Compensation for contraventions of the Fair Work Act

The following post is devoted to the legal principles which apply when an Australian court with jurisdiction to do so, looks at the question of awarding compensation for economic and non-economic loss for contraventions of the Fair Work Act, specifically modern award breaches (see sec 45) and the implications of sec 545(2) of the Act.

The post contains an extract from a decision of the Federal Circuit Court o f Australia from a case in which an employee succeeded in proving that her employer had contravened the applicable award by failing to conduct “meaningful discussions” with her about the effects upon her employment of structural operational change and the applicant sought compensation for both economic and non economic loss. The same principles would in my view be applicable to assessing compensation for contraventions of the general protections.

 

‘“Section 545 of the Act is in the following terms:

“Orders that can be made by particular courts
Federal Court and Federal Circuit Court

(1)  The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

Note 1:      For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:      For limitations on orders in relation to costs, see section 570.

 

Note 3:       The Federal Court and the Federal Circuit Court may grant injunctions in relation to industrial action under subsections 417(3) and 421(3).

 

Note 4:      There are limitations on orders that can be made in relation to contraventions of subsection 65(5), 76(4), 463(1) or 463(2) (which deal with reasonable business grounds and protected action ballot orders) (see subsections 44(2), 463(3) and 745(2)).

 

(2)  Without limiting subsection (1), orders the Federal Court or Federal Circuit Court may make include the following:
(a)  an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;
(b)  an order awarding compensation for loss that a person has suffered because of the contravention;
(c)  an order for reinstatement of a person.

 

Eligible State or Territory courts

 

(3)  An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:
(a)  the employer was required to pay the amount under this Act or a fair work instrument; and
(b)  the employer has contravened a civil remedy provision by failing to pay the amount.

 

Note 1:      For the court’s power to make pecuniary penalty orders, see section 546.

 

Note 2:      For limitations on orders in relation to costs, see section 570.

 

(3A)  An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that:
(a)  the outworker entity was required to pay the amount under a modern award; and
(b)  the outworker entity has contravened a civil remedy provision by failing to pay the amount.

 

Note 1:      For the court’s power to make pecuniary penalty orders, see section 546.

 

Note 2:      For limitations on orders in relation to costs, see section 570.

 

When orders may be made

 

(4)  A court may make an order under this section:
(a)  on its own initiative, during proceedings before the court; or
(b)  on application.

 

Time limit for orders in relation to underpayments

 

(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.”

 

  1. As is clear from s.545(2)(b)to make the order sought by Ms Saad there must be: “…an appropriate causal connection between the contravention and the loss claimed” (Australian Licenced Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd[2011] FCA 333 at [423] and see also Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275 at [73]).

Economic Loss

  1. Both parties agree that the decision of the High Court in Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”) provides direction to this Court in the current consideration.
  2. Ms Saad submits that the current consideration for compensation to her should, for the loss suffered as a result of the first respondent’s (AEC) failure to consult with her as the Award required, occur in the context of assessing the loss to her on the assumption that an ongoing role for her had been agreed, or would have been agreed, had the “consultation” (discussion) taken place.  I pause to add, that under the Award that should have occurred within a reasonably practicable time from when the definite decision was made.
  3. The difficulty with immediately proceeding on that basis is that it presupposes, or assumes, that such an agreement was probable, or even possible, without first considering or assessing whether this would, or could, or might, have occurred.
  4. I respectfully note that in Malecthe High Court stated (at [7]):

“…The future may be predicted and the hypothetical may be conjectured.”

I do not, respectfully, understand this to mean that the Court should immediately conduct the assessment of damages without some explanation for the prediction, or basis for the hypothetical position, which is the subject of conjecture (with respectful reference to Malec at [7]).

  1. As was, in my respectful view, made clear in Malec(at [7]):

“…If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring”.

  1. In this light, I prefer the approach urged by the respondents, with reference to Rakic v Johns Lyng Insurance Building Solutions (Victoria) Pty Ltd (Trustee)[2016] FCA 430. That is:

“227. …The better approach is to make a finding as to the most-likely outcome in the counterfactual hypothetical, and then to adjust it to account for other possibilities.”

  1. This approach also is consistent with that critical, given the statutory obligation, causal connection between the loss or damage suffered because of, or as a result of, the contravention (see also Maritime Unionat [20]).
  2. In that sense, the immediate issue for consideration is what Ms Saad describes as the likelihood that she and the respondents would have agreed on an ongoing role if the requisite “consultation” had taken place (“Factor 2”).  If the answer to that question is in the affirmative, then the question becomes one of the loss to Ms Saad. (Her “Factor 1”).
  3. Ms Saad assumes, but does not satisfactorily explain why in the circumstances presented, that the requisite consultation with her: “…should have involved discussions about her new role” (Ms Saad’s submissions at [13]).
  4. It may be that Ms Saad’s submissions proceed on the basis that subclause 8.2 of the Award, if followed, should have resulted in discussions, amongst other things, with: “…measures to avert or mitigate the adverse effects of such changes…” (see Saad (No 1) at [30]).
  5. Ms Saad submits that in considering and assessing the likelihood of the parties agreeing to an ongoing role (if the relevant discussion had taken place as early as practicable), such assessment must be based on the states of mind of the respective parties and the nature of their relationship as at the relevant time.  I agree. But that is not the only factor to be considered. (See further below).
  6. In any event, while Ms Saad submits that, given the litigation, there has been a deterioration of the relationship, this is irrelevant as to what would have occurred in late 2012.  I agree.
  7. However, it is also the case that the states of mind of Ms Saad and Mr Maxwell at that time, is to be considered in context of the events of late 2012, and immediately following.  What Ms Saad’s arguments have, in my view, failed to address, is the relevance of states of mind, and events, some time later after the period for discussion is provided for in cl.8 has ended (“the relevant period”).  (See further below).
  8. Ms Saad argues that there is significant evidence to support the conclusion that both parties in a “process of genuine consultation” would have reached a “compromise” (at [31] of Ms Saad’s submissions).
  9. This “compromise” would likely have been that she return to work on a part-time basis at a reduced hourly rate, and to be directly employed by Mr Maxwell, as opposed to the previous situation where she was employed by AEC.
  10. Further, Ms Saad proposes that the likely position is that Mr Maxwell would have agreed to having a secretary for 21 hours per week instead of 35 hours per week, which, if structured to be implemented over three or four days per week, would produce the same amount of work as would likely have been done by a junior employee over five days per week. (See [30] of Ms Saad’s submissions).
  11. It is important to note the following.  Ms Saad’s claim now must be understood with reference to the findings actually made by the Court in Saad (No 1). Relevantly, the obligation in cl.8 of the Award was engaged on 21 September 2012 when the definite decision was made to introduce major changes to the workplace (at [235]of Saad (No 1)).
  12. This required the employer to engage in meaningful discussion with Ms Saad as early as practicable after that date (at [236] of Saad (No 1)).
  13. No attempt was made to engage in any such meaningful discussions until about 3 April 2013 (at [246] of Saad (No 1)). The time for Ms Saad to have returned to work was after 3 June 2013 (when her unpaid leave ended). However by 20 March 2013 the relevant work structure, which was the subject of significant change, had already taken place (at [250]of Saad (No 1)).
  14. While, for the purposes of the Award, AEC was Ms Saad’s employer during the relevant period which could be understood as being as coming within the term “as early as practicable”, in essence late 2012, Mr Maxwell was the principal actor for AEC in this contravention.  He acted on behalf of AEC (at [252] – [253] of Saad (No 1)).
  15. The following elements emerge for current consideration.
  16. One, in the context set out above, Ms Saad says there is evidence to demonstrate a clear willingness on her part to vary the terms of her employment so that she would, or could, return to work (see her affidavit of 29 July 2016 at [49]).
  17. While there was a dispute between the parties as to whether Ms Saad ever said she wanted to come back full time, the parties agreed, on the evidence, that she said she at least would return part time.
  18. However, there is also evidence that Ms Saad did want to return full time at some point in time (see annexure PS 11 to her affidavit of 29 July 2016).
  19. It is to be remembered that the current consideration is concerned with probabilities and possibilities.  Ms Saad’s state of mind, her willingness to return and “make it work” is but one element in that consideration.
  20. Two, there was no evidence from Ms Saad, nor indeed was any submission made, to challenge Mr Maxwell’s evidence, and as that is corroborated by Mr Pollard, that he was in a difficult financial position given that after 1 July 2012 a significant source of work for Mr Maxwell from one particular law firm (Brydens Lawyers) was no longer referred to him (see Saad (No 1)at [149]).
  21. Mr Maxwell’s financial capacity to employ Ms Saad as either a full time or part time secretary, whether legal, or junior, or even to employ her in some other capacity (part time receptionist) was, on the unchallenged evidence presented, significantly affected.
  22. The likelihood of the probability or possibility of Ms Saad returning to work, either for Mr Maxwell or AEC (to perform work for Mr Maxwell as previously), is significantly reduced by the financial restraints suffered by Mr Maxwell due to the substantial loss of referrals of legal work to him from Brydens Lawyers.
  23. Three, to be clear, even on the basis that Ms Saad expressed a willingness and desire to return to her work, and was prepared to be “flexible with arrangements” (although as to the time of return see further below), the probability or possibility of her return must be considered in the context of the significant reduction in work, which affected not only the need for a legal secretary, but the capacity to pay for such a position.
  24. Four, Mr Maxwell may well have spoken warmly about her and held her work in high regard (Mr Maxwell’s affidavit of 3 August 2017 at [18] and [123]), and indeed gave evidence that he was looking forward to her return (see Mr Maxwell’s affidavit of 3 August 2017 at [124]).
  25. However, to the extent that Ms Saad now relies on this evidence as indicators of his state of mind, that state, on the evidence otherwise before the Court, as at the relevant time, was affected by the significant downturn in work and the financial impact on his operations.
  26. Five, however, Ms Saad’s claimed flexibility (“flexible” – see PS 11) (as at 4 October 2013) must be properly understood.  As at that time she made clear in her email to Ms Phelps (Ms Saad’s affidavit of 29 July 2016 at annexure PS 11) that at the end of her “maternity” leave she wanted to “come back to my job”.  That is, the job as it existed before she went on parental (maternity) leave.  The flexibility to which she referred in the email was an unspecified “flexibility”, lacking temporal focus, with the “arrangements” for her return to her pre-leave position. In any event, that was a year after the relevant time for the discussions under cl.8 of the Award.
  27. This did not take into account what Mr Maxwell, on her own evidence, had clearly told her at Marco’s Café on 3 April 2013 (Ms Saad’s affidavit of 29 July 2016 at [49]), that he could not afford a secretary.  On her account of the conversation, either a part time or full time secretary.  Even on Ms Saad’s evidence, Mr Maxwell’s state of mind (as at October 2013) was quite clear.
  28. Six, it is the case that by April 2013 Ms Saad did offer to return on a one day basis as a bookkeeper (annexure PS 4 to her affidavit of 29 July 2016).
  29. However, here again this was some interim arrangement so that ultimately, as she now submits: “to ensure that she did not lose her job” (Ms Saad’s submissions at [32(b)], and her affidavit at [57] – [58]).  That is, the full time job when she left to go on parental leave.
  30. What emerges from that evidence, and even now in Ms Saad’s submissions, is that Ms Saad appeared to not want to accept that Mr Maxwell’s work had suffered a significant deterioration in caseload in mid-2012.  As at April 2013 when she made that offer (to return as a bookkeeper), there was nothing to suggest that Mr Maxwell’s work and financial position would improve to such an extent in the near future such that he would, within a reasonable period, probably or possibly, be able to afford, or to want a legal secretary, as he had in the past. Noting of course that April 2013 was well after what could reasonably be described as early as practicable a period after the definite decision was made.
  31. Seven, Ms Saad submits that in April 2013 she, as the Court found, made reasonable attempts to “accommodate Mr Maxwell’s “concerns””.  (Saad (No 1)at [98]).
  32. This was certainly the case as far as Ms Saad was concerned.  However, the current task for the Court is not only to assess what Ms Saad now says was probable or possible in September 2012 based on her attitude in April 2013, but to look at the entirety of the evidence and as that may inform probable or possible events in late 2012 (the relevant period).
  33. As at April – May 2013 (and see the email exchanges referred to Saad (No 1) – see [96] – [97] of the judgment) Mr Maxwell made clear his “concerns” that he could not afford a “Sec anymore”.  On the evidence, that was certainly his concern as at September 2012.
  34. Again it is to be remembered that the relevant period for the purposes of the Award is September 2012 and the immediate period following, within the description in the Award of “as early as practicable after a definite decision has been made”.  As set out above, that “definite decision” was made on 21 September 2012 (Saad (No 1)at [235]).
  35. Ms Saad’s willingness as at April 2013 to address Mr Maxwell’s concerns (as expressed at that time) of itself is not sufficient to say that it was probable or possible that earlier in September – December 2012 Mr Maxwell would likely have agreed, or could have agreed, to restoring Ms Saad to the pre-parental leave position.  A position that, on the evidence, no longer existed.  Nor that he would have agreed to some other arrangement.
  36. Eight, there is no doubt on the evidence that Mr Maxwell had a positive view both as to the personal and professional qualities of Ms Saad at the time she commenced her parental leave (June 2012).  Further, that he generally maintained that view up to and including the period relevant to the purposes of cl.8 of the Award (see Mr Maxwell’s affidavit at [18], [123], [124]).
  37. However, what Ms Saad’s submissions have not satisfactorily explained is how that view would, at the relevant time, have within the scale of probability or possibility, resulted in her being offered a position as a junior secretary as suggested at [35] of her written submissions.
  38. Nine, in this part of her argument Ms Saad appears to accept that Mr Maxwell’s practice had suffered a “reduction” in the period before 21 September 2012 and for the remainder of the relevant period.
  39. Her position, therefore, appears to be that the “ongoing role” that would likely (“a clear possibility”) have been agreed between the parties, as at the relevant time, within the relevant period, had the opportunity envisaged in cl.8 of the Award been given, was a “new role, albeit on a part time basis”, which would have provided Ms Saad with “ongoing employment”.  The “new role” was otherwise described in the submissions as a “compromise”.
  40. In short, that is the event which Ms Saad says would likely have occurred.
  41. The difficulty for Ms Saad is that her submissions are heavily, although not exclusively, weighted to what she says was her own willingness to achieve this compromise, so that she could return to some form of work with Mr Maxwell.  What was probable or possible requires consideration of all the relevant circumstances.
  42. First, it is important to note that Ms Saad’s employment as a legal secretary as at the time she went on parental leave was with AEC, not Mr Maxwell, albeit that that employment was for the purpose of providing secretarial services to Mr Maxwell (see further below).
  43. In this light, the evidence before the Court was that the “definite decision” (with reference to cl.8 of the Award) taken on 21 September 2012, which involved a “restructure” of Mr Maxwell’s work (see [235] of Saad (No 1)), included the element that AEC was no longer going to provide secretarial services to Mr Maxwell.  This was because Mr Maxwell had decided to employ what was described as a “basic” secretary, rather than a legal secretary.
  44. The evidence before the Court (not disputed by Ms Saad) is that this was because both AEC and Mr Maxwell needed to address the consequences of the significant reduction in the work referred to him, which was the catalyst for the restructure of the business operation, which involved the nature and character of the secretarial support for Mr Maxwell.
  45. Further, in this light, AEC had no alternative positions in pay and status to the position Ms Saad occupied previously.  Nor, importantly, was AEC required to provide secretarial support to Mr Maxwell (see Saad (No 1)at [168]).
  46. Second, of course, had the discussions required by cl.8 of the Award taken place as early as practicable after 21 September 2012, that is within the relevant period, there is some possibility that Mr Maxwell may have been asked by her to “reverse” the decision concerning the restructure, to revert back to again taking some secretarial services from AEC, rather than directly employing a secretary to provide basic secretarial functions.
  47. However, there is no evidence to support the proposition that Ms Saad would have returned to take up any such position in the immediate period.  On the evidence, she had given birth some three months before the time of the decision, and her parental leave was for the period up to 3 June 2013.  There is nothing in her evidence to say she wanted to, or was able to, or would consider, coming back to work before that date.  In fact, her evidence is clear that her discussions with Mr Maxwell were focused on:  “…about when I’m back in June”.  This was in the discussion she recounts having occurred at Marco’s restaurant on 3 April 2013 (see her affidavit at [49]).
  48. In her submissions to the Court now, Ms Saad focused on what she says was her flexibility in compromising on the duties, pay, and status, so she could return to work.
  49. However, had the relevant discussions taken place as “early” as practicable after 21 September 2012, that return to work was not to be effected, at best, by her until after 3 June 2013. That is, after the end of her period of parental leave.
  50. The respondents’ submissions to the Court also point to evidence to support the proposition that Ms Saad, in fact, was not seeking to return to work until June 2014. For example, Ms Saad’s email to Ms Phelps of 13 June 2013 where she expressed her love of taking the time to spend with her child and that she wished to “spend the next year with” her child. (PS 8 of Ms Saad’s affidavit of 29 July 2016).
  51. This temporal focus is important in considering the probability or possibility of what would have occurred in the relevant period had the discussions taken place as the Award required.
  52. It is difficult to accept that Mr Maxwell would likely have agreed (as at September – October 2012, and even up to December 2012) to some “compromise” which would not be put into effect until after 3 June 2013, or possibly even later, particularly in circumstances where, on the evidence, his focus was on immediately seeking to address the serious consequences of the impact of the significant reduction in his work.
  53. There is nothing in Ms Saad’s submissions now to say that her desire to return to work was focused on any particular point in time.  Rather, the submissions talk of the “compromise” to allow her to return to work, in context, sometime after 3 June 2013, and possibly even later.
  54. Third, Ms Saad submits that on the evidence of Mr Maxwell, a “new role” was created in the September – November 2012 as a result of the “definite decision” to restructure.
  55. This is said to be a reference to the “basic secretary role” ultimately filled by Ms Justine Anderson.  The initial remuneration for this role was $39,000 per annum.  The employer was Mr Maxwell, not AEC.
  56. Ms Saad submits that given Mr Maxwell had “control” of AEC (see Saad (No 1)at [2]), there was capacity for Mr Maxwell to then consult about the “new role” with Ms Saad.
  57. In Ms Saad’s submissions, the new role relied on work to be completed by a junior employee over a 35 hour week.  This was, in context, at the time following the reduction in work.
  58. Ms Saad submits that she was a senior employee: “…about to return from maternity leave” (at [16] of Ms Saad’s submissions), and therefore, this new role should have been discussed with her pursuant to cl.8 of the Award. I do not agree with this submission for the following three reasons.
  59. The first reason is that I do not agree with Ms Saad’s submission that the consultation, if it had taken place, would probably, or even possibly, have led to an agreement on her taking the new role either at that time, or even at some time in the future.
  60. On what is set out above, the parties would not have reached any agreement on this new role in September – December 2012 with a view to Ms Saad fulfilling this role at that time.
  61. The second reason is that Mr Maxwell was not the pre-parental leave employer.  That was AEC.  Even if the discussions had taken place in September 2012, he personally was under no obligation (with reference to the Award) to offer Ms Saad any such position.
  62. In that light, I agree with Mr Maxwell now that the failure by him to discuss the changes with Ms Saad in the relevant period was not relevant to the opportunity envisaged in cl.8, at least insofar as it related to him personally.
  63. However, that agreement extends only to the point that it was an obligation on Mr Maxwell personally.  It was still an obligation on AEC, which Mr Maxwell was in a position to fulfil.
  64. The third reason is that, in this light, I agree with Mr Maxwell that the loss of opportunity to discuss employment derives from cl.8 of the Award.  It was AEC that contravened cl.8.  In this light, even if Mr Maxwell was a “knowing participant” and “involved in” the failure to comply with cl.8, any discussions (as at the relevant time) by Mr Maxwell would relate to Ms Saad’s employment with AEC, and not to him personally.
  65. The loss of opportunity claimed by Ms Saad is a loss of opportunity to discuss changes in employment with the employer.  That is AEC.
  66. The only relevant change for the purposes of the Award that occurred in that instance is that AEC no longer had any need for a legal secretary so that it could provide services to Mr Maxwell.
  67. The contravention of that obligation by AEC involved a failure by Mr Maxwell acting for AEC, not Mr Maxwell acting on his own behalf.  Therefore, Ms Saad’s reliance on what Mr Maxwell (acting directly) offered, or did not offer to Ms Anderson, or the “new role” created by Mr Maxwell, is subject to Mr Maxwell accepting that he would reverse the decision to no longer take secretarial services from AEC, and to offer Ms Saad on behalf of AEC, a position with AEC.
  68. The likelihood of this occurring, as at the relevant time, and on the evidence, is negligible for the reasons already set out above.
  69. What was not satisfactorily addressed in Ms Saad’s submissions was the following.  The need for the restructure was not, based on the evidence, created by some animosity towards Ms Saad.  This was not some restructure born of the desire to get rid of her.
  70. To the contrary the evidence is, and on which Ms Saad otherwise relies, that up to the relevant time Mr Maxwell and Ms Saad had worked closely and positively together for many years.  The evidence (the email correspondence up to and including April 2013) reveal a warm, friendly, and cordial relationship.
  71. The reason for the restructure was as a response to the significant impact of the Brydens Laywers’ action on Mr Maxwell’s work.  Mr Maxwell’s evidence, which was not challenged, was that, in essence, he accepted his accountant’s advice (on 21 September 2012) that to: “…remain financially viable [Mr Maxwell] need[ed] to reduce [his] expenses” in the face of “dramatic” changes to the flow of work to him (see Saad (No 1)at [230] and see generally at [227] – [231]). This was, on the evidence, the reason for the restructure.
  72. Even accepting that Mr Maxwell and Ms Saad enjoyed a long standing and positive relationship as at September – December 2012, the likelihood of Mr Maxwell, in the circumstances, agreeing to reverse the decision of the restructure is, at best, remote.
  73. This would include reverting to obtaining secretarial services from AEC.  The accountant’s clear advice was predicated on using other people (the Chambers clerk etc) from AEC to do some work for him.  But critically, the secretarial support to him would be restructured in such a way as to reduce costs so as to address financial viability issues.
  74. Fourth, Ms Saad now submits, that “new role” required a smaller amount of work than that which Ms Saad had performed, and therefore she could have fulfilled the duties of this position on a part-time basis (“at 0.6 fraction”).
  75. The difficulty of this argument is, as Mr Maxwell now submits, one of a lack of available evidence.  In her submissions Ms Saad has taken a purely mathematical, and it must be said self-serving, view of the time of her attendance.  There is nothing to say that the “new role” would not have required attendance each day say, for example, to attend to daily routine tasks usually found in an office environment (for example, attending to post or email communications).
  76. Fifth, in a similar vein, Ms Saad submits that she could have fulfilled all of the duties of the “new role” by working at a 0.6 fraction of the usual working week.
  77. The difficulty for Ms Saad now is that the relevant time for current purposes is as soon as practicable after 21 September 2012.  That is the period in respect of which the current consideration of what would probably or possibly have occurred is focused.
  78. However, the relevant evidence on which Ms Saad now relies essentially arises from events in April 2013.  That is when she made her “decision” to return to work (see her affidavit of 29 July 2016 at PS 4), albeit at a later date, either 4 June 2013, or even June 2014.
  79. As at April 2013 Ms Saad’s evidence is that she did not want to do part time work or consider another role.  While Ms Saad indicated a desire for a “graduated” return to work, this was to her old position, not any new role (her affidavit at [54] – [55]).  Nor did her desire or intention change in May 2013.  (See Ms Saad’s affidavit of 29 July 2016 at [59] and PS 6).
  80. Ms Saad’s submission now expressing flexibility in her attitude to her return does not address the lack of evidence to support that contention as at the relevant period, and the evidence to the contrary as at April – May 2013.
  81. I do not respectfully understand the relevant authorities to provide that when considering the question of what may have probably or possibly occurred (as at the relevant period), the Court now should accept a party’s submissions on what she would have now liked to say would have happened, as opposed to the likelihood arising from the available contemporaneous, or near contemporaneous, evidence.
  82. Also in a similar vein, Ms Saad submits that the likelihood of her continuing with this “new role” (the 0.6 fraction of secretarial duties) was also enhanced by the likelihood of her being offered duties as a clerk following the resignation of Ms Phelps, who occupied such a position.
  83. It is the case that Mr Maxwell did discuss with her the possibility of her performing that function (see Mr Maxwell’s affidavit at MM 20 and MM 24) (letter to Ms Saad dated 28 October 2013 and letter to Mr Taylor dated 19 May 2016). The difficulty for Ms Saad now is that when it was offered to her, she refused it (see Mr Maxwell’s affidavit of 3 August 2017 at [112] and MM 24).  Similarly, when she was offered an accounts role in January 2014 (see Mr Maxwell’s affidavit of 3 August 2017 at [106] and MM 23), she also refused this.
  84. In all, Ms Saad’s submissions now that there most likely would have been agreement during the relevant period when the ‘consultation’ should have taken place, or even at some little time thereafter, is either lacking in evidence in support, or in some instances contradictory to the evidence before the Court.
  85. Sixth, as set out above, there is some uncertainty as to when Ms Saad would have been available to return to work from her parental leave (June 2013 or June 2014).
  86. The respondents argue that there had been discussions about Ms Saad extending her parental leave period.  Ms Saad submits that she did make such an offer.  However, that was in circumstances where Mr Maxwell had repeatedly expressed “concerns” about his financial difficulty (as a result of the withdrawal of the work from Brydens Lawyers).
  87. Ms Saad submits that her offer was made sometime after the “consultation” was required to have occurred.  That is, sometime after the relevant period.  That, on the evidence, is to be accepted.
  88. What is problematic, however, is Ms Saad’s submission that this occurred after she had expressed a desire to return at the expiry of the “initial parental leave” (that is, 4 June 2013).
  89. Ms Saad did express such a desire.  But there is also evidence before the Court, as referred to above, that presents ambiguity as to what she really wanted as to the timing of her return.  That evidence, her own evidence, concerns her remaining on leave, with her child.
  90. Seventh, and apparently directly relevant to the basis for the calculation of the quantum of compensation, Ms Saad submits that had some agreement been reached in the relevant period (which she says was likely) she would have remained in this position, or something similar, indefinitely.
  91. This argument relies on the proposition that, as set out above, is dependent on the contention that Ms Saad and Mr Maxwell worked closely for many years and their relationship was warm and positive.
  92. As also set out above, Ms Saad’s pre-parental leave position was not available, nor was it offered in the subsequent and later exchanges between her and Mr Maxwell.
  93. The position options that were subsequently raised did not comply with, on the evidence, Ms Saad’s desire to return ultimately to her pre-parental leave position.
  94. It is difficult on the evidence to accept Ms Saad’s argument now that some ongoing arrangement would and could likely have been put in place, as at the relevant period, which would have led to her remaining “indefinitely”, or even as she otherwise submits, for five years.
  95. Eighth, in all, the following may be said as to what likely would have occurred (taking into account the probabilities and the possibilities), if AEC (with the involvement of Mr Maxwell) had complied with cl.8 of the Award, as soon as practicable, after the “definite decision” had been made on 21 September 2012.
  96. There is no dispute that Mr Maxwell’s practice suffered a significant impact following the withdrawal of work by Brydens Lawyers.  The “definite decision” of 21 September 2012 was a direct result of the need to restructure his work operations in light of this event.
  97. Nor is there any dispute that, but for this event, Mr Maxwell would have continued, through the medium of AEC, to use the services of Ms Saad.  The evidence of both Ms Saad and Mr Maxwell was that the two of them had a long standing and positive work relationship.
  98. That latter point is seized upon by Ms Saad who argued that in the relevant period Mr Maxwell’s positive attitude towards her would have led to what she describes as a “compromise”.
  99. In my view, Mr Maxwell’s acknowledged positive attitude towards Ms Saad, as at the relevant time may equally argue, in the circumstances, for a contrary position.  The impact on Mr Maxwell’s workflow, and consequently fees, was such that he had no option but to restructure the work.  Whether he was well disposed to Ms Saad at that time, or not, was not a relevant factor.  It is clear on the evidence that Mr Maxwell, as at the relevant period, could not afford to pay for a full time legal secretary position (as it had been when Ms Saad went on parental leave), or some “compromise” variation of it.
  100. In short, Mr Maxwell’s positive disposition towards Ms Saad merely emphasises the significant impact on his practice of the Brydens Lawyers withdrawal of work, which had such an adverse impact that he was unable to continue to retain the services (through AEC), or even directly, of a person to whom at the time he was so positively disposed towards.  There is no evidence before the Court that Mr Maxwell had any “ulterior” motive to, (putting it bluntly) get rid of Ms Saad.
  101. In all, I agree with the respondents that as at September 2012 and for the period which can be understood as being “reasonably practicable” after that date, the likelihood of Ms Saad returning to work to her pre-parental leave position, or a “compromise” “new role” is negligible.
  102. On the evidence, and in spite of his positive attitude towards Ms Saad, Mr Maxwell was not in a position to offer Ms Saad an employment position either acting personally or on behalf of AEC, at the relevant time which she would have accepted.  In essence, Ms Saad wanted to return to “her” position.  The “compromise” was an interim notion pending her “return” in June 2013, or even June 2014.
  103. On the evidence, within the relevant period (21 September 2012 and the following “reasonably practicable” period) Mr Maxwell was focused on salvaging the remnants of his practice in seeking to recover from the Brydens Lawyers impact.  Ms Saad did not want to return to work at that time, which meant that any “discussions” between them at that time would have been at cross purposes. Mr Maxwell was focused on the immediate period.  Ms Saad was focused on her future return, ultimately, to her pre-parental leave position, or something similar.
  104. At the relevant time the likelihood of agreement would have been severely reduced given this difference in focus.  Further, as at that time Mr Maxwell would not have, reasonably, been in a position to predict what his practice would look like, or what its support needs would be, as at June 2013 or June 2014.
  105. The probability or possibility of Ms Saad accepting the “compromise” or “new role” in the period September – December 2012 was negligible given that she was not able, or did not want, to return until June 2013 or later.
  106. Further, given the impact of the decrease in work, the uncertainty that existed, as at that time, but what was likely on what the evidence now indicates was known of the relevant support services required, the likelihood of Mr Maxwell or AEC accepting the elements of the new role pressed by Ms Saad, is remote.  That is, in particular, that they would accept her working for three days per week instead of five days.
  107. Further, the parties now did not agree on the remuneration that would likely have been discussed if the discussions had taken place as required by the Award.
  108. Ms Saad says that she would have continued in employment for at least another five years at a salary of $39,000 per annum.  Mr Maxwell says the minimum salary that Ms Saad would have accepted at that time is $52,000 per annum, and that in particulars provided in these proceedings, Ms Saad’s claimed loss was described as past loss of 2.72 years and one year forward (see at page 3.3 of letter from David Taylor to Michael Maxwell dated 22 February 2016).
  109. Putting to one side the length of time for the moment, the dispute therefore centres on $39,000 or $52,000.  Ms Saad’s calculation is said to be based on a 0.6 fraction of a “full time wage”.  That is $39,000.  Mr Maxwell’s calculation is based on what was actually the salary of the “basic” secretarial position employed by him in November 2012.  (That is within the relevant period).  (MM 6 and at [63] of Mr Maxwell’s affidavit of 3 August 2017).
  110. Ms Saad’s calculation now still reflects what was her position in late 2012, and into 2013.  That is, she wanted to return to her pre-parental leave position, but says now she would have been willing to compromise with a new role as an interim measure.
  111. As set out variously above, Ms Saad did not accept in January 2014, and May 2016, an accounts position, and the clerk’s position with AEC.  The likelihood of her accepting a “basic” secretary position in late 2012 is, in context with what is variously set out above, negligible.
  112. As to the matter of the remuneration, Ms Saad’s evidence, as it relates to the relevant time, was that given her other responsibilities, she required $200 per day to make her return to work feasible in the circumstances (see her affidavit at [84]).  On that basis, the salary she would likely have pressed, if the discussions had taken place in late 2012, would have been approximately $52,000 per annum ($200 per day equals $1000 per week equals $52,000 over a year).
  113. In that light I accept the respondents’ submissions now that that amount was far in excess of what Mr Maxwell had offered and was paying at the relevant time.
  114. I do not accept Ms Saad’s submissions that some three day a week arrangement would have been likely given Mr Maxwell’s needs as at the relevant time.  Even if some three day a week arrangement would equate to approximately $31,000 per annum (see [32(d)] of Ms Saad’s written submissions) (below the $39,000 as submitted now by Ms Saad), that possibility, for reasons set out elsewhere, was remote.
  115. Against this the probability or possibility of Ms Saad returning to work as at the end of June 2013, even if the discussions had taken place, and noting that under the Award those discussions were required to have taken place in late 2012, the likelihood of some arrangement (agreeable to both sides) being put in place is negligible.  If a percentage is to be applied, then I agree with the respondents that it would be below 1%.  That is, with respectful reference to Malec, it is to be regarded as “speculative”.

Non-Economic Loss

  1. As set out above, Ms Saad also seeks compensation for non-economic loss. The respondents accepted that an order for such loss could be made pursuant to s.545(2)(b)of the Act. Ms Saad says such an order is warranted in the circumstances of this case.
  2. While in her submissions Ms Saad makes reference to various authorities, these appear, for the most part, to be focused on the quantum of the compensation.  Her submissions do make reference to Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 and assert that the relevant principles to the assessment for such loss are set out there.
  3. In essence, Ms Saad’s argument is as follows.  The failure to consult caused her damage.  This is said to be because it robbed her of the opportunity to reach an agreement by which she would have ongoing work.
  4. Further, that even if no agreement had been reached on ongoing employment, a process of “genuine consultation” would have reduced the damage she suffered.
  5. To make out this contention, Ms Saad seeks to rely on her, and her husband’s, evidence as to the impact on her which focused on the termination of her employment.  Nevertheless, she now argues that the respondents’ failure to “consult” was also the cause of damage for the reasons set out immediately above.
  6. A number of factors emerge from this claim in the circumstances presented.
  7. First, the date of Ms Saad’s termination of employment was on, or about, 28 October 2013.  The evidence, and that of her husband, therefore is focused on the consequences and impact on her of an event that was about a year after the period of the contravention.
  8. That latter point is made very clear, in particular, by the evidence of Ms Saad’s husband.  In her written submissions now, Ms Saad specifically reproduces part of his affidavit.  The first paragraph reproduced in her submissions (at [51]) is [7] of his affidavit of 29 June 2017.  That paragraph begins with the words:

“7. The impact on her of being terminated by Maxwell has been enormous. At its core the reaction is one based on her sense of betrayal of her trust by a person in whom she place a huge amount of trust, and respected enormously.”

[Error in the Original.]
[Emphasis Added.]

  1. Further, at [9]:

“9. More generally, in the period since the termination of her employment:

(a)   she has appeared depressed. I make this observation based on her frequent comments to that effect, her lethargy, her crying and appearing distressed, and her moods.

 

(b)   she has shown visible of anxiety. She has expressed anxiousness, even at very limited provocations.

 

(c)    demonstrated a great loss of resilience. Where in the past a difficult conversation with another parent at the park, or with a government department she was dealing with would have been brushed off, over the period since the termination she has reacted and become caught up in the conflict.

 

(d)   demonstrated a loss of trust in people. She will now question people’s motives and whether they are genuine in circumstances where she never did that in the past. She has lost contact with most of friends, and has strained family relationships, including with me. She made contact with other new mothers following Jakob’s birth, but appears to find it hard to take these relationships beyond acquaintances into friendships.”

[Errors in the Original.]
[Emphasis Added.]

 

  1. The excerpts of her own affidavit on which Ms Saad now relies (see her submissions at [50]) of themselves, lack a specific temporal focus other than a reference to: “On a number of occasions in late 2013…” (at [96] of her affidavit).
  2. In short, the evidence on which Ms Saad now relies derives from a time well after the time of the contravention. As with Ms Saad’s submissions generally, it must be said there is a demonstrated unwillingness to focus on the fact that of the matters alleged against the respondents in the statement of claim, and as that document was amended, only one, the breach of the Award (and s.45of the Act) was successful. That contravention is the only one available now to Ms Saad on which to base any claim for non-economic loss. That is, no “contravention” or breach was found in Saad (No 1)concerning the termination of employment.
  3. Second, it must also be said that Ms Saad’s submissions do not satisfactorily explain (notwithstanding the focus of her evidence on “termination”) the link between the damage and consequent loss claimed, and the actual contravention as found by the Court.
  4. A mere assertion in submissions that the “failure to consult was also a cause of the damage”, is insufficient to make out her claim now.
  5. Apart from the evidentiary deficiency referred to above, this insufficiency is also illustrated by the first reason Ms Saad gives for the damage she says she suffered.  That is the lack of “consultation” robbed her of the opportunity of agreement on ongoing work.
  6. The actual contravention found by the Court was the first respondent’s failure to engage with her in “meaningful” discussions as soon as practicable after 21 September 2012.  There is nothing in Ms Saad’s evidence, or her submissions, to say that that failure led to the damage she says she suffered.  At best her argument is that the failure to discuss led to a consequential loss of opportunity of ongoing employment.  As set out above, even if the discussions had taken place, the likelihood of ongoing employment resulting from them was negligible or speculative.
  7. Third, Ms Saad’s “second reason” (see [155] above and [49(b)] of her written submissions) cannot be properly understood as an argument to support the claim she suffered damage as a result of the failure to “consult”.
  8. By its very terms the argument asserts that the damage, otherwise caused by the failure, would have been “reduced” if the “consultation” had taken place.  Not that it was caused by that failure.
  9. In any event, even if taken on its face, the assertion stands in contrast to the evidence before the Court that at least by 3 April 2013 an attempt was made to give information to Ms Saad in the requisite sense and discussions ensued.  (See [151] – [153] and [246] of Saad (No 1)).
  10. I agree with the respondents’ submissions that given this evidence, it is difficult to see that Ms Saad can say she suffered damages in the sense of hurt, distress, and humiliation, as a result of the breach of the Award.  Noting, of course, that on the evidence, that impact emerged after April 2013.  In fact, as her evidence makes clear (and her submissions otherwise acknowledge), it arose from the act of termination of employment about a year later.
  11. Fourth, this important temporal focus is also supported by Ms Saad’s response in these proceedings to the respondents’ request for further particulars of her claim made on 22 February 2016 (See CB 137 to CB 139).
  12. It is to be remembered that as at the relevant period Ms Saad was on parental leave.  The response to the respondents’ request was that “the hurt and distress started on or about 3 April 2013 and is ongoing”.
  13. Given that Ms Saad otherwise submits that the damage (hurt and distress) would likely have been reduced had the discussions taken place in the relevant period, then it cannot be said that the lack of “consultation” in late 2012 was the cause of her hurt and distress as at April 2013 and later.
  14. I should note that in the same document Ms Saad made clear that her “shame and embarrassment” was “associated with the termination of her employment” and the “lack of ongoing employment”, in context, from that time.
  15. There is nothing in the evidence, or Ms Saad’s documents in these proceedings (other than the mere assertion in her written submissions now), to indicate that her hurt and distress and the like, was a result of, or caused by, the contravention in late 2012.
  16. Fifth, in her evidence to the Court (albeit as set out above in reference to termination), Ms Saad asserts, variously, that the damage suffered was a loss of enormous confidence in herself, she had frequent nightmares (“since my termination”), was anxious and upset, had difficulty sleeping, panic attacks (“in late 2013”), and was angry and depressed.
  17. As set out above, these symptoms, on her evidence and that of her husband, emerged, some possibly as early as April 2013, but most probably after the date of termination.  Even that earlier date (as set out above) postdates the relevant period.
  18. Sixth, in relation to the harm said to have been suffered, even if Ms Saad had been able to otherwise establish some link, or causal connection to the contravention (which she has not), the lack of medical or independent corroboration leaves her claims in this regard exposed.
  19. Ms Saad’s own evidence is that she consulted her doctor (her affidavit at [94]) and has “started” (presumably at, or about, the time of the making of her affidavit) “to see a counsellor”.
  20. Ms Saad therefore would have had the opportunity to adduce such evidence from her doctor or counsellor and has not done so.
  21. In any event, and in all, even on Ms Saad’s assertion of various symptoms, there is nothing (beyond mere assertion now) to say that these arose because of the contravention (as found by the Court). Rather, on the evidence that is available (especially that of herself and her husband), the symptoms arose as a result of the termination of employment. Noting again that that is outside the relevant period. In any event, there was no finding made by the Court that that termination involved any contravention or breach of the Act. That termination occurred as a result of the restructure of Mr Maxwell’s work.
  22. On the evidence before the Court, I find that Ms Saad did not suffer non-economic loss as a result of the contravention of cl.8 of the Award.

Conclusion

  1. Given the Court’s finding that the respondents breached cl.8 of the Award and therefore contravened s.45of the Act, Ms Saad was entitled to seek to quantify the amount of compensation as a result. However, for the reasons set out above, the quantum of that compensation is nil.
  2. I do not accept Ms Saad’s claim for compensation for economic and non-economic loss, as those claims have been quantified and argued in submissions before the Court. In all, therefore, I decline to make the order sought pursuant to s.545(2)(b)of the Act by Ms Saad. I will make the appropriate order that Ms Saad’s application for a sum of damages in compensation is refused.”

SAAD v ADA EVANS CHAMBERS PTY LTD & ANOR [2019] FCCA 1101 delivered 29 April 2019 per Nicholls J