Harvey v GM Holden Ltd - [2016] FWC 804

[2016] FWC 804

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lindsay Harvey

GM Holden Ltd T/A Holden

(U2015/13527)

SENIOR DEPUTY PRESIDENT

ADELAIDE, 24 FEBRUARY 2016

O’CALLAGHAN

Application for relief from unfair dismissal – valid reason – harshness – consideration of

overall circumstances.

[1] On 13 October 2015 Mr Harvey lodged an application pursuant to s.394 of the Fair

Work Act 2009 (the FW Act) in relation to the termination of his employment with

GM Holden Ltd T/A Holden (Holden).

[2] Mr Harvey’s application was the subject of a hearing on 8, 9 and 10 February 2016.

Mr Harvey was represented by Mr Manos, of counsel and Holden, by Mr Colgrave, of

counsel. Permission was granted in both instances pursuant to s.596(2)(a) and (c) of the

FW Act.

[3] I have summarised the background to the application in the following terms. Holden is

clearly a substantial employer. Its manufacturing employees face likely redundancy in 2017.

Holden is self-insured for the purposes of the South Australian workers rehabilitation and

compensation system.

[4] Mr Harvey had worked for Holden since 1987. He had no relevant disciplinary

history. He had made a number of workers compensation claims since 1989. Specifically

relevant to this matter he made a workers compensation claim for a lower back injury in 2003.

There were a number of subsequent aggravation claims. Mr Harvey was ultimately transferred

to work in the Verification Booth in the Paint Shop on a permanent basis to reflect his

on-going disability. Notwithstanding that his duties were clearly specified, the parties appear

to dispute the extent to which these duties were appropriate to his back condition. The parties

also dispute the extent to which Holden approved appropriate treatment and duties to respond

to various aggravation circumstances. For instance, the appropriateness of the Holden position

with respect to funding remedial massage for Mr Harvey is disputed.

[5] On 29 June 2015 Mr Harvey attended his doctor and advised that his back injury had

been aggravated. He obtained a workers compensation medical certificate to the effect that he

was totally unfit for work for the period 29 to 30 June 2015. He thereafter re-attended upon

his doctor on 1, 11 and 16 July 2015 and obtained further certificates to the effect that he was
[2016] FWC 804

totally unfit for work up to and including 18 July 2015. On 18 July 2015 Mr Harvey was

certified fit to return to modified duties for four hours per day from 20 to 24 July 2015 with

the restrictions that applied prior to 29 June 2015, together with rest as needed. Mr Harvey

lodged a workers compensation claim form for loss of wages and medical expenses on

13 July 2015, and also applied for interim weekly payments for the period commencing on

29 June 2015. These payments were made to him.

[6] Holden arranged for Mr Harvey to be placed under covert surveillance during the

period 3 to 19 July 2015. That surveillance disclosed Mr Harvey undertaking a range of

functions…

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: [2016] FWC 804
Decision Date: 24 February 2016

CaseChat Overview and Summary

Lindsay Harvey applied to the Fair Work Commission (FWC) for relief in relation to his dismissal from GM Holden Ltd (Holden). Holden had terminated Mr Harvey’s employment following an investigation which found that Mr Harvey had dishonestly claimed workers compensation benefits to which he was not entitled and had engaged in serious misconduct. Mr Harvey argued that his dismissal was unfair because he had not been given a reasonable opportunity to respond to the allegations against him and because the dismissal was harsh, unjust or unreasonable. The FWC found that the termination of Mr Harvey’s employment was not harsh, unjust or unreasonable and dismissed the application. The FWC found that Holden had a valid reason to terminate Mr Harvey’s employment. Mr Harvey had deliberately undertaken a range of activities on his rental property which were inconsistent with the advice he had given his doctors and Holden personnel about his incapacity for work. His conduct was dishonest and exposed him to a risk of further aggravation of his back injury. Mr Harvey had been given a fair opportunity to respond to the allegations against him and Holden had followed a fair process in reaching the decision to terminate his employment. The FWC found that the termination of Mr Harvey’s employment was not harsh, unjust or unreasonable because Mr Harvey’s actions had undermined the trust which Holden had placed in him as an employee and fundamentally undermined the rehabilitation and workers compensation system which applied to him.

Orders