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General protections; reinstatement and compensation

Here is an extract from a recent decision of the Federal Circuit Court of Australia ordering compensation for non-economic loss for  contraventions of the general protections (which accompanied an order for reinstatement)

“Mr Keenan sought an order of compensation for distress and hurt.  The respondent said any such sum was negligible.  Conversely, Mr Keenan sought a figure of $100 000.

Certain legal principles must be stated before the amount of any award for distress is ordered.  Among them are the following –

  1. a)           the court has power to order damages for distress shown to be a direct consequence of the contravention, as was held in Australian Licenced Aircraft Engineers Association;[13]
  2. b)           any award in respect of hurt should take into account confining compensation to reasonable limits, as was held in McIlwain v Ramsey Food Packaging Pty Ltd (No 4);[14]
  3. c)           it is insufficient to complain of the type of distress that ordinarily accompanies most terminations, as was held in Burazin v Blacktown City Guardian Pty Ltd;[15]and
  4. d)           orders for compensation for hurt have been made by the Federal Court in such cases as Australian Licenced Aircraft Engineers Associationand Transport Workers’ Union of Australia (NSW) v No Fuss Liquid Waste Pty Ltd.[16]

[13] (2011) 193 FCR 526, 594‑596

[14] [2006] FCA 1302

[15] [1996] IRCA 606

[16] [2011] FCA 982

It was true that no medical evidence supported the claim for compensation for hurt.  It struck me that the sum of $100 000 was an ambit claim unsupported by any scientific theory.  Equally, the sum volunteered by the respondent was absurdly low.  In my view, the correct amount was $20 000.”

KEENAN v CUMMINS SOUTH PACIFIC PTY LTD (No.2) [2019] FCCA 523 delivered 6 March 2019 per Wilson J

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