INDUSTRIAL LAW – quantification of penalties – moral responsibility of a number of respondents – the need for both specific and general deterrence
INDUSTRIAL LAW – detailed co-operation in respect to facts – admission of liability – withholding of any details as to financial circumstances
INDUSTRIAL LAW – an order requiring an audit to be undertaken
Michael Seck appeared for Office of the Fair Work Ombudsman
PRIVILEGED - privilege against exposure to penalty – whether privilege waived by filing proceedings in Fair Work Commission – whether privilege waived by filing witness statements
Michael Seck appeared for CSL Australia
POLICE – Senior Constable – application pursuant to section 84 for relief in relation to unfair dismissal – application by the respondent that application be struck out on the ground that the Commission does not have jurisdiction – bullying and harassment at work – discrimination in the course of employment – unwarranted investigation into conduct outside of work hours – diagnosed with depression/anxiety and deemed unfit for work – no option other than to resign from employment – constructively dismissed – rights of appeal for police officers – comparison of rights conferred by Part 9 of the Police Act with rights conferred by Chapter 2 Part 6 of the Act – Part 9 of the Police Act 1990 establishes exclusive scheme whereby dismissed police officers are able seek relief – no jurisdiction under Chapter 2 Part 6 of the Act to hear and determine the applicant’s unfair dismissal claim – application dismissed.
Michael Seck appeared for the Commissioner of Police.
PRACTICE & PROCEDURE – order for medical examination to determine plaintiff’s legal capacity in context of defendants' applications for dismissal or striking out of plaintiff’s claims - Births, Deaths and Marriages Act 1995 (NSW), Pt 5A - Uniform Civil Procedure Rules 2005, r 13.4, r 14.28, r 31.46(1).
Michael Seck appeared for the defendants.
CONTRACT DETERMINATION – application to vary – principles to be applied – relevance of wage fixation principles – fair and reasonable conditions – relevance of consent or non-opposition of respondents – consent to division of proceedings into two stages – first stage to deal with non-rates issues – whether coverage of determination should be extended – whether rescission of another determination should be ordered – whether second determination of continuing practical effect – whether “purpose” clause should be included – whether principal contractors should provide a copy of the determination to each contract carrier engaged – whether a cartage rate schedule should be provided before work commences - whether compensation should be paid for time lost during repainting of vehicle – whether work time should include mandatory short fatigue breaks and time lost due to accident or breakdown – whether principal contractors should be obliged to develop drug and alcohol policies or programs –records to be maintained by principal contractors – whether a deeming clause should be included if records are not kept.
Michael Seck appeared for Mainfreight Distribution Pty Limited.
UNFAIR DISMISSAL – charge of affray – applicant pleads guilty – sentenced to eighteen months imprisonment with nine months nonparole period – on appeal custodial sentence set aside – bond imposed and no conviction recorded – disciplinary process – allegations of serious misconduct – NSW Police Force Code of Conduct and Ethics – NSW Police Force Statement of Values – four allegations of misconduct found proven – decision to terminate applicant's employment – character evidence – seriousness of the misconduct – factors of aggravation and mitigation – considerations of fairness, reasonableness and harshness – fresh and independent review of the decision – cowardly attack by applicant on victim – applicant walked away as victim lay unconscious on roadway.
Michael Seck appeared for the Commissioner of Police.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee.
SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general – credit – character - deterrence – appropriate penalty.
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty.
COSTS – prosecution costs.
Michael Seck appeared for the offenders.
PRACTICE AND PROCEDURE — applications for interlocutory injunction and transfer of proceedings — restraint of trade — parties contracted to submit to the exclusive jurisdiction of the courts of Victoria — proceedings could have been commenced in Victoria — in the interests of justice to transfer proceedings to the Supreme Court of Victoria pursuant to s 5(2) Jurisdiction of Courts (Cross-Vesting) Act 1987(NSW) — claim for interlocutory injunction not heard or determined.
Michael Seck appeared for the defendant.
COURTS AND JUDICIAL SYSTEM – Federal jurisdiction – collateral attack of administrative act - whether in a general protections court application made pursuant to s.370 of the Fair Work Act 2009 (Cth) (FW Act) the Federal Circuit Court of Australia has jurisdiction to determine whether a certificate issued by the Fair Work Commission (FWC) purportedly pursuant to s.368(3)(a) of the FW Act is valid.
JUDICIAL REVIEW – Whether certificate issued by FWC purportedly pursuant to s.368(3)(a) of the FW Act was validly issued – whether validity of certificate issued purportedly pursuant to s.368(3)(a) of the FW Act depends on the person who claims to have been dismissed applying to the FWC under s.365 of the FW Act within 21 days after the dismissal took effect as required by s.366(1)(a) of the FW Act – whether the applicant was dismissed from her employment – whether such dismissal took effect more than 21 days before the applicant applied to the FWC.
INDUSTRIAL LAW – Contract of employment – whether employer repudiated contract of employment – whether employee accepted the repudiation.
Michael Seck appeared for the successful respondent.
EMPLOYMENT LAW - urgent interlocutory relief to address conduct of members of crew of MV “CSL Melbourne” refusing to leave that vessel - employees ordered to immediately and peacefully disembark the CSL Melbourne at the Port of Newcastle.
LEGISLATION - Coastal Trading (Revitalising Australian Shipping) Act 2012(Cth), Fair Work Act 2009 (Cth), ss 19, 417, 418, 421, 421(2)(b), Navigation Act 2012 (Cth), s 122, Workplace Relations Act 1996 (Cth), V.Ships Australia Pty Ltd and Maritime Union of Australia Enterprise Agreement 2013 MV CSL Melbourne, cl 3.2.4
Michael Seck appeared for the successful applicant.
EMPLOYMENT LAW – termination of employment – summary dismissal – whether employee exhibited signs of intoxication at work training course – whether employee intoxicated in a public place – whether employee intoxicated at a work-related social function – whether intoxication warranted summary dismissal for serious misconduct in serious circumstances.
DAMAGES – termination of employment – whether, if summary dismissal not available, employee would have been terminated on notice.
ANTI-DISCRIMINATION – leave to proceed when complaint declined as lacking in substance - complaint of sex discrimination against employer – whether fair and just for complaint to proceed – complaint lacks substance – leave refused.
DISCRIMINATION - racial discrimination - application for leave to appeal - application refused.
ADMINISTRATIVE LAW – whether court took into account irrelevant considerations – whether court failed to take into account relevant considerations – procedural fairness – unrepresented litigant prevented from putting submission.
APPEAL AND NEW TRIAL – primary judge did not address the elements of the legislation – postulating alternatives but failing to make a finding – inconsistencies in evidence unresolved – forensic advantage of trial judge – fact finding process of trial judge – decision at trial “glaringly improbable” or “contrary to compelling inferences” – review of findings of fact based on trial judge’s assessment of credibility of witnesses – whether findings inconsistent with incontrovertibly established facts – credibility undermined by other evidence unchallenged, unanswered and ostensibly reliable – power of appellate court to set aside findings – errors made by primary judge causing trial to miscarry – proceeding remitted to Federal Circuit Court for retrial – retrial limited to matters agitated on appeal.
EVIDENCE – standard of proof in civil proceedings – standard of proof in discrimination proceedings – balance of probabilities – higher standard of proof erroneously applied – requirement to take into account gravity of matter – drawing of inferences – failure to reconcile conflicting evidence – benefit of doubt on basis that respondent was unsophisticated and obtuse – conflicting conjectures about respondent’s knowledge and intent – failure to weigh up the strength of cumulative evidence – failure to assess demeanour of key witness in light of all the evidence.
HUMAN RIGHTS – discrimination – racial discrimination – correct test to be applied under s 9(1) of the Racial Discrimination Act 1975 (Cth) – act involving distinction, exclusion, restriction or preference – discrimination based on race, colour, descent or national or ethnic origin – purpose or effect of nullifying or impairing – recognition, enjoyment or exercise of any human right or fundamental freedom – on equal footing – right to just and favourable conditions of work – causal nexus between act and race – act done for more than one reason – vicarious liability for racial discrimination – comments referring to “black babies” and “Coon cheese” likely to offend an Aboriginal person – whether racist remarks may constitute racial discrimination – whether occasional politically incorrect banter has requisite discriminatory purpose or effect – whether response to complaint is a relevant consideration in determining whether there was discrimination – whether remarks were innocent – racially-based remarks may affect a person’s self-worth and disadvantage them in their conditions of work – subjective sense of injustice.
HUMAN RIGHTS – termination of complaint – Australian Human Rights Commission – application to Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
INDUSTRIAL LAW – Underpayments of employees over three legislative regimes, the Workplace Relations Act 1996, the Fair Work Act 2009 (“FW Act”) and the FW Act bridging period from 1 July 2009 to 31 December 2009 – pecuniary penalties – relevant considerations – appropriate approach to quantification of penalty when there is a course of conduct over three legislative regimes – grouping principle.
Scotto v Scala Bros Pty Ltd & Anor (No.2) [2015] FCCA 2167 (13 August 2015)
EMPLOYMENT - application for unfair dismissal remedy - Fair Work Act 2009 s 394.
CORRUPTION - AWU Membership case study - counsel for Mr Andrew Marcos and Mr Jeff Gallus of BMD Constructions.
EMPLOYMENT – Application for relief from unfair dismissal.
EMPLOYMENT LAW – Application by former employee of respondent seeking payment of ex gratia bonus payments following employee’s retrenchment – whether respondent employer obliged to not act capriciously, arbitrarily or unreasonably when assessing employee’s performance – whether capricious, arbitrary or unreasonable actions of employer can be remedied by Court when employer maintains absolute discretion in respect of such decisions – whether employer breached Australian Consumer Law in relation to its conduct when deciding whether to award retrenched employee ex gratiabonus payment – application allowed.
Russo v Westpac Banking Corporation [2015] FCCA 1086 (12 May 2015)
INDUSTRIAL LAW – Contravention of section 50 of Fair Work Act by an employer – alleged contravention concerns breach of enterprise agreement in respect of compulsory taking annual leave in the form of single days and periods less than a week in duration – alleged contravention also concerns whether settlement procedures arising under the agreement are properly invoked – original decision of this court subject to appeal – application of judgment of the Full Court – matters to be considered.
Liability limited pursuant to a scheme approved under Professional Standards Legislation.