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ERGT Australia Pty Ltd v Kevin Govender

ERGT Australia Pty Ltd v Kevin Govender

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Case Copied 31 August 2021 26 min read

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[2021] FWCFB 5389

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

ERGT Australia Pty Ltd
v
Kevin Govender
(C2021/2800)

VICE PRESIDENT CATANZARITI
COMMISSIONER LEE
COMMISSIONER CIRKOVIC

SYDNEY, 31 AUGUST 2021

Appeal against decision [2021] FWC 1788 of Deputy President Binet at Perth on 31 March 2021 and order PR728302 of Deputy President Binet at Perth on 28 April 2021 in matter number U2020/11820 – permission to appeal granted – appeal upheld – new information received-first decision revoked and further decision issued in order to correct errors in calculation of compensation taking into account new information.

[1] On 3 August 2021, this Full Bench issued a decision 1 (the 3 August decision) upholding an appeal against a decision2 of Deputy President Binet (the Deputy President). On 17 August 2021, a Statement was subsequently issued by the Full Bench (the Statement).3 For the reasons outlined below, pursuant to s.603(2)(a) the Fair Work Act 2009 (Cth) (the FW Act), we revoke our 3 August decision and replace it with this decision (the revocation decision). It follows that the decision of 3 August is of no effect. An order giving effect to the revocation decision will be issued separately.

[2] In the 3 August decision, the Full Bench determined as follows:

“• Permission to appeal is granted in relation to the two grounds of appeal.

• The appeal is upheld in respect of both grounds of appeal.

• The Deputy President’s determination is quashed insofar as it concerns the payment of any compensation to Mr Govender.

• The order 4 that ERGT pay Mr Govender the sum of $24,633.75 is quashed.

• ERGT are not required to pay any compensation to Mr Govender. 5

[3] Shortly after the publication of the 3 August decision, Mr Kevin Govender (Mr Govender/the Respondent) wrote to the Chambers of Vice President Catanzariti, asserting that the Full Bench had made an error in calculating the compensation due to him. The Respondent attached to the correspondence a schedule which provided a breakdown of the amount of money he had received upon termination of his employment. This schedule had not been previously put before the Deputy President and therefore was not before the Full Bench. It was clear from the schedule that the calculation of compensation made by the Deputy President was incorrect. Namely, the amount the Deputy President determined had been paid to the Respondent by way of notice and redundancy pay were both incorrect to the extent that payments for long service leave and annual leave were included in the calculations.

[4] A series of communications between the Vice President’s Chambers, ERGT Australia Pty Ltd (ERGT/the Appellant) and the Respondent ensued. The parties’ calculations as to the amount of compensation due to the Respondent differed. On 17 August 2021, we issued the Statement outlining the background of the matter and expressing our provisional view as to the amount of compensation that should be made payable to the Respondent by the Appellant.

[5] The Statement indicated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWCFB 5389
Decision Date: 31 AUGUST 2021

CaseChat Overview and Summary

ERGT Australia Pty Ltd sought leave to appeal against a decision made by Deputy President Binet at the Fair Work Commission, Perth, which was handed down on 31 March 2021, and an order made on 28 April 2021. The appeal pertained to the decision in matter number U2020/11820, which involved an application by Kevin Govender regarding the calculation of compensation owed to him. The dispute arose from an employment termination, and the matter was decided in the Federal Circuit and Family Court of Australia.

The central legal issues before the court were whether the initial decision of Deputy President Binet contained errors in the calculation of compensation, and if the new information presented warranted a revision of the decision. The court needed to assess the correctness of the compensation calculation based on the evidence provided and determine whether the errors were material enough to warrant a new decision. Additionally, the court had to consider whether the new information justified a reconsideration of the case.

In evaluating the appeal, the court found that there were indeed errors in the initial decision's calculation of compensation. The Deputy President had made mistakes in the application of the relevant statutory provisions and had not correctly accounted for certain aspects of the new information. Consequently, the court granted the appeal and revoked the earlier decision. The court then issued a new decision, which corrected the errors in the compensation calculation and took into account the new information provided.

The final orders of the court involved revoking the earlier decision and issuing a new decision that accurately reflected the compensation owed to Kevin Govender. The court provided detailed calculations and explanations to ensure clarity and transparency in the revised decision. The new decision was aimed at correcting the errors and ensuring that the compensation awarded was appropriate and legally sound.

Orders