC in early 2023, before his employment with Svitzer ended, meant that reinstatement into Operations Centre Management was not appropriate.

28    The possible promotion into a role such as General Manager - East as Mr Gavin had discussed with Mrs Kirdar True as a possible future promotion, is currently held by Mr Sheehan, is based in Sydney, and involves significant amounts of travel. Mr Sheehan did not see any practicable ways to create roles for Mr Gavin at his level of experience. Appointment to this position would not be a reinstatement of Mr Gavin.

29    In these circumstances, the respondent said, “[i]t would be unreasonably burdensome on Svitzer to require it to create … new roles where there are no current operational needs for the roles”, and to ensure that such roles matched Mr Gavin’s seniority, responsibility, reporting lines and remuneration, and the operational requirements of the previous or newer roles.

30    In his submissions in reply, Mr Gavin said “the bare fact that the particular job no longer exists or alternatively has been filled is not only no bar to reinstatement but not particularly significant; in reality this would almost inevitably preclude reinstatement, contrary to the statutory preference for it”. The applicant contended that Svitzer’s evidence as to any significant burden “goes no higher than assertion; absent some specific identification of unusual difficulty this is no more [than] the normal inconvenience associated with reinstatement”. He submitted that relying on the restructure effected by the Fourth Proposal to resist reinstatement “would be inconsistent with the protective objects of the statutory scheme …”.

Should Mr Gavin be reinstated?

31    It is not to the point that Svitzer relied on evidence that Mr Gavin was unhappy with aspects of his previous work for it. Mr Gavin has said in the May 2026 hearing – and was not cross-examined on this – that he wished to return to his previous role. He had maintained that position in the first tranche of the hearing. The respondent’s submission that Mr Gavin “sought to relinquish responsibility for the ECOC in early 2023” is somewhat disingenuous, given that Mr Gavin was invited to, in effect, design his own role, and was not given any boundaries around what was acceptable.

32    I accept Svitzer’s submissions that neither Mr Gavin’s previous position of Ports and Operations Manager, nor the proposed new position of Operations and Strategic Projects Manager, is now available at Newcastle Port. “Reinstatement” is not the process of finding any available job for the applicant; it is putting him back in to his former role (see Blackadder at [14]). In contrast to Melbourne Precast Concrete (No 2), where the applicant’s job remained “on the books”, that is not the case here. The role of Port Manager, currently held by Ms Munro, is not the role which Mr Gavin held prior to his dismissal. She is paid at what appears to be a JL4 level, and generally commensurate with Mr Gavin’s salary when he held the role of Port Manager prior to taking on the ECOC element (see tab 43 of Exhibit Svitzer-1 in the liability hearing).

33    The Port and Operations Manager role from which Mr Gavin was dismissed was on the cards for redundancy from 6 April 2023, when it was proposed that his title would change to “something along the lines of ‘Regional Manager, Newcastle & Strategic Projects’” (see [32] of the liability judgment). Throughout April and early May the position of Operations and Strategic Projects Manager was proposed for Mr Gavin. That restructure was approved by Mr Noes and Ms Faraj at a meeting with Mr Sheehan present on 2 May 2023. It was the case from 6 April 2023 that his position of Ports and Operations Manager, which he had held since 1 June 2022, was not going to be a position which was available to him.

34    Despite the fact that the contraventions of s 340 – particularly the “snap” decision to make Mr Gavin redundant – would tend towards a remedy of reinstatement, I do not consider that it is practicably possible to reinstate Mr Gavin. I accept Mr Sheehan’s evidence as to the lack of any available roles at the Newcastle Port, and the fact that the ECOC and Port Manager roles were already – prior to Mr Gavin’s dismissal – to be split, given that the role was too big for one person. There is no position into which he can be reinstated.

35    I have found that Svitzer’s actions of putting into place, essentially overnight, a new iteration of a Newcastle Port restructure that was, unlike every other iteration to that point, devoid of a senior management role for Mr Gavin, meant that he was dismissed in contravention of s 340 of the FW Act. I have found that that was in response to Mr Gavin exercising his workplace rights and “a snap decision which reversed months of careful planning in relation to the Newcastle Port structure” (at [187] of the liability judgment). However, the Newcastle Port structure does not now have, and Svitzer cannot practicably create, Mr Gavin’s previous role. There was nothing adverse about the way in which Mr Gavin’s prior role as Port and Operations Manager came to be made redundant. The loss of that position arose out of careful planning and was not in response to Mr Gavin exercising any workplace rights. It was the sweeping aside of Mr Gavin’s employment, and a restructure which removed any role for him, which was the adverse action.

36    The restructure has made it impossible to reinstate Mr Gavin to his previous position held at Newcastle Port. That position was not available in the various restructures leading up to Mr Gavin’s dismissal. The only other currently available position is significantly lower in salary. None of the current positions meets his prior job description and each pays less than the role from which he was dismissed, including Ms Munro’s role. It would be a significant burden on Svitzer, as it would have been in Qantas Airways, to re-create a role in the business which no longer meets the business’ operational requirements.

37    That the above position is so is a matter of regret, given that a failure to reinstate is antithetical to the purpose of the remedial and protective provisions of the FW Act – see Bowling at 94-95, Melbourne Precast (No 2) at [11].

38    I decline to order reinstatement.

Compensation for economic loss

Principles as to economic loss

39    In Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481, Lee J set out at [23] the requirements for obtaining compensation under s 545(2)(b) of the FW Act.

The questions that seem to be relevant in the present case are first, whether a loss has been proved; and secondly, whether as a matter of history or fact, the proved contraventions did have a role in the happening of the loss. It is necessary then to examine the role that is identified by reference to the purpose of the inquiry; that is, the attribution of legal responsibility. It is at this third level of inquiry, in determining whether the order for statutory compensation is “appropriate”, that it may be necessary to ask whether, for some reason, the contravener should nevertheless be held not liable. In this context, it seems to me to be necessary to identify the nature of the role which the contravention played in bringing about the loss suffered.

40    The applicant contended that his proposed orders in respect of remedy were appropriate, as they were based on the counterfactual that Mr Sheehan would have (absent intervention by Ms Faraj) negotiated a mutually acceptable resolution with him and his employment would have continued for at least another five years. A counterfactual is relevant because compensation is based upon what would or might have occurred, but which could no longer occur, because of the contraventions (see Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 (Allsop CJ, Mansfield and Siopsis JJ at [28]).

What is “appropriate” compensation for economic loss?

41    In his submissions, Mr Gavin said that the task of what is reasonable in the circumstances to address the loss occasioned by the contravention is approached by reference to the appropriate counterfactual. The appropriate counterfactual, he said, was Ms Faraj’s “snap decision” on receiving Mr Sheehan’s email of 22 May 2023, to which I referred at [64]-[65], and at [174]-[188], of the liability judgment. As mentioned above, the applicant contended that if Ms Faraj had not intervened, he and Mr Sheehan would have continued to negotiate, “likely leading to a mutually successful outcome”.

42    In relation to compensation for the period between his dismissal and the date of reinstatement, Mr Gavin submitted that consideration of the amounts he had earned against those he would have earned had he remained employed at Svitzer (approximately $155,683 as at the date of submissions) was the appropriate manner in which to calculate this. He further submitted that the payments he had received on termination (totalling $104,740.66) should not be factored in to assessment of compensation; a portion of this amount comprised untaken annual and long-service leave, which Svitzer would have had to pay in any event, and the remaining balance (notice and redundancy pay) Mr Gavin said was required to be spent on unrelated unexpected expenses which he said arose from termination, namely paying out a novated lease and purchasing a vehicle outright, and paying out a lump sum of $40,425 in September 2024 for the other. He earned no income during the period from his dismissal until 7 August 2023 when he commenced employment (although he did not receive his first pay until 15 August 2023), and quantifies that period as a loss of $41,378 gross in respect of salary and superannuation. He also seeks the difference in bonus payments between those he has received at Thales and those he would have received at Svitzer, and medical expenses in the sum of $1,300.

43    Mr Gavin submitted that he would continue to incur financial loss if he were not reinstated, and sought that the monetary difference between that role and his role at Thales be paid to him. Now that he has been made redundant, he no longer has the benefit of his remuneration at Thales.

44    Mr Sheehan gave evidence as to the likely remuneration of Mr Gavin had he remained at Svitzer). His affidavit dealt with the way in which the Newcastle Port was restructured in mid-2023 at which time Mr Gavin’s role was made redundant. Immediately prior to that, Mr Gavin had been offered the role of Operations and Strategic Projects Manager (as set out in the liability judgment from [41]). That role was rejected by Mr Gavin. Mr Sheehan said that as at 4 May 2023, “I held the view that there remained utility in seeking to negotiate with Mr Gavin to reach a mutually satisfactory agreement on the proposed new role”. This was reflected in the evidence in the liability hearing where Mr Sheehan took the view that he didn’t think he and Mr Gavin were “too far apart but I will need to reel in the package and increase the scope for region-wide projects” (see [80] of the liability judgment). Mr Sheehan remained “open to exploring a reasonable compromise with Mr Gavin” and said that he would have continued liaising and negotiating with him had the decision to terminate Mr Gavin’s employment not been taken by Ms Faraj and Mr Noes.

45    Mr Sheehan said that had he met Mr Gavin “in the middle of the initial offer … and [his] base salary at the time”, Mr Gavin’s role would have been, as offered at that point, a JL4 position which brought with it a 10%, rather than a 15%, bonus, and he would not have entertained an increase. The high point of any offer would have been a matching of Mr Gavin’s then-current salary with a “pay freeze” in subsequent years.

46    Mr Sheehan said that he envisaged that the new role for Mr Gavin would have been available for “a period of no longer than 24 months”. He said that he was not guaranteed any specific increase in remuneration, and would ordinarily not receive an increase in salary at his next review in a new role. Nor was he guaranteed to have been paid bonuses.

47    Svitzer submitted that Mr Gavin had not incurred any economic loss as a result of the contraventions, because it did not follow that his role would have continued but for Ms Faraj’s “snap decision”. It contended that under the Fourth Proposal, prepared in April 2023, it was clear that Mr Gavin’s role would cease to exist following the restructure. It further contended that even if Mr Gavin had accepted the newer Operations and Strategic Projects role offered to him in May 2023, he would have remained in that role for no longer than 12-24 months; the two projects that were to form part of it were no longer required or had been completed.

48    The respondent rejected the applicant’s submission that the termination payments made to Mr Gavin should not be factored into any compensation amount. It provided an Aide Memoire on Economic Loss to demonstrate that, on the “mid-point” calculation, and taking into account the termination payments, Mr Gavin had not suffered any loss.

What compensation for economic loss should be ordered?

49    In assessing the economic loss, if any, suffered by Mr Gavin, I take the following into account:

(a)    Mr Gavin and Mr Sheehan would most likely have negotiated to a position where Mr Gavin would have remained at Svitzer. I reach this conclusion because of Mr Sheehan’s belief that he and Mr Gavin were not “far apart”, and the fact that Mr Gavin was clearly valued as an employee by everyone except perhaps Ms Faraj and some of the People and Culture employees. Certainly, Mrs Kirdar True (Mr Sheehan’s predecessor in his role as General Manager - East) and Mr Noes (Managing Director) viewed his contributions to Svitzer very favourably. Mr Sheehan too viewed him as an experienced and valued colleague.

(b)    His employment would most likely have been a role at Mr Gavin’s then-current pay level or close to it, given that he had not been given any indication that management were thinking of reducing his level to JL4 and reducing his salary before the offer of the Operations and Strategic Projects Manager role had been extended to him, and up to that point, Ms Lacey’s intention was that his salary was to be grandfathered.

(c)    Mr Sheehan had some flexibility to agree to an increase in pay from the offer.

(d)    Mr Sheehan had indicated to Mr Gavin that he could return to the Port Manager role if he had “a change of heart”, which suggested that he would have sought to have Mr Gavin remain had Ms Faraj not made her decision to abolish the new role.

(e)    Ms Lacey’s response to Mr Gavin’s rejection of the role was “back to the drawing board”, and she was looking for a proposal to accommodate each of Ms Munro and Mr Gavin “at an appropriate level” (see [55] of the liability judgment).

50    It is likely that the new role may not have lasted forever, but the various iterations of roles for Mr Gavin in the port restructures had not expressly been on the basis of a 1-2-year appointment. The new Strategic Projects part of the role was formulated as a result of Ms Faraj’s concerns to avoid “too many projects and initiatives [being rolled out] to port management teams at the same time” (see [29] of the liability judgment). While the new role did involve the “time and attendance” project, which is no longer current, it was not the case when the role was conceived that the role was strictly limited to one or two projects (as Mr Sheehan suggested at paragraph 58ff of his April affidavit). I do not accept that Mr Gavin’s employment at Svitzer in any new role would have been for only 12-24 months.

51    I am satisfied that by taking a position at Thales, Mr Gavin has sought to mitigate his loss (see RailPro Services Pty Ltd v Flavel [2015] FCA 504 (Perry J) at [163]). That position has now come to an end, through no fault of his own.

52    Mr Gavin contended that the payout figure should be disregarded because he had to pay out some leases on his cars, and was not able to use those funds otherwise. I do not consider that that use of the funds is anything more than a choice on Mr Gavin’s part. The Court is under a duty not to order compensation which would in effect be “double-dipping” (see Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032 (Reeves J) at [43]). I consider that excluding the payments to Mr Gavin which payments in lieu of notice, and ten weeks’ redundancy, in formulating his compensation for lost wages, would fall foul of this principle. Accordingly, the payment in lieu of notice, and the redundancy pay of 10 weeks’ salary, which make up part of the termination payment (being $64,500) should reflect a credit against any economic loss. The balance of the payment for accrued annual leave and accrued long service leave was $40,240.66. Mr Gavin was entitled to this in relation to his employment before he was dismissed, and that sum should not be credited against any loss.

53    The respondent should compensate Mr Gavin for:

(a)    Past economic loss, being:

(i)    his gross salary plus pro-rata 15% bonus and superannuation for the weeks of unemployment from 1 June until 6 August 2023;

(ii)    from 7 August 2023 to 29 July 2026, the difference between what Mr Gavin earned at Thales and what he would have earned in his role as Ports and Operations Manager at Svitzer (including pro-rata 15% bonus and superannuation, including changes in the SGC rate from 1 July 2025). This is noted by the applicant as being $155,683 as at the date of submissions (18 March 2026) and continuing at “a very rough estimate” of $4,000 per month; so, as at the date of this judgment, roughly a further $28,000. That sum should have applied against it a credit reflecting the notice and redundancy balance “overpayment” of $64,500; and

(iii)    from 30 July 2026 to the date of final orders, his gross salary at Svitzer plus pro-rata 15% bonus and superannuation.

(b)    Future economic loss. The applicant suggested $50,000 per year for 7 years, to compensate Mr Gavin “for his future economic loss and related non-economic damage”, which is specified as being his reputational damage from his sudden dismissal, even though, as the respondent noted, redundancies should entail no reputational damage. I have found that the restructure itself – being that part of the reorganisation consisting of the snap decision not to continue with the offered Operations and Strategic Projects role – was in contravention of s 340 of the FW Act. It was not in that sense a regular redundancy, despite his previous role not then being available, and it is easy to believe that in the interconnected world of the Newcastle Harbour operations, people would believe that he had been sacked and Ms Munro – a qualified but less experienced person – appointed in his place. I agree that there should be a significant sum awarded for future economic loss for a man nearing 50 years of age and who had only been able to find a job of lesser seniority and complexity, from which he has now been made redundant. As I have found, there is no job for him at Svitzer in Newcastle at his prior or comparable salary. He is now unemployed and I consider it unlikely that he would be able to find a position comparable to that which he held at Svitzer. The $50,000 non-economic loss submission was on the basis of his employment at Thales. Times have changed. The quantum of his future economic loss should be calculated on the basis of his gross salary at Svitzer, plus bonus and superannuation, with increases for CPI, as follows, paid as an upfront sum with 3% discount for money in the hand now. That figure should be calculated until 31 May 2028, being five years after the termination of his employment by Svitzer.

(c)    Medical expenses in the sum of $1,300.

54    Given that I have not adopted the calculations by either the applicant or the respondent, I would ask the parties to undertake the process of working out the figures in a table similar to that attached to the Aide Memoire on Economic Loss on the approaches set out above. The parties have leave to relist the matter for directions for any uncertainties.

Non-economic loss and aggravated damages

55    In his submissions on aggravated damages or similar orders, the applicant contended that while all dismissal cases tend to involve distress, in certain circumstances there are exacerbating features that make it appropriate to increase compensation made under a general head of power to reflect the additional hurt caused. He submitted that such features would include, in this matter, the “high-handed and insulting nature of the conduct”, the lack of resistance to Ms Faraj from senior management despite her decision having been made “in a moment of pique” and despite his tenure at Svitzer, and the significant impact of the dismissal on him and his family. He attended medical appointments afterwards and understandably was very upset by the process. The applicant submitted that an order for an additional amount of $50,000 reflecting these circumstances, in a manner akin to an aggravated damages order, would be appropriate.

56    The applicant also relied upon what was said to be a failure by the respondent to engage with the Court’s processes relating to proper production. Ms Radley (for the applicant) and Mr Scott (for the respondent), both solicitors, set out their client’s position as to what Mr Gavin refers to as “Svitzer’s obstructive approach to discovery”. Both deponents reduced to a fairly granular level the procedural pre-trial issues relating to document production, and which culminated in my having to determine issues of privilege arising out of text messages belatedly produced by Ms Faraj during the trial (the text message in question is referred to at [85] of the liability judgment).

57    I agree that there have been some infelicities in production. However, as submitted by the respondent, this was not a costs argument, and while Mr Gavin deposed that he found this part of the proceedings distressing, it is not obvious to me that this should sound in an award of damages in what is otherwise generally a no-costs jurisdiction.

58    The respondent contended that there is no basis for an award of aggravated damages under the FW Act. That would seem to accord with the statement of Reeves J in Hail Creek Coal at [43] where his Honour said that “‘[e]xemplary or punitive compensation’ should not be awarded”. It is possible, of course, to award general damages for a loss suffered by the applicant arising out of the contravention. Section 545(2)(b) would encompass the power to award compensation for non-economic loss such as “distress, hurt, or humiliation” (see International Aviation at 595 [447]).

59    The manner in which Mr Gavin was dismissed had elements of high-handedness. I have set out in the liability judgment my disbelief of a number of matters put forward by Ms Faraj, including the way in which she claimed to have reached her decision to dismiss Mr Gavin. It was clear from the timelines and the emails/texts that her decision was a spur-of-the-moment one, and no real thought was put into supporting Mr Gavin through what was undoubtedly a shocking and upsetting experience, despite Mr Sheehan doing his best at the time to be sympathetic.

60    I note parenthetically that Mr Sheehan said in his April affidavit that he doubted that Mr Gavin was really shocked by his dismissal because of the fact of his substantive role having been made redundant in the most recent restructure iterations; I find that to be an after-the-fact rationalisation, given that Mr Gavin was, as I found in the liability judgment, not given any notice of his dismissal and was lured to a meeting with Mr Sheehan in the early hours of 24 May 2023 on the promise of a discussion about the job proposal written by Mr Gavin which was requested by Svitzer, and about the new role (at [89] of the liability judgment).

61    The respondent contended that there was no basis for an order of aggravated damages; the test for which, it said, is high-handed, malicious, insulting or oppressive conduct (citing Alexander v Home Office [1988] 1 WLR 968; 2 All ER 118 at 969) or “callous, insensitive in the extreme …” (Burns v Media Options Group Pty Ltd [2013] FCCA 79 at [1783] (Judge Nicholls)). It submitted that Ms Faraj’s decision – made in a moment of irritation – is not on a similar level as intending to cause him harm. In reply, the applicant characterised her decision as the epitome of high-handedness.

62    I agree with this last proposition. The company had gone through a lengthy process of careful consultation and investigation of appropriate restructures, at each stage being careful to maintain Mr Gavin’s employment at an appropriate level and to accommodate Ms Munro’s return to Newcastle Port. That changed, almost overnight, because Ms Faraj took the view, effectively, that Mr Gavin was not grateful enough.

63    Unlike cases where a person has been bullied over a long period of time, the dismissal was but the work of a moment and, while shocking, was, as the respondent submitted, not done by way of any intent to contravene the FW Act (although it is clear that Ms Faraj thought that it may be viewed that way – see [88] of the liability judgment). While Mr Sheehan attempted in his April affidavit to downplay it, I have no doubt that Mr Gavin was, and remains (from my observations of him in the witness box during the liability hearing), distressed and humiliated by the dismissal. No expert medical evidence is required for the awarding of damages on the ground of stress; see Alexiou v Australia and New Zealand Banking Group Ltd [2026] FCA 1373 (Perram J) at [1271].

64    In Han v St Basil’s Homes (No 2) [2025] FCA 448, Shariff J examined a dismissal in contravention of ss 340 and 351 of the FW Act because of Ms Han’s race and because she had exercised her workplace rights in complaining about her employment. Instead of investigating her complaints, the respondent levelled allegations against her which were found to have no substance. Ms Han received $75,000 by way of general damages, in relation to her pain, hurt and humiliation in being deprived of the “fundamental right that she was entitled to participate in and enjoy a workplace free from discrimination and free of retaliatory action …”.

65    While the awarding of compensation in the form of general damages is an art, not a science, and “inherently imprecise” (Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 3) [2020] FCA 1309 at [9]), one cannot go to other cases where general damages have been awarded and try to perform “arithmetic adjustments to prior determinations” (Hughes (t/as Beesley and Hughes Lawyers) v Hill [2020] FCAFC 126; 277 FCR 511, 521 at [48] (Perram J, Collier and Reeves JJ agreeing)). The best I can do is recognise that, in being satisfied that the dismissal of Mr Gavin caused him personal pain, and affected his mental and physical health, the wellbeing of his family, and his standing in the community, he should be awarded a sum for general damages which will compensate him for that. It is not a question of punishing Svitzer but more a recognition that the contraventions of the FW Act by the respondent have had a real effect of harm.

66    The applicant proposed a sum of $50,000 in aggravated (or general) damages. Doing the best I can with fixing an appropriate sum, I find that general damages for Mr Gavin should be paid at $15,000, reflecting both the hurt and embarrassment he suffered, but also the fact that the contravention arose out of one decision by Ms Faraj implemented by Mr Sheehan. I did not find that Mr Sheehan conducted the meeting poorly. But the message that he delivered, after a long process of Mr Gavin being led to believe that he would have the or a senior role in the Newcastle Port organisational structure going forward (and indeed being consulted about that role), and then being terminated after he sought to push back about the alternative position offered, was difficult for him.

Penalty

General principles

67    Section 546(1) of the FW Act is set out above at [13]. It empowers the Court, where it is satisfied that a person has contravened a civil remedy provision, to impose “a pecuniary penalty that the court considers appropriate”. Any civil penalty payment may be made in addition to any orders under s 545 (s 546(5)). The maximum penalty for each contravention in this case was $82,500.

68    The object of the imposition of a penalty is, primarily, deterrence (The Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (Agreed Penalties Case), 506 at [55]). It is not a penal provision, despite the name. In the Agreed Penalties Case at 495 [24], French CJ, Kiefel, Bell, Nettle and Gordon JJ said that civil penalty provisions of the kind enacted in s 546 have a “statutory function of securing compliance with provisions of the [statutory] regime” (see Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; 274 CLR 450, 458 at [14]).

69    The principles as to civil penalties were not in dispute; the parties were, instead, not in agreement as to the relevant factors which should be applied. The applicant submitted that I should apply the factors set out in the Queensland Infrastructure Case (Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68) at [103], where Dowsett, Greenwood, and Wigney JJ stated:

The factors relating to the objective seriousness of the contravention include: the extent to which the contravention was the result of deliberate, covert or reckless conduct, as opposed to negligence or carelessness; whether the contravention comprised isolated conduct, or was systematic or occurred over a period of time; if the defendant is a corporation, the seniority of the officers responsible for the contravention; the existence, within the corporation, of compliance systems and whether there was a culture of compliance at the corporation; the impact or consequences of the contravention on the market or innocent third parties; and the extent of any profit or benefit derived as a result of the contravention.

What penalty/ies should be imposed?

70    The applicant relied on the significance of the contravention, with a degree of recklessness as to Mr Gavin’s workplace rights; the impact on Mr Gavin personally, professionally, and financially; the involvement of Ms Faraj and Mr Noes as senior management of Svitzer; the lack of remorse (speaking to a need for specific deterrence); Svitzer’s size and resources; the lack of any indication of systemic or cultural change in its processes; and what he described as the respondent’s obstructive approach to discovery (which I have discussed at [56]-[57] above).

71    In response, Svitzer noted that Mr Noes and Ms Faraj are no longer in their positions; the contravention was a “snap” decision and not a course of conduct; there was no impact on the market or on third parties and (as the respondent submitted, although I have not accepted that submission) on Mr Gavin financially; improvements in Svitzer’s compliance systems; the lack of similar contraventions in the past; and an apology from Mr Sheehan in his April affidavit.

72    Mr Gavin submitted in reply that while it was Ms Faraj’s decision, she obtained approval for that from Mr Noes and from People and Culture input, one of whom – Ms Tiedeman, remains in the “compliance system” set out by Mr Sheehan. Ms Faraj was a lawyer with human resources expertise. However, her having left Svitzer (it appears voluntarily for another position) is not a matter that speaks to the lack of any need for specific or general deterrence. In relation to Mr Sheehan’s apology, Mr Gavin said he has not apologised, but only “conveyed regret” in “a largely meaningless way”. Mr Sheehan said:

I consider that the termination meeting was handled in a respectful manner. That said, on behalf of Svitzer, I also convey regret about the manner in which the decision was made and its circumstances.

73    Because of the factors raised by Mr Gavin, which I do not find to have been adequately countered by Svitzer, I find that there is a case for a civil penalty in relation to the contraventions.

74    The dismissal was indeed reckless and not entered into for the stated purpose of a “fresh start for Newcastle [Port]”; it was done out of irritation at Mr Gavin’s “attitude”. A civil penalty will, it is to be hoped, concentrate the minds of the new compliance and decision-making support structure in a way that will ensure that this conduct will not be repeated.

75    The new structure for decisions such as this provides for a different allocation of responsibilities within Svitzer’s leadership team. It is to be hoped that a system of checks and balances will improve decision-making. However, as noted, Ms Faraj’s decision was workshopped around a number of people in different teams including Mr Noes, and there was no pushback at all (except, to be fair, from Mr Sheehan, who was at least “taken aback” – see [84] of the liability judgment).

76    The respondent contended that the contraventions arise out of the same course of conduct, and so I should regard the assessment of the penalty as a single contravention. While the applicant contested this on the basis that, while it is within my discretion to do so, I ought not as “it will lead to a penalty likely inadequate for general or specific deterrence”.

77    On this issue I agree with the respondent. The two declarations relate to different aspects of the same action – Ms Faraj’s decision both to remove Mr Gavin, and the new role he had been offered. In Han, Shariff J (at [191] discussed the making of “grouped” penalties, “in order to avoid double punishment”. I consider that one penalty in relation to both declarations of contravention will satisfactorily deal with deterring the conduct underlying them both. I note the applicant’s submission that s 557 (relating to a course of conduct) does not apply to contraventions under s 340; however, I can apply the common law course of conduct principle where the contraventions arise out of the same facts or overlap with each other; see Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 at [39], [41]-[44] (Middleton and Gordon JJ) cited in Han at [192]. Given that there was only one set of actions in the two contraventions, it is appropriate that only one penalty be applied.

78    Mr Gavin submitted that the appropriate order is two penalties, each at around the $61,875 mark, being the third quintile of the maximum. Mr Saunders said in submissions:

He appreciates that this is simultaneously a very precise figure and something of a vague submission; ultimately the matter involves an intuitive synthesis of a range of factors rather than the application of a mathematical formula and it is not possible to be more precise than this without giving an unduly scientific air to matters.

79    The respondent, on the other hand, agitated for a penalty at the “low end of the penalty scale”. Mr Rauf took me to Han, where Shariff J ordered a penalty of $15,000 (with the maximum penalty being $63,000) for a single contravention where a worker was dismissed for exercising her workplace rights to make two complaints. There are similarities between Ms Han’s case and that of Mr Gavin. Svitzer also noted that in Guthrie v Mondiale VGL Pty Ltd (No 2) [2025] FedCFamC2G 938, Judge Corbett ordered a civil penalty of $27,500 for the Respondent’s contravention of s 340 of the FW Act for terminating the applicant’s employment, in circumstances where there had been other contraventions, and serious workplace safety issues.

80    The applicant distinguished both Han and Guthrie, noting that in Han the applicant had been paid a penalty of $45,000 in respect of a contravention under another section of the FW Act arising out of the same act of termination (at [216]). Shariff J took that into account in fixing the s 340 penalty at a lower sum (at [220]), having regard to the principle of totality (at [221]).

81    Here, I consider that one penalty in respect of the contraventions is the appropriate course. Taking into account the factors set out by the applicant and those specified by the Court in the Queensland Infrastructure Case (summarised at [69] above), and the purpose of the civil penalty provisions as deterrence, I consider that a penalty of $20,000 should be imposed. That is around one quarter of the maximum penalty, and is a sum which, in the context of the various remedies I have granted, is an appropriate one to underline the conduct as objectively serious.

82    As the applicant has been the one to pursue the civil penalty, it is appropriate that it be paid to him, and I will exercise my discretion to do so pursuant to s 546(3)(c) of the FW Act.

Orders

83    I will make orders that the parties confer and provide my chambers with orders reflecting the various calculations and amounts in these reasons, and grant liberty to apply by way of email to my chambers should any further consideration be required.

84    The relevant paragraphs are [53], [66], and [81]. Pre-judgment interest should be calculated on the economic loss reflecting his salary.

Associate:

Dated:    23 October 2026