Harvey v GM Holden Ltd
[2016] FWC 804
•24 February 2016
[2016] FWC 804
DECISION
| Fair Work Act 2009 |
| s.394—Unfair dismissal |
| Lindsay Harvey |
| v |
| 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 which Holden considered could be contrary to his claim that he was totally unfit for
work. The actions being undertaken by Mr Harvey in this film occurred over a substantial
period of time but an abridged version of this film depicts Mr Harvey stepping in and out of a
trench, hammering, sawing, working with a spade and lifting and carrying cable or piping and
other equipment. It shows him bending and moving in a broad range of manners over
substantial periods of time. The extent to which these actions were inconsistent with
Mr Harvey’s claimed incapacity for work is not agreed.
[7] Holden subsequently requested that this surveillance film be shown to Mr Harvey’s
treating general practitioner, Dr Tamunaidu and to the independent medical specialist
(Dr Meegan) to whom it had referred Mr Harvey. Whilst the position adopted by those
doctors is not agreed, both doctors signed a “Ceased To Be Incapacitated Certificate”
immediately after this film was shown.
[8] On 11 August 2015 Holden held a meeting with Mr Harvey and his shop steward to
alert them to the investigation it was undertaking and suspended him on full pay pending that
investigation. Mr Harvey was formally advised of a meeting with Holden on 25 August 2015.
He attended that meeting, together with his representatives. At this meeting Holden detailed
the allegations against him and showed him an abridged version of the film, and invited
comment in response to those allegations. Further correspondence in relation to the matters
discussed was exchanged after this meeting and a formal response was then provided by
Ms Kaukas on behalf of Mr Harvey. A further meeting was held on 8 September 2015 and,
again was followed by additional correspondence. Mr Harvey’s final response was received
by Holden on 17 September 2015.
[9] The Holden decision maker, Mr Hoogsteyns addressed each of the allegations put to
Mr Harvey in order to reach his decision that allegations 1, 2, 3 and 5 had been substantiated.
Advice of that decision, and the reasons for it, was provided to Mr Harvey. That advice
confirmed that Holden considered that Mr Harvey had dishonestly presented to be totally
incapacitated, that he had dishonestly claimed and obtained workers compensation and that he
had engaged in serious and wilful misconduct by claiming to be totally incapacitated whilst
simultaneously performing a range of activities wholly inconsistent with his alleged
incapacity. Mr Harvey was invited to provide representations on an appropriate sanction
which he did on 23 September 2015. Holden terminated Mr Harvey’s employment on a
summary basis on 23 September 2015.
[10] Mr Harvey’s submissions are that his conduct was not serious and wilful misconduct
so as to establish a valid reason for the termination of his employment. Alternatively, even if
there was a valid reason for the termination of his employment, Mr Harvey asserts that the
termination of his employment was harsh, given that he had been employed for 28 years, had
a spotless disciplinary history and had intended to continue to work at Holden until it closes in
[2016] FWC 804
2017 so that he would have been entitled to a redundancy payment of around $180,000. The
effect of the termination of his employment meant that, not only did he lose access to that
redundancy payment but he also lost the opportunity to access retraining and other services
associated with the Holden closure. Mr Harvey argued that his age, limited work experience,
back injury and the circumstances of his dismissal meant that he would encounter significant
difficulty in securing further employment. Mr Harvey did not take issue with the process
followed by Holden with the exception that he asserted that Holden had decided at a very
early stage in the investigation process that he should be dismissed. Mr Harvey sought
reinstatement and monetary compensation for lost income since the termination of his
employment.
[11] The Holden position was that the termination of Mr Harvey’s employment followed an
extensive, fair and appropriate investigation process which disclosed that he had been
dishonest in the advice he provided to two doctors and to Holden. Further, that its
investigation disclosed that Mr Harvey’s misconduct was wilful and sustained so as to
represent a valid reason for the termination of his employment. Holden asserted that its
investigation process was not predetermined and was based on the facts before it. Holden
asserted that the termination of Mr Harvey’s employment could not be regarded as unjust or
unreasonable and ought not be regarded as harsh in that the termination of employment
decision was proportionate to the gravity of his misconduct.
The Evidence
[12] In considering this matter I have taken into account all of the evidence provided to me.
1
| I have particularly noted both the abridged and the unabridged surveillance film, | and the |
substantial quantity of documentation relative to the management of Mr Harvey’s workers
compensation issues and the investigation process. In considering the investigation process I
have relied only on the direct witness evidence rather than the observations about that
evidence in the surveillance reports. In this respect I have noted that the authors of the
surveillance reports and the reports of the meetings with Doctors Meegan and Tamunaidu
have not given evidence in this matter. I have briefly summarised the witness evidence before
me in the following terms.
[13] Mr Harvey’s evidence went to his work history at Holden and his workers
compensation injuries. He detailed the nature of the duties he generally undertook in the
Verification Booth in the Paint Shop. Mr Harvey advised that the back aggravation he
experienced in June 2015 came about because of increased workload issues and his inability
2
| to rest as needed despite requests to this effect. | His evidence went specifically to his back |
pain from mid June 2015 which resulted in him seeing his doctors on 29 June and 1, 6, 11 and
18 July 2015. His evidence was that:
th
“On Saturday 11 July I was re assessed by Dr Tamunaidu and although I felt that I had started to improve and was increasing my activity, I believed my back would benefit
from a bit more time before returning to work at Holden. I was then looking to
commence work the following week. She added a prescription for Valium to be taken
if needed for the muscle spasms (I never took this medication as I do not want to take
such medication)..
My doctor did not explain to me, and I did not understand at that stage that having a
certificate which put me off work altogether meant that I should not engage in any
[2016] FWC 804
activity at all. It has always been my practice to be as mobile as possible and to do as
much as possible. My doctor did not ask me what alternative duties were available for
me at Holdens or suggest that I could do different duties. I thought that I had been put
off work because the duties I had been performing were causing an aggravation of my
back and that I needed to have some time away from those duties. I did not at any time
mislead my doctor about my condition or my activities. I told her that I couldn’t do the
3
job I had been doing..”
[14] Mr Harvey advised that, on 18 July 2015 he was provided with a certificate stating that
he could return to work for four hours per day commencing on 20 July 2015 but that he was
then advised that he should not return to work until such time as he had been seen by Dr
Meegan. Mr Harvey provided evidence about his examination by Dr Meegan on 24 July 2015.
Mr Harvey’s evidence went to his clearance for a return to work by 11 August 2015 and the
advice on 12 August 2015 to the effect that he was suspended pending an investigation.
[15] Mr Harvey’s evidence went to the circumstances under which his actions were shown
on the surveillance film. He explained that the work he did simply reflected the extent to
which he was an active person. With particular reference to 9, 14 and 16 July 2015 he advised
that he was undertaking activities using safe working practices and that the activities he
undertook involved minimal effort. He advised that, on 13 July 2015 he had contacted his
case manager at Holden to advise that he hoped to be able to come back to work the following
week because his condition had improved. Mr Harvey acknowledged that he undertook
further digging and other work on 16 and 17 July 2015 and that, on 16 July 2015 he spoke to
his case manager and advised that he had not had a massage as he was still too sore. He
advised that he was deliberately working through the pain but was not able to undertake the
proposed massage. Mr Harvey advised that the activities which he undertook over this time
were consistent with his being an active person who, after a period of rest, then endeavoured
to work through pain barriers as part of his recovery from various back aggravation
4
| occurrences. | Mr Harvey’s evidence went to explain how, various activities shown on the full |
5 6
| surveillance film | demonstrated that he was in continuing pain over this time. | Mr Harvey |
detailed the basis for the advice which he provided to his doctors in relation to his need to
have continued time off work to expedite his recovery.
7
| [16] | Mr Harvey confirmed that he lodged a workers compensation claim form | on |
8
13 July 2015.
[17] Mr Harvey explained the position he adopted in the investigation meetings to the
effect that he had not intended to mislead anyone or to make a claim which he was not
entitled to. He offered to repay any workers compensation payments received from
9 July 2015 although he conceded that, during the investigation meetings, his lawyer had
9
| confirmed that he was prepared to repay monies from 4 July 2015. | Irrespective of confusion |
with respect to the date nominated for any possible repayment of workers compensation
payments, Mr Harvey now conceded that he was fit for modified duties from 9 July 2015 on
the basis of the activities which the surveillance film showed him undertaking. He confirmed
10
| that he did not tell his doctor about those activities when he saw her on 11 July 2015. | Mr |
Harvey now agrees that the activities which the surveillance film showed him undertaking
were imprudently undertaken. However, he asserted that he had not tried to deceive either his
doctors or Holden’s and he expressed concern that he felt as if Holden had made up its mind
to dismiss him before he had ever had a proper chance to express his view.
[2016] FWC 804
Mr Harvey’s evidence went to the advice which he provided to his general practitioner and to
Dr Meegan on 24 July 2015.
[18] Mr Harvey’s evidence was that:
“Since that time it has been explained to me that my certificate of total incapacity meant
that I was saying that I was unfit to do any work like activities at all. Although I did
not consider what I was doing on 9 – 17 July 2015 as “work”, I now accept that the
fact that, if I could do the things I was doing on 9 – 17 July 2015, the medical
certificate I provided should really have said that I was fit to do modified duties, at
least from around 9 July 2015. However, I did not – at the time – think that what I was
11
doing or the certificate I had provided was wrong.”
[19] and further,
“I concede, in hindsight, that I had some capacity to perform suitable duties at Holden
in the later part of my time off, but again I completely reject the accusations that it was
a wilful attempt to deceive Holden and the WorkCover system. As such I believe the
disciplinary action taken by Holden has been unduly harsh and has left myself and my
family devastated. Along with not having a job and associated income, I have lost
around $180,000 in redundancy payout (involuntary) which I would have been entitled
to on Holden’s closure or on a forced redundancy, as I had planned to stay on as long
12
as possible.”
[20] Mr Harvey detailed his concerns that the termination of his employment excluded him
from being able to access redundancy payments at the cessation of manufacturing at Holden
and the difficulty he anticipated having in obtaining alternative employment. His evidence
went to the steps he had taken, since the termination of his employment, in order to pursue
other employment opportunities.
[21] Ms Harvey gave evidence in support of her husband. This evidence went to her
observations about his back injuries since 2003 and his complaint of a sore back in June 2015.
Her evidence was that during the first week or so that he was off work he spent the majority
of the time resting and experienced a lot of leg pain around 6 July 2015. Her evidence was
that Mr Harvey gradually increased his activity over the next two weeks but often complained
of pain and needed to rest. Ms Harvey’s evidence was to the effect that Mr Harvey did not
take time away from work in June or July 2015 for family reasons as the family had other
childcare arrangements in place.
[22] Mr Rogers is a Group Leader at the Body Shop at Holden. His evidence went to the
nature of the work undertaken by Mr Harvey in the Verification Booth in the Paint Shop.
Mr Rogers detailed the modifications to this position which were implemented to
accommodate Mr Harvey and to his observations about how Mr Harvey undertook that work.
Mr Rogers’ evidence contradicted that of Mr Harvey with respect to the extent to which
Mr Harvey complained about work pressures on him.
[23] Mr Parker is an Injury Management Associate, employed by Jobfit Health Group, but
contracted to work at Holden. His evidence went to his role and the approach adopted by
Holden with respect to rehabilitation and return to work. Mr Parker detailed the assessment he
had undertaken of the Verification Booth duties allocated to Mr Harvey. Mr Parker had been
[2016] FWC 804
involved in return to work programmes for Mr Harvey at various times in the past. His
evidence went to his various discussions with Mr Harvey from early July 2015 and to his
contact with Mr Harvey’s doctor in an effort to expedite his return to work. Mr Parker’s
evidence was that Holden did not seek to return an employee to work in modified duties while
13
| the employee’s doctor had certified the employee as unfit for any duties. | Mr Parker’s |
evidence went to the advice which Mr Harvey gave him on various dates in July 2015 about
his back aggravation and his inability to undertake the prescribed remedial massage treatment
14
because his back was too sore.
[24] Ms Rawlings is a Claims Associate, Health Services at Holden. Her duties involve the
management of workers compensation claims including, since 2013, Mr Harvey’s workers
compensation claims. Ms Rawlings’ evidence went to Holden’s attempts to transfer
Mr Harvey out of the Verification Booth in the Paint Shop to another function.
Notwithstanding this, in February 2014, Holden subsequently accepted the Verification Booth
role as his normal duties.
[25] Ms Rawlings’ evidence went to the distinction between an employee being unfit for
work and being fit to return to work in a modified or restricted manner based on a medical
certificate.
[26] With particular reference to Mr Harvey, Ms Rawlings detailed her involvement in the
management of his position since February 2014 and her contact with him and his general
practitioner in June 2014 when she indicated that she would not support further remedial
massage but would support a three-month gym membership for Mr Harvey.
[27] Ms Rawlings noted that Dr Heinzle from the Holden Medical Service recommended
ten sessions of remedial massage for Mr Harvey on 17 June 2015 but advised that she had not
been contacted by Mr Harvey in relation to that remedial massage recommendation.
Ms Rawlings confirmed that, in a circumstance where a doctor had approved a treatment such
as remedial massage, Holden would pay for that unless it reached an agreed contrary position
with the doctor.
[28] Ms Rawlings’ evidence was that she was surprised to hear about the aggravation of
Mr Harvey’s back injury on 29 June 2015 and consequently instructed Ramsay Investigation
Services Pty Ltd (Ramsay) to conduct surveillance on Mr Harvey. She noted that Mr Harvey
made a claim for workers compensation on 13 July 2015 and workers compensation payments
were subsequently made to him from 29 June 2015 to 8 August 2015.
[29] Ms Rawlings’ evidence went to the various discussions she had with Mr Harvey
throughout July 2015 in which she explained to him that Holden wanted to understand what
had caused his aggravated back condition and were consequently sending him for an
independent medical examination with Dr Meegan.
[30] After she received the Ramsay report, Ms Rawlings instructed Ramsay to interview
Dr Meegan and Dr Tamunaidu and to show them the relevant video footage. Her evidence
went to Holden’s receipt of a further Ramsay report and records of interview with those two
doctors.
[31] Mr Palmer is the Human Resources Business Partner for Plastics and Paint at Holden.
His evidence went to his understanding of Mr Harvey’s back aggravation complaint.
[2016] FWC 804
Mr Palmer gave evidence about the actions he took after he was provided with the
surveillance video and subsequent Ramsay report of the interviews with the two doctors.
Mr Palmer’s evidence went to his meeting with Mr Harvey and the AMWU Senior Shop
Steward on 11 August 2015 when he advised that Mr Harvey was suspended, with pay, whilst
Holden undertook an investigation into his workers compensation claim.
[32] Mr Palmer’s evidence went to the meeting on 25 August 2015 involving Mr Harvey,
his lawyer and the Senior Shop Steward and to the steps he subsequently took to clarify
questions raised at the meeting and specify the allegations against Mr Harvey. Mr Palmer’s
evidence went to confirm further correspondence with Ms Kaukas as Mr Harvey’s lawyer and
to the meeting on 8 September 2015 when Ms Kaukas provided the majority of responses on
behalf of Mr Harvey. He confirmed that further material was subsequently provided to
Ms Kaukas to enable consideration of her response.
[33] Mr Palmer’s evidence was that Mr Hoogsteyns was the Holden decision-maker in the
matter and he detailed the material provided to Mr Hoogsteyns in this respect.
[34] Mr Hoogsteyns is the Holden Area Manager for Paint Operations. Mr Hoogsteyns was
the Holden decision-maker with respect to the termination of Mr Harvey’s employment. His
evidence went to detail the information provided to him for this purpose and to his findings in
relation to each of the five allegations made with respect to Mr Harvey. It is convenient here
to set out those allegations.
Allegation 1:
“Since at least 4 July 2015, when you were certified totally unfit for work, you have
been fit to perform full hours with slightly modified pre-aggravation duties, if not full
15
pre-aggravated duties, at Holden.”
[35] Mr Hoogsteyns found that allegation was substantiated. In making that finding he also
16
noted that Mr Harvey had conceded that he had some capacity, since 4 July 2015.
Allegation 2:
“You have dishonestly presented to be totally incapacitated for work to three (3)
17
doctors in order to advance your claim for workers’ compensation.”
[36] Mr Hoogsteyns found this allegation to be substantiated insofar as Mr Harvey
18
dishonestly presented to be totally incapacitated to Dr Meegan and Dr Tamunaidu.
Allegation 3:
“You have dishonestly claimed and obtained workers’ compensation to which you
19
were not entitled.”
20
[37] Mr Hoogsteyns found this allegation to be substantiated.
Allegation 4:
“There are grounds to prosecute you pursuant to section 196 of the Return to Work Act
2014 for dishonestly claiming and obtaining payments or other benefits under the Act.
A successful prosecution under the Act would entitle Holden to repayment of all
income maintenance payments made to you as a consequence of your absence from
work since at least 4 July 2015, and all costs involved in investigating and prosecuting
[2016] FWC 804
any such offence. The penalty under that section for a person guilty of an offence is a
21
fine of $50,000 or imprisonment for two years.”
[38] Mr Hoogsteyns decided that it was up to Holden and the relevant authorities to
determine whether the applicant should be prosecuted pursuant to s.196 of the Return to Work
22
Act 2014.
Allegation 5:
“You have engaged in serious and wilful misconduct by claiming to be totally
incapacitated and claiming a benefit while at the same time performing a range of
23
activities wholly inconsistent with your alleged injury.”
24
[39] Mr Hoogsteyns found this allegation to be substantiated.
[40] Mr Hoogsteyns detailed the basis upon which he reached these conclusions. His
evidence also went to concerns that any condonation of Mr Harvey’s behaviour would imply
that misconduct of this nature will be accepted in the context of the planned closure of
Holden’s manufacturing operations.
[41] Dr Meegan is a long established specialist occupational physician. Holden referred
Mr Harvey to him on 20 July 2015. Dr Meegan’s evidence was that he examined Mr Harvey
on 24 July 2015 and provided a report to Holden on the same day. In that report Dr Meegan
accepted the advice provided to him by Mr Harvey and acknowledged that he had identified
that Mr Harvey had a back problem.
25
| [42] | Dr Meegan was subsequently shown the abridged surveillance film. | Following this, |
he signed a return to work certificate for Mr Harvey with effect from 4 July 2015. Dr Meegan
confirmed that he reached the following conclusions on the basis of this film:
th
“Well, usually I start by saying what I’ve seen. What I’ve seen is him on the 4 of July th
squatting to a car tyre, then I’ve seen him on the 9 of July bending in a trench. I’m only guessing but he looks to be building or digging a trench and working in a trench,
climbing in and out of the trench, probably for fence foundations. He’s holding some
wiring in his hand. He does appear possibly to hold his lumbar spine briefly at one
point.
…
The activity he’s shown would be in the heavy category and he doesn’t really seem to
show much in the way of pain behaviour, if anything. That is probably; I thought
inconsistent with or appears to be inconsistent with his presentation and history to me.
…
I assessed the capacity of Lindsay HARVEY, low back. So I would say ceased to be
th 26
incapacitated from the date of that video which was the 4 of July.” [43] In the hearing, Dr Meegan was also shown selected extracts from the whole
27
| surveillance film | which he agreed could be regarded as indicative of pain behaviour. These |
actions included awkward entries into his car, rubbing his lower back and leaning on fixed
[2016] FWC 804
28
| structures. | In light of all the video evidence shown to him, Dr Meegan advised that he |
considered that it indicated that Mr Harvey was not totally incapacitated from 4 July 2015 but
was able to undertake his light duties in the Verification Booth. I note that he subsequently
indicated that a more appropriate date for this conclusion would be 9 July 2015 which was the
29
| date that Mr Harvey undertook a very significant range of functions. | In terms of those |
activities, Dr Meegan advised that he would not recommend those activities to someone who
had been medically certified as incapacitated because of the risk of surveillance, the extent to
which those activities were unsuitable and were outside normal restrictions and could lead to
30
aggravation.
[44] Dr Meegan confirmed that Mr Harvey advised him on 24 July 2015 that since he
31
aggravated his back, he had been resting.
[45] Dr Meegan confirmed that, having considered all of the material now available to him,
Mr Harvey had misled him on 24 July 2015 by not more extensively disclosing his activities
32
and asserting that he had been resting.
[46] Dr Tamunaidu is Mr Harvey’s general practitioner and has been actively treating him
since May 2014. Her evidence went to her involvement in discussions with Holden personnel
and Mr Harvey in June 2014 where it was agreed that Holden would not continue to fund
remedial massage but would support Mr Harvey through gym funding. Dr Tamunaidu’s
evidence was that she saw Mr Harvey on 29 June 2015 and that he sought a medical
certificate for two days absence from work because he couldn’t cope with his duties. She
accepted Mr Harvey’s advice and provided him with a certificate confirming that he was
totally incapacitated for work. Dr Tamunaidu confirmed that Mr Harvey then saw Dr Tahir on
1 July 2015 and was issued with a further certificate until 6 July 2015.
[47] Dr Tamunaidu saw Mr Harvey again on 6 July 2015. Her evidence was that
Mr Harvey advised that he had worsening pain. She prescribed medication having examined
his back and noted constraints on his movement. She again certified him as totally
incapacitated until 11 July 2015.
[48] Dr Tamunaidu again saw Mr Harvey on 11 July 2015. He reported some improvement
but advised that he was not able to return to his job and wanted to rest. She again certified him
as totally incapacitated for the remainder of that week.
[49] Dr Tamunaidu again saw Mr Harvey on 18 July 2015. On this occasion he advised that
he considered that he was able to return to work for four hours per day. She approved such a
graduated return to work.
33
| [50] | Dr Tamunaidu confirmed the record of interview | during which she was shown the |
abridged surveillance film. Whilst I have noted some confusion over her position with respect
to permanent weight restrictions she considered applicable to Mr Harvey, her evidence was
that the actions he was shown undertaking on 9 July 2015 were inconsistent with the pain he
described to her before and two days after this film. She regarded his behaviour as deceptive
and, having seen extracts from the unabridged film, was not inclined to change that
34 35
| conclusion. | She particularly noted his request for time off work to rest. | She further stated: |
“…I feel misled because he was given a workcover certificate to be totally not doing
any hard work at all, to totally rest because he’s always been at work, and when he
[2016] FWC 804
took days off and he says his back was hurting and the presentation after one medical
certificate was it worsened and if he had rested during that period as what he has
claimed, he wouldn’t have gotten an aggravation or it wouldn’t have worsened. So my
thought is from what he was doing at his place, the work he was doing at his home
must have caused aggravation and more pain. I’m not sure of how long he was doing
each section but whatever little work, whatever video that I saw, was manual
labouring. So there was no admission to me that he was doing some hard work at
home…
Mr Manos: Yes… that was really how you felt misled wasn’t it – the fact that he hadn’t
mentioned that he was doing some of these things when he came and saw you? You
thought he should have mentioned it?
Yes, and if he could perform those duties at home, what he was doing, he could have
stayed on a graduated return to work plan, maybe reduced hours and not take totally
36
days off from work.”
[51] Finally, Dr Tamunaidu confirmed her opinion that the surveillance film of 9 July 2015
showed Mr Harvey was able to move freely in a fashion inconsistent with his advice to her
37
before and after that date.
Findings
[52] Before considering the factors set out in s.387 of the FW Act I have set out below my
conclusions about the salient facts relevant to this matter.
[53] Mr Harvey has had significant workers compensation absences since 2003. Whilst I
have considered only the absence from 29 June 2015 in this matter, I have noted that there
appears to be a significant level of trust associated with his workers compensation aggravation
claims. This is made particularly clear from Mr Parker’s evidence which indicates that
38
| Mr Parker engaged in regular discussions with Mr Harvey over his condition | and reached |
| relatively flexible arrangements for the provision of medical certificates. |
[54] Three other specific findings with respect to the management of Mr Harvey’s medical
condition are appropriate. Firstly, I have concluded that Holden directed significant energy
and resources toward the effective management of Mr Harvey’s workers compensation
condition. This is clear from Mr Parker’s evidence and the identification of duties to be
39
| allocated to him, | such as the Verification Booth function. It may have been the case that |
Mr Harvey disagreed with elements of the description of the duties to be allocated to him, but
the evidence of Mr Parker and Ms Rawlings demonstrates the significant steps taken by
Holden which were directed at ensuring that appropriate work duties were provided to
40
| Mr Harvey. In addition, the correspondence from Mr Parker to Dr Tamunaidu | of |
7 July 2015 confirms that Holden had received advice certifying that Mr Harvey was unfit for
work from 29 June to 11 July 2015. That correspondence confirmed that Holden was able to
provide light duties, if appropriate, and also confirmed that Mr Harvey was able to vary his
duties in the Verification Booth as well as take rest breaks.
41
| [55] | A third finding is also important. The evidence | demonstrates that Mr Harvey very |
frequently attended his general practitioner and requested time off work as a consequence of
42
| his workers compensation history. That is consistent with Mr Harvey’s evidence. | It is |
[2016] FWC 804
43 44
| consistent with the Holden records. | Mr Harvey’s evidence | went to his concerns about the |
workload in the Verification Booth. The combination of those factors indicates that there was
a high likelihood that Mr Harvey would take further absences from work in the future which
he would assert were linked to his back condition.
[56] I have initially considered the possibility that the entirety of Mr Harvey’s workers
compensation absence from 29 June 2015 onwards was fraudulent and arranged so as to give
him time off work for personal reasons. I am not satisfied that this was the case. The evidence
of Ms Harvey indicates that child care considerations were not relevant over this time.
Further, the evidence does not indicate that Mr Harvey took this time off work in order to
oversee various tasks being undertaken on his rental properties. Had that been the case, I
consider that Mr Harvey would have better arranged that work. For instance, he would be
45
unlikely to have had to telephone his wife to ask her to bring tools to the rental property.
Further, there is nothing that discredits the evidence of Mr and Ms Harvey to the effect that he
rested for some days after 29 June 2015.
[57] I have also accepted the evidence of Dr Meegan and Dr Tamunaidu that their
46
| examinations of Mr Harvey disclosed residual back pain. | The evidence of both Dr Meegan |
and Dr Tamunaidu confirmed their quite proper reliance on advice provided to them by a
patient. Dr Meegan summarised this in the following terms:
“It’s the nature of medical practice to accept patients at their word. It’s unusual for a
doctor normally to, unless there is a very obvious discrepancy or something that’s
bizarre, for a doctor to query you on your history. The nature of medical practice is just
47
to accept the history as it’s given.”
[58] This begs the question of what level of increased back pain Mr Harvey had in
June 2015. I have accepted that he had increased back pain from mid to late June 2015. That
is consistent with his visit to Dr Heinzle at the Holden Medical Centre on 16 June 2015 and
his own evidence. I have noted the evidence of Dr Tamunaidu to the effect that she would
48
| generally agree to Mr Harvey’s request for time off work. | This is indicative of her reliance |
| on the advice provided to her by Mr Harvey. |
[59] I prefer the evidence of Mr Rogers in relation to the nature of the work allocated to Mr
Harvey in the Verification Booth, the extent to which this work did not enable him to take rest
breaks and the extent to which Mr Harvey did or did not raise concerns about his workload.
However, I have not speculated on the cause of this increased back pain. I am simply not
satisfied that the evidence enables me to reach such a conclusion or that such a conclusion is
necessary in these circumstances.
49
| [60] | Mr Harvey formally lodged his workers compensation claim on 13 July 2015. | In that |
claim, Mr Harvey relied on the medical certificates issued by Dr Tamunaidu, which were, as I
have already found, largely based on the advice which he provided to her. In this respect his
advice to her in the consultation on 11 July 2015 was to the effect that he remained unfit for
work and wanted to rest.
[61] Following Dr Heinzle’s recommendation that Mr Harvey undertake ten sessions of
remedial massage, Mr Harvey elected not to follow this advice. Notwithstanding that Holden
had, in 2014, advised Mr Harvey that it did not support further funded remedial massage,
Mr Harvey could have sought clarification of this in light of Dr Heinzle’s recommendation in
[2016] FWC 804
the numerous discussions over the following weeks with Ms Rawlings and/or Mr Parker.
Mr Harvey’s position with respect to this remedial massage is, at best, confusing. On a
50 51
| number of occasions | Mr Harvey advised his doctors and Mr Parker | that he was in too |
much pain to have that massage treatment. I have concluded that Mr Harvey’s position in this
respect lacks credibility. I am unable to reconcile it with activities which the surveillance
52
| film | shows him undertaking. Mr Harvey’s failure to even clarify Holden’s preparedness to |
fund the remedial massage sessions with either Holden or his doctors mitigates against his
preparedness to use this recommended therapy to improve his back. This is a factor which
supports concern about the severity of Mr Harvey’s back condition over the entirety of the
time he claimed as workers compensation.
53
| [62] | I have accepted that the full surveillance film | shows that, on various occasions on |
9 and 14 July 2015 Mr Harvey showed signs of discomfort. For instance, he rubbed his back
at various times and showed evidence of discomfort lifting his left leg on occasion. I have also
54
| accepted that this full surveillance film | clearly establishes significant periods of time on |
9, 14 and 17 July 2015 when Mr Harvey was present at his investment property but was not
undertaking any work.
[63] Notwithstanding this, both the full surveillance film and the abridged version show
Mr Harvey undertaking an extensive range of activities commencing from 9 July 2015, which
I regard as quite inconsistent with his advice to his doctors about his stated pain levels and his
capacity to undertake work. It may have been the case that Mr Harvey had a level of
discomfort whilst he was digging, lifting, hammering, stepping in and out of a trench, sawing
and carrying items associated with plumbing work on his rental property, but the very fact
that he undertook that work around the same time as he presented to his doctors as totally
incapacitated for work, is fundamentally inconsistent with his request for additional time off
work to rest. It is also fundamentally inconsistent with his assertion to Dr Meegan that he had
been resting over this time and to his advice to Dr Tamunaidu on 6 July 2015 that his pain had
55
| increased | and, on 11 July 2015, that he needed more time to rest. His advice to |
Dr Tamunaidu on 11 July 2015 had the effect of stopping her from further considering the
limited duties Holden had offered on 7 July 2015. Mr Harvey’s behaviour represented
dishonest advice to his doctors. Further, Mr Harvey advised that he did not tell Dr Tamunaidu
on 11 July 2015 what he had done on his investment property on 9 July 2015 because he had
decided that he needed more time away from work to recover from the aggravation caused by
56
| Holden not arranging proper duties before the aggravation event in June 2015. | I consider |
this is inconsistent with a reasonable expectation that he should be honest with his doctor. I
57
| have accepted Dr Tamunaidu’s evidence | that his actions exposed him to further aggravation |
risk. I have also concluded that, in these respects Mr Harvey acted in a deliberate, if not
vengeful manner, which did not have a medical foundation.
[64] In considering Dr Tamunaidu’s evidence there was some doubt about the extent to
which Mr Harvey was subject to any ongoing weight or bending restrictions in June and
July 2015. I am not satisfied that there were any such restrictions in place at that time.
Nevertheless, I think that Dr Tamunaidu could quite reasonably have expected that, given
Mr Harvey’s asserted pain levels and limited flexibility, his lifting and bending activities
would be limited.
[65] I have considered Mr Harvey’s assertion that he generally overcame aggravations by
58
| resting and then performing activities which involved pushing through pain barriers. | That |
advice must be considered in the context of Mr Harvey’s characterisation of the activities
[2016] FWC 804
shown on the surveillance film from 9 July onwards as “not physical work” and requiring no
59
| effort. | That characterisation of the depicted activities is simply not credible. |
| [66] | I have concluded that Mr Harvey was dishonest in his advice to Mr Parker on |
60
| 13 July 2015 | in terms of his description of what he was able to do. That description was |
inconsistent with the range of duties undertaken by Mr Harvey on 9 July 2015.
[67] Mr Harvey was clearly aware of his obligation to comply with medical restrictions
61
| whilst he was at home. He signed advice to that effect in 2014. | Not only did he not comply |
with that advice, but I have concluded that he was disingenuous about the activities he was
undertaking. He did not disclose any of those activities to his doctors and continued to advise
Holden personnel that he was completely incapacitated. I do not accept that Mr Harvey
undertook these activities as “spur of the moment” initiatives. On 9 July 2015 he made a call
to his wife to bring digging equipment he then used. The film shows him undertaking
activities over many hours. It shows him electing to lift and then carry heavy objects such as a
tool box which he now concedes weighed around 20 kg. These were deliberate actions. They
may well reflect that he was feeling better but are inconsistent with the position he
promulgated.
[68] I have concluded that Mr Harvey was dishonest about his capacity to undertake any
62
| work from 9 July 2015. The activities depicted on the surveillance film | clearly establish this |
dishonesty. Mr Harvey’s dishonesty was compounded by the activities he then undertook on
14 and 17 July 2015. The totality of the actions he undertook at his rental property are
fundamentally inconsistent with the workers compensation claim he made on 13 July 2015.
Additionally, a significant number of the activities he undertook exposed him to a substantial
risk of further aggravation of his back condition.
[69] I have noted that there is no evidence before me relating to Mr Harvey’s current back
condition.
[70] Apart from the workers compensation issues, two other findings are appropriate.
Firstly, there is no dispute that in March 2015 Mr Harvey was offered a voluntary redundancy
payment of around $130,000, in addition to a redemption payment to finalise his workers
63
| compensation claim of $20,000 and various other payments for accrued entitlements. | He |
| rejected that offer. |
[71] Secondly, had Mr Harvey remained an employee of Holden until its planned cessation
of manufacturing activities in 2017 he would have been entitled to a redundancy payment of
around $180,000 in addition to payments to finalise his workers compensation claim and
access to various retraining support.
[72] Section 387 states:
“387 Criteria for considering harshness etc. In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
[2016] FWC 804
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[73] I have considered each of these factors.
Valid Reason
[74] Notwithstanding subsequent legislative changes I have adopted the principles
64
summarised by Northrop J in Selvachandran v Peterson Plastics Pty Ltd.
[75] Mr Harvey’s behaviour in undertaking various activities on 9, 14, 16 and 17 July 2015
represented a valid reason for the termination of his employment. That behaviour was
inconsistent with the advice Mr Harvey gave his doctor about his capacity to undertake work
and about his intentions. It was dishonest in that it formed the basis for him being given time
off work when it is clear that he could have undertaken some work. It was dishonest in that
the activities which Mr Harvey undertook on those days represented a substantial risk of
further aggravation of his back condition. Mr Harvey undertook those activities in a deliberate
manner and repeatedly undertook what I consider could only be described as manual labour.
The activities undertaken by Mr Harvey were inconsistent with reasonable expectations on
him as an employee. To the extent that they demonstrated that Mr Harvey could have
undertaken modified duties at work rather than being certified as unfit for any work, they
represent a fraudulent claim for workers compensation benefits from at least 9 July 2015.
[76] I do not consider that Mr Harvey’s proposition that the activities were undertaken with
sufficient intervening rest breaks, detracts from the essential fact that he deliberately
undertook duties of a character which were inconsistent with the assertions he made to his
doctor.
[2016] FWC 804
[77] Those activities represented fraud and conduct which caused a serious risk to his own
health and safety whilst he was on workers compensation.
[78] Whilst I doubt its relevance to a valid reason finding, Mr Harvey’s behaviour also
appears to me to be consistent with the definition of serious misconduct in s.12 of the FW
65
Act.
Notification of the Reason
[79] Mr Harvey was notified of the reason for the termination of his employment in the
66
| employment termination advice of 23 September 2015. | That advice was provided in the |
context of earlier very clear articulation of the allegations made against Mr Harvey.
Opportunity to Respond
[80] Mr Harvey was given extensive opportunities to respond to the allegations against
him. He was provided with details of those allegations including copies of the surveillance
film. He was made aware, in the course of the investigation against him, that this investigation
could result in the termination of his employment.
[81] Whilst it was not argued to me in the hearing of this matter, I have noted Mr Harvey’s
67
assertion that “Holdens had made their mind up before I even had a chance to have my say.”
I am unable to agree with this assertion. It runs contrary to the evidence of the Holden
68
| decision maker, Mr Hoogsteyns | and to the procedural fairness demonstrated by the Holden |
| disciplinary process. |
[82] I have accepted that Holden had concerns about the legitimacy of Mr Harvey’s
position and that these concerns were significantly elevated once Holden received the
surveillance film. I have concluded that Holden was entitled to have that concern, but that this
did not detract from the inherent equity in the disciplinary investigation process. In this
69
respect I have adopted the position set out in BHP Coal Pty Ltd v Schmidt.
Unreasonable refusal to allow a support person
[83] Mr Harvey had access to his legal and workers compensation advisers in the various
meetings with Holden and to his union shop steward. Further, his lawyer was permitted to
speak on his behalf in these proceedings.
Unsatisfactory Performance
[84] The termination of Mr Harvey’s employment did not relate to unsatisfactory
performance.
Size of the Holden enterprise – impact on procedures
[85] Holden is a very substantial employer and the procedures it followed with respect to
the termination of Mr Harvey’s employment were consistent with the size of the business.
Size of the Holden enterprise – absence of access to dedicated human resource
management specialists
[2016] FWC 804
[86] Again, as a very large employer, Holden has dedicated human resource management
specialists. That expertise was involved in the decision to terminate Mr Harvey’s
employment.
Other matters considered relevant
[87] I have taken into account Mr Harvey’s long duration of employment with Holden and
the extent to which I have not been made aware of any adverse disciplinary action over that
28 year period. This is a factor which I consider relates particularly to whether the termination
of Mr Harvey’s employment was harsh.
[88] I have also noted that, in 2003, Mr Harvey injured his back and has aggravated that
back injury on a number of occasions. At the time of the termination of his employment
Mr Harvey was undertaking a light duty function. Whilst evidence about the current state of
Mr Harvey’s back condition is not before me, I have taken it that there is likely to be a
residual disability. I have concluded that Mr Harvey’s back condition is likely to limit the
range of future employment opportunities open to him. Again, this is a factor which
particularly goes to the question of whether the termination of Mr Harvey’s employment was
harsh. The long duration of his employment and the substantial period during which he has
claimed workers compensation indicate that Mr Harvey was clearly aware of his obligations
to Holden and to comply with medical recommendations.
[89] I have noted that, had Mr Harvey remained in employment until Holden ceases
manufacturing operations in 2017, he would have been entitled to substantial redundancy
payments as well as the monetary settlement of his workers compensation claim and
significant entitlement payments. Again, this primarily goes to the question of whether the
termination of Mr Harvey’s employment was harsh.
[90] In terms of the Holden position, I have noted the concern that the diminution of the
significance of misconduct between now and the cessation of its manufacturing operations has
the potential to impact on employee behaviour and productivity. I have also taken this concern
into account in this matter.
Conclusion – harsh, unjust or unreasonable
70
| [91] | In Byrne and Frew v Australian Airlines Pty Ltd | McHugh and Gummow JJ stated: |
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[92] In Mr Harvey’s case I have concluded that the termination of his employment was not
unjust. The evidence before me establishes that Mr Harvey was guilty of misconduct. It was
[2016] FWC 804
his deliberate choices and actions that led to the termination of his employment. Even
Mr Harvey recognised that his election to undertake work at his investment property was not
the fault of Holden but was his choice. I have found that Mr Harvey deliberately and
repeatedly misled his doctors and Holden personnel. The evidence also establishes that
Mr Harvey fraudulently claimed workers compensation and that his actions exposed himself
to a significant risk of further aggravation relative to his workers compensation claim. I do not
accept that Mr Harvey’s actions can be properly characterised as some form of self-regulated
work hardening initiative because this is fundamentally inconsistent with the advice which he
provided to both Holden and to Dr Tamunaidu.
[93] I have concluded that the termination of Mr Harvey’s employment was not
unreasonable. In the terms considered by the High Court in Byrne and Frew, the decision to
terminate his employment was not based on inferences. Rather, it was founded on a credible
and particularly thorough investigation. That investigation process ensured that Mr Harvey
had an almost unfettered capacity to explain his actions. As I have already found, his
explanation lacked credibility in a significant number of respects.
[94] The determination of whether the termination of Mr Harvey’s employment was harsh
is more complex. In reaching a conclusion in this respect I have had regard to a number of
Full Bench findings on the issue of harshness. These decisions commence from recognition
that a valid reason finding, and for that matter findings, relative to the other factors set out in
s.387 do not automatically equate with an unfair dismissal finding. Whilst dealing with a quite
different factual matrix, the Full Bench decision in J Boag and Son Brewing Pty Ltd v
71
| Button | succinctly summarised this position in the following terms: |
“[31] However, it is also well established that there may be a valid reason for dismissal
but the dismissal may nevertheless be harsh, unjust or unreasonable. In this case the
Senior Deputy President also noted that he would have concluded that Mr Button’s
dismissal was harsh even if his inability to perform the inherent requirements of his
position had constituted a valid reason for the for the dismissal:
“[57] Even had there been a valid reason for the dismissal, based on Mr Button’s
inability to perform the inherent functions of his position, I would reach the
same conclusion. To dismiss Mr Button after he had been satisfactorily
working with his disabilities for the best part of a year, without there having
been an intervening occurrence to otherwise warrant his dismissal, is harsh,
unjust and unreasonable.”
[32] In our view, the reason given for this conclusion, while clearly relevant to a
consideration of whether the termination was harsh, unjust or unreasonable, is not, of
itself, sufficient to justify the conclusion that the dismissal was harsh, unjust or
unreasonable. Such a conclusion calls for a consideration of a broader range of
circumstances with particular reference to the extent to which the continued
employment of Mr Button would have constituted an unreasonable burden on Boags
or other employees in the context of the consequences of the dismissal for Mr Button.”
(endnotes omitted)
72
[95] This approach has been adopted by successive Full Benches.
[2016] FWC 804
[96] The background to the distinction between a valid reason finding and harshness was
73
addressed at some length by the Full Bench in B, C & D v Australian Postal Corporation.
74
| Whilst I note that this Full Bench decision was itself the subject of an appeal, | that appeal did |
75
| not take issue with the detailed description | of the legislatively founded distinction between a |
conclusion that there was a valid reason for employment termination and considerations of
fairness. In this respect the Full Bench concluded:
“This is properly to be seen as a reassertion of the basic principle that in each case,
whether a termination is “harsh, unjust or unreasonable”, must be decided on the facts
and circumstances of the particular case. The Full Bench expressly contemplated that,
in a different case, the particular circumstances might render a termination for a
pornography related breach of policy harsh, unjust or unreasonable notwithstanding the
policy stating that any deliberate breach will result in termination. The decision in
Queensland Rail is inconsistent with the proposition that there is any automaticity in
concluding a termination based on pornography-related misconduct will not be harsh,
76
unjust or unreasonable.”
[97] The manner of consideration of this approach demonstrates the diversity of
conclusions based on an assessment of the particular circumstances. In Terry v Qantas
77
| Airways Limited | a Full Bench reviewed an employment termination decision where, at first |
instance, the Commission found that the employee had misrepresented his true physical
capacity which resulted in his receipt of light duties over a considerable period of time. The
Full Bench stated:
“Finally we should record that the Senior Deputy President gave consideration by
reference to s.170CG(e) of the Act to whether termination of employment was
disproportionate to the “gravity of the relevant misconduct”. He was not persuaded that
it was and in that judgement no error is apparent. Similarly he considered the
appellant’s criticism of the fairness of the process by which the appellant was
terminated. At paragraph 99 he criticised Qantas for failing to provide the appellant
with a copy of Dr Sinclair’s report. This consideration was weighed by him, but not
sufficient in all the circumstances to persuade him that this omission was “of sufficient
moment to outweigh the gravity of the misconduct”. This discretionary judgement
78
reflects no error.”
79
| [98] | In Lawrence v Coal and Allied Mining Services Pty Ltd | the majority determined that, |
notwithstanding a breach of the employer’s safety requirements, the employment termination
was harsh. In reaching this conclusion the majority noted the significance of clear instructions
80
| about the consequences of a breach of that safety policy, | the extent to which the employee’s |
81
| conduct did not involve any personal advantage, | the long duration of exemplary |
82 83
| employment | and the employee’s limited prospects of further employment. | The majority |
conclusion was that in these circumstances the employment termination was harsh. For the
sake of completeness, I note that I arrived at a different conclusion in that matter.
[99] I have considered the circumstances here in this context. Holden has demonstrated a
significant rehabilitation effort such that I have concluded that it has taken its obligation to
provide suitable employment for injured workers seriously. Holden was confronted with a
circumstance where Mr Harvey was abusing and/or misusing the workers compensation
system which must have continued to apply to him given the extent to which he had a
recognised on-going workers compensation disability. He also exposed himself to significant
[2016] FWC 804
safety risks. Notwithstanding the somewhat confusing position with respect to offers for the
repayment of workers compensation payments made to Mr Harvey from either 4 or
9 July 2015, Holden had a legitimate basis for serious concern over Mr Harvey’s integrity
with respect to his workers compensation position.
[100] Mr Harvey had a long employment history which was unblemished in terms of
disciplinary matters. He had a long workers compensation history and I have concluded he
had clear knowledge of the Holden workers compensation arrangements and obligations. This
extended to his approach to his own, and to the Holden medical practitioners. I have
concluded that Mr Harvey has limited employment prospects given his workers compensation
injury and his age. I have noted that the termination of his employment deprived him of the
capacity to seek a redundancy payment at the cessation of the Holden manufacturing
operations.
[101] Notwithstanding this, the evidence demonstrates that Mr Harvey’s actions were
deliberate and occurred over a number of days. He usurped the role of, and misled the doctors
trying to help him. He made his own decisions about what he could do and the actions he
undertook were fundamentally inconsistent with the advice he provided to his doctors. He
elected not to inform his doctors of his actions. Mr Harvey’s actions defrauded Holden and
placed himself at the risk of aggravation of his previous injuries. Even if Holden had taken
another form of disciplinary action against Mr Harvey, apart from employment termination,
his actions in July 2015 undermined the future operation of the rehabilitation and
compensation system which applied to him. That rehabilitation and compensation system had
determined the nature of the specific duties allocated to him on an on-going basis, namely, his
employment in the Verification Booth. It was also fundamental in terms of how his future
capacity to work claims could be addressed.
[102] I have concluded, on balance, that the termination of Mr Harvey’s employment was
not harsh given the gravity of his conduct and the extent to which that conduct meant that
Holden could no longer have the necessary level of trust in him as an employee whose on-
going employment was profoundly linked to the workers compensation system which he had
abused. Mr Harvey’s actions in July 2015 meant that Holden would have had a legitimate
basis for doubting any future advice he provided with respect to his workers compensation
standing and would thus very likely have had to have deployed surveillance in the future. That
loss of trust was Mr Harvey’s doing and was fundamental to maintenance of the employment
relationship.
[103] Consequently, I have concluded that the termination of Mr Harvey’s employment was
not unfair. The application must be dismissed accordingly. An Order (PR576805) to this
effect will be issued.
[2016] FWC 804
Appearances:
A Manos counsel representing the applicant.
I Colgrave counsel representing the respondent.
Hearing details:
2016.
Adelaide:
February 8, 9 and 10.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR576804>
32
Sound recording, 10 February 2016, 11.28 a.m.
33
Exhibit R14
34
Sound recording, 10 February 2016, 12.24 p.m.
35
Sound recording, 10 February 2016, 14.08 p.m.
36
Sound recording, 10 February 2016, 2.12 p.m.
37
Sound recording, 10 February 2016, 14.21 p.m.
38
Exhibit R7, attachments IP1 and IP2
39
Exhibit R7, attachment IP10
40
Exhibit R7, attachment IP4
41
Exhibit R13
42
Sound recording, 8 February 2016, 10.52 a.m. and 10 February 2016 11.45 a.m., 12.15 p.m. and 12.45 p.m.
43
Exhibit R7 and Exhibit R9
44
Sound recording, 8 February 2016, 10.35 a.m. to 10.52 a.m.
45
Sound recording, 8 February 2016, 10.27 a.m. and 3.21 p.m.
46
Sound recording, 8 February 2016, 10.45 a.m., 11.51 a.m. and 11.57 a.m.
47
Sound recording, 10 February 2016, 11.26 a.m.
48
Sound recording, 10 February 2016, 12.16 p.m.
49
Exhibit R9, attachment AJR 9
50
See for example, sound recording 8 February 2016 11.05 a.m., 11.15 a.m., 12.43 p.m., 12.56 p.m., 12.57 p.m., 2.12 p.m.
and 2.43 p.m.
51
Exhibit R7, paras 17 and 26
52
Exhibit R2
53
Exhibit R3
54
Exhibit R3
55
Sound recording, 10 February 2016, 12.23 p.m.
56
Sound recording, 8 February 2016, 3.06 p.m.
57
Sound recording, 10 February 2016, 2.21 p.m.
58
Sound recording, 8 February 2016, 3.00 p.m. and 3.09 p.m.
59
See for example, sound recording, 8 February 2016, 4.52 p.m.
60
Exhibit R7, para 23
61
Exhibit R9, attachment AJR1
62
Exhibit R2
63
Exhibit A3, para 48
64
(1995) 62 IR 371 at 373
65
See for example, O’Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 (18 December 2015) at [22]
66
Exhibit R4, attachment BP26
67
Exhibit A3, para 45
68
Exhibit R5, para 15
69
[2016] FWCFB 72 (5 January 2016) at [35]
70
(1995) 185 CLR 410, 465
71
[2010] FWAFB 4022 (26 May 2010) at [31]–[32]
72
See for example Sipple v Coal & Allied Mining Services Pty Limited [2015] FWCFB 5728 (16 October 2015) at [28]
73
[2013] FWCFB 6191 (28 August 2013)
74
Australian Postal Corporation v D’Rozario and others [2014] FCAFC 89
75
[2013] FWCFB 6191 (28 August 2013) at [5]–[30]
76
[2013] FWCFB 6191 (28 August 2013) at [31]
77
PR911894 (29 November 2001)
78
PR911894 (29 November 2001) at [68]
79
[2010] FWAFB 10089 (24 December 2010)
80
Ibid [20]
81
Ibid [33]
82
Ibid [34]–[35]
83
Ibid 36
1
Exhibits R2 and R3
2
Sound recording, 8 February 2016, 10.33 to 10:50 a.m. and Exhibit A6, para 6
3
Exhibit A3, paras 12 and 13
4
Sound recording, 8 February 2016, 14.54 p.m.
5
Exhibit R3
6
Sound recording, 8 February 2016, 11.22 to 11.35 a.m.
7
Exhibit R6, attachment AJR6
8
Sound recording, 8 February 2016, 15.50 p.m.
9
Sound recording, 8 February 2016, 14.17 to 14.29 p.m.
10
Sound recording, 8 February 2016, 15.54 p.m.
11
Exhibit A3, para 41
12
Exhibit A3, para 47
13
Sound recording, 9 February 2016, 11.02 a.m.
14
Sound recording, 9 February 2016, 10.49 a.m.
15
Exhibit R4, attachment BP18
16
Exhibit R5, para 10
17
Exhibit R4, attachment BP18
18
Exhibit R5, para 10
19
Exhibit R4 , attachment BP18
20
Exhibit R5, para 10
21
Exhibit R4, attachment BP18
22
Exhibit R5, para 10
23
Exhibit R4, Attachment BP18
24
Exhibit R5, para 10
25
Exhibit R2
26
Exhibit R12
27
Exhibit R3
28
Sound recording, 10 February 2016, 10.19 a.m.
29
Sound recording, 10 February 2016, 11.16 a.m.
30
Sound recording, 10 February 2016, 10.38 a.m.
31
Sound recording, 10 February 2016, 10.43 a.m. and Exhibit R11
7
0