Dorsch v HEAD Oceania Pty Ltd (Penalty) [2024] FCA 484

Dorsch v HEAD Oceania Pty Ltd (Penalty) [2024] FCA 484

HEAD Oceania contravened s 90(2) of the Fair Work Act by failing to pay Mr Dorsch $8,022.82 for accrued untaken annual leave when his employment ended and delaying payment for about three months. The contravention was objectively serious because it involved a National Employment Standard and caused distress, but it...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 May 2024
Procedural Posture
Fair Work Act Civil Penalty Proceeding / Penalty Following Liability Judgment and Declaration of Contravention
Outcome
The Court imposed a pecuniary penalty of $17,000 on HEAD Oceania Pty Ltd, payable to Mr Dorsch, and made directions for any costs application.
Legal Topics
['pecuniary Penalty' 'fair Work Act Civil Remedy Provisions' 'national Employment Standards' 'accrued But Untaken Annual Leave on Termination' 'deterrence' 'deliberateness of Contravention']
['industrial Law' 'employment and Industrial Relations'] ['pecuniary Penalty' 'fair Work Act Civil Remedy Provisions' 'national Employment Standards' 'accrued But Untaken Annual Leave on Termination' 'deterrence' 'deliberateness of Contravention']

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Procedural Posture

Fair Work Act Civil Penalty Proceeding / Penalty Following Liability Judgment and Declaration of Contravention

Legal Issues

  1. 1 ["What pecuniary penalty was appropriate under s 546(1) of the Fair Work Act 2009 (Cth) for the respondent's contravention of s 90(2)." "How the respondent's deliberate non-payment, mistaken belief, failure to verify the entitlement or seek advice, later payment, co-operation, contrition and absence of prior contraventions affected penalty." 'Whether specific and general deterrence required a penalty in the range sought by the applicant or a lower range as submitted by the respondent.']

Ratio Decidendi

HEAD Oceania contravened s 90(2) of the Fair Work Act by failing to pay Mr Dorsch $8,022.82 for accrued untaken annual leave when his employment ended and delaying payment for about three months. The contravention was objectively serious because it involved a National Employment Standard and caused distress, but it was not a deliberate flouting of the law. The decision not to pay was deliberate and made by senior management on a mistaken basis without adequate verification or legal advice, and HEAD Oceania was part of a large corporate group, so specific and general deterrence were required. Its later payment, admission of contravention, apology, absence of prior non-compliance and...

Court Disposition

The Court imposed a pecuniary penalty of $17,000 on HEAD Oceania Pty Ltd, payable to Mr Dorsch, and made directions for any costs application.

Orders

  • ['Pursuant to s 546(1) of the Fair Work Act 2009 (Cth), the respondent pay to the applicant a pecuniary penalty of $17,000 within 28 days of the date of this order, by reason of its contravention of s 90(2) of the FW Act, in which the respondent failed to pay the applicant the amount that would have been payable for...