In the recent matter of Cerin v ACI Operations Pty
Ltd & Ors  FCCA 2762, the Federal Circuit Court
ordered the employer and its HR manager to pay a penalty to the
employee for failing to give him adequate notice of termination,
therefore breaching s 44 and s 117 of the Fair Work Act
The employee, who was on workers' compensation, was given 28
days' notice of termination of employment and the employer
argued that this complied with s 58B of the Workers
Rehabilitation and Compensation Act 1986 (SA).
However, the Court found that this was in breach of s 44 of the
Fair Work Act, which required the employer to comply with
the National Employment Standards (NES) and give the employee five
weeks' notice. The employee was therefore entitled to a further
two days' notice and suffered a loss of $181.66 as a result of
The Court found that the employer's conduct in terminating
the employee's employment without proper notice or payment in
lieu was bizarre since no satisfactory excuse was given for not
complying with the Fair Work Act. Further, the HR manager
admitted that she was aware of the NES under the Fair Work
Act and its requirements as to the amount of notice to be
given on termination depending upon length of service of the
Based on her evidence, the Court found that the HR manager was
involved in the contravention of the NES due to the accessorial
liability provision in the Fair Work Act, although her
conduct was found to be significantly less serious than that of the
The employer argued that the failure to provide the correct
amount of notice was procedural and not a deliberate failure.
However, the Court found that there was no excuse for the employer
to ignore their obligations under the Fair Work Act and came to the
conclusion that the actions of the employer and the HR manager were
In an attempt to reflect the seriousness of such breaches, the
Court imposed substantial penalties on the employer and the HR
manager. The maximum penalty for a corporation at the relevant time
was $51,000 and $10,200 for an individual. The Court ordered the
employer to pay $20,400 and the HR manager $1,020 to the
Winner – EOWA Employer of Choice for Women Citation 2009,
2010, 2011 and 2012
Winner – ALB Gold Employer of Choice 2011 and 2012
Finalist – ALB Australasian Law Awards 2008, 2010, 2011 and
2012 (Best Brisbane Firm)
Winner – BRW Client Choice Awards 2009 and 2010 - Best
Australian Law Firm (revenue less than $50m)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).