United Voice v MDBR123 Pty Ltd (No 2) [2015] FCA 76

United Voice v MDBR123 Pty Ltd (No 2) [2015] FCA 76

Ms Smith was entitled to compensation for past loss of earnings, interest and a modest allowance for future loss, but not for loss of enjoyment of paid annual leave. The respondents' dismissal of Ms Smith because she attempted to recruit employees to the Union was a deliberate and flagrant breach requiring deterrent penalties, but the penalties were reduced because other genuine reasons also contributed to the dismissal and because the respondents made a reasonable open offer to settle. Applying totality, one penalty was imposed on each respondent, and the whole of the penalties was ordered to be paid to the applicant because the applicant's conduct had already been taken into account in...

Jurisdiction
Australia
Judgment Date
04 February 2015
Procedural Posture
Fair Work Proceeding for Pecuniary Penalties and Compensation Following Contraventions of the Fair Work Act 2009 (cth) / Further Hearing on Compensation and Penalty After Liability Findings
Outcome
The Court ordered pecuniary penalties against both respondents, awarded compensation to Ms Smith, vacated paragraph 11 of the order made on 10 February 2014, and made no order as to costs.
Legal Topics
['adverse Action' 'union Activity' 'termination of Employment' 'pecuniary Penalties' 'compensation' 'totality Principle' 'deterrence']
['industrial Law' 'employment Law'] ['adverse Action' 'union Activity' 'termination of Employment' 'pecuniary Penalties' 'compensation' 'totality Principle' 'deterrence']

Case Brief

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Procedural Posture

Fair Work Proceeding for Pecuniary Penalties and Compensation Following Contraventions of the Fair Work Act 2009 (cth) / Further Hearing on Compensation and Penalty After Liability Findings

Legal Issues

  1. 1 ["What compensation should be awarded to Ms Margaret Smith for loss and damage suffered because of the respondents' contraventions of the Fair Work Act 2009 (Cth)." 'What pecuniary penalties should be imposed on each respondent for contraventions of ss 340 and 346 of the Fair Work Act 2009 (Cth).' 'Whether the totality principle required only one penalty for each respondent.' 'Whether the pecuniary penalties should be paid to the applicant or to the Commonwealth.']

Ratio Decidendi

Ms Smith was entitled to compensation for past loss of earnings, interest and a modest allowance for future loss, but not for loss of enjoyment of paid annual leave. The respondents' dismissal of Ms Smith because she attempted to recruit employees to the Union was a deliberate and flagrant breach requiring deterrent penalties, but the penalties were reduced because other genuine reasons also contributed to the dismissal and because the respondents made a reasonable open offer to settle. Applying totality, one penalty was imposed on each respondent, and the whole of the penalties was ordered to be paid to the applicant because the applicant's conduct had already been taken into account in...

Court Disposition

The Court ordered pecuniary penalties against both respondents, awarded compensation to Ms Smith, vacated paragraph 11 of the order made on 10 February 2014, and made no order as to costs.

Orders

  • ['The first respondent pay a pecuniary penalty of $6,000 pursuant to s 546 of the Fair Work Act 2009 (Cth) for its contraventions of ss 340 and 346 of the Fair Work Act.' 'The second respondent pay a pecuniary penalty of $4,000 pursuant to s 546 of the Fair Work Act for his contraventions of ss 340 and 346 of the...