DECISION

Fair Work Act 2009
s.603 - Decision to vary or revoke a FWC decision

Mr Cody Glenane
v
Tag Turfing PTY LTD
(U2018/11663)

Variation to decision [2019] FWC 3817 in matter U2018/11663 – Power under s.603 – Initial decision based on incomplete or false information – Admission of further evidence ––Compensation not appropriate – Decision varied – Order PR708947 revoked.

[1] On 3 June 2019 I issued a Decision (the Decision) in matter number U2018/11663 finding the dismissal of Mr Cody Glenane was unfair and awarding him compensation.  An order was made requiring the Respondent, Tag Turfing Pty Ltd, to pay Mr Glenane the amount of $4,034.25 gross taxed according to law and 9.5% superannuation within 14 days of the date of the Order. 

[2] The calculation of the compensation is as set out in the Decision is found at paragraphs fifty [50] to sixty seven [67] of the Decision. On 11 June 2019, Mr Taggart for the Respondent sent email correspondence to Chambers raising an issue that in assessing remedy, the decision in U2018/11663 calculated the deduction for Workcover payments as a net amount rather than a gross amount. 

[3] The Commission has power under s.603 of the Fair Work Act 2009 to vary or revoke a decision in certain circumstances.  I decided to hear from the parties on the matter of the assessment of taxation in connection with the WorkCover payments on the basis that my preliminary view was that the assessment of remedy may need to be varied. Email correspondence was sent to both parties advising that the matter would be listed for telephone hearing at 1pm on Wednesday 12 June.  The parties were invited to seek an adjournment and if an adjournment was sought to advice Chambers by close of business on 11 June. Neither party requested an adjournment. The Commission used the same email address to serve Mr Glenane with the notice of listing as had been used previously in the matter.

[4] Later on the morning of 11 June Mr Taggart sent further email correspondence to my Chambers advising that he had evidence from Workcover QLD of the weekly benefit payment history to Mr Glenane which showed the last payment was paid on 26 April 2019, and that this data was downloaded from a Workcover Connect online portal. The material provided to Chambers by the Respondent was contrary to what Mr Glenane said to the Commission in the course of the hearing, that being that the payments ceased after 22 January 2019. This was relevant to the final assessment of remedy in the Decision.  

[5] At the commencement of the hearing at 1pm on 12 June my associate was unable to contact Mr Glenane at the telephone number he had previously provided to the Commission to participate in the hearing of the substantive matter. 

[6] I decided to proceed to receive evidence from Mr Taggart about the document sent to Chambers.  I determined to set aside Order PR708947 on an interim basis pending determination of the matters now raised by the Respondent. 

[7] Given Mr Glenane did not participate at the hearing on 12 June, and in order to afford Mr Glenane an opportunity to respond to both the matter concerning the tax treatment of the Workover payments in assessing remedy in the decision in U2018/11663, as well as the further evidence of Mr Taggart regarding the period that he claimed Mr Glenane was receiving Workcover payments, I sent directions to the parties on the afternoon of Wednesday 12 June that the matter would be listed for a further telephone hearing on Tuesday 18 June and that Mr Glenane may file any further evidence or submissions on both matters by midday on Monday 17 June 2019. 

[8] I also had sent to the parties with those directions separate email correspondence from my Chambers setting out the chronology of events. Ialso arranged for an audio recording of the proceedings conducted at 1pm on 12 June to be sent by express post to Mr Glenane to assist him in responding.

[9] The correspondence from Chambers advised that in the event that Mr Glenane did not file any further material, and/or did not participate in the hearing at 2pm on Tuesday 18 June, the Commission may proceed to deal with the matter on the material before me. 

[10] At 10am on 13 June, Mr Glenane sent email correspondence to my Chambers from the same email address that the Commission had been using to serve material on Mr Glenane, apologising to the Commission and indicating that he was unaware of the hearing conducted the day before and that he was currently without a phone. Mr Glenanehowever provided another phone number on which he could be contacted.

[11] Mr Glenane did not file any material by midday on Monday 17 June 2018 in response to the Respondent’s new material as directed by the Commission on 12 June. On the morning of Tuesday 18 June, I directed my associate to make a telephone call to the number provided by Mr Glenane to investigate whether he intended to participate in the telephone hearing at 2pm that day. My associate was unable to reach Mr Glenane and a voice mail was left requesting Mr Glenane return my associate’s call. Later that morning, Mr Glenane returned this call and advised he would be available to participate in the hearing at 2pm and intended to file further material. Mr Glenane did not file further material but participated by telephone in the hearing at 2pm on Tuesday 18 June.

Consideration

[12] The relevant part of the Decision in assessment of remedy concerning remuneration earned since termination reads as follows:

“[55] It is necessary to deduct the amount of worker’s compensation Mr Glenane received.
Mr Glenane said his WorkCover payments were equivalent to his net income of $817 per week and that he continued receive these payments after his dismissal until 22 January 2019.

[56] Mr Taggart gave evidence that he had contacted someone from WorkCover who advised him Mr Glenane’s payments extended into February. Mr Glenane denied this.

[57] There has not been any evidence filed by either party to determine when Mr Glenane’s WorkCover payments ceased. However, I am inclined to accept Mr Glenane’s submission that they ceased on 22 January 2019.

[58] Mr Taggart’s evidence on this point was quite vague and he was not able to provide the name of the person he spoke to regarding this, nor a specific time that he alleged the payments stopped. Mr Glenane however gave first hand evidence and was able to provide the Commission with a specific date when payments ceased.

[59] I therefore calculate that Mr Glenane received WorkCover for approximately 13 weeks, totalling $10,621. This brings the amount of compensation to $5,379.

[60] Mr Glenane said he has not received any other income since his dismissal on 25 October 2018 so it is not necessary to make any further deductions for remuneration.”

[13] During his evidence at the hearing of 24 April 2019, I asked Mr Glenane to give evidence concerning the Workcover payments and his evidence was to the effect that Workcover ceased payments to him on 22 January 2019 as he had not had a “knee review”. He said he subsequently rescheduled the appointment for a knee review and advised at the hearing that he had undertaken the knee review the week before the hearing in April. He also gave evidence at the time of the hearing to the effect that he just had to call Workcover and Workcover would reinstate the payments..

[14] Mr Taggart said from his communication with Workcover, Mr Glenane was on Workcover until the end of February 2019 and Workcover cut him off because he stopped attending appointments and they ended up cutting him off because he wasn’t attending appointments. I asked Mr Taggart how he knew that and he said he was talking to Workcover as his insurance company. I asked Mr Glenane if he stood by his claim that the payments were cut off in January 2019 and he said he “believed” it was January. That was the state of the evidence that led to the conclusion at paragraph fifty seven [57] of the Decision.

[15] The email Mr Taggart sent to Chambers on 11 June 2019 included the following:

“I also have evidence from Workcover QLD, of weekly benefit payment history to Mr Glenane with last payment paid on 26 April 2019. PDF of last page attached shows payments to Mr Glenane and Tax withheld. This data was downloaded from Workcover Connect online portal.”

[16] At the hearing on 12 June 2019 that Mr Glenane did not attend, I indicated a preliminary view that the alleged error in calculation concerning tax treatment of the Workcover payments may have merit. I also indicated a preliminary view that if Mr Glenane did receive Workcover payments for the period claimed by the Respondent, and the same approach were adopted to calculation of remedy, the compensation would likely be zero.

[17] I indicated to Mr Taggart that if he gave evidence concerning the matters he raised I could set the order aside on an interim basis as the Order required the Respondent to pay the amount that was the subject of the Order by 17 June 2019. The ‘set aside’ order would be an interim order only, and pending final determination after Mr Glenane had been given an opportunity to put a case opposing variation to the Decision and Order.

[18] Mr Taggart gave evidence that with his Workcover policy he has an online portal where he can open up his claims history and once inside the portal he can download a copy of all the weekly benefit payments on the claims as an excel spreadsheet. He said the spreadsheet shows the payments to the claimant and the tax withheld. Mr Taggart gave evidence that there were two entries for each date indicating $818 was paid each week to the claimant, and $182 was paid to government as tax withheld.

[19] Mr Taggart said he was not signed up to the Portal at the time of the April hearing, and in regard to the evidence he gave at the initial hearing, he said at that time he had an email from Workcover indicating payments would cease.

[20] The spreadsheet provided to the Commission contains 14 columns which in order are as follows: Transaction Number; Policy Number; Employer; Claim Number; Claimant; Transaction Date; Paid from Date; Paid to Date; Amount; Status; Payee Type; Paid Hours; Paid week; Compensation Rate.

[21] The document provided by Mr Taggart identifies Tag Turfing Pty Ltd as the employer, Mr Cody Glenane as the claimant, and dates for transactions from 19 December 2018 to 26 April 2019. The document indicates payments were made weekly except for a period wherein a payment was made on 4 March 2019 to cover the period from 23 February 2019 to 1 March 2019, and then a payment was not made again until 1 April 2019 to cover the period for one day being 29 March 2019. On 8 April 2019 a payment was made to cover the period from 30 March to 5 April, and regular payments resumed again until 26 April 2019 when they stopped. The spreadsheet therefore indicates payments were not made for the period from 2 March to 29 March.

[22] At the hearing on 18 June 2019 I put to Mr Glenane the discrepancy between what he said at the hearing on 24 April 2019, in regard to when he said the Workcover payments ceased, and what was contained on the spreadsheet provided by Mr Taggart indicating the Workcover payments continued until 1 March 2019 before stopping and then recommencing again from 29 March. Mr Glenane initially indicated that he may have been incorrect, and subsequently appeared to accept that he was mistaken about what he said at the hearing on 24 April.

[23] I am satisfied on the basis of the new material put to the Commission by Mr Taggart, and the concession made by Mr Glenane at the hearing on 18 June, that contrary to the finding at paragraph fifty seven [57] of the Decision, the payments did in fact continue until 1 March 2019, a further period of over five weeks. This means that the conclusion at paragraph fifty nine [59] that Mr Glenane received Workcover payments for 13 weeks is also wrong, and instead he received Workcover payments continuously for a period of over 18 weeks.

[24] At paragraph fifty four [54] of the Decision I estimated that Mr Glenane would have worked for another 16 weeks and assessed compensation on the basis of the period that Mr Glenane would have continued to be employed and was not receiving Workcover payments. My findings in the Decision were based on incomplete and incorrect information, and it is now clear that the earnings Mr Glenane received from Workcover payments exceeded the income he would have received had he remained employed for a further 16 weeks. It is probably now moot, however I also accept that the deduction of Workcover payments assessed at paragraph fifty nine [59] should have been calculated as a gross sum in the same manner as projected income was being calculated.

[25] On the basis of the findings above I have decided to exercise power under s.603 to vary the Decision [2019] FWC 3817. Decision [2019] FWC 3817 is varied so that existing paragraphs [55] to [67] are deleted and replaced as follows:

“[55] It is necessary to deduct the amount of worker’s compensation Mr Glenane received. Mr Glenane’s Workcover payments were equivalent to his gross income of $1000 per week and he continued to receive these payments after his dismissal until 1 March 2019, when the payments ceased for a period and then recommenced from 29 March 2019 until 26 April 2019.

[56] I therefore calculate that Mr Glenane received continuous Workcover payments for 18 weeks totalling at least $18,000. The amount of Workcover payments received exceeds the amount of remuneration Mr Glenane would have received if the dismissal had not occurred. I have taken into account each of the other circumstances set out in section 392 of the Fair Work Act 1999 and having done so conclude that despite finding Mr Glenane’s dismissal being unfair, given his income from Workcover exceeded the remuneration he would have received had he not been dismissed, it is not appropriate to award compensation in this case.”

[26] An Order PR709550 will be issued separately and concurrently with this decision revoking both Order PR708947 issued on 3 June 2019, and the interim set aside Order issued on 13 June 2019.

COMMISSIONER

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