Guthrie v Mondiale VGL Pty Ltd

Guthrie v Mondiale VGL Pty Ltd | Case summary | Zoe

[59]

Mr Guthrie also relied on an affidavit from his wife, Ms Joanne Elizabeth Reavill-Guthrie, affirmed 24 January 2025 (Exhibit A3) and adopted as true and correct at the hearing. The affidavit deposed to the desire of Mr Guthrie to secure work as an afternoon shift driver with Mondiale in Perth to complement childcare needs for their young son. Ms Reavill-Guthrie also gave evidence of her observations of her husband and his attempts to find suitable employment following his dismissal by Mondiale in December 2019. Ms Reavill-Guthrie also gave evidence of her observations of Mr Guthrie and the stress that he appeared to suffer due to the limited employment opportunities available to him.
Mr Jeater gave his evidence in person. Mr Jeater's employment with Mondiale was terminated for redundancy in April 2020. The circumstances under which Mr Jeater was terminated by Mondiale were the subject of proceedings for breach of the FW Act in this Court in Jeater v Mondiale VGL Pty Ltd [2022] FedCFamC2G 758 per Judge Lucev (Jeater). Mr Jeater gave evidence of his attempts to find employment as a heavy haulage truck driver in Perth in 2020 and 2021. He gave evidence that it took him eleven months to secure full-time employment from the date of termination of his employment with Mondiale. He said that it took him approximately three and a half months to secure 'labour hire' work which was sporadic and limited to three or four days a week with differing shift days. Then in September 2020, he secured a casual position for six months with K&S Freighters until March 2021 when he secured full-time employment as a day shift driver.
Mr Guthrie in his first affidavit said that at the time of the termination of his employment with Mondiale he was fifty years of age, and his preference and intention was to remain with Mondiale until retirement at the age of 68 (A1 [4]). Mr Guthrie deposed that he previously worked for British Telecom for over fourteen years and was previously employed by Mondiale/VGL at its Sydney depot from June 2014 and then transferred to the Perth depot in January 2019 (A1 [3], [5]). He and his wife intended to purchase a family home in Perth and his hope was to secure an afternoon shift with Mondiale that would allow him to take care of their young son in the mornings, when his wife worked remotely as a payroll manager for her employer in New South Wales (A1 [6], [24]).
Based on observations made after dismissal; Mr Guthrie believes that an afternoon shift became available with Mondiale shortly after his dismissal. He has observed that some of his former work colleagues still work for Mondiale (A1 [15]). His state of mind at the time of dismissal was that, but for his dismissal, he would have been employed by Mondiale full-time for at least another ten years (A1 [16]).
Mr Guthrie also observed several advertisements for positions with Mondiale for MC truck drivers after his dismissal. Screenshots of those advertisements were produced from January 2020, June 2020, September 2020, February 2021, March 2021, July 2021 and October 2021 (A1, annexure JG-2). Those advertisements show positions available for 'MC Drivers' (for day shifts and afternoon shifts), for drivers with a current MC licence, and suitable Maritime Security Identification Card (MSIC card) for 'wharf work' and 'Sideloader' and 'Reach Stacker' experience.
Mr Guthrie also observed new additions to the Mondiale fleet of vehicles in Perth after his dismissal (A1 [19]-[21]). He took and produced photos of these vehicles (A1, annexure JG-3). He has also observed the construction of a new depot/distribution facility for Mondiale's business in Jandakot, Western Australia (A1 [23]). The relevance of this evidence was in part to rebut assertions by Mondiale in this proceeding that Mr Guthrie would have been made redundant in 2020 due to a downturn in Mondiale's business.
Mr Guthrie says that following his dismissal he searched every single day for over eighteen months for alternative employment. In May 2021, he secured some casual employment but that did not always suit the childcare needs for his son in the mornings.
In August 2020, Mr Guthrie made an interlocutory application for interim reinstatement of his employment with Mondiale (Guthrie (No 1)). The application was unsuccessful. No order for costs was made.
In March 2021, Mr Guthrie says that he approached a recruitment agency and attended an interview (A1 [26], annexure JG-5). After the interview he was informed that an employment reference from Mondiale would be sought, however thereafter he received no offers of employment from that agency.
Mr Guthrie says that on 10 May 2021 he commenced casual employment with Randstad Recruitment for the supply of casual services to SCT Logistics as a truck driver on the afternoon shift (A1 [27]). Mr Guthrie produced payslips for income received with Randstad and income tax return statements for the tax years 2020/2021, 2021/2022, 2022/2023 and 2023/2024 (A1, annexures JG-6 and JG-9). These documents indicated the declared income received by Mr Guthrie during the three years before Mr Guthrie secured permanent full-time employment in May 2024 (A1 [52]).
In May 2024 Mr Guthrie secured full-time employment as a truck driver on an afternoon shift with Linfox in Perth. Mr Guthrie produced a pay advice for his income from casual employment with Randstad and payslips from Linfox. The tax return statement for the 2023/2024 tax year recorded that Mr Guthrie's pre-tax income for the 2023/2024 tax year was $99,916.66. Mr Guthrie also provided a comparison of the gross income earned during his employment with Mondiale from 2014 until 2019, income earned following termination and income now received from full-time employment with Linfox (A1, annexures JG-8 and JG-9). Primary documents supporting that comparison were produced. The authenticity of these documents was not disputed but the methodology for calculating loss and the inferences to be drawn from the documents was a matter of contention.
Mr Guthrie also sought to rely on inferences to be drawn from employee data obtained from Mondiale for other employees at the time of his termination and shortly thereafter. This was in part to establish that Mr Guthrie's average annual gross income was approximately $100,000.00 per annum, which formed a base from which to calculate his loss of income post termination. This base was an estimated because Mr Guthrie said he was unable to obtain accurate payslips from Mondiale and Mondiale was unable to produce similar documents from its payroll records for Mr Guthrie.[2]
Mr Guthrie relied on his previous earnings as disclosed in his annual tax return statements and a comparison of another employee, Mr Dicton, who was employed by Mondiale in Perth on an afternoon shift and for whom Mondiale produced a normal weekly earnings statement that showed an annual gross income in excess of $100,000.00 (A1, annexure JG-11, CB 341).
Mr Guthrie's calculation of lost income was set out in the spreadsheet annexed to his first affidavit and resulted in a claim for a loss of gross income of $216,629.34 (A1, annexure JG-Spreadsheet).
In the first affidavit, Mr Guthrie also claimed loss of long service leave entitlements (A1 [52]-[53]). This was based on the hypothetical assumption that Mr Guthrie remained employed with Mondiale until 10 June 2024 (ten years of continuous employment including Mr Guthrie's employment at the Sydney depot of Mondiale) (A1 [46]). The sum of $9,221.37 was claimed and calculated on the basis of Mr Guthrie's gross weekly pay of $1,064.00 multiplied by 8.6667.[3] The gross weekly pay figure of $1,064.00 comes from a document produced by Mondiale (A1, annexure JG-12, CB 357) and exhibit "R5" tendered by Mondiale. Mr Guthrie also claimed that, had he remained in the employment of Mondiale, he would have eventually been employed on an afternoon shift at a higher weekly rate of pay. Alternative figures for lost long service leave were deposed to by Mr Guthrie based on assumed rates of pay for an employee working on the afternoon shift (A1 [46]-[48]). However, in the closing submissions filed on behalf of Mr Guthrie and the final spreadsheet the figure of $9,221.37 was claimed.
Mr Guthrie also claimed losses arising from the extra travel incurred by him from his home to his new workplace which he claimed was an extra 60kms per day (A1 [49]). The calculation of the sum claimed, and the underlying assertions and assumptions relied on by Mr Guthrie was objected to by Mondiale and ruled inadmissible.
Mr Guthrie then claimed in his affidavit the loss of superannuation contributions that would have accrued as payable to him which he based on 69 weeks of unemployment (plus five weeks' notice period) 'as well as at least 7 weeks of no work whilst I was employed as a casual' (A1 [52]). The sum of $7,682.08 claimed, was also based on a gross weekly pay amount of $1,064.00 per week using a multiple of 9.5%, or $101.08 per week (for 76 weeks). Added to this is a claim for 'Interest and Compound Interest'. No calculation of interest or compound interest was provided. Mr Guthrie hypothesised that had he been employed on an afternoon shift the loss would have been greater using a gross weekly wage of $1,383.00 resulting in a loss of $10,512.00 'plus interest and compound interest'.
Upon completing five years of service with Mondiale, Mr Guthrie claimed that he was entitled to receive a Tag Heuer watch or a holiday voucher to the value of $2,000.00 (A1 [54]). Mr Guthrie claims that in early December 2019 his branch manager asked Mr Guthrie which option he would prefer, and he told the manager he would prefer the watch. Mr Guthrie claimed that the watch was due to be presented to him the week after he was terminated. He claims the sum of $2,000.00 in lieu.
Mr Guthrie then claimed the loss of an opportunity to purchase a home, which he and his wife were planning to do in 2020 (A1 [55]). It was not until 2023 that they were able to do so and by then Mr Guthrie claims that the cost was over $100,000.00 more than property prices in 2020 (A1 [56]). There was no sum claimed in the schedule attached to Mr Guthrie's first affidavit or in the final spreadsheet. Mr Guthrie annexed to his first affidavit a document titled 'Property History' that contained price information for an unidentified property which Mr Guthrie described as "our property" (A1, annexure JG-14, CB 362). This evidence fell well short of the evidence required to establish a claim for loss of opportunity of this kind. There was no claim made for this head of damage in Mr Guthrie's written closing submissions.
Mr Guthrie also deposed to the humiliation and embarrassment he felt for the past five years since his dismissal (A1 [58]-[61]). Annexed to the first affidavit were two journal articles reporting on the decision of Judge Lucev in Guthrie (No 2) (A1, annexure JG-15). Mr Guthrie claimed embarrassment arising from publicity associated with his case and the absence of an apology from Mondiale. He also claimed that he and his family suffered from the stress and uncertainty of protracted and expensive litigation.
The remaining paragraphs of the first affidavit addressed matters relating to any penalty including reference to the decision of Judge Lucev in Jeater and other cases involving Mondiale and subsidiaries as an employer in other jurisdictions.
Mr Guthrie's second affidavit sought to respond to the affidavit evidence of Ms Dunbier sworn on 16 January 2025. In particular, her evidence about Mr Guthrie's hourly rate of pay, working hours, and the calculation of Mr Guthrie's gross annual income with Mondiale. Mr Guthrie also joined issue with Ms Dunbier's opinion that Mr Guthrie would be likely to be made redundant by Mondiale in 2020. He also repeated his evidence about eligibility for the Tag Heuer watch.
Mr Guthrie was cross-examined as to his attempts to find appropriate employment after his dismissal on 9 December 2019, and the steps taken to mitigate his loss of income following his termination. Mondiale sought to cast doubt on Mr Guthrie's claims that he was unable to find suitable employment as a truck driver in Perth after his dismissal and suggested that Mr Guthrie and his wife made a conscious decision not to seek full-time employment so that Mr Guthrie could care for their son.
Mondiale also challenged the reliability of Mr Guthrie's evidence as to the quantum of compensation and the speculative inferences to be drawn from the evidence adduced. Mondiale submitted that Mr Guthrie failed to adduce evidence to support his claim for compensation and that the evidence adduced was 'conflicting, speculative and did not reveal any logical basis for the sum sought'.[4]

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Ms Dunbier adopted as her evidence the content of her affidavit sworn 16 January 2025, with the exception of paragraphs [32], [49] and [52] which were objected to or not read. Ms Dunbier is the Chief People Officer for the Group. She is not an employee of Mondiale which is part of the Group, but her authority extends to executive responsibility for Human Resources and the wellbeing of employees of the Group.
The Group of companies of which Mondiale is a member was established following the merger between Mondiale Freight Services Limited and Visa Global Logistics Pty Ltd in March 2021. The merger resulted in the creation of Ms Dunbier's position as Chief People Officer, together with other senior executive positions. The executives and employees of Mondiale that were employed by Mondiale at the time of Mr Guthrie's termination, and who are mentioned or gave evidence before Judge Lucev in Guthrie (No 2) are now no longer employed by Mondiale or the Group.
Ms Dunbier was not involved in the decision to terminate Mr Guthrie's employment. She was not an employee of the Group at that time. In her role as Chief People Officer, Ms Dunbier is responsible for leading and managing the Group's 'people practices' across global operations. A copy of her position description was annexed to her affidavit (Annexure ND-3; CB 485-7).
In her affidavit sworn 16 January 2025, Ms Dunbier explained various initiatives and policies that have been put in place to drive cultural change across the Group. The relevance of which was to address the consideration of any penalty under s 546(1) of the FW Act.
On the issue of compensation, Ms Dunbier was forced to give evidence based on inquiries she made about the rates of pay applicable to day shift drivers in Perth during Mr Guthrie's employment. Mondiale could not produce any payslips or other records of monies paid to Mr Guthrie during his employment. Ms Dunbier produced a document that was a report of Mr Guthrie's weekly earnings during the period of 31 January 2019 to 9 December 2019, obtained from Mondiale's payroll system (Annexure ND-14, CB 566). This was in circumstances where Mondiale claimed at the hearing before Judge Lucev in Guthrie (No 2), that it was unable to produce payslips and had difficulty in accessing business records and payroll information of Mondiale after this proceeding was commenced.[5] It was unclear whether this weekly earnings report included allowances and overtime and there was no record of the actual hours worked by Mr Guthrie. A further detailed summary of Mr Guthrie's weekly earnings report from 6 February 2019 to 25 December 2019, was tendered by Mondiale and marked exhibit "R5". That document recorded overtime, superannuation and allowances but did not include the total amount paid.
Also annexed to Ms Dunbier's affidavit, was a copy of an unsigned contract of employment between Mr Guthrie and Visa Global Logistics Pty Ltd dated 23 January 2019 (Annexure ND-11; CB 551-560). The contract recorded that the day shift ordinary hours are between 5.30am and 6.30pm, Monday to Friday, but were not to exceed eight hours per day. Afternoon shift was from 4.30pm to 12.30am, Monday to Sunday, and were also not to exceed eight hours per day. Salary was based on a 38-hour week at a rate of $27.00 per hour (i.e. $1026.00 gross per week before allowances). An allowance was to be paid of 17.5% of the day rate for an afternoon shift on only the ordinary hours worked. Overtime was to be paid at the rate of time and a half for the first two hours, after which double time would be paid. Meal allowances were also payable if work was performed in any one day beyond the normal finishing time. Superannuation was to be paid at the levels prescribed by law. Long service leave entitlements were in accordance with the applicable legislation.
It was submitted by Mondiale in closing submissions that, had Mr Guthrie remained employed by Mondiale, he would have been selected for redundancy in around April 2020. The opinion evidence relied on by Ms Dunbier in her affidavit was not read and was otherwise inadmissible. This left Mondiale with only inferences to be drawn from circumstantial evidence to support this assertion.
Ms Dunbier also claimed in her affidavit that the practice of providing gifts to employees for loyal service was discretionary and ceased in about December 2019. This was communicated to staff in January 2022. The remaining evidence of Ms Dunbier in her affidavit related to the issue of penalties.
In oral evidence, Ms Dunbier expressed the regret of the Mondiale organisation for the circumstances leading to Mr Guthrie's termination and apologised to the Court and Mr Guthrie and his family.
In cross examination, Ms Dunbier was challenged on her authority to give evidence on behalf of the Mondiale entity. Ms Dunbier conceded that she was not an employee or director of the respondent Company, was based almost exclusively in New Zealand and was not personally responsible for ensuring compliance with the FW Act in Australia.
Ms Dunbier was also cross-examined about the production of payroll documents and why only one internal document (Annexure ND-14, CB 566) had been produced and attached to her affidavit. Ms Dunbier also admitted that she had limited knowledge of the operation of the Perth depot in 2019, 2020, 2021, 2022, 2023 and 2024. Ms Dunbier could not dispute the authenticity of the tax return statements produced by Mr Guthrie for the financial years 2014 to 2024 inclusive, upon which his claim for compensation for loss of income are based.
Most of the evidence of Ms Dunbier addressed the issue of the appropriate penalty, if any, under s 546 of the FW Act. On the issue of compensation, the substance of her evidence addressed the probability of Mr Guthrie remaining employed by Mondiale for a further four years and the calculation of earnings actually paid to Mr Guthrie during his employment at the Perth depot of Mondiale.

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Mr Guthrie claims that he has suffered loss of five years of gross full-time income because of the contravention of the FW Act by Mondiale. He said in his first affidavit that his intention was to remain as an employee of Mondiale until he retired at age 68 (A1 [4]). He enjoyed the stability of income and had shown loyalty to his previous employers including Mondiale when employed in Sydney. At the time of termination, he believed that he would be employed by Mondiale for at least ten years and likely longer. His desire was to be employed as a MC driver on an afternoon shift and he had been promised that would eventually occur. There were positions available for afternoon shift drivers after his termination and, had he not been terminated, he believes he would have been employed in one. Mr Guthrie asserted in his evidence that had he been employed on the afternoon shift he would have received a higher hourly rate ($36.40 per hour instead of $27.00-$28.00 per hour) and 'a significant amount of daily overtime'. He asserts that it was 'quite usual' for afternoon shift drivers to earn $120,000.00 or more per annum. To support this assertion, Mr Guthrie relied on Mondiale payroll data for another driver at the Perth depot (A1, annexure JG-11) that showed gross income of $122,583.84 earned in 2019.
Mr Guthrie said in his first affidavit that he was unable to secure full-time employment as a MC truck driver in Perth until 13 May 2024 (A1 [29]). The sum claimed for lost income by Mr Guthrie is based on a notional average yearly gross income of $100,000.00 less, what Mr Guthrie earned from post termination part-time and casual employment. The sum claimed in closing submissions was $216,629.34.[6] This is also the total sum of lost earnings claimed in paragraph [32] of Mr Guthrie's first affidavit (A1 [32]). However, this sum differs to the sum claimed in the final spreadsheet which was $216,546.00. The difference of $83.34 appears to be the amount claimed for the 2024 financial year, which does not appear on the final spreadsheet. In the financial year ending 2024, Mr Guthrie claims that he earned $99,916.66 of gross income which resulted in a loss of national gross income for that year of $83.34 (A1, annexure JG-9, CB 338).
The sum claimed is calculated by taking Mr Guthrie's gross earnings for the financial years ending 30 June 2015, 2016, 2017, 2018, and 2019 taking the average of those amounts and rounding down to a figure of $100,000.00. That is then multiplied by four and then the actual total gross income received by Mr Guthrie after termination is deducted from that sum leaving a gross differential of $216,629.35.
The calculation is depicted in the first schedule annexed to Mr Guthrie's first affidavit (A1) at CB 344 as follows:

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The figures for gross annual income up to 30 June 2019 are taken from Mr Guthrie's annual tax return statements as the best evidence available of income earned from employment with Mondiale, both in Sydney and Perth from June 2014 to 30 June 2019. These documents were annexed to the first affidavit (A1, annexure JG-8, CB 328-332). This was said to be the best available evidence in the absence of payroll records from Mondiale showing actual income, overtime and allowances paid. Then Mr Guthrie produced income tax return statements for the financial years ending 30 June 2020, 2021, 2022, 2023 and 2024 (A1, annexure JG-9, CB 334-8). These documents were relied on to establish actual income earned by Mr Guthrie until he found full-time employment in May 2024.
Mondiale was critical of this method of proof of loss of earnings. It was submitted in Mondiale's closing submissions that Mr Guthrie failed to adduce evidence to support his claims for compensation. The figures offered were said to be 'conflicting, speculative and do not reveal any logical basis for the sums sought'.[7] Mondiale also submitted that Mr Guthrie failed to mitigate his loss by unreasonably refusing to pursue employment opportunities in the Perth employment market during the period from termination on 9 December 2019, until securing full-time employment in May 2024. Mr Guthrie was cross-examined about the opportunities available to him and whether he and his wife made a deliberate decision to not seek suitable employment so that Mr Guthrie could care for their child.
Ms Dunbier said that based on the limited records produced to the Court, Mr Guthrie's annual gross income paid by Mondiale in the calendar year 2019 was only $73,800.76 (Annexure ND-14 to Ms Dunbier's affidavit, CB 566). It was submitted that this amount was said to include overtime and other allowances.[8] Therefore the notional annual gross income figure of $100,000.00 per annum was overstated and misconceived.
Mr Guthrie and Mr Jeater gave evidence that the employment market for MC truck drivers in Perth in 2020 and 2021 was problematic. This was in part due to COVID-19 and uncertainty about the economy. Mr Guthrie claimed that he checked employment website 'Seek' on a daily basis looking for employment opportunities without success. He also called on potential employers by telephone and in person without success. Mr Guthrie was challenged about this in cross-examination because only one email was produced to support this claim (A1, annexure JG-5). The email dated 30 March 2021, was from "Driver Hire", which offered Mr Guthrie an interview with a driver recruitment agency. It was put to Mr Guthrie that he did not apply to any employers for work before 13 April 2021, when he emailed a potential employer (Exhibits R1 and R2, CB 664-5). Mr Guthrie disagreed.
Mr Guthrie was also challenged about the renewal of his MSIC Card. This is a security clearance identification card that allows truck drivers to access the port of Perth. It was put to Mr Guthrie in cross-examination that he did not apply to renew his card until April 2021 (CB 669, Exhibit R3). Mr Guthrie agreed that he had not made inquiries about renewing his MSIC card until April 2021 however claimed that he could not apply for a new card or renew an MSIC card without an employer. Mr Guthrie was then shown an email dated 22 April 2021 that said he could apply for an MSIC card without providing employer details (CB 670, Exhibit R3).
It was put to Mr Guthrie in cross-examination that he did not actively pursue alternative employment during the period from December 2019 (termination) and April/May 2021 when he first secured casual employment. Mr Guthrie disagreed and maintained that the employment market was very difficult at that time. He also denied that he and his wife decided that it was preferable that he not seek work during that period. Mr Guthrie also denied that from May 2021 until about November 2023 he did not seek work with other employers on a full-time basis. Mr Guthrie referred to two applications he made but conceded one was in fact made in December 2023.
Ms Reavill-Guthrie confirmed the content of her affidavit in which she corroborated her husband's evidence of his attempts to find employment, and of the stress caused by dismissal and this proceeding. Ms Reavill-Guthrie said she observed her husband regularly checking Seek jobs. Ms Reavill-Guthrie also explained that due to their family circumstances and her employment commitments, Mr Guthrie could not simply take 'any job that came up' and that job opportunities that required him to be away from home for days at a time were not an option (A3 [16]).
In cross-examination it was put to Ms Reavill-Guthrie that it was decided between husband and wife that even if there were jobs available, for example, for day shift jobs, Mr Guthrie would not apply for those positions, to which the witness replied:

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Mr Jeater said in his evidence that after he was made redundant by Mondiale in April 2020, he found that there was not much work available for heavy haulage truck drivers in Perth. He spent three and a half months without employment until finding some casual work through a labour hire firm. It was not until September 2020 that he secured more reliable work as a casual driver with K&S Freighters. He then obtained a permanent position with K&S Freighters about six months later.
In cross-examination, Mr Jeater confirmed that he sought employment as a day shift driver at about the same rate of pay earned at Mondiale, plus a casual loading which was the same or similar to the rates paid by Mondiale. Mr Jeater also explained the licensing and accreditation system for truck drivers in Westen Australia where an MC licence was more valuable in the employment market.
Having heard the evidence of Mr Guthrie and the other witnesses, I am satisfied that Mr Guthrie has suffered loss of income because of Mondiale's contravention of s 340(1) of the FW Act. It is appropriate that an order for compensation be made.
I am satisfied that following termination on 9 December 2019, Mr Guthrie endeavoured to find suitable employment as a truck driver in Perth but was unable to immediately do so. Mondiale did not adduce any evidence to suggest that Mr Guthrie acted unreasonably in rejecting legitimate offers of employment from suitable employers, or that the employment market in Perth for MC truck drivers was particularly buoyant and that employment opportunities were bountiful. I am also satisfied that Mr Guthrie looked for work on a daily basis and this was corroborated by his wife, Ms Reavill-Guthrie, who observed her husband searching for employment. The evidence of Mr Jeater also confirmed that the employment market was problematic during 2020 to 2021. This was in part due to prevailing economic conditions arising from the COVID-19 pandemic but also limited opportunities available in the employment market, apart from positions advertised for employment with Mondiale. Ms Dunbier also gave evidence that Mondiale's national business was adversely affected by COVID-19 and that two redundancies were made in Perth and employee hours reduced.
Mondiale submitted that it was "unlikely" that Mr Guthrie could not have found any work prior to May 2021 and that he could not find full-time work until 2023. It was submitted that Mr Guthrie did not take serious steps to find employment until April 2021 and that if he did, he was likely to have found at least casual employment within a month. Mondiale was critical of Mr Guthrie's evidence which counsel described as self-serving and inconsistent. Mondiale was also critical of the absence of evidence of job opportunities that were considered and applied for by Mr Guthrie during the period from 9 December 2019 to May 2021. It was submitted that Mr Jeater's evidence supported the inference that there was work available in 2020 for experienced drivers willing to work on a day shift. There was no evidence of any available employment opportunity during those dates that Mr Guthrie applied for and was unable to secure. However, equally, Mondiale did not adduce any evidence of an opportunity that suggested that Mr Guthrie was acting unreasonably, especially when he had been terminated for alleged safety concerns and disrespect. I do not accept the proposition that acting reasonably, Mr Guthrie would have secured casual employment within one month of termination in December 2019.
Mr Guthrie was sometimes combative and eager to promote his own cause when cross-examined however, on balance, his evidence as to his attempts to secure alternative employment was credible. There was some force in the proposition put to Mr Guthrie by counsel for Mondiale that Mr Guthrie was initially selective in the opportunities he pursued, and was seeking to obtain only an afternoon shift position which was difficult to secure, but I am satisfied that Mr Guthrie acted reasonably in his attempts to mitigate or reasonably reduce the losses arising from the unexpected termination of his employment.
Ms Reavill-Guthrie, was candid in her evidence about her husband's attempts to find employment and she conceded that there was 'Not automatically' a decision to seek an afternoon shift position, rather that it would have been preferable if that occurred. I construed that to mean that there was no conscious or deliberate decision to not look for suitable employment, and that if a morning shift was available then Mr Guthrie and Ms Reavill-Guthrie would 'work around that' if required to do so.
I am also satisfied that because of Mondiale's contravention of Mr Guthrie's workplace rights and adverse action, Mr Guthrie was more likely than not to have remained as an employee of Mondiale for at least five years. Mr Guthrie had a stable record of employment with his previous employer, then Mondiale in Sydney, the responsibilities of a young family, and a sense of loyalty (perhaps misplaced) to his employer. Mondiale was also seeking drivers to fill day and afternoon shifts, especially those with experience and suitable accreditation. The re-employment of Mr Singh after redundancy is an example adding to the probability that Mr Guthrie would have enjoyed stability in employment.
I am not satisfied that Mr Guthrie would have been made redundant in April 2020 as was submitted by Mondiale.[9] The only evidence before this Court to support this contention was the evidence of Ms Dunbier in paragraphs [45]-[48] and [50]-[51] of her affidavit (CB 473-4). Paragraphs [32], [49] and [52] were not read into evidence. The advertisements produced by Mr Guthrie in his evidence showed that Mondiale was seeking truck drivers in January, June and October 2020 and again in February, March, July and October 2021 (A1, annexure JG-2, CB 296-302). The fact that Mr Guthrie saw these advertisements gives further weight to his evidence that he was actively searching for employment opportunities at that time. Mondiale was also expanding their fleet in Perth and constructing a new distribution centre (A1, annexure JG-3, CB 304-314).
Ms Dunbier was not employed by Mondiale at that time (she commenced employment with the Group on 21 November 2022) and no executive or manager employed at that time by Mondiale in Perth or elsewhere by Mondiale, was called to give evidence to give weight to the probability of redundancy. I accept that it was likely that due to the initial economic uncertainty caused by the COVID-19 pandemic that parts of Mondiale's business may have been adversely affected and that employees may have been asked to work reduced hours or take leave, however it was unlikely that Mr Guthrie's employment with Mondiale would necessarily have ended for redundancy in April 2020.
Ms Dunbier produced an email from her predecessor Ms Coleman (Annexure ND-15, CB 567) dated 8 April 2020, identifying Mr Jeater and Mr Singh as possible redundancies in the Perth operations. In the case of Mr Jeater, the termination of his employment was found to be in breach of s 340 of the FW Act (Jeater at [118] per Judge Lucev). Ms Dunbier confirmed that Mr Singh was made redundant and then reemployed as a casual driver in April 2020 and then employed in a permanent role in August 2020. This confirmed Mr Guthrie's evidence of his conversation with Mr Singh in paragraph [11] of his first affidavit (A1). It also suggests that the probability of redundancy in April 2020 was low. Therefore, I do not accept that redundancy was more likely to have occurred than continuity of employment at the very least as a day shift driver.
However, the evidence of Ms Dunbier, Mr Guthrie and Mr Jeater all point to a general downturn in productivity and earning capacity during 2020 due to the COVID-19 pandemic. Mr Guthrie also sought flexible working arrangements to assist with childcare responsibilities. It is for these reasons that the total sum claimed by Mr Guthrie for loss of the opportunity of full-time employment during the five-year period, until he secured a full-time position, should be discounted to allow for the probability that, for some of the five-year period, his hours may have been reduced, or childcare responsibilities may have reduced his earning capacity.
In assessing the compensation payable, it is appropriate to factor into the calculation the possibility of reduced working hours in 2020 and reduced allowances. It is also appropriate to apply a discount or adjust the compensation payable to reflect the degree of probability that Mr Guthrie would remain in regular full-time employment with Mondiale for a period of five years (see Malec v Hutton (1990) 169 CLR 638 and Sellars). In MUA at [127] and [135], the Full Court of the Federal Court considered the application of a discount to lost future earnings and the need to discount for contingencies. In that case, the Court considered that a discount of 20% was not reasonable given the seasonal and cyclical nature of the employee's employment. The Full Court applied a discount of 50% but that was taking into account the unique circumstances of that case. The Court warned against taking an overly conservative approach (MUA at [140]). The discount is to take into account the contingencies and vicissitudes of life and employment in a particular industry or vocation.
Assessing the quantum of compensation requires the Court to weigh the competing evidence and determine reasonable compensation in the circumstances. In Qantas at [77], Justice Lee described the task of assessment as follows:

[75]

If not for the adverse action taken by Mondiale, Mr Guthrie would have been entitled to receive superannuation contributions from his employer for the period during which he suffered a loss of earnings. Two different sums are claimed for lost contributions. First, is the sum of $7,682.08 (A1 [52], CB 345).[10] This is calculated using a base contribution rate of 9.5% and applying that to the base gross weekly wage of $1,064.00 resulting in a figure of $101.08 per week of lost superannuation. Mr Guthrie then claims this amount for 76 weeks of unemployment during the period from 9 December 2019 and 10 May 2021.
The second figure claimed is based on a notional weekly gross wage of $1,383.20 per week, assuming that Mr Guthrie was transferred to an afternoon shift. This results in a figure of $131.40 per week lost superannuation contributions for 76 weeks resulting in the sum of $10,512.00 (A1 [53]).
A claim for 'interest and compound interest' is also claimed for lost superannuation but no rate or calculation has been provided (A1 [52]-[53]). The method of calculation is curious. The base gross weekly salary figure of $1,064.00 does not correspond with minimum hours in the contract of employment (38 hours at $27.00 per hour = $1,026.00 per week). However, in the only payslip produced by Mondiale (A1, annexure JG-12, CB 357), the base weekly rate for 38 minimum hours paid to Mr Guthrie in November 2019 was stated to be $1,064.00. This equates to an hourly rate of $28.00 per hour and not $27.00 per hour. I accept that this is the best evidence available of the actual rate of pay paid to Mr Guthrie before the termination of his employment.
The calculation of weeks is also curious. Mr Guthrie's evidence is that he was unemployed for 69 weeks and then there was a further seven weeks 'of no work whilst [he] was employed as a casual between 10 May 2021 and gaining permanent employment on 13 May 2024' (A1 [52]). This appears to be a claim that there were seven weeks after 10 May 2021 where Mr Guthrie worked no hours which leads to the total of 76 weeks, when no superannuation contributions were received. I am not sure that this is the correct methodology to apply, albeit a conservative approach. The document produced by Ms Dunbier of Mr Guthrie's gross weekly earnings include higher weekly earnings than $1,064.00, after allowances (CB 566, Exhibit R5). Doing the best that one can on the evidence provided, accepting the methodology used by Mr Guthrie (albeit conservative) and accepting that if there was lost income, because of the adverse action of Mondiale, there would also be a corresponding loss of compulsory superannuation contributions, I find that the most reliable figure to assess the loss is the gross weekly figure expressed in the pay printout for November 2019 (CB 357) which is $1,064.00 (see also Exhibit R5). When multiplied by 9.5% that equals $101.08 per week of lost superannuation. The period from the last day of the notice period given to Mr Guthrie, 13 January 2020, until 10 May 2021 is 69 weeks (and not 79 as claimed). I find that this was the period of unemployment which was caused by the breach of Mr Guthrie's workplace rights, this results in lost contributions of $6,974.52 (69 weeks x $101.08 per week).

[77]

I have found that it was probable than not that, had Mondiale not taken adverse action, Mr Guthrie would have remained employed by Mondiale for the five-year period claimed. If that was the case, then Mr Guthrie claims that he would have been entitled to long service leave effective from 10 June 2024, which was ten years of full-time employment with the same employer from the date of commencement of employment with Mondiale in Sydney. [11] I find that in all probability Mr Guthrie would have remained in full-time employment until 10 June 2024 and that he is entitled to compensation in lieu of accrued leave entitlements.
Under s 3 of the Long Service Leave Act 1958 (WA) (Long Service Leave Act), an employee is entitled to long service leave at ordinary pay after at least ten years of continuous employment. In respect of ten years employment, the employee is entitled to 8 and 2/3 weeks leave (s 8(2)(a) Long Service Leave Act). If the employee has completed seven years continuous employment and is terminated for any reason other than serious misconduct, the employee is entitled to a proportionate amount of leave. In the Long Service Leave Act, 'ordinary pay' is defined as the employee's remuneration for the employee's normal weekly number of hours worked, calculated on the ordinary time rate of pay applicable to the employee, as at the time when any period of long service leave is granted.
The sum claimed in lieu of leave by Mr Guthrie is $9,221.37.[12] This is based on a gross weekly pay amount of $1,064.00 multiplied by 8.667 (i.e. 8 and 2/3 weeks). An alternative figure is also claimed, assuming that at the time that long service leave accrued, Mr Guthrie was working an afternoon shift at a weekly ordinary pay of $1,383.20 per week. The source of that figure appears to be the Normal Weekly Earnings Report for Mr Singh that was obtained by Mr Guthrie from Mondiale (A1, annexure JG-10, CB 340). Mr Guthrie asserts that this is when Mr Singh was employed on the afternoon shift by Mondiale. However, there is nothing other than Mr Guthrie's assertion to reliably establish that rate as the rate that would have been paid to Mr Guthrie had he obtained an afternoon shift. In the circumstances and doing the best that the Court can, the figure for lost long service leave entitlements will be calculated using the base gross weekly wage figure obtained for November 2019 of $1,064.00 multiplied by 8.667 which results in a compensable loss of $ $9,221.37 (CB 357).

[80]

This claim also lacked the necessary supporting evidence. The claim was not articulated in Mr Guthrie's first affidavit (A1) and was not supported by any documents, or other evidence to give it substance, or the necessary proof that it was a loss because of Mondiale's breach. The claim is explained in the final spreadsheet as a claim for legal costs. It is also explained in paragraph [46] of the applicant's closing submissions dated 7 March 2025. Mr Guthrie claims legal costs incurred in relation to his unsuccessful application for reinstatement of his employment with Mondiale (Guthrie (No 1)). It was submitted that a plaintiff is entitled to recover the cost of litigation that is reasonable to pursue, even if unsuccessful (see Mann Judd v Paper Sales Australia (WA) Pty Ltd [1998] WASCA 268 at 8-13 per Ipp J and GW Sinclair & Co Pty Ltd v Cocks [2001] VSCA 47).
This too is a speculative claim. The costs actually incurred have not been proven. The final spreadsheet includes a claim for $58,179.02 for legal costs paid to Mr Guthrie's solicitor. There is no evidence that this amount has been paid and no evidence that this sum was in fact incurred in relation to the application for reinstatement. It is questionable whether they were reasonably incurred. The claim was not raised in the Originating Form 2 Claim (CB 6-38), the applicant's submissions filed 7 February 2025 before the hearing, or the schedule annexed to Mr Guthrie's first affidavit (A1). The claim appears to be an afterthought, but it was not one squarely raised until after the close of evidence and it was not a claim on which Mondiale had an opportunity to cross-examine or otherwise explore.
It is certainly possible that legal costs reasonably incurred by an applicant could be compensable loss because of a breach of s 340 of the FW Act by an employer, however in this case the costs were costs in this proceeding and the costs of the application for reinstatement were addressed by Judge Lucev in Guthrie (No 1) at [109]. In that case, his Honour found that the application was a no costs matter, citing s 570(1) of the FW Act. That finding was not the subject of appeal and may well give rise to an estoppel in respect of this claim for compensation. However, I do not consider it necessary to consider if that is the case, because there is simply no evidence to support the sum claimed or the basis for it.

[85]

Mr Guthrie claims that he has been subjected to personal hurt and humiliation caused by unjustified termination, protracted litigation, publication of and commentary on the decision in Guthrie (No 2) and the absence of an apology from Mondiale. Ms Dunbier gave an apology to Mr Guthrie and his family when she gave evidence at the hearing which was sincere but belated. Ms Reavill-Guthrie gave evidence that her husband had been stressed during the more than five years of litigation and that this had taken a toll on their family.
Assessing claims for hurt and humiliation or pain and suffering (also known as non-pecuniary loss) is not an exact science (see Van Gervan v Fenton (1992) 172 CLR 327 at 343 per Deane and Dawson JJ; O'Brien v Dunsdon (1965) 39 ALJR 78 at 78 and more recently Footscray Football Club Ltd v Kneale [2024] VSCA 314 at [667]).
In the closing written submissions of both the applicant and respondent, there was no submission as to an appropriate range of damages or examples of awards made. Mr Guthrie was clearly aggrieved by his treatment and has been forced to pursue expensive litigation to seek confirmation that the termination of his employment was unlawful. There is clearly a causal connection to the breach of the FW Act and the hurt and humiliation claimed. Mr Guthrie pursued these proceedings at great personal expense and interruption to the enjoyment of his young family. He was forced to do so due the serious allegations made against him by Mondiale in the letter of termination. It is difficult to assess an appropriate figure noting also that any penalty (albeit a separate consideration and different test) is generally payable to the applicant in cases such as this. In assessing hurt and humiliation, I must also be satisfied that Mr Guthrie suffered more than the usual element of distress which accompanies termination (see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 122 at [11]). In Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371; (1996) 142 ALR 144, the sum of $5,000.00 was held to be reasonable. Similarly in Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 2) [2023] FCA 1594, Justice Collier awarded a sum of $5,000.00 for hurt and humiliation for breach of the FW Act. In a recent decision of Parsons v Serco Citizen Services Pty Ltd [2024] FCA 754 at [191], Justice Rangiah awarded a sum of $10,000.00 in circumstances where the applicant was terminated after seventeen years of continuous service to the employer.
In the circumstances of this case and acknowledging the apology given by Ms Dunbier on behalf of Mondiale, together with the other compensation to be awarded to Mr Guthrie, the figure of $5,000.00 for hurt and humiliation is in my view appropriate.

[89]

[9]...Under the civil penalty regime provided by the Act, the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act. In that context, the penalties fixed by the primary judge were appropriate because they were no more than might be considered to be reasonably necessary to deter further contraventions of a like kind by Mr Pattinson, the CFMMEU or others. They represented a reasonable assessment of what was necessary to make the continuation of the CFMMEU's non-compliance with the law, amply demonstrated by the history of its contraventions, too expensive to maintain.

[10] The Full Court's critical error was that it was distracted by a concern, drawn from the criminal law, that a penalty must be proportionate to the seriousness of the conduct that constituted the contravention. The power conferred by s 546 of the Act is not subject to constraints drawn from the criminal law and there is no place for a "notion of proportionality", in the sense in which the Full Court used that term, in a civil penalty regime. Further, and relatedly, their Honours were misled by the view that the Act required that the maximum penalty be reserved for only the most serious examples of the offending comprehended by s 349(1), and that this principle could prevent the court from imposing the maximum penalty even though a penalty in that amount might reasonably be considered to be necessary to deter future contraventions of a like kind. Nothing in the text, context or purpose of s 546 requires that the maximum penalty be reserved for the most serious examples of misconduct within s 349(1). What is required is that there be "some reasonable relationship between the theoretical maximum and the final penalty imposed". That relationship is established where the maximum penalty does not exceed what is reasonably necessary to achieve the purpose of s 546: the deterrence of future contraventions of a like kind by the contravenor and by others.

[15] Most importantly, it has long been recognised that, unlike criminal sentences, civil penalties are imposed primarily, if not solely, for the purpose of deterrence...

[92]

Fundamental to the Court's task, is an assessment of the gravity and seriousness of the offending which it is called upon to penalise, having regard to all relevant factual circumstances. The considerations deemed relevant to this task are well known and frequently cited.[14] They include:
- The nature and extent of the conduct which led to the breach;
- The circumstances in which the conduct took place;
- The nature and extent of any loss or damage sustained as a result of the breach;
- Whether there has been similar previous conduct by the respondent;
- Whether the breach was properly distinct or arose out of one course of conduct;
- The size of the business enterprise involved;
- Whether or not the breach was deliberate;
- The involvement of senior management in the breach;
- Whether the party committing the breach has shown contrition;
- Whether the party committing the breach has taken corrective action;
- Whether the party committing the breach has cooperated with enforcement authorities;
- The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements; and
- The need for specific and general deterrence.
While this extensive list is well-settled, it is not to be interpreted by the Court as a 'rigid catalogue of matters for attention' (see Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [91] per Buchanan J). In Pattinson at [19], the High Court reiterated that this list of possible relevant considerations ought not to be treated as a checklist. There is no specific order in which these matters should be considered. The Court may take into consideration matters relevant to both the character of the contravening conduct and of the contravener.
The decision in Guthrie (No 2) provides the background to the contravention of the FW Act by Mondiale. Judge Lucev found that the termination of Mr Guthrie on 9 December 2019 was because he exercised workplace rights (see paragraph [1] above and Guthrie (No 2) at [104] and [107]). Mondiale could not disprove the reverse onus of proof that the termination was for some other reason. There was only one contravention of the FW Act found to have occurred and that was the termination of Mr Guthrie's employment for reasons other than those stated in the letter of termination.[15]
The maximum penalty payable is 300 penalty units for a body corporate (s 539(2), Item 11 and s 546(2)(b) of the FW Act). At the time of the contravention (9 December 2019), one penalty unit was $210.00 pursuant to s 4AA of the Crimes Act 1914 (Cth). Therefore, the maximum penalty payable by the respondent corporation is $63,000.00.
In the outline of closing submissions filed on behalf of Mr Guthrie, it was submitted that the breach of the FW Act by Mondiale was serious. It was submitted that a penalty of not less than 85% of the maximum was appropriate ($56,100.00).
Mondiale submitted that the penalty should not exceed $18,000.00. That figure was proffered after referring to three decisions that were said to be comparable (see Rizk v PVH Brands Australia Pty Ltd (No 2) [2024] FedCFamC2G 613 (Rizk); Hill v St Anthony's Tennis Club (No 2) [2023] FedCFamC2G 269 (Hill) and Fair Work Ombudsman v Offshore Marine Services Pty Ltd [2012] FCA 498 (Offshore Marine Services)).
The outlines of closing submissions filed by both parties addressed each of the relevant considerations. I will consider each of the relevant considerations applicable to the factual circumstances identified above and in Guthrie (No2).

[93]

The breach arose following a request by Mr Guthrie for more flexible working arrangements, an assertion as to alleged underpayment of casual afternoon shift loadings and following a conciliation conference at the Fair Work Commission. Judge Lucev found that the reasons given by Mondiale for the termination of Mr Guthrie in the letter of termination dated 9 December 2019, were based on events that did not occur (Guthrie (No 2) at [117], [121], [125], [127], [131] and [142]). Judge Lucev observed that Mr Guthrie was generally persistent and sometimes robust and expressive in his communications. Attributes which were also observed in cross-examination before this Court. At paragraph [149] of Guthrie (No 2), his Honour concluded that the reason for Mr Guthrie's termination included his complaints or inquiries in relation to alleged underpayments.
The consequence of terminating Mr Guthrie were substantial. Clearly Mondiale could not predict the onset or consequences of the COVID-19 pandemic, but the timing of the termination left Mr Guthrie and his family in a precarious situation. So too the reasons given for termination. Safety concerns and disrespect for Senior Management when there was no genuine basis to make such allegations, did not bode well for Mr Guthrie's future employment prospects.
In the evidence of Ms Dunbier and the closing written submissions, Mondiale was at pains to explain that there has been a change in Senior Management, a change of corporate culture and mechanisms and policies now in place to avoid events such as those that occurred to Mr Guthrie from occurring in the future.
On behalf of Mr Guthrie, it was submitted that Mondiale had repeatedly failed to call all of the relevant decision-makers and directors responsible for the decision to terminate and defend the proceeding. In the written closing submissions, the solicitor for Mr Guthrie queried why the termination letter of 9 December 2019 was marked 'without prejudice' if it was genuinely given for the reasons stated (CB 57). Criticism was also levelled at Ms Dunbier in cross-examination and closing submissions as to her authority to represent the respondent company and the sincerity of Mondiale's contrition. This was said to support the submission that the breach was serious.
The circumstances and nature of the breach by Mondiale were poorly explained before Judge Lucev and he was critical of the evidence given in support of the grounds for termination. Before this Court, Ms Dunbier did her best to acknowledge some responsibility by Mondiale for past conduct and apologised for that conduct. However, none of the directors or other senior executives were prepared to appear before the Court to show contrition, or to assure the Court that there was little or no need for specific deterrence when addressing penalty. Ms Dunbier conceded in cross-examination that she was not personally responsible for compliance with the FW Act in Australia, was almost exclusively based in New Zealand and conceded that she had never visited the Perth depot. The point was made fairly that none of those responsible for the termination of Mr Guthrie, and those executives and directors more senior to Ms Dunbier, or to whom she reports, were prepared to appear to give evidence before the Court.

[108]

This is a case where there is a need for both general and specific deterrence. Mondiale has put in place mechanisms designed to ensure compliance with the FW Act in the future, but it remains to be seen whether they are effective to ensure cultural and management change. The need for general deterrence is also strong. In Kelly v Fitzpatrick at [28], Tracey J referred to Finkelstein J in Community and Public Sector Union (CPSU) v Telstra Corp Limited [2001] FCA 1364; (2001) 108 IR 228 at 231, where his Honour said there will be occasions when general deterrence must take priority, and a penalty should be imposed to mark the law's disapproval of the conduct in question. I am also mindful of the observations of the Court in Pattinson, about the importance of deterrence and the need for there to be 'some reasonable relationship between the theoretical maximum and the final penalty imposed' (Pattinson at [10]).
Here, those responsible for the conduct have left the organisation and Mr Guthrie will be awarded compensation for their breach. This is not a case where the maximum penalty or indeed 85% of the maximum is appropriate. Nor is a penalty of $18,000.00 adequate given; the conduct involved, the deliberate nature of the conduct, the senior management involved, the size of the respondent organisation, the belated apology and the other instances of non-compliance with the FW Act and workplace safety in the past. Mondiale referred to four cases in their closing written submissions: United Workers' Union v Bervar Pty Ltd (No 2) [2023] FedCFamC2G 251 per Judge Blake; Rizk per Judge Manousaridis; Hill per Judge Manousaridis and Offshore Marine Services per Gilmore J. These cases were cited for guidance on appropriate penalties, but each case turns on the facts and circumstances unique to them and none are apposite to the facts and circumstances present in this case.
In the circumstances and with a view to specific and general deterrence of relatively large organisations operating in the transport industry, I will make an order under s 546(1) of the FW Act for the payment by Mondiale of a pecuniary penalty of $27,500.00.

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Judgment (132 paragraphs)

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Legislation Cited (5)

Cases Cited (9)