[2021] FWC 3373
The attached document replaces the document previously issued with the above code on 10
June 2021.
Renumbered paragraphs [1] – [84] as [5] – [88]
Jeremy Lappin
Associate to Deputy President Saunders
Dated 10 June 2021.
1
Fair Work Act
2009
s.394—Unfair dismissal
Rodney Harvey
v
Valentine Hydrotherapy Pools Inc
(U2021/2065)
DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 10 JUNE 2021
Application for an unfair dismissal remedy – whether dismissed – dismissal unfair –
compensation ordered.
[1] Mr Rodney Harvey was employed by Valentine Hydrotherapy Pools Inc (VHP) as a
casual pool attendant from April 2015 until his alleged dismissal on 19 February 2021. VHP
contends that Mr Harvey was not dismissed within the meaning of s 386 of the Fair Work Act
2009 (Cth) (Act). Mr Harvey denies that assertion and contends that he was dismissed and his
dismissal was harsh, unjust and unreasonable.
Background
[2] Mr Harvey filed his unfair dismissal application in the Fair Work Commission
(Commission) against VHP on about 12 March 2021.
[3] I decided that it was appropriate to hold a determinative conference rather than a
hearing in this matter. In making that decision, I had regard to the views of the parties,
together with the fact that a determinative conference would be the most effective and
efficient way to resolve this matter. The determinative conference was conducted, in person,
on 2 June 2021.
[4] Mr Harvey gave evidence at the determinative conference. VHP adduced evidence
from Ms Nicole Turton, Administration Manager employed by VHP, Ms Carla Hankins, Vice
President of VHP since 20 September 2020, and Ms Judith Wilson, Secretary of VHP since
20 September 2020.
Initial matters to be considered
[5] Section 396 of the Act sets out four matters which I am required to decide before I
consider the merits of the Application.
[6] There is no dispute between the parties and I am satisfied on the evidence that:
[2021] FWC 3373 [Note: An appeal pursuant to s.604 (C2021/3716) was
lodged against this decision - refer to Full Bench decision dated
12 August 2021 [[2021] FWCFB 4990] for the result of the appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb4990.htm
[2021] FWC 3373
2
a) Mr Harvey’s unfair dismissal application was made within the period required
in s 394(2) of the Act;
b) Mr Harvey is a person protected from unfair dismissal. Although Mr Harvey
was employed by VHP as a casual employee, I am satisfied on the evidence
that Mr Harvey’s whole period of service with VHP counted towards his
period of employment because he was employed on a regular and systematic
basis and he had a reasonable expectation of continuing employment by VHP
on a regular and systematic basis. VHP did not contend to the contrary;
c) VHP was a small business employer at the relevant time. VHP did not contend
that Mr Harvey’s dismissal, if it occurred, was consistent with the Small
Business Fair Dismissal Code. In final submissions Mr Amos, appearing on
behalf of VHP, accepted that if Mr Harvey was dismissed then his dismissal
was not consistent with the Small Business Fair Dismissal Code. I am satisfied
on the evidence that Mr Amos’s concession in that regard was correct. Mr
Harvey’s dismissal was not consistent with the Small Business Fair Dismissal
Code, because VHP did not adduce any evidence to support a contention that it
believed that Mr Harvey’s conduct was sufficiently serious to justify
immediate dismissal and VHP did not give Mr Harvey a reason why he was at
risk of being dismissed; and
d) Mr Harvey’s dismissal was not a case of genuine redundancy within the
meaning of the Act.
Relevant facts
[7] VHP is a not-for-profit charity organisation which operates a public swimming pool,
in addition to a hydrotherapy pool facility for use by people with a disability, the elderly and
injured persons.
[8] Mr Harvey has a diagnosed personality disorder. Although this occasionally leads to
him becoming angry quickly,1 he is not a violent person, can function at a high level, and is
clearly intelligent. Mr Harvey has been in receipt of a disability pension for a significant
period of time.
[9] In April 2015, Mr Harvey commenced employment with VHP as a casual pool
attendant. For about the first two months of his employment, Mr Harvey ordinarily worked
four hours each Saturday. After about the first two months, Mr Harvey ordinarily worked four
hours each Saturday and four hours each Sunday during summer and two hours on each of
those days during winter. He did that for about a year or so. Then Mr Harvey began filling in
for Mr Shane Honess, who was a part time pool attendant employed by VHP, when Mr
Honess was sick or on holidays, in addition to Mr Harvey’s usual weekend hours for VHP.
[10] Mr Neville Thomas was responsible for water quality and pool maintenance at VHP
until he retired at the end of September 2020. Mr Thomas was also the honorary treasurer of
VHP from 2011 until September 2020. Mr Thomas worked well with Mr Harvey and had
1 Ex A1 at [13]
[2021] FWC 3373
3
great confidence in Mr Harvey’s ability to maintain the water quality in the pools to the
highest level possible.2
[11] On 20 September 2020, a new management committee was elected at VHP. The
previous management committee resigned on account of what they believed to be an
unsustainable financial position for the organisation. All members of the management
committee are volunteers.
[12] Mr Harvey got along well with the previous management committee. He did not get
along well with the new management committee. Mr Harvey summarised the position as
follows in his witness statement:3
“I do not work well with strangers, the public, or new-to-me people. Every interaction I
had with the New Committee members was strictly “Do this, fix that, get that working,
get this pool open” as well as “you are now Liable for any Fines we get” and if I
brought up objections, or proof they were wrong, I was either told to ignore it, figure it
out myself or, to quote Paula, “Shut up Rodney and go away”. When I tried to enquire
about my rights regarding minimum hours, I was not given information requested…”
[13] The feeling of members of the new management committee towards Mr Harvey were
equally negative. By way of example, Ms Hankins described witnessing Mr Harvey
“becoming loud and aggressive”.4 Ms Turton also gave evidence that Mr Harvey was, at times
during February 2021, agitated, aggressive and loud.5 Mr Harvey denies that he was
aggressive or yelled at any time.
[14] As a result of Mr Thomas’s retirement, the new management committee asked Mr
Harvey to work two hours each day during the week and four hours each day on a weekend.
Mr Harvey agreed. In fact, Mr Harvey worked a number of additional hours, over and above
his new agreed hours, because he understood VHP is a registered charity and he wanted to
ensure the pools re-opened (after having been closed as a result of COVID-19 from early
2020) for use by many elderly and disabled people.
[15] In January 2021, VHP re-opened its pools. Mr Harvey asked Ms Turton if his weekly
paid hours of work could be increased to 24 per week because he was working many
additional hours each week. Ms Turton spoke to the committee of management, who
authorised Mr Harvey to work up to 24 hours of paid work each week.
[16] On 15 February 2021, Mr Harvey believed he had not been paid for two hours of work
he had recorded on his timesheet for the previous pay period. At the conclusion of his shift on
15 February 2021, Mr Harvey went to speak to Ms Turton about what be believed to be an
underpayment of his wages. Ms Hankins was present when Mr Harvey went to speak with Ms
Turton. There is a dispute as to what was said during the discussion which ensued on 15
February 2021.
2 Ex A9
3 Ex A2 at [7]
4 Ex R3 at [13]
5 Ex R1 at [22] & [31]
[2021] FWC 3373
4
[17] Mr Harvey contends that when he raised the issue of his underpayment of wages with
Ms Turton, Ms Hankins made a comment that suggested Mr Harvey spent time on his phone
while he was supposed to be working and Ms Hankins said words to the effect of “maybe you
should be working when you are getting paid”. Mr Harvey was offended by this comment. He
contends that he did not use his phone during hours for which he was paid, except to
occasionally check guidelines in relation to pool chemicals. Mr Harvey also says that he used
his phone in additional hours he worked for which he did not claim any pay while he was
waiting for the results of tests he was performing. Mr Harvey felt himself becoming angry as
a result of Ms Hankins’ comment and determined that since it was the end of his shift, it
would be better for him to leave the workplace and calm down, which he did. Before he left,
Mr Harvey contends that he said, “Maybe you should be paying me while I am working but
you can’t because of JobKeeper. See ya.” Mr Harvey denies that he resigned or said anything
about handing in his notice.
[18] Ms Turton made the following handwritten notes immediately after the discussion
with Mr Harvey and Ms Hankins on 15 February 2021:6
“1. Rodney claimed short paid 2 hrs.
2. Carla asked who authorised 24 hour weeks.
3. No response from Rodney.
4. Carla asked why he is suddenly charging for hours he normally volunteers.
5. Rodney claimed he worked 28 hr wks.
6. Rodney said he should be paid what he works.
7. Carla said he spends a lot of time on his phone whilst at work.
8. Rodney said there’s nothing to do between testing.
9. Carla said he could work in between tests.
10. Rodney said he will hand in his notice & left the premises.”
[19] In her affidavit, Ms Turton gave the following account of the conversation on 15
February 2021:
“9. Rodney Harvey came to the Administration office on the afternoon of 15th February
2021 again complaining that he had not been paid for the additional hours (overtime)
he had claimed on his timesheet.
10. Carla Hankins the Vice President of VHPI was in the office at that time and
overheard Rodney Harvey complaining about the non-payment of the additional
overtime he had included on his timesheet.
6 Ex R2
[2021] FWC 3373
5
11. Carla Hankins questioned Rodney Harvey as to why he was working the additional
hours and who authorized him to work those hours.
12. Rodney Harvey had a constant set roster of hours and when on the rare occasions
Rodney Harvey did work additional hours to cover absences by other employees' the
hours were on a voluntary basis. This arrangement was agreed between the
Management Committee and Rodney Harvey.
13. Rodney Harvey was never directed by myself or the Management Committee or
any other employee to my knowledge, to work additional voluntary hours, it was
always Rodney Harvey's choice.
14. I had brought to the attention of Carla Hankins that Rodney Harvey was
commencing work at between 3.00am and 4.00am in the morning as he was showing
these hours on his timesheet.
15. Rodney Harvey's ordinary hours of work were to be worked in accordance with the
Award provisions. Rodney Harvey to our knowledge was never given authority to, or
directed to commence work at any time before 6.00am in the morning.
16. To my knowledge there was no requirement or need to commence work at these
hours.
17. Carla Hankins asked Rodney Harvey why he was commencing work at those hours
and he responded by saying, and I quote:
'For my own piece of mind'
18. Carla Hankins also questioned Rodney Harvey regarding the amount of time he
was spending using his personal mobile phone during working hours. Rodney Harvey
responded to this question by stating words to the effect:
'There is nothing to do between testing'
19. Carla Hankins explained to Rodney Harvey that there is work to be done in
addition to the pool testing requirements between the testing. Carla Hankins stated the
work included cleaning around the complex, covid19 cleaning and other general
maintenance.
20. I was aware and witnessed that Rodney Harvey had been told by various
Management Committee members to undertake cleaning of the complex and other
duties between the pool testing requirements, and on most occasions Rodney Harvey
either refused to carry out the directive or did not do the work.
21. I had witnessed Rodney Harvey stating words to the effect:
'Cleaning is not my job, I am a Pool Attendant'
22. At this stage of the conversation Rodney Harvey became very agitated and
aggressive, raising his voice considerably when he spoke.
[2021] FWC 3373
6
23. Rodney Harvey turned away to leave the discussion and stated:
'Well, I am resigning then'
and left the premises
24. I can recall, Clara Hankins and myself were taken back and amazed at what had
just happen and what was said by Rodney Harvey.
25. On the afternoon of 15th February 2021 and following Rodney Harvey's departure
from the premises I contacted Judith Wilson the management Committee Secretary,
and advised her that during a discussion in the office between Rodney Harvey, Carla
Hankins and myself, Rodney Harvey resigned his employment.
26. Judith Wilson advised that we needed to formalize the resignation and she
would prepare a resignation letter for Rodney Harvey to sign.”
[20] At the determinative conference, Ms Turton gave oral evidence to the effect that her
handwritten notes made immediately after the discussion on 15 February 2021 were accurate,
save for paragraph 10. Ms Turton said in her oral evidence that when Mr Harvey was leaving
the discussion he said “Well, I am resigning then. I will hand in my notice.”
[21] In her affidavit, Ms Hankins gave the following account of the conversation on 15
February 2021:
“14. On Monday, 15th February 2021 I was in the office at VHPI with Nicole Turton
(Administration Manager) attending to some administration work when Rodney
Harvey came to the office and stood in the office doorway.
15. Rodney Harvey spoke to Nicole Turton regarding an alleged underpayment of
wages related to his hours of work.
16. As I overheard the conversation and was aware that Nicole Turton had been
directed by the Management Committee not to pay any employee for any unauthorized
overtime, I interrupted and asked Rodney Harvey who authorized the working of the
additional overtime hours he was claiming.
17. Rodney Harvey did not provide an answer to the question.
18. Nicole Turton had also informed me and the Management Committee prior to this
day that Rodney Harvey had been working additional overtime hours and that he was
commencing work between 3am and 4am in the morning.
19. I thought it was an appropriate time to question Rodney Harvey about these
matters and to gain some understanding of why he was working such hours.
20. I also raised the matter of him spending too much time on his personal mobile
telephone during working hours and not carrying out his duties.
[2021] FWC 3373
7
21. Rodney Harvey replied to that questioning with words to the effect:
'There is no other work to do between testing the pool'
22. I said to Rodney Harvey:
'That is not right, there is other work to do including Covid19 cleaning, and general
cleaning and maintenance'
23. All employees including Rodney Harvey had been directed by the Management
Committee to undertake Covid19 cleaning during the day to meet the Department of
Health requirement.
24. As I continued to question Rodney Harvey about the hours he was working and his
performance, his demeanor changed and he became very agitated and his voice
became very loud.
25. Rodney Harvey then turned to walk out of the office and said words to the effect:
'that's it, I resign then'
and stormed out of the office.
26. The action of Rodney Harvey to resign was a surprise to me, as there was no
discussion either during the meeting on 15th February 2021 or to my knowledge up
until the meeting of any move or intention by the Management Committee to
terminate Rodney Harvey's employment.
27. As we were both taken by surprise as to the reaction of Rodney Harvey I asked
Nicole Turton to take down some notes of what had just happened so we would have a
record and reference of the content of the discussions and of who said what.
28. Following the meeting with Rodney Harvey on 15th February 2021 I rang and
advised Ellena Morris the President of VHPI, of what had just happened and we had a
general brief discussion of what we should do next.
29. I was later informed by Nicole Turton that Judith Wilson (Secretary of VHPI) who
was also made aware of the resignation of Rodney Harvey had prepared a letter of
resignation to be forwarded to Rodney Harvey.
30. I requested Judith Wilson not to forward the letter to Rodney Harvey until both
Ellena Morris and myself, had reviewed it.”
[22] At the determinative conference, Ms Hankins confirmed that the content of her
affidavit was an accurate account of the conversation with Mr Harvey on 15 February 2021.
Ms Hankins also gave oral evidence that she was provided with a copy of Ms Turton’s
handwritten notes on either the evening of 15 February 2021 or the following day, and she
does not recall raising with Ms Turton any issue with the accuracy of paragraph 10 of her
notes. Ms Hankins says she did not raise any such issue because she believed that there was
[2021] FWC 3373
8
no substantive difference between what Ms Turton wrote in paragraph 10 of her notes (“he
will hand in his notice”) and what Ms Hankins recalls Mr Harvey saying (“that’s it, I resign”).
[23] I accept that each of Mr Harvey, Ms Turton and Ms Hankins did their best in their
evidence to accurately and truthfully recall what was said at the meeting on 15 February 2021.
It is undisputed that the meeting was brief and things escalated quickly. In those
circumstances, it is not surprising that the participants in the meeting have different
recollections as to what was said. I make a finding in paragraph [30] below as to which
account I prefer and my reasons for making that finding.
[24] On the evening of Monday, 15 February 2021, Mr Harvey went home and looked at
the Fitness Industry Award (Award), which covered him in relation to his employment with
VHP. Mr Harvey discovered that the Award provided for a minimum shift duration of three
hours for casual employees. He had frequently been rostered to work two-hour shifts, which
he believed was a breach of the Award. Later that evening, Mr Harvey called Mr Mick
Turton, a volunteer at VHP, and requested to meet with Mr Turton and Ms Turton the
following morning. Mr Turton agreed.
[25] On the morning of Tuesday, 16 February 2021, Mr Harvey met with Mr Turton and
Ms Turton. Mr Harvey raised the issue of the minimum three-hour shift duration and
requested clarification as to what level of the Award he was classified under. He mentioned
that he had performed approximately 28 additional hours of unpaid work in the previous three
weeks alone. Ms Turton told Mr Harvey that if he were back paid on the basis of the
minimum shift length issue the pool would have to close. Ms Turton also said that Mr Harvey
needed to talk to the management committee about these issues and “put it all in writing”. Ms
Turton claims that Mr Harvey became very agitated and aggressive and shouted words to the
effect, “I am owed a lot of money and will make a claim”. Mr Harvey denies that he was
aggressive or that he shouted, but accepts that felt stressed at the lack of response he received
from Ms Turton in relation to the concerns he had raised. Feeling too unwell to attend work
that day, he sent a text message to Ms Turton later that morning to confirm he was unwell and
would not be able to attend work for his rostered shift that afternoon. Ms Turton did not
respond to Mr Harvey’s text message. Ms Turton says she did not remind Mr Harvey that he
had resigned because she did not want to escalate the situation any further.
[26] Mr Harvey worked his normal rostered shift on Wednesday, 17 February 2021.
Nobody suggested to Mr Harvey that he had resigned and should not be at work.
[27] On Thursday, 18 February 2021, Mr Harvey attended work to commence his shift at
5:30pm. When he arrived, he saw Ms Paula McGilvery, a management committee member,
and Ms Elena Morris, President of the management committee. Mr Harvey asked to speak
with them when they had time. After Mr Harvey performed his first batch of water testing, Ms
McGilvery and Ms Morris asked him to join them in the hydrotherapy pool area, which is a
loud and public place. Mr Harvey was upset by his conversation with Ms McGilvery and Ms
Morris. He believed that they were interrupting him as he attempted to explain his concerns.
There is no suggestion in the evidence that Ms McGilvery or Ms Morris told Mr Harvey that
he had resigned or should not be at work.
[28] After completing further water tests on the evening of Thursday, 18 February 2021,
Mr Harvey went home. Shortly after arriving home, at 6:38pm, Mr Harvey sent a text
message to Ms Turton: “For legal purposes, I’d like you to inform Committee I’ll be handing
[2021] FWC 3373
9
in resignation letter tomorrow. Also, going to see Lawyer about starting proceedings to get
back 250+ hours of back pay. And no, that not counting any ‘extra’ hours I happily
volunteered for. This is about Fitness Industry Award from Fair Work Australia.” After
sending this text message, Mr Harvey’s mother told him that he should not resign because he
needed the money from his employment with VHP. At 6:58pm on 18 February 2021, Mr
Harvey sent a further text message to Ms Turton: “I’ve been told not to quit so I will be into
work as per normal.”
[29] Mr Harvey returned back to work at about 7:30pm on Thursday, 18 February 2021 and
completed his duties for the remainder of his shift. He also said hello to Ms Morris on his way
back into work. Mr Harvey finished work at about 8:30pm.
[30] On the morning of Friday, 19 February 2021, Mr Harvey sent a text message to both
Ms Turton and Mr Turton, requesting they email him a copy of his employment contract. He
did not receive a response to either message. Later that day, Mr Harvey attended work to
commence his rostered shift at 5:30pm. Shortly after his arrival, Ms Turton advised Mr
Harvey that the management committee had sent him a letter by email. Mr Harvey informed
Ms Turton that he had not seen the letter. Mr Harvey then checked his emails and noticed that
he had received an email from the management committee at 1:58pm that afternoon but he
could not open the attachment to the email. Ms Turton printed a copy of the letter and handed
it to Mr Harvey. The letter was dated 18 February 2021 and had the subject line “Re:
Notification of Resignation”. It provided:
“Dear Rodney
On behalf of the Management Committee of Valentine Hydrotherapy Pools Inc we
would like to advise that your resignation has been formally accepted.
We feel this is the best resolution since your recent behaviour has become intimidating
and it is not acceptable.
Yours sincerely
Judith Wilson Paula McGilvery
Hon. Secretary Committee Member”
[31] After reading the letter, Mr Harvey said that he had not handed in a letter of
resignation and had not resigned. He said he had only stated that he intended to resign. Ms
Turton told Mr Harvey that he would need to talk to the management committee. Ms Turton
asked Mr Harvey to give her his keys to the premises and leave, which he did. Thereafter, Mr
Harvey did not undertake any work for VHP and was not asked to do so by VHP.
[32] Ms Turton gave evidence, which I accept, that she was first directed by the
management committee to prepare a letter accepting Mr Harvey’s resignation on the evening
of Monday, 15 February 2021. Ms Turton drafted the letter that evening and emailed it to Ms
Wilson. At about 6pm on the evening of Thursday, 18 February 2021, Ms Wilson directed Ms
Turton to amend the draft letter accepting Mr Harvey’s resignation. The principal amendment
was the inclusion of an additional sentence concerning Mr Harvey’s recent behaviour. Ms
Turton prepared the revised letter on the evening of Thursday, 18 February 2021 and sent it to
[2021] FWC 3373
10
Ms Wilson. Ms Turton also made a number of members of the management committee aware
of the text messages she received from Mr Harvey on the evening of 18 February 2021.
[33] On the morning of Friday, 19 February 2021, Ms Wilson informed Ms Turton that the
revised letter was as per her wishes and she attended VHP’s premises to sign the letter.
[34] As to the disputed conversation on the evening of Monday, 15 February 2021, I prefer
the account of that conversation as set out in Ms Turton’s notes, namely “Rodney said he will
hand in his notice & left the premises”. First, the notes were prepared immediately after the
discussion. They are the only contemporaneous account of the conversation. Secondly, there
is no dispute that the notes are accurate in all other respects, save for paragraph 10. Thirdly,
Mr Harvey’s conduct in calling in sick on the following day, Tuesday, 16 February 2021,
attending work as normal on Wednesday, 17 February 2021, Thursday, 18 February 2021 and
Friday, 19 February 2021 is consistent with him not resigning on Monday, 15 February 2021.
Fourthly, there is a degree of similarity between what Mr Harvey is alleged in the notes to
have said on Monday, 15 February 2021 (“… he will hand in his notice…”) and the first text
message he sent to Ms Turton on the evening of Thursday, 18 February 2021 (“…I’ll be
handing in resignation letter tomorrow…”). Fifthly, Ms Turton gave different accounts of the
crucial part of the conversation in (i) her contemporaneous notes, (ii) her affidavit, and (iii)
her oral evidence.
[35] There is a material difference between saying, on the one hand, “I am resigning” or “I
resign” and, on the other hand, “I will hand in my notice”. The former either has immediate
effect or is notification of a decision which has been made, and the latter is a statement of
intention as to the future. Once an employee gives their employer notice of their resignation,
there is no need for the employer to accept the resignation. Providing notice of the resignation
to the employer is effective to bring the employment relationship to an end in accordance with
the terms of the notice.
Dismissal
[36] The question of when a person has been dismissed is governed by s 386 of the Act:
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the
employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her
employer.”
[37] A dismissal takes effect when the employment relationship has ended.7 The
termination of the employment relationship is a different concept from the termination of an
employment contract.8
7 Siagian v Sanel Pty Ltd [1994] IRCA 2 (Wilcox CJ); Metropolitan Fire and Emergency Services Board v Duggan [2017]
FWCFB 4878 at [21]
[2021] FWC 3373
11
[38] The employment relationship, in Australia, operates within a legal framework defined
by statute and by common law principles, informing the construction and content of the
contract of employment.9
[39] The unfair dismissal regime in Part 3–2 of the Act applies to “national system
employees” and “national system employers”.10 National system employees are employees of
national system employers, being employers which bear particular characteristics such as to
make them amenable to particular heads of legislative power of the Commonwealth in s 51 of
the Constitution.11 Beyond this, the Act does not seek to establish a statutory definition of
what constitutes an employee. National system employees for the purposes of Part 3–2 of the
Act are parties to an employment relationship at law.12
[40] Because the question of whether an employment relationship continues to exist is a
question of fact,13 it is necessary to consider all the relevant circumstances to determine
whether there has been a communication of a dismissal by words or conduct. The range of
facts or factors which may need to be examined to answer the question of whether an
employment relationship has ceased to exist by reason of the communication of a dismissal by
words or conduct will be determined by the circumstances of a particular case, and may
include, without limitation, whether the employee is being paid a wage or other benefits or
entitlements, whether the employee is attending or performing work for the employer,
whether the employee is being rostered to work or offered work, whether, in the case of a
business employing casuals, the employer is rostering other employees to do work in the same
role as the applicant in a particular case, whether the employer is exercising, or has the ability
to exercise, control over the execution of work by the employee,14 whether either party has
communicated to the other party a decision to terminate the relationship, and the terms of the
employment contract.
[41] The question of whether an employment relationship has ceased to exist does not
depend upon the parties’ subjective intentions or understandings. Rather, it depends upon
what a reasonable person in the position of the parties would have understood was the
objective position. What matters is what each party by words and conduct would have led a
reasonable person in the position of the other party to believe.15
[42] The expression “termination at the initiative of the employer” is a reference to a
termination that is brought about by an employer and which is not agreed to by the employee.
8 Visscher v Giudice and Others (2009) 258 ALR 651 at [53] to [55] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan
Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]-[22]; Khayam v Navitas English Pty Ltd
[2017] FWCFB 5162 at [31]-[50]
9 Commonwealth Bank of Australia v Barker (2014) 312 ALR 356 at 357 [1]
10 s.380 of the Act
11 Ayub v NSW Trains [2016] FWCFB 5500 at [25]
12 Ibid
13 Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Metropolitan Fire and Emergency Services Board v
Duggan [2017] FWCFB 4878 at [27]
14 Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404; Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160
CLR 16 at 24 & 35; Forstaff v Chief Commissioner of State Revenue (2004) 144 IR 1 at [91]
15 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [45], applying Koutalis v Pollett [2015] FCA 1165;
235 FCR 370 at [43]
http://www.fwc.gov.au/decisionssigned/html/2017fwcfb4878.htm
https://jade.io/article/346625/section/140344
https://jade.io/article/346625/section/140344
https://jade.io/article/346625
[2021] FWC 3373
12
In circumstances where the employment relationship is not left voluntarily by the employee,
the focus of the inquiry is whether an action on the part of the employer was the principal
contributing factor which results, directly or consequentially, in the termination of the
employment.16 There must be action by the employer that either intends to bring the
relationship to an end or has that probable result.17
Consideration of dismissal
[43] Having regard to my earlier finding that Mr Harvey did not say that he resigned on 15
February 2021, I find that Mr Harvey did not resign from his employment with VHP. Mr
Harvey only said that he “will hand in his notice”. That was a statement as to Mr Harvey’s
future intention. But he did not carry through with that intention. Mr Harvey did not hand in
his notice. To the contrary, he called in sick on 16 February 2021, attended for work as
normal on 17 and 18 February 2021, and on 19 February 2021 he attended for work as normal
to commence his shift.
[44] The text messages Mr Harvey sent to Ms Turton on the evening of 18 February 2021
are in a similar category to what he said on 15 February 2021. He stated in his first text
message that he would “be handing in resignation letter tomorrow” and 20 minutes later
retracted that statement of intent by informing Ms Turton that he had “been told not to quit so
I will be into work as per normal”. Mr Harvey then attended for work at the commencement
of his shift at 5:30pm on 19 February 2021. In short, Mr Harvey’s communications and
conduct would not have led a reasonable person to believe or understand that Mr Harvey had
resigned.
[45] There is no question that the employment relationship between Mr Harvey and VHP
came to an end on 19 February 2021. But how did it end? Was the termination “on the
employer’s initiative” within the meaning of s 386(1)(a) of the Act? In my opinion, it plainly
was. Mr Harvey did not voluntarily leave the employment relationship. He wanted the
relationship to continue. So much is clear from his conduct from 16 February 2021, including
his text message to Ms Turton at 6:58pm on 18 February 2021 where he stated that he would
“be into work as per normal”, and his attendance at work at the commencement of his shift on
19 February 2021. The actions of VHP were the principal contributing factor which resulted
in the termination of Mr Harvey’s employment. Those actions were the “notice of
resignation” letter sent to Mr Harvey on 19 February 2021, coupled with Ms Turton’s conduct
in asking Mr Harvey to return his keys to the premises and leave. Such action on the part of
VHP either intended to bring the employment relationship to an end or had that probable
result.
[46] For the reasons given, I find that on 19 February 2021 Mr Harvey was dismissed
within the meaning of s 386(1)(a) of the Act.
Harsh, Unjust or Unreasonable
[47] I must take into account, in determining whether the dismissal was harsh, unjust or
unreasonable, the matters set out in s 387 of the Act.
16 Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75(2)]
17 Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at [24]
[2021] FWC 3373
13
Section 387(a) – valid reason related to capacity or conduct
[48] VHP ran its case on the basis that it did not dismiss Mr Harvey. VHP did not run an
alternative case that it had a valid reason to dismiss Mr Harvey.
[49] The evidence does not support a finding of any sound, defensible or well-founded
reason for Mr Harvey’s dismissal related to his capacity or conduct. Mr Harvey was not, at
any time, given an oral or written warning in relation to his conduct. The evidence adduced by
VHP included some allegations of aggressive and loud conduct by Mr Harvey in the
workplace. Some of that evidence was first-hand, given in the context of the difficult
discussions which took place in the first half of February 2021. Other parts of that evidence
were hearsay and generalised in nature. I observed during the hearing that Mr Harvey has
some difficulty in hearing in one of his ears and he naturally speaks loudly. He can also
become agitated when things are said with which he disagrees. I did not observe any
behaviour that I would describe as aggressive during the determinative conference. In all the
circumstances, I am satisfied on the evidence that VHP did not have a sound, defensible or
well-founded reason for Mr Harvey’s dismissal related to his capacity or conduct.
[50] That there was no valid reason for Mr Harvey’s dismissal weighs in favour of Mr
Harvey’s argument that he was unfairly dismissed.
Section 387(b) – notification of reason
[51] Section 387(b) relates to notification of “that reason”, being a reason related to the
person’s capacity or conduct.18
[52] Because there was no reason for the termination of Mr Harvey’s employment related
to his capacity or conduct, s 387(b) is a neutral factor in relation to the question of whether Mr
Harvey’s dismissal was harsh, unjust or unreasonable.19
Section 387(c) – opportunity to respond
[53] Section 387(c) is also predicated on there being a reason for dismissal related to the
capacity or conduct of the employee.20
[54] It follows that s 387(c) is a neutral factor in relation to the question of whether Mr
Harvey’s dismissal was harsh, unjust or unreasonable.21
Section 387(d) – support person
[55] VHP did not unreasonably refuse to allow Mr Harvey to have a support person present
to assist at any discussions relating to his dismissal. Accordingly, s 387(d) is a neutral factor
in relation to the question of whether Mr Harvey’s dismissal was harsh, unjust or
unreasonable.22
18 UES at [43]; Ventyx at [143]
19 UES at [43]; Ventyx at [143]
20 UES at [43]; Ventyx at [144]
21 UES at [43]; Ventyx at [144]
22 UES at [44]
[2021] FWC 3373
14
Section 387(e) – warning about unsatisfactory performance
[56] Mr Harvey’s dismissal did not relate to any unsatisfactory performance by him. It
follows that s 387(e) is also a neutral factor in relation to the question of whether Mr Harvey’s
dismissal was harsh, unjust or unreasonable.23
Section 387(f)&(g) – size of enterprise and dedicated human resource management specialists
[57] VHP is a small employer. There is no suggestion in the evidence that VHP had any
dedicated human resource management specialists or expertise in its enterprise at the time Mr
Harvey’s employment was terminated. In my view, these matters had an impact on the
procedures followed in effecting Mr Harvey’s dismissal. In particular, if relevant expertise
had been available to VHP, I am satisfied that VHP would have communicated with Mr
Harvey to clarify whether or not he intended to resign before sending the letter to him on 19
February 2021. In all the circumstances, I accept that these factors (s 387(f) & (g)) weigh, to
some extent, in support of a conclusion that Mr Harvey’s dismissal was not harsh, unjust or
unreasonable.
Section 387(h) – other relevant matters
[58] Mr Harvey was employed by VHP for almost six years prior to his dismissal. On the
basis of the letters provided by Mr Thomas and the absence of any criticism of Mr Harvey’s
performance by VHP, I find that Mr Harvey performed well in the first five and a half years
of his employment with VHP. In the period from 20 September 2020 until his dismissal, Mr
Harvey had a difficult relationship with a number of the members of the committee of
management. No doubt these difficulties arose as a result of Mr Thomas retiring and no
longer taking responsibility for water quality and pool maintenance for VHP, together with
communication issues between Mr Harvey and the new management committee members.
No warnings were given to Mr Harvey in relation to his conduct or performance. Mr Harvey
worked many hours in addition to his paid hours, on a voluntary basis, and was happy to do so
up to a point. In all the circumstances, I consider that Mr Harvey’s length and overall quality
of service with VHP to weigh, to some extent, in favour of his contention that he was unfairly
dismissed.
Conclusion on harsh, unjust or unreasonable dismissal
[59] After considering each of the matters specified in s 387 of the Act, my evaluative
assessment is that VHP’s dismissal of Mr Harvey was harsh and unreasonable. Mr Harvey did
not resign. He raised legitimate issues which needed to be resolved concerning compliance
with the Award and a potential underpayment for the hours worked by him. Those issues were
difficult, but they needed to be worked through in a careful manner. Rather than taking that
course, VHP brought the employment relationship to a hasty end, without any prior notice to
Mr Harvey.
Remedy
23 UES at [45]; Ventyx at [146]
[2021] FWC 3373
15
[60] Having found that Mr Harvey was protected from unfair dismissal, and that his
dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should
be granted to him. Mr Harvey did not suggest that he wanted to be reinstated to employment
with VHP. In any event, I am satisfied that it would be inappropriate to reinstate Mr Harvey
in all the circumstances, particularly in light Mr Harvey’s statement in his final oral
submissions that he has no trust in the new management committee of VHP and VHP’s view
of Mr Harvey’s “recent behaviour”.24
[61] Section 390(3)(b) of the Act provides the Commission may only issue an order for
compensation if it is appropriate in all the circumstances. A compensation remedy is designed
to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably
attributable to the unfair dismissal within the bounds of the statutory cap on compensation
that is to be applied.25
[62] Having regard to all the circumstances of the case, including the fact that Mr Harvey
has suffered financial loss as a result of his unfair dismissal, I consider that an order for
payment of compensation to him is appropriate.
[63] It is necessary therefore for me to assess the amount of compensation that should be
ordered to be paid to Mr Harvey. In assessing compensation, I am required by s 392(2) of the
Act to take into account all the circumstances of the case including the specific matters
identified in paragraphs (a) to (g) of this subsection.
[64] I will use the established methodology for assessing compensation in unfair dismissal
cases which was set out in Sprigg v Paul Licensed Festival Supermarket26 and applied and
elaborated upon in the context of the current Act by Full Benches of the Commission in a
number of cases.27 The approach to calculating compensation in accordance with these
authorities is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been
likely to have received, if the employer had not terminated the employment
(remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration Mr Harvey would have received, or would have been likely to receive, if he
had not been dismissed (s 392(2)(c))
24 Ex R5
25 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]
26 (1998) 88 IR 21
27 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762;
Bowden v Ottrey Homes Cobram [2013] FWCFB 431
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb431.htm
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb762.htm
http://www.fwc.gov.au/decisionssigned/html/2011fwafb1080.htm
http://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB3512.htm
[2021] FWC 3373
16
[65] Like all calculations of damages or compensation, there is an element of speculation in
determining an employee’s anticipated period of employment because the task involves an
assessment of what would have been likely to happen in the future had the employee not been
dismissed.28
[66] I am satisfied on the balance of probabilities that if Mr Harvey had not been dismissed
on 19 February 2021, he would have remained employed by VHP for a further four weeks. I
make this finding notwithstanding that Mr Harvey contends that he would have remained in
employment with VHP for as long as the pools stayed financially viable. The evidence points
to a different conclusion. In particular, it is plain from his evidence that Mr Harvey not only
had ongoing disputes with a number of the new members of the management committee from
September 2020 onwards, he also had, and continues to have, a very negative opinion towards
the part-time pool attendant employed by VHP, Mr Honess. At the time of Mr Harvey’s
dismissal, Mr Honess remained employed by VHP. It appears as though Mr Honess has since
ceased employment with VHP, although I do not know when that occurred or why it
occurred. In any event, the clear picture one gets from assessing the evidence as a whole is
that the relationship between Mr Harvey and VHP was deteriorating from 20 September 2020
onwards. Mr Harvey was angry and frustrated at the way he was being spoken to, payment for
the hours he was working, the lack of recognition for his efforts, and what he perceived to be
issues of non-compliance with the Award. VHP was concerned about what it perceived to be
intimidating behaviour on Mr Harvey’s part and time spent by him on his mobile phone while
at work. These tensions resulted in Mr Harvey stating, on two occasions within three days,
that he intended to hand in his notice of resignation. He did not do so, but he was clearly very
close to bringing the employment relationship to an end. I do not have any confidence that the
significant problems in the employment relationship between Mr Harvey and VHP would
have been resolved had Mr Harvey remained in employment after 19 February 2021. In all the
circumstances, I find, on the balance of probabilities, that Mr Harvey’s casual employment
with VHP would have come to an end, either by way of resignation or dismissal, in four
weeks from 19 February 2021.
[67] I am satisfied on the balance of probabilities that if Mr Harvey had not been dismissed
on 19 February 2021 he would have continued to work 24 paid hours per week for VHP in
each of the four weeks after his dismissal. The management committee approved an increase
in Mr Harvey’s hours of up to 24 per week in January 2021. In light of the amount of pool
attendant work to be done at VHP and the hours Mr Harvey had been working up to 19
February 2021, I am satisfied that Mr Harvey would have taken up the full available quota of
24 hours paid work each week. This finding is supported by Ms Turton’s evidence to the
effect that if Mr Harvey had not been dismissed, she expects that he would have continued to
work up to 24 hours per week for the foreseeable future.
[68] There is a dispute as to the hourly rate at which Mr Harvey would have been paid if he
had continued to work for four weeks after 19 February 2021. Mr Harvey contends that he
would have been paid at the rate he was always paid at - $28.38 per hour for weekdays and
$29.51 on a weekend. That equates to $694.64 per week (20 hours x $28.38 + 4 hours x
$29.51 = $576.60 + $118.04 = $694.64). VHP contends that it paid Mr Harvey at the incorrect
rate under the Award because it misclassified him under the Award. It contends that his
hourly rate should have been $25.06.
28 Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]-[17]
http://www.fwc.gov.au/decisionssigned/html/2016fwcfb7206.htm
[2021] FWC 3373
17
[69] The question I need to consider under s 392(2)(c) of the Act is “the remuneration that
the person would have received, or would have been likely to receive, if the person had not
been dismissed”. The dispute concerning the correct classification and pay rate for Mr Harvey
only arose as a result of Mr Harvey’s contention, raised for the first time in about mid-
February 2021, that VHP was not complying with the Award. The parties have still not agreed
on the correct classification question and that issue is likely to only be resolved to finality if
Mr Harvey commences legal proceedings for an alleged underpayment of wages. Having
regard to those matters, I find that the rate of remuneration Mr Harvey would have received,
or would have been likely to receive, from VHP if he had not been dismissed on 19 February
2021 and instead remained employed for a further period of four weeks is the rate of pay he
had been receiving at all material times up to 19 February 2021. That is, $28.38 per hour for
weekdays and $29.51 on a weekend, which equates to $694.64 per week for a 24 hour week
with 20 hours on weekdays and four hours on weekends. I hasten to add that my finding in
this regard is on a question of fact and says nothing about the correct classification for Mr
Harvey under the Award. I do not need to resolve, and have not resolved, that question in
these proceedings.
[70] Accordingly, I am satisfied that $2,778.56 (4 x $694.64 = $2,778.56) is the
remuneration that Mr Harvey would have received, or would have been likely to receive, if he
had not been dismissed.
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
[71] Mr Harvey continues to be in receipt of his disability pension but has only earned very
minimal remuneration since his dismissal. I accept Mr Harvey’s evidence that he has only
earned $0.35 per month from his activities as a moderator on various internet sites and
applications since his dismissal. That is the only remuneration he has earned since his
dismissal. Accordingly, $2,778.21 ($2,778.56 - $0.35 = $2,778.21) is the gross amount of
remuneration Mr Harvey would likely have earned had he not been dismissed by VHP and
instead continued to be employed in VHP until the conclusion of a four week period from 19
February 2021. This calculation is intended to put Mr Harvey in the position he would have
been in but for the termination of his employment.29
Viability (s 392(2)(a))
[72] No submission was made on behalf of VHP that any particular amount of
compensation would affect the viability of VHP’s enterprise.
[73] My view is that no adjustment will be made on this account.
Length of service (s 392(2)(b))
[74] My view is that Mr Harvey’s period of service with VHP (almost six years) does not
justify any adjustment to the amount of compensation.
Mitigation efforts (s 392(2)(d))
29 Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]
https://www.fwc.gov.au/documents/decisionssigned/html/s5109.htm
[2021] FWC 3373
18
[75] The evidence establishes that Mr Harvey made reasonable efforts to obtain alternative
employment following his dismissal. In particular, although Mr Harvey has sought
employment in his field of expertise (pool attendant) at numerous pools in the Newcastle and
Lake Macquarie regions, he has not been able to obtain alternative employment.
[76] In all the circumstances, my view is that Mr Harvey acted reasonably to mitigate the
loss suffered by him because of the dismissal and I do not consider it appropriate to reduce the
compensation on this account.
Any other relevant matter (s 392(2)(g))
[77] It is necessary to consider whether to discount the remaining amount ($2,778.21) for
“contingencies”. This step is a means of taking into account the possibility that the occurrence
of contingencies to which Mr Harvey was subject might have brought about some change in
earning capacity or earnings.30 Positive considerations which might have resulted in
advancement and increased earnings are also taken into account.
[78] The discount for contingencies should only be applied in respect to an “anticipated
period of employment” that is not actually known, that is a period that is prospective to the
date of the decision.31
[79] Because I am looking in this matter at an anticipated period of employment which has
already passed (four weeks from 19 February 2021), there is no uncertainty about Mr
Harvey’s earnings, capacity or any other matters during that period of time.
[80] In all the circumstances, my view is that it is not appropriate to discount or increase
the figure of $2,778.21 for contingencies.
[81] Save for the matters referred to in this decision, my view is that there are no other
matters which I consider relevant to the task of determining an amount for the purposes of an
order under s 392(1) of the Act.
[82] I have considered the impact of taxation, but my view is that I prefer to determine
compensation as a gross amount and leave taxation for determination.
Misconduct (s 392(3))
[83] Mr Harvey did not commit any misconduct, so my view is that this has no relevance to
the assessment of compensation.
Shock, distress or humiliation, or other analogous hurt (s 392(4))
[84] I note that in accordance with s 392(4) of the Act, the amount of compensation
calculated does not include a component for shock, humiliation or distress.
Compensation cap (s 392(5)-(6))
30 Ellawala v Australian Postal Corporation Print S5109 at [36]
31 Enhance Systems Pty Ltd v Cox PR910779 at [39]
[2021] FWC 3373
19
[85] The amount of $2,778.21 is less than half the amount of the high income threshold
immediately before the dismissal. It is also less than the total amount of remuneration to
which Mr Harvey was entitled in his employment with VHP during the 26 weeks immediately
before his dismissal. In those circumstances, my view is that there is no basis to reduce the
amount of $2,778.21 by reason of s 392(5) of the Act.
Instalments (s 393)
[86] No application has been made to date by VHP for any amount of compensation
awarded to be paid in the form of instalments.
Conclusion on compensation
[87] In my view, the application of the Sprigg formula does not, in this case, yield an
amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is
no basis for me to reassess the assumptions made in reaching the amount of $2,778.21.32
[88] For the reasons I have given, my view is that a remedy of compensation in the sum of
$2,778.21 (less taxation as required by law) in favour of Mr Harvey is appropriate in the
circumstances of this case. An order will be made to that effect.
DEPUTY PRESIDENT
Appearances:
Mr R Harvey on his own behalf
Mr P Amos on behalf of the respondent
Hearing details:
2021.
Newcastle:
June 2.
PR730647
32 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]
THE FAIR WORK AIR NORK C OMMISSION KLIA SEX THE SEAL OF THE
