SBP Employment Solutions Pty Ltd v Smith

• Jurisdiction: Australia Federal only
• Judgment Date: 08 June 2021
• Neutral Citation: [2021] FCA 601
• Court: Federal Court
• Date: 08 June 2021

Federal Court of Australia

SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601

Appeal from:	Smith v SBP Employment Solutions Pty Ltd & Ors (No 2) [2019] FCCA 3318 Smith v SBP Employment Solutions Pty Ltd & Ors (No 3) [2019] FCCA 3516 Smith v SBP Employment Solutions Pty Ltd & Ors (No 4) [2020] FCCA 61
File number:	QUD 775 of 2019QUD 45 of 2020
Judgment of:	RANGIAH J
Date of judgment:	8 June 2021
Catchwords:	INDUSTRIAL LAW – appeal against decision of Federal Circuit Court of Australia – Fair Work Act 2009 (Cth) – where employer found to have taken adverse action under s 340 – where employer’s four directors and related company found accessorily liable – whether employee made “complaints or inquiries” under s 341(1)(c)(ii) – whether “complaints or inquiries” a substantial and operative reason for dismissal – where two of four directors gave evidence – challenge to adverse credibility finding based on misapplication of Jones v Dunkel inference – no substantial miscarriage of justice – no retrial – whether penalties manifestly excessive – reduction in penalties against employer and two directors – penalties against related company and two directors set aside – grounds of appeal upheld in part ; INDUSTRIAL LAW – penalties – where declarations made that employer failed to pay out annual leave entitlements within a reasonable time under ss 44 and 90(2) – where related company and four directors found accessorily liable – whether penalties manifestly excessive – reduction in penalties against employer and one director – penalties against related company and three directors set aside – grounds of appeal upheld in part ; COMPENSATION – quantum – reduction in economic loss to account for vicissitudes – grounds of appeal upheld in part ; COSTS – application for extension of time – extension granted – application for leave to appeal against costs orders under s 570 – leave granted – costs orders set aside – no costs – ground of appeal upheld
Legislation:	Fair Work Act 2009 (Cth) ss 3, 44, 90, 130, 340, 341, 342, 343, 346, 351, 360, 361, 550, 570 Evidence Act 1995 (Cth) s 140 Federal Court of Australia Act 1976 (Cth) s 28(1) Federal Court Rules 2011 (Cth) r 25.01(1) Work Health and Safety Act 2011 (Qld) s 19 Workers Compensation and Rehabilitation Act 2003 (Qld) s 119A
Cases cited:	ASIC v Hellicar (2012) 247 CLR 345 BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 219 FCR 245 Blatch v Archer (1774) 1 Cowp 64 at 65, 98 ER 969 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Briginshaw v Briginshaw (1938) 60 CLR 336 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd (2015) 253 IR 166; [2015] FCA 1014 Conway v The Queen (2002) 209 CLR 203 Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400; [2020] FCAFC 204 Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251; [2001] FCA 1804 Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456 HML v The Queen (2008) 235 CLR 334 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139; [2013] FCA 451 PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 248 FCR 18 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1; [2014] FCA 271 Smith v SBP Employment Solutions (No 2) [2019] FCCA 3318 Smith v SBP Employment Solutions Pty Ltd (No 3) [2019] FCCA 3516 Smith v SBP Employment Solutions Pty Ltd (No 4) [2020] FCCA 61 Todorovic v Waller (1981) 150 CLR 402 Weiss v The Queen (2005) 224 CLR 300 Windoval Pty Ltd v Donnelly (2014) 226 FCR 89
Division:	Fair Work Division
Registry:	Queensland
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	215
Date of last submissions:	2 June 2021 (Respondent)
Date of hearing:	9 November 2020
Counsel for the Appellants:	Mr C Murdoch QC with Mr S Mackie
Solicitor for the Appellants:	Carter Newell Lawyers
Counsel for the Respondent:	Dr R Haddrick with Mr A Hartnett
Solicitor for the Respondent:	FCB Workplace Law

ORDERS

		QUD 775 of 2019 QUD 45 of 2020
BETWEEN:	SBP EMPLOYMENT SOLUTIONS PTY LTD First Appellant ; SBP AUSTRALIA PTY LTD Second Appellant ; MAX BURNS (and others named in the Schedule) Third Appellant
AND:	NICHOLAS SMITH Respondent

order made by:	RANGIAH J
DATE OF ORDER:	8 JUNE 2021

THE COURT ORDERS THAT:

1. The parties agree upon and provide to the Court draft orders reflecting the reasons for judgment by 4.30 pm on 15 June 2021.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The Parties	[7]
The Evidence	[14]
The Liability and Penalty Decision	[37]
The Compensation Decision	[57]
The Costs Decision	[60]
The Legislation	[63]
Ground 1: Appeal against findings of contravention of s 340 of the FWA	[70]
Ground 1(a): Whether the primary judge erred in the application of Jones v Dunkel	[70]
Whether the error should result in a retrial	[90]
Ground 1(b): Whether the primary judge erred in finding that “complaints or inquiries” had been made	[116]
Grounds 1(c) and (d): Whether the primary judge erred in determining reasons for the dismissal	[151]
Grounds 2 and 3(e): Appeal against penalties	[158]
Whether Employment Solutions’ penalty for contravention of s 44 of the FWA was manifestly excessive	[158]
Whether the remainder of the penalties were manifestly excessive	[171]
Ground 3: Appeal against orders based on findings of accessorial liability	[177]
Grounds 5 and 6: Appeal against the Compensation Decision	[193]
Appeal against the Costs Decision	[205]
Summary	[214]

RANGIAH J:

1. The appellants appeal against judgments of the Federal Circuit Court of Australia in Smith v SBP Employment Solutions Pty Ltd (No 2) [2019] FCCA 3318 (the Liability and Penalty...