Fox, Andrew James v St Barbara Mines Ltd [1998] FCA 621

FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - termination of employment - prohibited reason - review of Judicial Registrar awards - compensation in lieu of notice - calculated by reference to ordinary hours - meaning of "ordinary hours" - penalty - maximum penalty - criteria for imposition - whether payable to employee - compensation for breach of Act - mitigation of loss - evidence as to contingent factors to reduce compensation.

Workplace Relations Act 1996 (Cth) s 170CP, s 170CN(4), s 170CM, s 170CK, s 170CR s 356(b) Kezich v Leighton Contractors Pty Ltd (1974) 131 CLR 362, cited R v McMahon (1978) 19 ALR 448, cited Veen v R [No 2] (1988) 164 CLR 465, applied ANDREW JAMES FOX v ST BARBARA MINES LIMITED WAG 9 of 1998 FRENCH J PERTH 4 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY WAG 9 of 1998

B E T W E E N: ANDREW J FOX

APPLICANT

AND ST BARBARA MINES

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 4 JUNE 1998

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The respondent pay to the applicant within fourteen days the sums of: (a) $4,785 pursuant to s 170CR(4) as compensation for the breach by the respondent of s 170CM of the Workplace Relations Act 1996 (Cth). (b) $28,000 pursuant to s 170CR(1) as compensation for the breach by the respondent of s 170CK; and (c) $9,000 pursuant to s 170CR(1) and s 356(b) as a penalty for the breach by the respondent of s 170CK. 2. That the respondent pay the applicant's costs of the application before the Judicial Registrar and the costs of this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIAN DISTRICT REGISTRY WAG 9 of 1998

BETWEEN: ANDREW J FOX

APPLICANT