Ucchino v Acorp Pty Limited [2012] FMCA 9

1. Tracy Ucchino was employed by Acorp Pty Limited as a director in a child care centre conducted by it at Indooroopilly, Brisbane. On or about 2 March, 2010 her employment came to an end. Ms Ucchino alleges that her employment was terminated for reasons which were proscribed by the Fair Work Act 2009. Consequently, she seeks compensation and the imposition of a pecuniary penalty on Acorp for the adverse action taken against her by it in breach of the Act.

2. Acorp denies the allegations made against it. Although it admits that Ms Ucchino's employment was terminated (and thereby it took adverse action against Ms Ucchino), Acorp alleges that the termination was not for a reason proscribed by the Fair Work Act 2009.

3. The essential issue for determination is whether Ms Ucchino's employment was terminated by Acorp for the reasons asserted by it, namely dissatisfaction with Ms Ucchino's work and her general unreliability.

4. Ms Ucchino's claim is brought pursuant to s.351 of the Fair Work Act 2009. She alleges that Acorp took "adverse action" against her in that it attempted to change the status of her employment from full time to casual and that it thereafter terminated her employment. She alleges that the adverse action was taken against her because:

a) she became pregnant and informed Acorp (by one of its directors) of that fact; and

b) she needed time away from work to care for her other children over a Christmas school holiday period.

5. She alleges that consequent upon one or other of the above matters, her employment status was changed from full-time to casual.

6. The application arises against the following statutory framework. Section 351 of the Fair Work Act 2009 provides as follows:

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:

(ii) to avoid injury to the religious susceptibilities

7. Section 342 of the Act defines the term "adverse action" to include, not only dismissal, but action by an employer that injures the employee in his or her employment or alters the position of the employee to the employees prejudice or discriminates between the employee and other employees of the employer.

8. Section 361(1) of the Act is important. It provides:

Reason for action to be presumed unless proved otherwise

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

9. Logan J explained the nature of the onus cast upon applicants like Ms Ucchino in applications such as this in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770 as follows:

13. Subject to the operation of s 360 and s 361 of the Fair Work Act, [the applicant] carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, "the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

10. Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No.2) [2010] FCA 399 summarised the effect of s.361 as follows:

10. That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 at [161]- [162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; [2008] 177 IR 306 at 321-322 [49]- [50]. To paraphrase observations of Moore J in Rojas [2008] FCA 1585; [2008] 177 IR 306 at 322, it is not sufficient for [the applicant] to simply allege that she had a workplace right and that she was the subject of adverse action - rather on the assumption that [the applicant] is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.

11. Such an approach is consistent with the approach outlined by Wilson FM in Hayward v Rohd Four Pty Ltd & Ors [2008] FMCA 1490. In that case his Honour was dealing with s.664 of the Workplace Relations Act 1996 (Cth), but what his Honour there said is equally apposite to a consideration of the comparative provisions of the Fair Work Act 2009. After tracing the history of provisions similar to s.361 and the approach by Courts to those provisions, his Honour summarised the approach thus:

34. From the above review of the authorities I conclude that the determination of this proceeding requires the following:

a) The applicant proving the fact of employment and its termination;

b) The applicant proving such of the facts as he intends to rely upon to invoke one or more of the provisions in ss.659(2) and 793(1) of the Act;

c) The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant's employment;

d) In discharging that onus the respondents do not have to prove that the applicant's employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.

12. In Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 Gray and Bromberg JJ, pointed out:

The onus cast by s.361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s.346 seeks to protect. As Mason J said in Bowling at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision - in this case s.346. The real reason or reasons for the taking of the adverse action must be shown to be "dissociated from the circumstances" that the aggrieved person has or had the s.346 attribute or has or had engaged in or proposes to engage in the s.346 industrial action.

13. Those observations are equally apposite, in my respectful view, to the operation of s.361 where the relevant contravention is alleged to arise under s.351(1) of the Act.

14. Before considering the facts in detail, a few general observations about the evidence are necessary. I found the evidence of both Ms Ucchino and Mrs Akl less than satisfactory. The written evidence in Ms Ucchino's affidavit filed on 12 October, 2010 and Mrs Akl's affidavit filed on 11 November, 2010 were drawn in such a way that much of what was said by each of them in those affidavits was inadmissible. No objection, however, was taken to the evidence and it therefore formed part of the body of evidence before me. The form of the evidence, however, detracts from its probity significantly. That is especially so in the case of Acorp.

15. In some instances Mrs Akl's affidavit purports to hearsay of various allegations made against Ms Ucchino. Much of the affidavit contains hearsay, speculation, conclusion, or opinion none of which is properly particularised or supported by deposition as to the facts themselves. In some instances, general assertions are made about conversations Mrs Akl has had with other parties and in some instances those assertions are supported by correspondence from those other parties. However, the allegations made against Ms Ucchino are not sworn to and the primary makers of the allegations were not available for cross examination. In those circumstances, the value of much of the evidence is limited.

16. Ms Ucchino's written evidence tended to overstate her position. Her evidence about file drills, for example, demonstrates that she was prepared to minimise matters which she thought might show her in a bad light. In both affidavits relied upon in these proceedings she swore that monthly fire drills may not have been carried out on one or two occasions. In cross examination she conceded that they were not carried out for the months of June, July, September, October, November or December of 2009. She also considered that her curriculum vitae was somewhat misleading in the sense that it suggested that she was currently partnered with her husband when in fact the case was that she had been separated from him for a number of years and she was primarily responsible for rearing the parties four children. I approach her evidence then, on the footing that those matters which tend to favour her case may well be overstated somewhat and the matters which tend to impact upon her case in a negative sense are likely to be minimised.

17. I take a similar approach to the evidence of Mrs Akl. She was less impressive than Ms Ucchino as a witness. She had very little first hand knowledge of any of the matters about which she gave evidence. She relied upon statements made to her by others without obtaining or providing proper particulars in relation to the allegations made against Ms Ucchino.

18. In 2008 Acorp was in the process of constructing a child care centre on land at Indooroopilly. It needed staff to work in the Centre. The Centre was divided into two parts for licensing purposes, referred to in evidence as Centre 1 and Centre 2. Centre 1 comprises two buildings and is licensed to provide care for 75 children. Centre 2 is a stand-alone building, licensed to provide care for 22 children. The two centres were separate although geographically proximate.

19. By an email dated 16 December, 2008 Acorp offered Ms Ucchino the position as "Contact Director" of Centre 2 on a salary of $51,642.00 per annum (which included 9% superannuation and 17.5% holiday loading). By an email sent on 23 December, 2008 Ms Ucchino accepted the offer of employment.

20. At the time the Centre opened on 9 March, 2009 Ms Kim Noble was the Non-contact Director of Centre 1. Although it was not fully articulated in the evidence, the evidence does permit a finding that the Non-contact Director of Centre 1 (also referred to as the "main director" in the evidence filed on behalf of Acorp) was an administrative position designed to oversee the running of both centres and reporting directly to Acorp by its directors, Rosemary and Joseph Akl. The Contact Director of Centre 2 reported to the Non-contact Director of Centre 1, which was the more senior position. The term "contact" in the job descriptions appears to refer to the requirement of the holder of that particular position to have contact with the children in the Centre.

21. On 23 March, 2009 Ms Noble's employment as the Non-contact Director of the Centre was terminated. Ms Ucchino was offered the position and accepted it. Consequently she moved into the role of Non-contact Director of Centre 1 and Ms Maryanne Kedacic moved into Ms Ucchino's former role as Contact Director for Centre 2.

22. Ms Ucchino's move into the role as the main director of the Centres grew out of the departure of Ms Noble very soon after the Centres began operating. It was, it seems, unexpected.

23. There is an issue between the parties about weather Ms Ucchino was aware of the contents of a document entitled "Job Description - Director," a copy of which appears as exhibit "RA 5" to the affidavit of Mrs Akl filed on 11 November 2010.

24. Ms Rosemary Akl, a director of Acorp gave written and oral evidence in support of the respondent's case. She swears that Ms Ucchino was made aware of the document entitled "Job Description - Director," and exhibited to her affidavit. However, I do not accept that evidence. Ms Ucchino gives evidence, which I accept, that she was never given a copy of that document.

a) although the copy exhibited to Mrs Akl's affidavit contains provision for signature by the employee, no signed copy of the document was produced, nor was its absence explained;

b) I accept Ms Ucchino's evidence that she never signed a document in that form; and

c) the circumstances in which Ms Ucchino came into the position were less formal than the process which led to her initial employment with Acorp.

26. I am satisfied that she was unaware of the contents of that document.

27. I am, however, satisfied that she was aware in a general way of the responsibilities that she carried as the Director for the Centre. She had been a director of child care centres (at least in an acting capacity) in the past and was aware of the general nature of the responsibilities to be carried out by her. Those responsibilities included the organisation and preparation of matters relating to the accreditation of the Centre for government regulation purposes. That was a matter of considerable significance.

28. The Centre had an administration office to which Ms Ucchino had access for the purposes of carrying out her functions as Director. However, I am satisfied that in July, 2009 Mrs Akl took up the use of that office to the exclusion of Ms Ucchino. When Mrs Akl was not physically present the office was locked and Ms Ucchino, I accept, did not have access to it. Consequently, she was unable to perform many of the functions required of her as Director. By way of example, she did not have access to information concerning accounts and fees, records for the children at the Centre or their parents, or the policy manuals and other documents that she had commenced preparing for the purposes of the Centre's accreditation in late 2010.

29. Between July, 2009 and when Ms Ucchino ceased her employment, she did not have access to the office. Although some space was set aside in the "programming room" for Ms Ucchino to use, it was not set up as a proper office until January, 2010 at a time when Ms Ucchino was on leave. She only returned to work for a short time before she was terminated on 3 March, 2010.

30. In late 2009 two events of consequence occurred. The first is that in November, 2009 Ms Ucchino told Mrs Akl that she did not have assistance to look after her school aged children over the upcoming school holidays and she wished for them to come to the child care centre while Ms Ucchino was at work. Mrs Akl refused that request and in consequence, Ms Ucchino told Mrs Akl that she must then have unpaid leave from her work so that she could care for her own children. That was agreed to, perhaps reluctantly, by Mrs Akl. The parties agreed that Ms Ucchino would return to work in February, 2010.

31. The second event that occurred happened on 9 December, 2009 when Ms Ucchino told Mrs Akl that she was pregnant, was expecting to be delivered of a child in June, 2010 and anticipated taking maternity leave. The parties' accounts differ as to the course of that conversation, and it is not necessary, in my view, to make findings about what precisely was said. However, Ms Ucchino and Mrs Akl both accept that the conversation concerning Ms Ucchino's pregnancy occurred on or about that date.

32. Ms Ucchino returned to work on 12 January, 2010 at which time she was designated as "staff relief float". As I understand from Mrs Akl's evidence, her task would be to assist in the various rooms in each of Centre 1 and Centre 2 where required. In short, she was a fill in assistant to be utilised when and where needed. However, I accept Ms Ucchino's evidence that upon her return to work she sought out Mrs Akl and asked her when she could recommence her office Director's duties only to be told that all she should do is to "do the rolls and get parents to sign in and out" and to chase up those who had not signed the appropriate forms.

33. I accept Ms Ucchino's evidence that on 2 February, 2010 she had a conversation with Mrs Akl where she said words to the effect:

So Tracy you know you're going to make it hard for me being pregnant in your position for the business; you know that don't you and you are going to make it hard for yourself.

34. I accept that Ms Ucchino replied with words to the effect:

I am hoping to get a special loan arrangement to assist me with repayments and everything when I need it in the future so it won't be so bad.

35. I accept Ms Ucchino's evidence that Mrs Akl responded with words to the effect:

Oh, that's good Tracy, but we can still make it hard for you.

36. When questioned by Ms Ucchino about what she meant, I accept that Mrs Akl refused to discuss the matter further.

37. Ms Ucchino confirmed her request for maternity leave by a letter dated 1 March, 2010 addressed to Mrs Akl which Ms Ucchino hand delivered to her. There was no discussion about its contents at that time.

38. The next day the parties met face to face. Ms Ucchino gave to Mrs Akl a copy of the letter dated 1 March, 2010. There is a dispute between the parties about the nature and the content of that meeting. Mrs Akl asserts that it was a "performance review meeting" for the purposes of Ms Ucchino's employment contract with Acorp. Ms Ucchino says that it was nothing of the sort and that she had not been advised that there would be any performance review carried out. In her mind it was a meeting to discuss her upcoming maternity leave.

39. Mrs Akl bases her view that the meeting was a "performance review meeting" for the purposes of Ms Ucchino's employment contract upon a clause that appears in a document (annexure "RA4" to Mrs Akl's affidavit filed on 11 November, 2010) entitled "Kids on Clarence Employment Application". The exact status of the document was not the subject of detailed submissions, but it is curious if Acorp purports for it to be anything more than a record of the matters stated in it for administrative purposes. The document is signed by Ms Ucchino, and is phrased in parts, as if Ms Ucchino is applying for employment with Acorp. But as set out earlier, there was already an employment contract in place between Ms Ucchino and Acorp based upon the email of 16 December, 2008 and her acceptance of 23 December, 2008. That agreement was not conditional upon any subsequent agreement, nor was it suggested that the written terms stated therein were supplemented by any oral terms. Mrs Akl accepted that she had not given Ms Ucchino any notice that the meeting was a performance review meeting.

40. Be that as it may, the "Employment Application" contained the following phrase:

I understand and agree that my employment begins on three (3) month probation period, after which full time employment commences and is reviewed yearly. On each anniversary of this application, a performance review will be made for continued employment with the company and my wage/salary structure. I will keep all information relating to the company confidential, including but not limited to documentation, financial records and security systems. I further understand that any breaches of the above may be grounds for dismissal.

41. The interpretation that Mrs Akl places upon the first part of the clause set out above is that each year, Acorp (which is controlled by she and her husband) can review the performance of the relevant staff member and unilaterally decide to change the employment - be it in status, salary or in any other way. I cannot say with certainty that even if the clause formed part of the employment contract with Ms Ucchino (which I doubt) it would permit such drastic unilateral action by Acorp.

42. In submissions Acorp avowed any notion that Ms Ucchino's contract was a contract for a fixed 12 month term. Nonetheless it was submitted that I should find that the meeting was a performance review meeting for the purposes of that clause.

43. Of course, how one labels the meeting is entirely irrelevant. What is important is what happened at the meeting. At the meeting the parties agree that Mrs Akl conveyed to Ms Ucchino that her position would change from a full time position to a casual position as from 8 March, 2010. Her rate of pay would change and she would no longer be entitled to paid sick leave or holidays. She would be occupying a position described as a "casual group leader float" and her task would be to assist in the various rooms in each of Centre 1 and Centre 2 where required. In short, she was a fill in assistant to be utilised when and where needed. She had no managerial responsibility other than being a temporary group leader in any room from time to time. Ms Ucchino expressed her disagreement with that course.

44. Mrs Akl gave evidence that at the meeting on 2 March, 2010 she raised a number of performance based issues with Ms Ucchino. Indeed, Ms Ucchino agrees that she did so, but says that it was the very first time she had heard about most of the matters raised. In cross-examination Mrs Akl accepted that she had not raised most of the issues she says that she talked to Ms Ucchino at any time prior to the meeting of 2 March, 2010.

45. On 4 March, 2010 Ms Ucchino wrote to Mrs Akl and Joseph Akl confirming that she did not agree to any of the changes to her employment or her rate of pay.

46. In response, on 5 March, 2010 Ms Ucchino received an email from Mr Joseph Akl (who did not give evidence in the proceedings). The email is largely self serving but curious in a number of respects. Mr Akl writes:

When we opened for business in March 2009, Kim Noble was the director for Centre 1. When she departed, we appointed you as her replacement to act as the director. Since your appointment, we have had endless complaints about the way you handle yourself and manage the centre from staff and families. I even had mothers crying with tears about how you dealt with them and good staff walking out due to the lack of directorship. Sadly, we were confronted, in front of the St Peters head of college, regarding your conduct with our deceased staff member from her immediate family. I am sorry to have put you in a position that you are not capable of and had to cover for you then.

When I met with you last year regarding the above mentioned complaints, I changed your position to a contact base director to avoid any further conflicts. However, the way you handled yourself in such a situation was very disappointing for someone in your position. I left it to your yearly review to make any further changes, giving you the chance to prove yourself in fulfilling your directorship role.

47. The email makes clear that Acorp terminates Ms Ucchino's employment as Director from 8 March, 2010 and confirms an offer to Ms Ucchino of new casual employment at a rate of $172.50 gross per day based on a 7.5 hours work shift excluding break times. The email confirms that she would not be paid sick day or holiday entitlements.

48. By an email dated 6 March, 2010 Ms Ucchino made it clear that she refused the offer of employment and that she was "unable to return to work until the matter has been finalised by the Fair Work Ombudsman."

49. By an email dated 8 March, 2010 again from Mr Akl to Ms Ucchino, Mr Akl said:

"We take your refusal to return to work at no notice as you yourself terminating your employment with us and as for your son's placement, your request to immediately remove his name from the roll, as a termination of his placement at the centre. You have forced us to recruit an immediate replacement for yourself."

50. Of course, Ms Ucchino's employment as Director had already been terminated by Acorp. Given that Ms Ucchino did not accept the offer of further employment, the assertion that she had terminated her employment was clearly wrong.

51. Ms Ucchino did not return to work at the centre at any time after receiving Mr Akl's email.

52. There is no question that at the relevant time there was an employee/employer relationship between Ms Ucchino and Acorp. I am satisfied that by the email dated 5 March, 2010, Acorp terminated Ms Ucchino's employment as Non-contact Director of the Centre.

53. I am satisfied that Ms Ucchino has proved the existence of sufficient facts to provide a basis for her claim that the adverse action taken against her was taken for a reason which contravened s.351(1) of the Act. She has proved to my satisfaction that between at least 9 December and 5 March, 2010 she was pregnant; that she told Rosemary Akl about her pregnancy and Mrs Akl had said the words to her set out in paragraphs 33 - 35 of this judgment.

54. I am also satisfied that in November, 2009 Ms Ucchino told Mrs Akl that she did not have assistance to look after her school aged children over the upcoming school holidays and she wished for them to come to the child care centre while Ms Ucchino was at work. Mrs Akl refused that request and as a consequence, Ms Ucchino told Mrs Akl that she must then have unpaid leave from her work so that she could care for her own children.

55. Neither of those matters (save for the terms of the conversation about Ms Ucchino's pregnancy) was seriously in dispute. Acorp did not contend that s.361 of the Fair Work Act 2009 was not engaged. There are objective facts which raise a case sufficient to engage a reversal of the onus of proof provided for in s.361(1) of the Act. It is thus, for Acorp to demonstrate that it did not take adverse action against Ms Ucchino for the claimed reasons.

56. Acorp asserts that the decision to remove Ms Ucchino from the role of Non-Contact Director of Centre 1 was made because:

a) Ms Ucchino was unable to fulfil the Director's role of supervising and arranging accreditation;

b) Ms Ucchino had failed to instigate fire drills for the months of June, July, September, October, November or December 2009;

c) Ms Ucchino took "inordinate amounts of time" off work;

d) Ms Ucchino was not qualified to be a Director, at least after 6 February, 2010;

e) There have been a number of complaints concerning Ms Ucchino which had been received by Mrs Akl and which were enough to warrant concern as to her suitability to the role of Director;

f) Acorp considered that Ms Ucchino had failed to provide adequate or proper leadership to other staff;

g) Mrs Akl considered that the applicant had poor administrative skills which were important for the Director role.

57. The remarkable feature of Acorp's case, however, was Mrs Akl's evidence that most of the allegations made against Ms Ucchino about poor performance, poor interpersonal skills, lack of leadership and failure to attend to accreditation were never taken up with Ms Ucchino in any meaningful way at all. She was never given an opportunity to properly respond. As Acorp, through its Counsel pointed out, this is not a case seeking relief for harsh or unfair dismissal. However, the fact that, on Acorp's own case, significant matters of competence were not taken up with Ms Ucchino tends to impact negatively on the credit of Mrs Akl, and the respondent's case generally.

58. In his email of termination to Ms Ucchino, Joseph Akl referred to "endless complaints about the way you handle yourself and manage the centre from staff and families. I even had mothers crying with tears about how you dealt with them and good staff walking out due to the lack of directorship. ... When I met with you last year regarding the above mentioned complaints, I changed your position to a contact base director to avoid any further conflicts." Mr Akl was not called to give evidence about the complaints or the meeting he allegedly held with Ms Ucchino about those matters. Indeed, in submissions Acorp accepted that many of the matters about which it now complained about Ms Ucchino's performance were never raised with her. There was no evidence that Ms Ucchino's position was ever changed "to a contact base director to avoid any further conflicts" in 2010.

59. Acorp called evidence from Kirsten Moy and Renee McKellar. They were employees of the Centre. Each gave evidence of difficulties they had in their interactions with Ms Ucchino and, in the case of Ms McKellar her observations of Ms Ucchino's interactions with the children in the Centre and their parents. In respect of their evidence I observe that no doubt all employees have difficulties with the way in which their work colleagues and managers go about their employment from time to time. However, the form of the written evidence of each of the witness detracts form its probity. I take into account the evidence given by each of those witnesses but in my view the weight to be afforded that evidence is limited.

60. I accept that from time to time Ms Ucchino's interaction with parents attracted complaints - she admits as much. But I am satisfied that those matters arose out of the policies of the centre and Ms Ucchino's enforcement of them (such as the Centre's policy about the payment of fees from children withdrawn from the Centre).

61. Mrs Akl annexed to her trial affidavit a number of documents said to corroborate her assertions about Ms Ucchino's conduct towards and treatment of the parents of children who attended the Centre. I accept Ms Ucchino's evidence that she had never seen those documents and that they, nor the complaints in them, had ever been brought to her attention.

62. It is clear that Ms Ucchino was to be, at least in part, responsible for the preparation for the relevant documents, processes and structures for Acorp to achieve accreditation in late 2010. It was a significant matter that went to the heart of Acorp's child care business. There is evidence that Ms Ucchino had put in place some policies, such as the fire safety policy in accordance with accreditation goals. In February, 2010 Mrs Akl engaged an external consultant to provide advice with respect to the accreditation process. That consultant gave evidence before me and pointed out that there was a great many number of matters to be attended to before accreditation could be successfully obtained. Ms Ucchino's case is that she was actively prevented from carrying out her functions with respect to accreditation because she was locked out of the Centre's office and, because she was given contact duties in a room in Centre 2 and then upon her return to work as a group leader/float, it was impossible for her to manage the accreditation process as well. On any view of the evidence given by either Mrs Akl or Ms Ucchino or Ms Reber, preparing the Centres for accreditation required considerable and prolonged work.

63. I do not accept Mrs Akl's evidence that she engaged Ms Reber because she was concerned about Ms Ucchino's lack of progress on the accreditation system. Rather, it is entirely consistent with Ms Ucchino taking maternity leave and being absent from the child care centre from mid 2010 that outside assistance would be necessary to achieve accreditation.

64. Further, it is important to note that there is absolutely no reference to Ms Ucchino failing to carry out her accreditation responsibilities in Mr Akl's email. One would think that if she had so grossly failed in her responsibilities, as the Akl's would have the Court believe, it would have been something of particular note, rather than the nebulous complaints about Ms Ucchino's interactions with parents and other staff members.

65. I accept Mrs Akl's evidence that the failure by Ms Ucchino to carry out monthly fire drills was of concern. Ms Ucchino's claim that she could not carry out those fire drills was because she did not have access to the office does not really explain why the drills could not be carried out. The records kept in respect of the fire drills annexed to Mrs Akl's affidavit are relatively simple and straight forward and it seems to me could have been kept by Ms Ucchino without access to the office. However, in my view, this matter has only assumed significance for Acorp in hindsight. Again, Mr Akl did not refer to this matter in his email of termination. Mrs Akl, clearly in control of the office and the records in the latter part of 2009, did not take the matter up with Ms Ucchino then, as one would have expected.

66. I do not accept Mrs Akl's evidence that by mid June, 2009 she had decided to remove Ms Ucchino from the role of Director. Mes Akl points to certain newspapers advertisements as consistent with Acorp's intention to replace Ms Ucchino as the Director, but those advertisements are not consistent with that assertion. They are advertisements for group leaders and other staff rather than for a Director. I do not accept Mrs Akl's explanation that in June, 2009 Acorp advertised for a qualified teacher because such a person would automatically be qualified to act as Director. It is clear that the role of teacher and director are very different and it seems to me likely to attract different applicants. Moreover, I am not satisfied that Acorp really did have a plan to replace Ms Ucchino with another employee, Renee as Mrs Akl deposes.

67. I am not satisfied that Acorp has discharged the onus upon it to show that it did not take adverse action against Ms Ucchino for the reasons alleged by Ms Ucchino. I am satisfied that none of the matters raised by Acorp were instrumental in its decision to terminate Ms Ucchino's position as Director and to move her employment from full-time status to casual status. I find the claim proved.

68. The Court may make any order it considers appropriate if the court is satisfied that a person has contravened a civil remedy provision of the Fair Work Act 2009: s.545(1). Section 351(1) of the Act is a civil penalty provision for the purposes of s.545(1): s.539(1) of the Act.

69. Such an order might award compensation for loss that an applicant has suffered because of the contravention: s.545(2)(b) of the Act.

70. Further, the Court may order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision: s.546(1) of the Act. In the case of a body corporate, the pecuniary penalty must not be more than 5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in s.539(2) of the Act: s.546(2)(b) of the Act. A penalty unit is currently set at $110.00: s.4AA of the Crimes Act 1914. Thus the maximum pecuniary penalty that can be imposed is $33,000.

71. The Court may order that the pecuniary penalty, or a part of the penalty, be paid to the applicant: s.546(3)(c) of the Act.

72. The Court may award compensation and order the payment of a pecuniary penalty: s.546(5) of the Act.

73. In making an order (other than a pecuniary penalty order) the Court must, on application, include an amount of interest unless good cause is shown to the contrary: s.547(1)(2) of the Act. The court must take into account the period between the day the relevant cause of action arose and the day the order is made when fixing the amount for interest: s.547(3) of the Act.

74. Ms Ucchino does not pursue reinstatement, but she seeks orders for compensation, interest and the imposition of a pecuniary penalty.

75. At the time of her termination Ms Ucchino was earning $738.00 per week after taxation. She intended to return to work following her maternity leave. However, circumstances have arisen since the birth of her last child that mean that she has not been able to return to work and is unlikely to in the foreseeable future.

76. Her economic loss, therefore appears to be limited to a claim for the period between her termination (as from 8 March, 2010) and her notional maternity leave date of 14 May, 2010 (10 weeks). That sum totals $7,380.00. She has also lost her employer's contributions to her superannuation at 9% per annum. That sum is $664.20. Interest on those sums from 8 March, 2010 to date at 6% per annum is $912.41. Her total economic loss is $8,956.61.

77. Acorp argues that even if it is found liable, Ms Ucchino's damages should be limited because she chose to leave her employment. That is to say, her choice not to take up Acorp's alternative offer of employment broke the chain of causation between Acorp's breach and Ms Ucchino's loss. However, I do not accept that proposition. Mr Akl terminated Ms Ucchino's employment as Director. The necessary relationship between employer and employee was destroyed. Indeed, Mrs Akl identifies the loss of that relationship as the reason why reinstatement is not appropriate. In the circumstances it was not unreasonable for Ms Ucchino to decline the alternative offer of employment.

78. Compensation for non-economic loss is available: McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006)158 IR 181. Although dealing with claim under the Workplace Relations Act 1996, Greenwood J set out the following concerning the circumstances in which an award for non-economic loss will be appropriate. I consider that his Honour's remarks and summary of the relevant authorities guides the assessment of compensation for non-economic loss in a case such as the present:

87. In reaching the conclusion that it is appropriate in the circumstances of the case to order compensation, I recognise that compensation must be confined within reasonable limits and that restraint is required (Burazin v Blacktown City Guardian Pty Ltd [1996] IRCA 371; (1996) 142 ALR 144 at 156). In addition, not every termination of employment will attract compensation. In Burazin, their Honours Wilcox CJ, Von Doussa and Marshall JJ concluded that in the circumstances of that case, there were "unusual exacerbating circumstances that make it appropriate to include in the compensation an allowance for distress unnecessarily caused to Mrs Burazin". In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations Pty Ltd [2006] FCA 122; (2006) 150 IR 179 at [11], Marshall J concluded that something more than the usual element of distress which accompanies most terminations must be demonstrated although the notion of "unusual and exacerbating circumstances" is not necessarily the test. In Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 63 IR 1 at 9, Lee J made a number of observations concerning those factors which might inform whether it is "appropriate in all the circumstances of the case to make an order requiring the employer to pay to the employee compensation of such amount as the court thinks appropriate" in respect of a contravention of the relevant Division of the Industrial Relations Act 1998 (Cth) (the IR Act) for the purposes of s 170EE of the IR Act. That particular legislation also set a cap upon the amount of the compensation that might be ordered. As a matter of general principle, Lee J considered that the court would have regard to "what is reasonable in the circumstances" and would consider "the detriment occasioned to the employee by the employer's contravention of the Act" and the extent to which "it is reasonable to compensate the employee for such consequences". In some cases, it may be appropriate to include in the measure of compensation a sum "sufficient to compensate an employee for mental distress or injured feelings caused by a harsh, unjust or unreasonable termination of employment". Although the statutory context is, of course, a different one, notions of what might be "reasonable" are relevantly analogous to notions of what is "appropriate". A consideration of a compensable component of mental distress in the context of conduct characterised as an unjust or unreasonable termination of employment suggests such a consideration would be more so relevant in the circumstances of the prohibited purposes identified by the Workplace Relations Act (s 298L(1)) and the objects the Act seeks to achieve by force of the prohibition.

88. In determining that each employee ought to be paid compensation of $3,000 in the circumstances of the breach by the Greater Dandenong City Council of s 298K of the Act, Madgwick J made reference to Fryar v System Services Pty Ltd (1996) 137 ALR 321 at 330-331 per Von Doussa J. The Respondents say that Fryar's case is not an illustration of the exercise of such a jurisdiction. It seems to me that the reference by Madgwick J to Fryar's case was simply intended to recognise that at least in the context of a severance payment which is a form of compensation for the loss of "non-transferable credits and entitlements built up through length of service such as sick leave, long service leave and for inconvenience and hardship imposed by the termination of employment through no fault of the employee" (Von Doussa J at 331, line 15), the inconvenience and hardship element "includes the disruption to the employee's routine" and other matters. In point of principle, compensation in respect of the contravention of the Act might also take account of disruption and dislocation.

79. Ms Ucchino says, and I accept, that her dismissal was difficult because of the close community in which she and her children live. She says that she was continually asked questions about why she was not working at the Centre anymore. I accept that she was embarrassed about her termination and the questions that it drew from those that knew her. However, I am not satisfied that those circumstances amount to unusual exacerbating circumstances that make it appropriate to include in the compensation an allowance for distress unnecessarily caused to Ms Ucchino (adopting the phraseology used in Burazin v Blacktown City Guardian Pty Ltd (above)). It seems to me that the maters about which Ms Ucchino complains is the type of distress that "accompanies most terminations". I decline to include a component for non-economic loss.

80. Ms Ucchino seeks the imposition of a pecuniary penalty and that the penalty be paid to her.

81. The contraventions in this case are no trivial or technical breach of the Act. They strike at the heart of the protections afforded to employees by s.351(1) of the Act. Acorp, by its directors demonstrate no contrition for the way in which it, and they, have treated Ms Ucchino. The explanations offered by the respondent for its conduct were, in my view, disingenuous and contrived to justify Ms Ucchino's termination. General deterrence has a part to play in this matter. It is appropriate that there is a message that the protections in the Fair Work Act 2009 are to be observed.

82. In my view a penalty of 50 penalty units, or $5,500 is appropriate in the circumstances as a mark of the Court's disapproval of the respondent's conduct in this case.

83. The power to order that the penalty be paid to Ms Ucchino is that such an order ought not to be made if it will result in a windfall gain for her: McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (above) at 218. Such a windfall might arise in circumstances where the party receiving the benefit of the order has already received compensation for economic loss in respect of the contravention and non-economic loss in the nature of general damages. However, I have declined to make an award of general damages. An order for costs is unlikely: s.570(1). In the circumstances, payment of the penalty to Ms Ucchino is not likely to be a windfall. I will order that it be paid to her.

84. I make the orders set out at the commencement of these reasons.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Jarrett FM