Transport Workers' Union of Australia v Atkins [2014] FCCA 1553 (18 August 2014) Last Updated: 19 August 2014 FEDERAL CIRCUIT COURT OF AUSTRALIA TRANSPORT WORKERS' UNION OF AUSTRALIA v ATKINS [2014] FCCA 1553 Catchwords: INDUSTRIAL LAW – Adverse action – refusal of carer’s leave and dismissal – aggravating conduct by the respondent – assessment of general damages and penalties. Legislation: Fair Work Act 2009 (Cth), ss.341 , 351 , 545 , 546 Federal Circuit Court Rules 2001 (Cth) Federal Court Rules Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 Fair Work Ombudsman v Roselands Fruit Market Pty Ltd [2010] FMCA 599 Rojas v Esselte Australia Pty Ltd (No.2) [2008] FCA 1585 Applicant: TRANSPORT WORKERS' UNION OF AUSTRALIA Respondent: MATTHEW ATKINS (ABN 31 441 967 603) TRADING AS M.L.A TRANSPORT File Number: SYG 2238 of 2013 Judgment of: Judge Driver Hearing date: 17 July 2014 Delivered at: Sydney Delivered on: 18 August 2014 REPRESENTATION Solicitors for the Applicant: Mr A Guy Transport Workers’ Union Solicitors for the Respondent: Mr D Burston Burston Cole & Associates ORDERS (1) Pursuant to s.545(2) of the Fair Work Act 2009 (Cth), the respondent shall pay to Michael Vella within 28 days the sum of $10,000 as compensation for non economic loss. (2) The respondent shall pay interest up to judgment from 9 August 2013 at the rate of 8%. (3) The Court declares that the respondent engaged in a single course of conduct in contravening ss.341 and 351 of the Fair Work Act 2009 (Cth). (4) Pursuant to s.546(1) of the Fair Work Act 2009 (Cth), the respondent shall pay a pecuniary penalty of $10,000 for the course of conduct within 28 days. (5) Pursuant to s.546(3) of the Fair Work Act 2009 (Cth), the pecuniary penalty shall be paid to the applicant. FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY SYG 2238 of 2013 TRANSPORT WORKERS' UNION OF AUSTRALIA Applicant And MATTHEW ATKINS (ABN 31 441 967 603) TRADING AS M.L.A TRANSPORT Respondent REASONS FOR JUDGMENT Introduction and background By application filed on 20 September 2013, the Transport Workers Union (TWU) seeks compensation (with interest) and penalties for adverse action taken by the respondent (Mr Atkins) against Mr Michael Vella who, at the relevant time, was employed by Mr Atkins as a heavy vehicle driver. Mr Atkins initially failed to participate in the proceedings. On 24 February 2014, I gave judgment for the TWU pursuant to rule 13.03B(2)(b) of the Federal Circuit Court Rules 2001 (Cth). I ordered Mr Atkins to pay to Mr Vella within 14 days the liquidated component of the claim, being an amount of $7,770.80 [1] . I also ordered Mr Atkins to pay the costs of the application which, if not agreed, were to be taxed in accordance with the Federal Court Rules . I made other orders designed to bring the Court’s orders to the attention of Mr Atkins and for the conduct of the balance of the case, which included a claim for general damages for non economic loss as well as the claim for penalties. Mr Atkins subsequently applied to set aside the default judgment. I made orders in relation to the conduct of that Application in a Case on 6 May 2014. Subsequently, and with the benefit of legal advice, Mr Atkins (who is now legally represented) abandoned the Application in a Case and the matter proceeded to hearing on compensation and penalties. The relevant background facts are that on 6 August 2013 Mr Vella contacted Mr Atkins and informed him that he would not be available for work on 9 August 2013 as he had to attend a doctor’s appointment with his daughter. Mr Atkins denied Mr Vella’s request for leave and informed him that he expected Mr Vella to be at work on 9 August 2013. On 8 August 2013, Mr Atkins sent Mr Vella a text message outlining Mr Vella’s work for the day. Mr Vella informed Mr Atkins that he would not be attending work due to his carer’s responsibilities. Mr Atkins informed Mr Vella that if he did not attend work on 9 August 2013, his employment would be terminated. On 9 August 2013, Mr Vella did not present for work and attended medical appointments with his daughter. Mr Vella’s daughter was deemed unwell by a medical practitioner and in need of care from her parents. At 9.41am on 9 August 2013, Mr Atkins summarily terminated Mr Vella’s employment. The evidence and submissions The TWU relies upon two affidavits by its solicitor (Mr Guy) made on 24 March and 5 May 2014. Mr Guy was not required for cross-examination. The TWU also relies upon two affidavits by Mr Vella made on 13 March and 27 June 2014. Mr Vella was cross-examined on those affidavits. Mr Atkins relies upon his affidavit made on 18 June 2014 on which he was cross-examined. I also received the following exhibits: A1 – ASIC search for M.L.A Logistics; and R1 – series of text messages between Mr Atkins and Mr Vella from 07.06.2013. The parties made both oral and written submissions. Consideration Mr Atkins, with the benefit of legal advice, no longer contests that he breached the Fair Work Act 2009 (Cth) (Fair Work Act) by refusing Mr Vella carer’s leave and by dismissing him. The dispute between the parties is now limited to what additional compensation should be awarded to Mr Vella and what penalties for the admitted breaches should be imposed upon Mr Atkins. The relevant legal principles are traversed in the initial written submissions filed by the TWU on 16 April 2014. There was no dispute as to the correctness of those submissions and I agree with them. I do not need to recite those legal principles. Compensation for non economic loss Previously, this Court has given default judgement in the sum of $7,770.80 for the liquidated component of Mr Vella’s loss in the present matter. The TWU claims that Mr Vella has suffered non economic loss with regard to pain and suffering as a consequence of Mr Atkins’ breach of the Fair Work Act , namely: Mr Vella has suffered non economic loss with regard to pain and suffering; the repeated hurt and distress caused by Mr Atkins’ continuing threats of violence toward Mr Vella and his family; the repeated distress caused by Mr Atkins doing “burnouts” outside Mr Vella’s residence; the hurt, distress and humiliation caused by Mr Vella having to change jobs for fear of coming across Mr Atkins in the course of his employment; and the repeated distress and humiliation caused by Mr Atkins telling other drivers and customers that Mr Vella had “dogged” him and if Mr Atkins saw Mr Vella he would “kick the shit out of him”. If this Court is satisfied that a breach of the Fair Work Act occurred then there is a wide power for the Court may make any order for compensation that it considers appropriate [2] . This includes the power to make such orders for non economic loss under s.545 as the Court considers appropriate. Such an assessment is a judgement for this Court to make, taking into account the submissions of the parties and the circumstances surrounding the matter before this Court [3] . The TWU submits that as Mr Atkins has continually engaged in actions that have caused Mr Vella pain, suffering, hurt, distress, and humiliation. The TWU seeks an order that Mr Atkins pay to Mr Vella $17,500 compensation for non-economic loss. Mr Atkins has admitted threatening Mr Vella and has apologised for it. He denied threatening Mr Vella’s family but admitted threatening the TWU’s solicitor (Mr Guy). He apologised for that as well. Mr Atkins denied doing “burnouts” outside Mr Vella’s residence but admitted that a motor vehicle seen by Mr Vella doing burnouts near his house was his. I accept that Mr Vella has suffered hurt and distress by reason of the refusal of carer’s leave and the dismissal from his employment because he exercised his entitlement to take leave. That hurt and distress was exacerbated by the disgraceful conduct by Mr Atkins in threatening Mr Vella when he took the matter to the Fair Work Commission and involved the TWU [4] . Whether or not Mr Atkins also threatened other members of Mr Vella’s family, they have been inevitably affected by the threats Mr Atkins made against Mr Vella. Mr Atkins admitted in cross-examination to having anger management issues. In his affidavit he referred to behavioural problems when he attended school and to bouts of anger which he attributed to anxiety and stress. I was so concerned by Mr Atkins’ behaviour that, at the conclusion of the trial on 17 July 2014, I ordered Mr Atkins to undertake a course of treatment by a counsellor or psychologist. To his credit, Mr Atkins recognised his need for treatment and offered an undertaking to the Court (which I accepted) not to denigrate Mr Vella further. Were it not for the apology, the undertaking, and the recognition of his need for treatment, I would have had no difficulty in awarding damages for non economic loss in the amount sought by the TWU. Taking the mitigating factors into account, I have decided to award compensation to Mr Vella for his pain, suffering, hurt, distress and humiliation in the sum of $10,000. Pecuniary penalties There is no doubt that Mr Atkins contravened both s.341 and s. 351 of the Fair Work Act and that a pecuniary penalty order should be made as a consequence of those contraventions. In determining the quantum of the pecuniary penalty to be paid, the Fair Work Act gives limited assistance to the Court as to what considerations must be taken into account when awarding a pecuniary penalty, other than a discretion to order what “the Court considers appropriate” [5] . Notwithstanding this, the Federal Court has provided guidance on principles that apply to the determination of a penalty, namely: the circumstances in which the relevant conduct took place; whether the respondent had previously been found to have breached the Fair Work Act ; the consequences of the conduct of the respondent; the need, in the circumstances for the protection of industrial freedom of association; and the need for deterrence [6] . Conduct of Mr Atkins In considering the conduct of Mr Atkins in the lead up to Mr Vella’s dismissal, the TWU submits that the actions of Mr Atkins are the most serious of breaches. I agree. Mr Atkins terminated Mr Vella in contravention of two workplace rights under the Fair Work Act via text message in the early morning of 9 August 2013. The termination was effected following an intense period where Mr Atkins verbally abused and threatened to harm Mr Vella. Following the termination, Mr Atkins continued to verbally abuse and threaten Mr Vella, and to comment on Mr Vella’s wife and on the seriousness of Mr Vella’s daughter’s medical condition. Furthermore, following the termination, Mr Atkins threatened the TWU’s solicitor. I accept that the circumstances of the conduct of Mr Atkins in terminating Mr Vella and his subsequent conduct puts that conduct in the most serious of categories. Previous findings Mr Atkins has not previously been found to have breached any general protections provisions of the Fair Work Act . Consequences of conduct As discussed above, the conduct of Mr Atkins has had a significant impact on Mr Vella. Furthermore, I accept that Mr Vella’s wife has become fearful and has expressed a desire to move from their family home. Mr Vella has also sought to avoid contact with Mr Atkins. Protection of industrial freedoms Mr Vella was not engaged in an industrial activity and accordingly this is not a relevant consideration. The need for deterrence In the present matter, the need for both specific and general deterrence is significant. Mr Atkins engaged in a process where he terminated Mr Vella summarily and in contravention of the Fair Work Act for exercising a workplace right. Mr Atkins has shown remorse belatedly, after he obtained legal representation, and now recognises his wrongdoing. Prior to that he threatened both Mr Vella and the TWU’s solicitor after proceedings had commenced. The evidence indicates that Mr Atkins continues to work as a sole trader although he is in the process of establishing a corporation to take over his business and the need to specifically deter Mr Atkins from continuing to engage in such conduct is significant. Finally, I accept the TWU’s submission that conduct such as that of Mr Atkins should not be tolerated by the Court, which should seek to deter both Mr Atkins and employers generally from engaging in conduct of a similar nature that is in contravention of the Fair Work Act . Conclusion – pecuniary penalty The maximum penalty is 60 penalty units [7] per breach. The TWU submits that Mr Atkins should pay to the TWU the maximum penalty available, being a total of $20,400, being $10,200 for each of the two breaches of the Fair Work Act . Mr Atkins contends that the two admitted breaches should be treated as a single course of conduct. I dealt with that proposition in Fair Work Ombudsman v Roselands Fruit Market Pty Ltd [8] . I accept the submission that a single course of conduct was involved. Mr Atkins in short order refused Mr Vella’s request for carer’s leave and dismissed him summarily when he exercised his right to take that leave. It follows that the maximum penalty the Court can impose on Mr Atkins for that course of conduct is $10,200. I accept the TWU’s submission that the admitted breach was a very serious one. Mr Atkins acted peremptorily and without regard to his duties as an employer or the rights of his employee. He added insult to injury by his conduct after the event. Mr Atkins refers to the mitigating factors of his lack of understanding of his obligations, his psychological or other problems, his asserted modest means, his apologies, undertaking and his recognition of the need for him to deal with his issues. In my view, those mitigating factors, which I have already taken into account in dealing with the award of general damages, can have only a slight impact on the appropriate award of penalty. The conduct was blatant and disgraceful. Mr Atkins’ recognition of fault came late after receiving legal advice. There remains a need for both general and specific deterrence. Mr Atkins’ actions cannot be excused by ignorance. I have no reliable evidence as to his means to pay and, in any event, the maximum penalty applicable in the circumstances is not a crushing one. I will award a penalty of $10,000. I will order that the penalty be paid to the applicant union and that interest on the general damages be paid up to judgment. The TWU also seeks an order for costs. I will not make any order. The general principle in this jurisdiction is that parties bear their own costs. I have already made an order for costs in respect of the default judgment and Mr Atkins has undertaken to pay costs thrown away in respect of his Application in a Case. He was entitled to contest the issue of the quantum of damages and penalties. The TWU will have the benefit of the significant penalty imposed. I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver Associate: Date: 18 August 2014 [1] I understand that to date that amount has not been paid. [2] Fair Work Act , s.545(1). [3] Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 at [441] - [450] . [4] I have chosen not to detail in this judgment the verbal abuse to which Mr Vella was subjected to by Mr Atkins. [5] Fair Work Act , s.546(1). [6] Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585 at [63] - [69] . See also Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 at [463] - [466] . [7] of $170 per unit. [8] [2010] FMCA 599 at [21] - [26] .