The Federal Circuit Court of Australia has ordered that Windaroo Medical Surgery pay a pecuniary penalty of $39,600 for acting in contravention of sections 343 and 340 of the Fair Work Act 2009 (Cth).
The unlawful conduct included:
- making the following threats to coerce the doctor into not pursuing a complaint that he had made to the Fair Work Ombudsman against the surgery (Complaint);
- threatening to not pay the doctor payments owing and due to him by the surgery pursuant to a contract for services;
- threatening to make a compensation claim against the doctor for money spent to recruit him to the surgery after he indicated to one of the directors that he wished to resign; and
- threatening to send through patient complaints against him to the Medical Board of Queensland in order to injure his ability to retain a new job and practice medicine in Australia should he choose to remain;
and
- ceasing to make payments that were owing and due to the doctor because he had failed to withdraw the Complaint.
The company directors of the surgery were also penalised under the Fair Work Act 2009 (Cth) with Shelia Pathmanathan fined $7,920 for her part in the threats and directing that the payments not be paid to the doctor and Dr Tan Thi Thahn Tran was fined $3,960 for his involvement in the threats made.
In determining what was an appropriate penalty for each of the respondents, the court considered the nature and extent of the loss suffered by the doctor, any similar previous conduct, the size of the surgery, the deliberateness of the conduct and whether the respondents had demonstrated any contrition or taken correction action.
Judge Jarrett described the contraventions as “serious” and a “deliberate attempt to deprive Dr Kaza of his right to bring a complaint to the Fair Work Ombudsman and his right to payments under the contract for services he had with the first respondent”. He also stated that there was no “expressions of regret or remorse” by the respondents.
In addition, the Court ordered that the surgery and Ms Pathmanathan pay the doctor $21,054.55 and all three respondents pay $3,669.69 in compensation for distress, suffering, hurt and humiliation caused to the doctor in connection with the unlawful conduct.
The Indian-trained doctor returned to India in May 2010 after resigning from the surgery.
Matters pertaining to the respondents’ contraventions of sections 343 and 340 of the Fair Work Act 2009 (Cth) were heard by the Federal Circuit Court in 2012 with its decision published in March 2015, Fair Work Ombudsman v Windaroo Medical Surgery Pty Ltd & Ors [2015] FCCA 554.
To view the full case regarding the pecuniary penalties and compensation order made by the Federal Circuit Court, click here.
