Whelan v Cigarette & Gift Warehouse [2019] FCA 2064

Whelan v Cigarette & Gift Warehouse [2019] FCA 2064

The respondents’ contraventions were deliberate, vengeful, and sustained. Separate penalties for each contravention are appropriate given temporal and substantive separations. Penalties totalling $75,000 against the First Respondent and $15,000 against the Second Respondent are proportionate. Penalties should be paid to the applicant. Costs are awarded to the applicant at 10% in respect of unreasonable resistance by respondents to statutory entitlements; otherwise, no order as to costs.

Jurisdiction
Australia
Judgment Date
13 December 2019
Procedural Posture
Civil / Penalty and Costs Determination After Appeal
Outcome
Penalties imposed; costs partly awarded to applicant
Legal Topics
['adverse Action' 'termination of Employment' 'statutory Entitlements' 'civil Penalties' 'costs in Fair Work Proceedings']
['employment & Industrial Relations' 'industrial Law'] ['adverse Action' 'termination of Employment' 'statutory Entitlements' 'civil Penalties' 'costs in Fair Work Proceedings']

Case Brief

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Procedural Posture

Civil / Penalty and Costs Determination After Appeal

Legal Issues

  1. 1 ['What quantum of pecuniary penalties should be imposed for contraventions of the Fair Work Act 2009 (Cth)?' 'Should penalties be paid to the applicant or to the Commonwealth?' 'Are either party entitled to costs under s 570 of the Fair Work Act 2009 (Cth)?']

Ratio Decidendi

The respondents’ contraventions were deliberate, vengeful, and sustained. Separate penalties for each contravention are appropriate given temporal and substantive separations. Penalties totalling $75,000 against the First Respondent and $15,000 against the Second Respondent are proportionate. Penalties should be paid to the applicant. Costs are awarded to the applicant at 10% in respect of unreasonable resistance by respondents to statutory entitlements; otherwise, no order as to costs.

Court Disposition

Penalties imposed; costs partly awarded to applicant

Orders

  • ['The First Respondent pay pecuniary penalties totalling $75,000.00.' 'The Second Respondent pay pecuniary penalties totalling $15,000.00.' 'Penalties to be paid to the Applicant within 28 days.' 'Respondents to pay 10% of Applicant’s costs, to be assessed per Practice Note GPN-COSTS; timetable for affidavits and...