1
Fair Work Act 2009
s.604—Appeal of decision
Rodney Harvey
v
Valentine Hydrotherapy Pools Inc
(C2021/3716)
VICE PRESIDENT CATANZARITI
COMMISSIONER MCKINNON
COMMISSIONER P RYAN
SYDNEY, 12 AUGUST 2021
Appeal against decision [2021] FWC 3373 of Deputy President Saunders at Newcastle on 10
June 2021 in matter number U2021/2065 - application for an unfair dismissal remedy –
compensation amount – permission to appeal refused.
Introduction
[1] By notice of appeal dated 30 June 2021, Rodney Harvey seeks permission to appeal
and appeals a decision and order made on 10 June 2021 by Deputy President Saunders.1 The
Deputy President found that Mr Harvey had been unfairly dismissed. The Deputy President
ordered Valentine Hydrotherapy Pools Inc. (VHP) to pay Mr Harvey an amount of
compensation under section 392(1) of the Fair Work Act 2009 (Cth) (Act) as an unfair
dismissal remedy.2 The application for permission to appeal was heard by telephone on 3
August 2021.
The decision
[2] The relevant findings of the Deputy President are at paragraphs [65] to [70] of the
decision:
“[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.
[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
1 [2021] FWC 3373 (decision); PR730648 (order).
2 Decision at [52].
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DECISION
E AUSTRALIA FairWork Commission
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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.
[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
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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.”
[3] After deducting an amount of $0.35 for other income earned in the period since
dismissal and making no other adjustments to the compensation amount, the Deputy President
found at paragraph [88] of the decision that $2778.21 was the appropriate remedy for Mr
Harvey in the circumstances.
Permission to appeal
[4] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the
Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a
decision made under Part 3-2 unless the Commission considers that it is in the public interest
to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made
on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). Section 400 of
the Act manifests an intention that the threshold for a grant of permission to appeal is higher
in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
[5] The public interest test in s 400(1) is not satisfied simply by the identification of error
or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
“… the public interest might be attracted where a matter raises issues of importance
and general application, or where there is a diversity of decisions at first instance so
that guidance from an appellate court is required, or where the decision at first
instance manifests an injustice, or they result in counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters…”3
[6] Other than granting permission to appeal on a public interest basis, the grounds for
granting permission to appeal are not specified. Considerations which have traditionally been
treated as justifying the grant of permission to appeal include that the decision is attended
with sufficient doubt to warrant its reconsideration and that substantial injustice may result if
refused.4
3 (2010) 197 IR 266 at [27].
4 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481.
[2021] FWCFB 4990
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[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.5 However, the fact that the member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.6
[8] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.7
However, it is necessary to engage with the appeal grounds to consider whether they raise an
arguable case of appealable error.
Appeal grounds and submissions
[9] Mr Harvey’s notice of appeal and appeal submissions disclose six appeal grounds.
These are (in summary):
Ground 1 - The Deputy President made a significant error of fact when he found at
paragraph [66] of the decision that if Mr Harvey had not been dismissed on 19 February
2021, he would have remained employed by VHP for a further four weeks, when the
evidence from both Mr Harvey and VHP was that he would have remained in employment
for the foreseeable future.
Ground 2 - Witnesses of VHP made contradictory statements about Mr Harvey’s hours of
work and these should be considered perjury.
Ground 3 - The standard of representation on behalf of VHP was inadequate and this
disadvantaged VHP.
Ground 4 - The representative of VHP violated the confidentiality of conciliation in his
submissions.
Ground 5 - The Deputy President breached the Commission’s Member Code of Conduct,
Guiding Principles.
Ground 6 - The Deputy President did not fully exercise or explain Mr Harvey’s rights as a
self-represented applicant or assist him in a way that is recommended in the Member
Code of Conduct.
Consideration
Ground 1 of the appeal
5 Wan v AIRC (2001) 116 FCR 481 at [30].
6 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
7 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1663.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
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[10] Ground 1 deals with section 392(c) of the Act, which requires the Commission to
consider the remuneration that a person would have received, or would have been likely to
receive if the person had not been dismissed when determining a compensation amount. By
this ground, Mr Harvey asserts that the Deputy President was obliged to accept the evidence
of the parties in relation to Mr Harvey’s anticipated period of employment because both Mr
Harvey and Ms Nicole Turton, Administration Manager for VHP, gave evidence that he
would have remained employed for the foreseeable future. We accept that evidence to this
effect was given by Mr Harvey (at PN352-353 of the transcript) and Ms Turton (at PN581).
[11] The question of remuneration that Mr Harvey would have received, or would have
been likely to receive, is not a question of fact. It is a question directed to the hypothetical
scenario of a likely period of employment that would have ensued had the dismissal not
occurred. When making this assessment, the Commission is required to turn its mind to the
whole of the evidence and make an evaluative judgment about relevant matters, including the
state of the relationship between the parties and other surrounding circumstances.
[12] The Deputy President approached the matter in precisely those terms. He took into
account the evidence that Mr Harvey would likely remain in employment for the foreseeable
future but found that the evidence pointed to a different conclusion. In that respect, he was not
only required to consider the evidence of Mr Harvey and Ms Turton, but the totality of the
evidence, including that of the other witnesses for VHP and Mr Harvey’s own evidence about
the state of his relationship with VHP, some of its officers and employees.
[13] We are not persuaded that the decision discloses any arguable case of appealable error
in the assessment of this criterion by the Deputy President. We reject the submission that the
Deputy President’s finding in this regard amounted to a significant error of fact. It was not a
factual finding.
Ground 2 of the appeal
[14] Ground 2 of the appeal does not disclose any arguable case of appealable error. It is
commonly the case in Commission proceedings that parties make statements that on their face
appear contradictory. This does not mean that the parties are necessarily being dishonest. It is
the task of the Commission to make findings to resolve contested facts in the evidence.
Sometimes this involves making findings as to the credibility of witnesses and sometimes it
does not. It is not self-evident on the materials before us that any witness committed perjury
and Mr Harvey’s submissions do not provide any proper basis for reaching a conclusion of
that kind. The Deputy President set out the relevant background and found it necessary to
resolve one part of the contest over hours Mr Harvey was authorised to work by January 2021
(at paragraph [67] of the decision) because it was relevant to the question of remedy.
Whether, and which, hours of attendance at work by Mr Harvey were authorised or worked on
a voluntary basis were not otherwise issues that were necessary for the Deputy President to
resolve for the purpose of determining whether a dismissal occurred, and if so, whether it was
unfair. The issues may be relevant to an alleged underpayment of wages, but as the Deputy
President made clear to Mr Harvey during the hearing, it was not relevant to the question of
dismissal.
[15] An allegation of perjury is a serious one that should not be made without a proper
basis and only in circumstances where it can be fully put to the relevant witness, and the
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witness be given an opportunity to reply.8 The allegation does not point to any arguable case
of error of fact or law in the Deputy President’s decision.
Ground 3 of the appeal
[16] This ground can be disposed of quickly. The standard of representation of a party in
the Commission is not a reason for appellate review. We reject this ground of appeal.
Ground 4 of the appeal
[17] Ground 4 deals with statements made openly by the representative of VHP about what
happened in conciliation with Mr Harvey. The precise statements about which Mr Harvey
complains are not identified. It is of course inappropriate that the confidential discussions in a
conciliation context would be disclosed outside that forum, but as with ground 3 of the
appeal, it is not, without more, a reason for appellate review of a decision of the Commission.
It might be that an arguable case of error could arise if, for example, a disclosure of this kind
could be shown to have influenced the outcome in some way, but there is nothing that we can
see that would point to that being the case here. The submissions of Mr Harvey are at best
brief. We also note that Mr Harvey made his own disclosures about what happened in
conciliation during the course of the proceeding (For example, see PN371 of the transcript).
Ground 4 does not disclose any arguable case of appealable error.
Grounds 5 and 6 of the appeal
[18] It is convenient to deal with grounds 5 and 6 of the appeal together. Firstly, the need
for appellate review is not established by the mere assertion of some breach of the Member
Code of Conduct or failure to provide assistance to a self-represented party in a hearing.
There is a process for dealing with concerns of this kind, including by making a complaint to
the President of the Commission. We are not persuaded that the materials disclose any
arguable case of appealable error in this regard. Secondly, the Deputy President was not
required to provide advice to Mr Harvey about his rights or to assist him to put forward his
best case. It is not clear to us what recommendations the Member Code of Conduct is said by
Mr Harvey to make about the conduct of proceedings involving self-represented applicants
because again, his submissions on this point are very brief. The Member Code of Conduct
provides general guidance about standards of behaviour in Commission proceedings. There is
nothing before us to suggest that the Deputy President acted in any way that would not
conform to those standards in the conduct of the hearing. We find no arguable case of
appealable error in relation to grounds 5 and 6 of the appeal.
Conclusion
[19] For the reasons above, we do not find the Deputy President’s decision to award
compensation to Mr Harvey to be attended with sufficient doubt to warrant its
reconsideration. The decision does not manifest any injustice and nor does it raise any issues
of general application as opposed to turning on its own facts. Many of the matters raised by
Mr Harvey are about the conduct of participants in the hearing process rather than any error of
law or fact in the decision. We do not consider the grant of permission to be in the public
8 Xiu Zhen Huang v Rheem Australia Pty Ltd [2005] AIRC 108, [21]-[22].
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interest, nor do we consider that there is any other basis upon which permission to appeal
should be granted.
[20] Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
Mr R Harvey on his own behalf
Mr P Amos for the Respondent
Hearing details:
2021.
Telephone hearing.
3 August 2021.
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PR732789
THE FAIR WORK COMM A ISSION THE SEA
