Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661

Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661

A permanent injunction was refused as the respondent was not capable of carrying out the order to reinstate or reappoint the applicant, having ceased relevant business operations. Penalties were only appropriate for breach of the payment of remuneration lost term, not for inability to appoint or treat employment as continuous. The applicant was entitled to recover money for lost remuneration up to the date the respondent ceased being proprietor of the business under s 179(1) Workplace Relations Act. No fine for contempt was imposed, as the respondent lacked capacity to comply with the interlocutory injunction.

Parties
First Applicant: Anton Chelvarajah; Second Applicant: Australian Liquor, Hospitality and Miscellaneous Workers' Union; Respondent: Global Protection Pty Ltd trading as Kirwan Security Services
Jurisdiction
Australia
Judgment Date
21 December 2004
Procedural Posture
Civil / Final Judgment After Hearing (undefended)
Outcome
Partial success for the applicants; judgment for payment of remuneration and penalty; other relief denied and motions dismissed.
Legal Topics
Termination of Employment, Enforcement of Industrial Commission Orders, Remedies for Unfair Dismissal, Penalties for Breach of Orders, Mandatory Injunctions, Contempt of Court
Employment Law Industrial Law Termination of Employment Enforcement of Industrial Commission Orders Remedies for Unfair Dismissal Penalties for Breach of Orders Mandatory Injunctions Contempt of Court

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Parties

Anton Chelvarajah

First Applicant

Australian Liquor, Hospitality and Miscellaneous Workers' Union

Second Applicant

Global Protection Pty Ltd trading as Kirwan Security Services

Respondent

Procedural Posture

Civil / Final Judgment After Hearing (undefended)

Legal Issues

  1. 1 Should a permanent injunction be granted to enforce the Commission's order requiring appointment of the applicant?
  2. 2 Should a penalty be imposed for breach of the appointment term of the order?
  3. 3 Should a penalty be imposed for breach of the payment of remuneration lost term of the order?

Ratio Decidendi

A permanent injunction was refused as the respondent was not capable of carrying out the order to reinstate or reappoint the applicant, having ceased relevant business operations. Penalties were only appropriate for breach of the payment of remuneration lost term, not for inability to appoint or treat employment as continuous. The applicant was entitled to recover money for lost remuneration up to the date the respondent ceased being proprietor of the business under s 179(1) Workplace Relations Act. No fine for contempt was imposed, as the respondent lacked capacity to comply with the interlocutory injunction.

Court Disposition

Partial success for the applicants; judgment for payment of remuneration and penalty; other relief denied and motions dismissed.

Orders

  • A penalty of $2000 imposed on the respondent for breach of a term of the Commission's order of 13 August 2003.
  • The respondent to pay the penalty to the second applicant, Australian Liquor, Hospitality and Miscellaneous Workers' Union.