Case: Laz v Downer Group Ltd (2000) 108 IR 244
Outcome: applied
The parties also disagreed as to how the cap or limit in s 665(3) should be applied. According to counsel for the respondent, s 665(1)(c) does not contemplate that 'compensation' be first assessed by reference to that which the employee has lost or otherwise suffered by reason of the employer's contravention of s 659 , although he conceded that it conferred a discretion on the court, which might be exercised having regard to the employee's loss. The respondent submitted that s 665(3) operated as a jurisdictional constraint on the exercise of this discretion. The respondent argued that, if the court, in the exercise of its discretion, determined that the maximum amount of compensation payable under the cap (or some lesser amount) was appropriate, then any deductions (such as those referred to in [12] above) should be made from this amount. Finally, the respondent submitted that, to the extent that Laz v Downer Group Ltd (2000) 108 IR 244 (" Laz ") was contrary to this suggested interpretation, it was wrongly decided or was to be reconsidered in light of the fact that s 665(3) in its present form was enacted after Laz . 20 I reject the respondent's submissions concerning the operation of the cap. There is no warrant to accord to s 665(3) such a contrived operation. Section 665(3) operates merely to limit or cap the amount of compensation that the court may fix under s 665(1)(c) , as an amount to be paid by the employer to the employee in compensation for terminating his employment in contravention of s 659 of the Act . Accordingly, I propose to approach the calculation of compensation in the way advocated by counsel for Mr Claveria. That is to say, I have calculated the amount of Mr Claveria's lost remuneration, and deducted from this amount the amounts referred to at [12] above. Only then, once an appropriate compensatory figure is arrived at, should regard be had to the cap in s 665(3). As I have already said, approached in this way, if lost remuneration is properly dealt with in an order under s 665(1)(c) , then s 665(3) does not operate to require the fixing of any sum lower than the $27,643.00 which I would otherwise award to Mr Claveria (whether or not superannuation is included in the calculation of the s 665(3) cap). 21 Of course, as counsel for Mr Claveria noted, s 665(1)(b) , (d) or (e) might also support an order for the payment of lost remuneration: see Laz at 260 per Moore J. I accept this might be so. Section 665(1)(d) , in particular, would in terms provide a basis for such an order. I note, in passing, that s 665(3) apparently contemplates that an amount of compensation may be ordered under this paragraph. Having regard to the earlier form of the Act , it does not seem to me that the respondent has shown any convincing basis for its argument that Laz was wrongly decided or stands to be reconsidered. Of course, if an order of this kind were properly regarded as having been made under s 665(1)(d) (or paragraphs (b) or (e)), the limit set by s 665(3) would not apply. This is a matter to be considered on another day. 22 In summary, the first respondent should pay Mr Claveria the sums of $4,000 by way of penalty, $27,643.00 (with an appropriate deduction for taxation) in lost remuneration, and $2,924.31 to Mr Claveria's nominated superannuation trustee. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny J. Associate: Dated: 6 December 2007 Counsel for the Applicant: Ms L Doust Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr T Donaghey Solicitor for the Respondent: Victorian Employers' Chambers of Commerce and Industry Date of Hearing: 5 December 2007 Date of Judgment: 6 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1917.html