FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harvey v Palcove Pty Ltd [2025] FedCFamC2G 915
File number: MLG 2533 of 2022 Judgment of: JUDGE FORBES Date of judgment: 13 June 2025 Catchwords: CONSUMER LAW – contract of employment – whether respondent made misleading or deceptive representations in relation to terms of engagement – whether written terms superseded alleged oral representations
INDUSTRIAL LAW – Fair Work Act – alleged contravention of industrial instrument – claim for overtime under applicable enterprise agreement – where applicant claims to have worked over 60 hours per week – whether applicant can establish hours actually worked – whether salary paid to applicant contemplates and compensates for additional hours – whether respondent authorised the working of additional hours – operation of set-off clause in contract of employment
INDUSTRIAL LAW – adverse action – where applicant claims to have made complaints and inquiries about employment – whether applicant exercised workplace rights within meaning of Fair Work Act – where applicant dismissed from employment after involvement in workplace incident – whether applicant dismissed for reasons which included the exercise of workplace rights – inquiry into the subjective reasons of decision-maker – whether employer has discharged the statutory presumption under s 361 of the Fair Work Act
Legislation: Competition and Consumer Act 2010 (Cth) ss 236; ss 18, 31 to sch 2
Fair Work Act 2009 (Cth) ss 50, 97, 340, 341, 342, 360, 361, 557C, 570
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases cited: Alam v National Australia Bank [2021] FCAFC 178
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243
David Walker v Salomon Smith Barney Securities Pty Limited [2003] FCA 1099
D’Sylva v Ellenbrook Family Medical Centre Pty Ltd [2021] FedCFamC2G 319
Ermel v DuluxGroup (Australasia) Pty Ltd (No.2) [2015] FCA 17
Evans v Braddock [2015] NSWSC 249
General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605
Khiani v Australian Bureau of Statistics [2011] FCAFC 109
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
Logan v Otis Elevator Company Pty Limited (2001) 107 IR 253
Mealey v Power [2015] NSWSC 1678
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307
Ramos v Good Samaritan Industries [2013] FCA 30
Sabapathy v Jetstar Airways (2021) 283 FCR 348
Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217
Shum v Southern Migrant and Refugee Centre Inc (No.3) [2025] FedCFamC2G 393
Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46
Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873
Division: Division 2 General Federal Law Number of paragraphs: 358 Date of last submission/s: 19 July 2024 Dates of hearing: 6-8 May; 19 July 2024 Place: Melbourne The Applicant: In person Counsel for the Respondent: Mr Thomas Solicitor for the Respondent: PricewaterhouseCoopers ORDERS
MLG 2533 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RICHARD HARVEY
Applicant
AND: PALCOVE PTY LTD
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
13 JUNE 2025
THE COURT ORDERS THAT:
1.The application filed on 18 November 2022 be dismissed.
2.Any party seeking costs in relation to this application must do so by filing an application in a proceeding no later than 27 June 2025, accompanied by a submission (not exceeding 5 pages) in support of the application.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
This proceeding was commenced following the dismissal of the applicant, Mr Richard Harvey (Mr Harvey), from his employment with the respondent, Palcove Pty Ltd (Palcove), during his probation period.
Palcove operates a retail business known as “Cheap as Chips” which sells household items such as furniture, electrical, snacks, toys, craft and pet supplies. There are approximately 50 Cheap as Chips stores across Australia.
Mr Harvey was employed by Palcove as Store Manager of its store in Hamilton in regional Victoria (Hamilton Store) from 18 April 2022. Mr Harvey contends that he was a hardworking, diligent, principled employee who sought to discharge his duties as Store Manager to a high professional standard, notwithstanding the limited resources and support provided to him by the company. After commencing in his role, Mr Harvey made a number of complaints about the terms of his employment, management of the business and other issues.
On 23 July 2022, a little over 3 months into his employment, Mr Harvey was involved in an altercation with a group of adolescents who he suspected of shoplifting. There was an investigation into the incident over the following week. On 2 August 2022 Mr Harvey’s employment ceased when he was dismissed for misconduct and breaches of company policy.
In his statement of claim, Mr Harvey alleges that the respondent has breached provisions of the Fair Work Act 2009 (Cth) (FW Act) and the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law or ACL) in relation to his employment.
First, Mr Harvey alleges that Palcove engaged in misleading and deceptive conduct in contravention of section 18 and 31 of the Australian Consumer Law by making false representations to him about the terms and conditions of his employment, including in relation to his renumeration and other benefits. While Mr Harvey contends he was promised a specific salary package by Palcove’s regional manager during his job interview, the respondent submits that the terms of Mr Harvey’s employment were clearly defined by a written employment contract which he signed on 20 April 2022.
Secondly, Mr Harvey claims that he worked significant overtime, working in excess of 60 hours per week in his role as Store Manager. He argues that it was not possible for an unsupported resource-starved Store Manager to run the Hamilton Store without putting in significant additional hours. Mr Harvey asserts that he was contracted to perform 38 hours per week and was not paid for any additional hours of work. Mr Harvey contends that Palcove breached clause 21.2(a) of the Cheap as Chips Enterprise Agreement 2019 (Enterprise Agreement) and thereby section 50 of the FW Act.
The respondent entirely rejects this claim and submits that it is not substantiated by the evidence. Alternatively, the respondent says that even if Mr Harvey did work more than an average 38 hours per week (which it denies) he was paid significantly above the base enterprise agreement rate for a Store Manager and a clause in his contract of employment operated to allow the over-agreement salary to be set-off against any claim which relies on the industrial instrument.
Finally, Mr Harvey alleges that by dismissing him for making or proposing to make complaints or inquiries in relation to his employment and for exercising his workplace rights to seek the benefit of a workplace law, Palcove engaged in adverse action for a prohibited reason in contravention of section 340(1) of the FW Act. While the respondent concedes Mr Harvey’s dismissal constitutes adverse action and that he did, on at least one occasion, exercise a workplace right by making a formal complaint, it denies that he was dismissed for a prohibited reason or reasons which included a prohibited reason. The respondent says that its decision to dismiss Mr Harvey was for a legitimate non-prohibited reason, namely Mr Harvey’s conduct during the store altercation and his lack of insight into the gravity of his actions.
Mr Harvey has attempted to quantify his loss and damage arising from the above contraventions[1]. He says that by reason of Palcove’s contravention of s 340 of the FW Act, he suffered lost wages of $40,000 (26 weeks @$80,000 per annum), superannuation of $3,675.10, the costs of relocating from Melbourne to Hamilton of approximately $10,000 and loss and damage arising from hurt, humiliation and distress estimated at $25,000.
[1] Applicant’s further and better particulars filed on 22 March 2024
Mr Harvey also claims that his loss and damage arising from the overtime claim amounts to $18,547.59. He also claims a similar amount in relation to the respondent’s alleged contravention of the Australian Consumer Law.
CASE MANAGEMENT
Mr Harvey commenced these proceedings in November 2022. He has been self-represented throughout. Mr Harvey’s original application was presented in narrative form and was criticised by the respondent for not engaging directly with the provisions of the FW Act. Nonetheless, rather than engage in a pleadings dispute, the parties agreed to engage in an early mediation and made efforts to resolve their differences over much of 2023.
In October 2023, a Registrar of this court made an order for the proceedings to continue on pleadings. Mr Harvey was ordered to file and serve a statement of claim and to particularise his loss and damage, including how it was calculated. Mr Harvey had been unable to file a statement of claim when I took over case management in December 2023.
In directions hearings in December 2023 and February 2024, counsel representing the respondent expressed concern about the applicant’s failure to properly articulate his claim in a manner which identified and engaged with the causes of action on which he relied. The respondent recognised that the applicant was self-represented and were not unduly critical of that fact. Rather, the respondent wanted to ensure, as a matter of procedural fairness, that it was squarely on notice of the case it would be called to meet - a legitimate concern where, as here, the respondent is required to discharge a reverse onus in relation to alleged contraventions of the FW Act[2] and may be subjected to civil penalties[3].
[2] Fair Work Act 2009 (Cth) (FW Act), s 361
[3] as to the requirements for careful pleadings in such a case, see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 311; Sabapathy v Jetstar Airways (2021) 283 FCR 348
I made orders which identified for Mr Harvey the matters which he needed to address in his statement of claim. Mr Harvey made an effort to comply with those orders but was unable to do so, revealing to the court that he suffered dyslexia. The respondent was accommodating of Mr Harvey’s claimed disability, as was the court.
In late February 2024, at the suggestion of the respondent’s counsel, the court requested the industrial bar association of the Victorian Bar to consider pro bono assistance to assist the applicant with the preparation of an Amended Statement of Claim. Ms Siobhan Kelly of counsel generously provided the necessary assistance for which the court is most grateful.
On 23 March 2024, Mr Harvey filed a comprehensive pleading and further and better particulars of his claim. The proceeding was thereafter framed by the applicants Amended Statement of Claim (ASOC), the particulars and the respondent’s defence.
An order was made for limited discovery. Orders were also made for the parties to file and serve outlines of submissions upon which they intended to rely at trial. Given the applicant’s limited understanding of the legal process and the difficulties which he described to the court, the respondent accepted responsibility for preparing the court book for trial.
The respondent and its legal representatives exhibited patience and exercised restraint during the case management process and were accommodating in preparing the matter for trial. They never once sought to take advantage of Mr Harvey’s status as a self-represented litigant, a matter to which I will return later in this judgment.
EVIDENCE
Evidence-in-chief in these proceedings was given on affidavit. The applicant, Mr Harvey, filed and sought to rely upon an affidavit sworn on 16 April 2024. He disclosed that his affidavit had been prepared with the assistance of pro bono counsel.
Palcove filed affidavits on behalf of three employees who were involved in the recruitment and dismissal of Mr Harvey. These are:
(a)Mark Scott, the Regional Manager of Palcove. Mr Scott was Mr Harvey’s direct manager and oversaw his management of the Hamilton Store;
(b)Laura Wilton, the Human Resources Officer of Palcove; and
(c)Shane Nelson, Head of Retail and Property of Palcove. Mr Scott reported to Mr Nelson.
A further affidavit was filed on behalf of Ms Tracy Shillington, Store Manager of the Cheap as Chips Ballarat store. While not directly involved in Mr Harvey’s recruitment or dismissal, Ms Shillington was a witness to other key events, including discussions around Mr Harvey’s contract and his role as a Store Manager.
At trial, Mr Harvey and each of the respondent’s witnesses adopted their affidavits and were cross-examined.
BACKGROUND
Unless stated otherwise, the following narrative is based on agreed or uncontested facts or is objectively supported by documents tendered in evidence. Where facts are contested, I outline the competing evidence and explain my findings.
In this judgment is not possible to traverse every piece of evidence and every inconsistency – and there are many. My efforts in summarising the evidence have been directed to explaining how the competing narratives stand apart and identifying the evidence which ultimately informs and determines the key issues in dispute.
Mr Harvey
In his affidavit sworn 16 April 2024, Mr Harvey claims to have had almost 30 years experience in retail operations. For a number of years he worked for the large supermarket chain, Aldi. More recently, between 2012 to 2019 he was a business development manager for Design Harvey, a family business. For almost 2 years from 2019 he was a senior business development manager for Brand Developers which he described as a $5 billion company. Mr Harvey said Brand Developers employed more than 500 people, of whom about 100 were his direct reports.
From 2021 Mr Harvey was employed by a sub-contractor to the Department of Health and Human Services in the position of Operations Manager. He was involved in the collection and reporting of COVID19 data and claims to have had about 200 people reporting to him. Immediately prior to his employment with the respondent, Mr Harvey was a self-employed contractor performing courier work.
Recruitment of Mr Harvey
Palcove engaged a recruiting company, Frontline Retail Recruitment (Frontline), to source candidates for vacant positions within its business.
Palcove’s human resources department worked with Frontline to recruit store managers and other personnel. Ms Wilton, Palcove’s Human Resources Officer, explained that Frontline was provided a position description and salary band for all of the positions within the business. It was expected that Frontline would rely upon that information when advertising positions or engaging with potential candidates.
Mr Scott, formally regional Sales and Operations Manager for Palcove’s western Victorian Cheap as Chips stores, gave evidence that Frontline would undertake an initial screen and interview of candidates and assess their suitability before they were put forward for consideration by the business.
In March 2022, Mr Harvey received a phone call from Casandra King from Frontline. Ms King told Mr Harvey that Cheap as Chips were hiring for the position of Store Manager at its Hamilton Store at 94 Brown St, Hamilton, Victoria. He was told that the company also had Store Manager positions vacant interstate and in other regional towns.
Mr Harvey told Ms King that he was interested he was interested in a Store Manager position in finding work outside of Melbourne. Mr Harvey was at the time in the process of getting divorced and was motivated to relocate, looking for a tree change. He told Ms King that he would prefer the Hamilton location as it would enable him to maintain a relationship with his daughter. In his trial affidavit Mr Harvey deposed that Ms King informed him that the salary for the position was $75,000, although she believed that there was room to negotiate that figure.
Following this phone call, Mr Harvey went through a staged interview and recruitment process.
Firstly, on 4 April 2022, Mr Harvey participated in a telephone interview with Cheap and Chips’ Recruitment and HR Advisor, Ester Bentley-Dyte. According to Mr Harvey there was also a telephone discussion with Mr Scott.
Next, on 5 April 2022, Mr Harvey attended an in-person interview with the regional manager Mr Scott. The meeting was conducted in a private office space at the Cheap as Chips Ballarat store. No other people were present. On his version of events, Mr Harvey said he had no knowledge of Cheap as Chips before his discussion with Ms King and therefore took the opportunity to ask Mr Scott for further information about the business, the Hamilton Store and the support he would be given as a Store Manager. Mr Harvey said he was told by Mr Scott that he would have a fully trained team, including an assistant manager, and would receive further support from Mr Scott as his regional manager.
Relevantly, Mr Harvey claims that during this interview there were discussions about salary. Mr Harvey said that when Mr Scott told him that salary for the position was $75,000, he replied that his asking salary was $100,000 plus superannuation, plus bonus, being a total package of about $120,000. Mr Harvey says that Mr Scott then made a telephone call to someone following which Mr Scott made a number of representations (alleged representations):
(a)that he was offered the position of Store Manager at the Cheap as Chips Hamilton Store;
(b)that he would be paid a salary of $80,000, plus superannuation;
(c)that he would be eligible for an uncapped bonus;
(d)that he would be paid $10,000 on account of relocation costs; and
(e)that Mr Scott had authority to offer Mr Harvey employment.
Mr Harvey claims that Mr Scott explained to him that a salary of $80,000 plus superannuation plus $10,000 relocation allowance would give him an all-up package of $100,000, close to what he was seeking.
Mr Scott denies that Mr Harvey was offered the Store Manager position during this interview, and denies that there were any discussions or representations made to him about his salary. Mr Scott said that his meeting with Mr Harvey was in the nature of a screening interview with the purpose of assessing his suitability for the business. Mr Scott said he always understood that his manager, Mr Nelson, would have to conduct a further interview with Mr Harvey before employment was offered.
Mr Harvey gave evidence that on his way back to Melbourne following this interview, Ms King called him and congratulated him on securing the role. Mr Harvey claims that he was told by Ms King that Mr Scott had “agreed to your terms and conditions” and that the offer was $80,000 plus superannuation, $10,000 in relocation costs and an uncapped bonus. Mr Harvey also gave evidence that Ms King suggested he visit the Hamilton township and the store, which he claims to have done 2 days later.
On 7 April 2022 Mr Harvey sent an email to Ms King at Frontline[4] in which he thanked her for “…trusting me with this role”. Mr Harvey confirmed that he had completed and sent a 10 page application form from his mobile phone and confirmed the name of a referee who could be contacted. Mr Harvey concluded the email with the words “Looking forward to talk with Shane [Nelson] on Saturday and driving down to Hamilton.”
[4] Exhibit A1
Ms King arranged for Mr Harvey to be interviewed by Mr Nelson at 10:30am on Saturday, 9 April 2022. A calendar invitation confirming the arrangements was annexed to Ms Wilton’s affidavit[5].
[5] Laura Jade Wilton Affidavit dated 22 April 2024 (Wilton Affidavit), Exhibit LW-1; Court Book 142
It is unclear from the evidence when Mr Harvey travelled to Hamilton and when he visited the Cheap as Chips store there. However, Mr Harvey claims to have done so prior to his interview with Mr Nelson.
In his affidavit[6], Mr Nelson gave evidence that he spoke to Mr Harvey on 9 April 2022 via telephone. He said that during that meeting Mr Harvey informed him about his divorce and that he was seeking a fresh start or “sea change”. Mr Nelson said he expressed concern that Mr Harvey would be moving away from his children and to a town he had not been to before. Mr Harvey assured him that he was seeking to relocate away from metropolitan Melbourne for the right role. In that telephone conversation Mr Nelson says that he informed Mr Harvey that if he was employed he would receive 2 weeks training at a comparable store and that the company would cover the costs of the training.
[6] Shane Wallace Nelson Affidavit dated 24 April 2024 (Nelson Affidavit)
Mr Harvey gave a different version and emphasised different aspects of his interview with Mr Nelson. In particular, Mr Harvey said he was asked about his visit to the Hamilton store and whether he had any ideas on how to improve the store. Mr Harvey also said that in response to Mr Nelson’s concerns about whether he would be able to work in Hamilton, Mr Harvey told Mr Nelson “… that [he] had been to 89 countries and spoke 16 languages. [He] said that [he] worked with people from all walks of life and was confident [he] could succeed in the Hamilton community.”
Offering Employment to Mr Harvey
Mr Nelson gave evidence that he did not learn about Mr Harvey’s salary expectations until after he had interviewed him. Mr Nelson said that he was informed during a subsequent discussion with Mr Scott that Mr Harvey was asking for a salary above the normal standard typically given to Store Managers.
Mr Nelson gave evidence that the salary band for Cheap as Chips Store Managers in 2022 was in range of $60,000 to $75,000, with the higher amount being paid to managers of A-Grade stores. The Hamilton store was internally classed as a C-Grade store. Mr Nelson annexed to his affidavit a schedule of remuneration paid to store managers in 2022 which confirms that the lowest rate of pay was $55,000 per annum and the highest $75,000 per annum[7].
[7] Nelson Affidavit, Exhibit SN-01
Mr Scott said his understanding at the time was that $75,000 plus superannuation was at the very upper limit of the prevailing salary band for store managers within the business. Mr Nelson and Mr Scott gave evidence that they agreed to offer the position to Mr Harvey on a salary of $70,000 plus superannuation and that upon passing a probationary period, he may be eligible for a $5,000 increase.
On 11 April 2022, Ms King from Frontline sent an email to Ms Bentley-Dyte, Palcove’s former Recruitment and HR Administrator, confirming the two reference checks had been done for Mr Harvey. Ms King also requested the details of the offer to be made to Mr Harvey.
Mr Scott then sent an email to Ms King and Ms Bentley-Dyte. In that email, Mr Scott stated he would like to offer Mr Harvey the role of Store Manager at the Hamilton Store at a starting salary of “70k plus super and in 6 months once his probation is completed [to] take him to 75k plus super”. Mr Scott also informed Ms King that Mr Harvey should start on 18 April 2022, that he would initially complete 2 weeks of induction at the Ballarat store and that the company would provide self-contained accommodation for that two week period.
A couple of minutes later Mr Scott sent a further email to Ms King. In that communication Mr Scott said:
Hi Cass,
Should also say needs to be satisfactory performance for the extra 5K in 6mths.
Regards,
MarkLater that day, Ms King sent Mr Scott an email confirming that Mr Harvey had accepted the offer of employment. The email stated, inter alia:
CONGRATULATIONS!!!!!
Richard has accepted the offer and is so excited to be joining the team at Cheap as Chips as the SM in Hamilton! WE FINALLY HAVE AN AMAZING MANAGER FOR THIS STORE!!! To be honest, I don’t know who is more excited: you guys, Richard OR ME!”
Richard Harvey
Cheap as Chips | Store Manager-Hamilton
Salary $70,000 + S + Comms. Richard has been advised that he will have this reviewed to potentially be 75K at the end of the 6 month probation period.
Start date: Confirmed as Mon 18th April @ Ballarat
Placement Fee: $12,705
Refs: 2 supplied
Guarantee: 180 days
*RELOCATION INFO. As per our conversation just now Esther, Richard has been aware of the potential relocation payment that he would be eligible for at the end of his first 12mths. Same as [name redacted], we have only mentioned the reimbursement of relocation costs only – NO ACCOMMODATION, etc.
Mr Scott gave evidence that after Mr Harvey accepted the role, he telephoned him and conveyed his congratulations.
On 13 April 2022, Ms Wilton, Palcove’s Human Resources Officer, sent Mr Harvey a “welcome email”, prominently headed “Welcome to the Chippie Family!” which attached a contract of employment for the position of Store Manager at the Cheap as Chips Hamilton Store, a position description and various other induction materials.
Employment Contract
Relevantly, the employment contract annexed to Ms Wilton email stated that Mr Harvey’s “permanent employment with Cheap as Chips” would be “effective [from] 18 April 2022, on the terms and conditions in this Contract of Employment”.[8] The employment contract also stipulated that Mr Harvey was employed in a “Salaried Position” and that he would receive “a base salary of $70,000.00 plus statutory superannuation (currently 10%)”, bringing his total salary package to $77,000.00 per annum.
[8] Wilton Affidavit, 30
The Employment contract was subject to a probation period of 6 months. During the probation period either party was at liberty to terminate employment.
The employment contract prescribed Mr Harvey’s working hours as follows:
1) thirty-eight (38) hours a week;
2) 1 night every 3 weeks; and
3) 1 in every 3 weekends
The contract contained an “Hours of Work” clause which specified that if Mr Harvey were to work any hours or days in addition to his contracted hours, he would “need to obtain prior authorisation from [his] Regional Manager” and that if he fails to do so, he agrees that he is “working such hours and days at [his] own free will and will not be compensated”.
Further, the employment contract included a “set off” clause which provided that Mr Harvey’s salary package was “inclusive of penalty and overtime rates, as well as allowances”. This clause also stated that Mr Harvey’s salary included “compensation for all additional hours that may be worked” by him.
The contract did not provide Mr Harvey with any entitlement to a relocation allowance.
Finally, the contract contained an “Entire Agreement” clause which stated:
the Contract of Employment is the entire agreement between the parties with regard to your employment by us and by signing it, the parties cancel all, any other agreements and arrangements between them, whether oral or in writing, with regard to your employment by us and any warranty, representation, guarantee or other term or condition of any nature not contained or recorded in this Contract of Employment is of no force or effect.
It is common ground that Mr Harvey’s employment was governed by the Enterprise Agreement. Clause 21.2(a) of the Enterprise Agreement provides that the hours worked by a full-time employee in excess of 152 hours in a four-week cycle are to be paid at time and a half for the first three hours and double time thereafter.
In the “welcome email” sent on 13 April 2022, Ms Wilton also attached KeyPay training and user manuals[9]. KeyPay is a cloud-based workforce management and payroll platform that Palcove uses for rosters, timesheets, leave management and other reporting. These KeyPay documents stipulated that Mr Harvey was to use the scheduling system whenever he began and ended a shift to record his “clock on” and “clock off” information. The email also stated that an online link to an induction course would be provided in a subsequent email.
[9] Wilton Affidavit, Exhibit LW-1.
In his Amended Statement of Claim at [15] and his trial affidavit at [22] Mr Harvey denied receiving an employment contract on 13 April 2022, claiming that he first received it on 20 April 2022. However, the “welcome email” identifies the recipient as Mr Harvey and it was correctly addressed. Under cross-examination Mr Harvey admitted that he in fact received the contract on 13 April 2022 together with instructions to undertake training on Palcove’s conduct and personnel policies.
Commencement of Employment and Training Period
Mr Harvey gave evidence that he packed up his things on 16 April 2022, with the intention of making the move to Hamilton on a permanent basis. He claimed that his intention was to work for another 8 years and then retire in Hamilton.
On 18 April 2022, Mr Harvey commenced employment with Palcove.
From 18 April to 26 April 2022, Mr Harvey underwent a period of training at the Cheap as Chips Ballarat store. During this two-week period, he stayed at a hotel in Ballarat which was paid for by Palcove.
Mr Scott explained that under Palcove’s “buddy” system, each new store manager wasrequired to “shadow” a more experienced store manager during a period of initial training. This system encouraged new store managers to ask questions without their staff being around and provided an adjustment period for feedback before the store manager became responsible for their own staff. Ms Tracy Shillington was the Ballarat store manager at the time and was assigned as Mr Harvey’s “buddy”. Ms Shillington corroborated Mr Scott’s explanation of the buddy system.
On his first day, 18 April 2022, Mr Harvey undertook online training on the various policies which govern the conduct of Cheap as Chips employees. These policies included:
(a)Customer Service Policy and Procedure;
(b)Retail Management Communication Procedure;
(c)Customer Theft Procedure;
(d)Employee Responsibility; and
(e)Code of Conduct.
Relevantly, the Customer Theft Procedure provides that “[l]egally, customers can refuse a bag inspection”. It also states, “[y]ou do not have the legal right to forcibly search or detain a customer if they refuse a bag check”. Further, the theft policy provides that “[j]uveniles (minors) cannot be treated in the same manner as adults [and] a juvenile cannot be questioned without a parent or legal guardian present, and no property (such as backpacks) can be searched.”
Mr Harvey agreed and acknowledged that he had read and understood these policies.[10] Mr Harvey also declared that he had read and agreed to a document called “Store Manager – What I do” which outlines the key responsibilities and expectations of Store Manager[11]. He cannot recall whether he undertook training on his own computer remotely or on the computer inside the store, but was 99% sure it was the latter.
[10] Wilton Affidavit, 53-54
[11] Wilton Affidavit, [11] and [35]
Mr Harvey’s evidence, during cross-examination, about the circumstances of his agreement to these policies was surprising. When it was put to Mr Harvey that he had expressly acknowledged through the online training program that he understood and agreed to each of the company policies referred to above, Mr Harvey said, inter alia:
(a)that he was dyslexic and did not read any of the policies;
(b)that Ms Shillington just gave him a general rundown and that he just ticked and signed;
(c)he just agreed that these policies were normal things, but there was no need to go through them because “to read something like that, [he] would need at least a week to go through every clause or whatever”;
(d)if he “has to just sit down and read, [he] can’t”;
(e)he was made aware of the policies, nothing in detail. These are general policies in every company. He ticked and that’s it;
(f)that he generally does not read documents, but is happy to take them on face value and not challenge anyone’s integrity; and
(g)he signed the acknowledgement to be bound by company policies without reading it, because he trusted the company.
When counsel for the respondent asked Mr Harvey to confirm that his evidence was that he just signed documents without reading them, Mr Harvey said “mostly, yes”. When asked whether he accepted that he was obliged to comply with company policies and procedures, he said “Yes. In all fairness, yes.”
There was no evidence before the Court that Mr Harvey had disclosed to Palcove any condition which prevented him from understanding the policies or any of the online training. There was no expert evidence before the court about the effect of Mr Harvey’s claimed dyslexia on his capacity to read or comprehend the effect of documents. Given his retail and other career experience, I am satisfied that Mr Harvey should be taken to have generally understood the binding effect of company policies and the consequence of non-compliance. I am also satisfied that his stated understanding and acknowledgement of those policies would have been taken by the company at face value, just as he intended.
Dispute about relocation costs
Mr Scott alleges that during the first few days of Mr Harvey’s training period, he received a call from Mr Harvey. Mr Scott recalls being in the car at the time. According to Mr Scott, Mr Harvey stated that he had been told by Mr Nelson that there would be a relocation package to assist him in moving from metropolitan Melbourne to Hamilton. Mr Scott said that he was unaware of any relocation package and directed Mr Harvey to discuss this issue further with Mr Nelson.
During the telephone call, Mr Harvey also stated that he had not received his employment contract. Mr Scott says that he then pulled over and forwarded Ms Wilton’s original “welcome email”, including the contract of employment and other attachments sent to Mr Harvey
Following his phone call with Mr Harvey, Mr Scott called Mr Nelson to ask about the relocation package. Mr Nelson said the company was not offering a relocation package but would pay for Mr Harvey’s accommodation while he was training in Ballarat.
Dispute about Mr Harvey’s contract
The evidence confirms that Mr Scott forwarded a copy of Ms Wilton’s “welcome email” to Mr Harvey on 20 April 2022. For that reason, I infer that the telephone call Mr Scott received in his car occurred on that date. An email in evidence[12] records that Mr Harvey then forwarded the email and its various and annexures from his own email address to the Ballarat store email address.
[12] Richard Harvey Affidavit dated 16 April 2024 (Harvey Affidavit), Exhibit RH-2
Mr Harvey gave evidence that after receiving the email, Ms Shillington printed the contract for him. Ms Shillington has no recollection of having done so, although she does recall Mr Harvey contacting Mr Scott or someone else to enquire about the whereabouts of his contract. Given Mr Harvey emailed the contract to the Ballarat store email address, I consider it probable that Ms Shillington did provide some assistance in printing the document, however nothing of significance turns on this.
Mr Harvey said that upon reading his employment contract, he noticed that its terms, specifically the terms defining his renumeration, were markedly different to the representations Mr Scott had allegedly made during his job interview.
Mr Harvey claims that he asked Ms Shillington why he was not receiving a salary of $80,000 and $10,000 for relocation costs. In response, Ms Shillington said that she was not involved in any negotiations regarding Mr Harvey’s employment with Palcove and she wasn’t aware such representations had been made. Mr Harvey alleges that Ms Shillington told him to put his concerns in writing.
Mr Harvey says he then attempted to call Mr Scott, but he did not answer. Mr Harvey claims to have also attempted to contact Ms King and Ms Bentley-Dyte but both were unavailable.
Mr Harvey alleges that he had a second conversation with Ms Shillington in the course of which she asked him whether, given his dissatisfaction, he wanted to continue with his training. Mr Harvey agreed to continue with training but said he would raise his concerns about the contract with Mr Scott when possible.
Mr Harvey submits that by complaining to Ms Shillington about his contract, he made a complaint or inquiry in relation to his employment and subsequently, exercised a workplace right within the meaning of s 341(c) of the FW Act. However, when cross-examined Mr Harvey conceded that he raised this issue with Ms Shillington as a peer and had no expectation that she would do anything about it or take the complaint up on his behalf.
On 20 April 2022, a copy of Mr Harvey’s Employment Contract, unamended and signed by Mr Harvey, was uploaded onto KeyPay. In the signature block acknowledging his acceptance of the contract, Mr Harvey declared that he:
(a)had read and understood the terms and conditions of employment;
(b)agreed to abide by the terms and conditions of employment;
(c)acknowledges that he had received, and will undertake to read and fully understand a copy of the Cheap as Chips policy and procedures manual and OH&S guidelines.
Mr Harvey was cross-examined about why he signed the contract of employment if he did not agree with its terms. He again stated that he usually doesn’t read documents, but takes on them on face value and does not challenge the integrity of the other person. He said that because he had come to an agreement and he trusted Cheap as Chips, he figured that he would work out any issues later and that Mr Scott would be true to his word.
Mr Scott’s visit to Ballarat
Mr Harvey alleges that on or around 22 April 2022, he met with Mr Scott at the Ballarat store and queried why the salary stated within the Employment Contract ($70,000) was different to what he believed they had agreed during their 5 April 2022 discussions ($80,000)[13]. Mr Harvey said he was unhappy about the situation because it did not reflect the cultural values he could work with.
[13] Harvey Affidavit at [32]
In his affidavit, Mr Harvey deposed that Mr Scott had cited that there were some funding issues, but that after his six-month probation period, his salary would become $77,000. Mr Harvey says that he took from this discussion that Mr Scott would attempt to renegotiate his Employment Contract to reflect the terms he alleges were agreed. Mr Harvey said that by the time of this discussion he had already packed up from Melbourne and was in the course of securing accommodation in Hamilton. In the circumstances he trusted that Mr Scott would “fix the situation”.
Mr Scott recalls his visit to the Ballarat store. However, Mr Scott said he has no recollection of any discussion regarding Mr Harvey’s contract or any proposal to change his remuneration package.
Mr Scott said that the purpose of his visit was to conduct a “floor walk” with Ms Shillington and Mr Harvey and to explain to Mr Harvey how stores are merchandised and his expectations regarding Palcove’s standards. Mr Scott recalls discussing concerns, relayed to him by Ms Shillington, that Mr Harvey had not been taking any notes during his induction and training. Ms Shillington gave evidence that she observed that:
(a)Mr Harvey often appeared disinterested and not listening to Ms Shillington;
(b)she often had to remind Mr Harvey to pay attention; and
(c)in response, Mr Harvey affirmed he “already knew how to do it”.
When cross-examined about these observations, Ms Shillington remained firm in her recall.
Mr Harvey deposes that on the day of Mr Scott’s visit, he had lunch with Mr Scott and Ms Shillington at a café in Ballarat. Mr Harvey alleges that during the lunch, Mr Scott made several offensive comments, namely:
(1)that during the lunch Mr Harvey stated that he wished to take up shooting and play golf whilst in Hamilton, and that Mr Scott said words to the effect of “What shooting and what golf? You work like a dog in India, and here in Australia you want to play golf or shooting in your spare time?”[14];
(2)Mr Harvey deposed that after he revealed that his ex-wife was a Muslim asylum seeker, Mr Scott said words to the effect of “bitches like that should be in the market for people to try out”[15];
(3)that when Mr Harvey challenged Mr Scott about how he could speak about women that way, Mr Scott said words to the effect that women were “a breed apart”[16]. Mr Scott is alleged to have said that they (being Mr Scott and Mr Harvey) were a different breed to Muslims and that Muslims did not deserve to be in Australia.
[14] Harvey Affidavit at [37]
[15] Harvey Affidavit at [39]
[16] Harvey Affidavit at [40]
Mr Scott vehemently denies ever having made the comments attributed to him by Mr Harvey. Ms Shillington has no recollection of such comments ever having been made. Neither Mr Scott nor Ms Shillington has any recollection of a lunch with Mr Harvey. Neither Mr Scott nor Ms Shillington recall attending a café with Mr Harvey.
Mr Scott recalls Mr Harvey bringing up the issue of golf during their floor walk at the Ballarat store on 22 April 2022. Mr Scott recalls asking Mr Harvey what activities or pastimes he would pick up in a new town. But Mr Scott says he has no recollection of any conversation regarding shooting activities and flatly denies having made any comments regarding Mr Harvey’s marital status, his ex-wife, Muslims and/or their place in Australia.
Ms Shillington recalled that Mr Harvey mentioned in passing that he was considering taking up golf in his spare time, to which Mr Scott responded that there was a lot of work to do and not much spare time to play golf. Ms Shillington took that response to be a joke and in jest.
Ms Shillington had a faint recollection that at some stage after Mr Scott left the store for the day, Mr Harvey approached her and said that he felt Mr Scott was “going overboard”, although he did not say about what. She recalls telling Mr Harvey that if he had any concerns regarding Mr Scott’s expectations, he should speak to human resources.
Mr Harvey pleads that by raising Mr Scott’s conduct with Ms Shillington, he made a complaint or enquiry in relation to his employment in nearby exercised a workplace right within the meaning of s 341(1)(c) of the FW Act.
The Hamilton Store
Mr Harvey officially began work at the Hamilton Store in his position as Store Manager on 2 May 2022.
After some searching, Mr Harvey found a suitable rental property and offered 3 months’ rent in advance to the landlord as security. The lease on his rented property in Hamilton commenced on 10 May 2022. The rent for this property was $1,440 per month. Mr Harvey alleges he also spent over $10,000 purchasing furniture for his new home.
The Hamilton Store operated seven days a week from 8.30am to 6.00pm. On Sundays, the store had reduced hours.
When Mr Harvey commenced his employment, the Hamilton Store had:
(a)two full-time staff members – Lois and Kayla; and
(b)three casual employees – Sumi, Zoe and Jai.
Mr Harvey submits the Hamilton Store was understaffed from the outset as Lois, one of the full-time staff members, commenced a period of six weeks’ medical leave shortly after he commenced. Further, Jai only worked two shifts per week and Zoe only worked one to two shifts per week. There was also no Assistant Store Manager. Due to the limited availability or absence of staff members, Mr Harvey submits that he and the remaining full-time staff member, Kayla, were forced to do more work.
To alleviate these staffing issues, Mr Harvey submits he converted Sumo, Zoe and Jai from casual employees to permanent part-time employees.
Mr Harvey claims that due to the extensive nature of his responsibilities as Store Manager and understaffing he worked at least 60 hours of work per week across five days each week. He alleges that he worked between 7.30am to 7.30pm, taking a 20 to 30 minute lunch break each day[17]. He claims that in addition to this, he performed work on his rostered days off including training employees, assisting staff with customer service and attending to warehouse requirements[18]. Mr Harvey says this work pattern operated from the commencement of his employment.
[17] Harvey Affidavit at [42]
[18] Harvey Affidavit at [43]
The issue of Mr Harvey’s working hours is central to his claim for unpaid overtime. The evidence regarding this issue is explored later in these reasons.
Key Events of Mr Harvey’s Employment
The evidence revealed that Mr Scott and Mr Harvey did not always see eye to eye about the management and performance of the Hamilton Store. This gave rise to some tension and conflict in their interactions.
In his trial affidavit, Mr Harvey alleges various incidents occurred during the course of his employment where he believes he was subjected to discriminatory and unfavourable conduct.
Mr Harvey claims he exercised his workplace rights by complaining or inquiring about these incidents within the meaning of section 341(1)(c) of the FW Act. Mr Harvey claims that these complaints were the reason or formed part of the reasons why his employment was terminated.
The emergence of performance issues
Mr Scott gave evidence that as regional manager his standard practice was to attend each store every fortnight and to conduct floor walks with store managers. Mr Scott gave evidence that during Mr Harvey’s employment he attended the Hamilton Store on 5, 11 and 26 May, 8 and 28 June and 14 July 2022.
Mr Scott gave evidence that he had numerous discussions with Mr Harvey at the Hamilton Store, via email and via the phone regarding his management of the store. These discussions covered issues ranging from stock levels, merchandising, staffing, store presentation and budgets. Mr Scott usually reported any observations, findings or recommendations directly to Mr Nelson.
For example, on 8 June 2022, Mr Scott visited the Hamilton Store to conduct a store audit to check how the Hamilton Store was being managed. During the visit, Mr Scott noted the following:
(a)Mr Harvey rated his management of the store as a 7-8 out of 10, while Mr Scott rated it a 3-4 out of 10;
(b)Mr Harvey had failed to follow Palcove’s guidelines on displaying ‘Top 10’ items for sale; and
(c)Mr Harvey had failed to set out the store merchandise as instructed.
Following this store visit, Mr Scott provided Mr Harvey with feedback about how he could improve his performance and the management of the store. A copy of an email to Mr Harvey outlining particular points of feedback and a copy of Mr Scott’s store visit notes were tendered in evidence.
Expired Food Incident
Every Thursday, the Hamilton Store received new pallets of stock and stored them in the warehouse. Any old pallets were kept at the Hamilton Store and not discarded.
Mr Harvey believed there was not enough space in the warehouse. Mr Harvey said that he took the initiative, with the assistance of Kayla, to clean up and remove the old pallets. During this process, Mr Harvey noticed some of them contained food which had passed its “best before” date, including some that was more than 6 months beyond that date.
Mr Harvey claims that he contacted Mr Scott and asked what he should do with the expired food. Mr Harvey alleges that Mr Scott instructed him to sell the product. Mr Harvey refused and explained that he would not sell the expired food as he did not want to make anyone sick. Mr Harvey said that he believed he was following company policy. Mr Harvey also suggested that he could raise the matter with Human Resources.
In his affidavit, Mr Harvey alleges that Mr Scott threatened to “write [him] up” for not following his direction to sell the expired food. In his amended statement of claim, there is no mention of Mr Scott making any threats in relation to this incident.
Mr Scott claims no recollection of this incident or any discussions with Mr Harvey about expired food. Mr Scott says that the company policy for dealing with expired food was part of the induction training Mr Harvey undertook prior to his commencement as store manager.
Shelving Incident
Mr Harvey gave evidence that when he started he noticed that the store was not organised by product category. Mr Harvey also claims that there was not enough shelving on the store floor at Hamilton to display all available products. After making an enquiry of Mr Scott, Mr Harvey claims that he was given license to “merchandise as [Mr Harvey] saw fit”.
Mr Harvey alleges that he set about trying to source shelving to better display products in the store. In the course of doing so he learnt from another staff member, Kayla, that there were spare shelves at the Cheap as Chips store in Horsham. Mr Harvey alleges that he made an enquiry of the main warehouse manager who agreed that the shelves could be delivered to Hamilton. Mr Harvey also claims to have called Mr Scott who “told [him] to go ahead and do it”.
Mr Harvey claims to have driven to the Horsham store to identify the shelving he needed. He says that he did so at Mr Scott’s suggestion. He said the warehouse manager agreed to get the shelving packed and delivered to the Hamilton Store the following Thursday. However, the shelving did not arrive as planned.
After making an enquiry of the Horsham warehouse manager, Mr Harvey says he learned that Mr Scott had intervened and stopped the delivery. When Mr Harvey contacted Mr Scott about the issue, Mr Scott allegedly said that the budget did not allow for the delivery and that the company could not afford it. When Mr Harvey asked for an explanation as to why the order was cancelled, Mr Scott allegedly said he did not have to give Mr Harvey one. When Mr Harvey said he would contact human resources, Mr Harvey alleges that Mr Scott again threatened “to write [him] up”.
Email to Mr Scott on 27 June 2022
On 27 June 2022 at 7.15pm, Mr Harvey sent an email to Mr Scott. The email was sent in response to a WhatsApp message sent to him by Mr Scott the previous day and in anticipation of Mr Scott’s store visit the following day.
In the email Mr Harvey addressed issues including staff availability and working hours, the implementation of new part-time contracts, budgeting for staff and Mr Harvey’s own working hours. In the email, Mr Harvey stated inter alia:
I have always been very open and transparent giving you a constant update about our ground reality so that we can achieve to bring up the company standards.
You have witnessed firsthand how I have turned the store around in 2 months with the limited budget and all new staff. From a jam-packed storeroom to a handful of pallets left. Almost 100 under baskets worked and lying empty in our store rooms for a month. Almost 28 pallets fresh load put out straight away every week. Over 1000 tickets updated.
This was only possible as I worked over 50hrs every week. Worked long and mentored every new staff building their trust and confidence.
Regular customers and staff could see the difference and constantly complemented our efforts.
You in return were constantly negative with only criticism, sarcasm and dissatisfaction on every visit.
On top of that tormenting me that you are paying me a high salary of $70K to do my job right.
You wanted to replace the tables with gondolas on the shop floor. On my days off I spend time and money to go to Horsham personally, worked out with Stephen and Jeremy to get it transferred to our store. You out rightly refused the transfer without having the courtesy to inform me. Even though one day before I informed you that I am going to Horsham especially to see how many gondolas we need.
I am a happy go lucky guy who hates conflicts. However, due to your constance arrogance and unpleasant choice of words from day one. I had to raise my concerns with you within our first few weeks of me starting with CAC.
I humbly once again request you to kindly be mindful of your choice of words and try to mantain the company culture you constantly talk about. As we all deserve to be treated with respect and enjoy a safe workplace irrespective of our positions.
Ms Wilton, the Human Resources Officer, gave evidence that a copy of Mr Harvey’s 27 June email was forwarded to her from another employee who had received it by way of a “blind copy”.
The respondent concedes that this email to Mr Scott constitutes a complaint or inquiry in relation to Mr Harvey’s employment and is therefore the exercise of a workplace right within the meaning of s 341(c)(ii) of the FW Act.
Mr Scott’s store visit on 28 June 2022
On 28 June 2022, Mr Scott visited Hamilton Store to see how Mr Harvey was responding to his feedback on the results of the earlier audit. Mr Scott also did another walk through the store and made further recommendations for improvement. Mr Scott noted Mr Harvey “had not made the level of progress I had expected, and in some respects the quality of the Store had gone backwards”[19].
[19] Mark Anthony Scott Affidavit dated 23 April 2024 (Scott Affidavit) at [59]
In relation to the shelving issue, Mr Scott gave evidence that he believed the Hamilton Store had sufficient spare fixtures and challenged Mr Harvey’s belief that the Hamilton Store needed additional shelving. Mr Scott also explained that the shelving had not been transferred from Horsham because Mr Harvey did not have authority to arrange the transfer of fixtures between stores. As Mr Harvey had never made a formal request for approval for the transfer to take place, Mr Scott said there was in effect no request for him to cancel.
It appears that the disagreement over the shelving and other issues developed into a heated discussion between Mr Scott and Mr Harvey. The conversation took place on the shop floor but it was moved to an on-site office because Mr Scott was concerned that Mr Harvey had become agitated and loud and that customers and other staff were present.
Mr Scott gave evidence that when he attempted to explain the standards he expected for store presentation, Mr Harvey responded by accusing him of racism. When Mr Scott asked Mr Harvey to explain the allegation of racism, Mr Harvey apologised for making the accusation.
When cross-examined about this issue, Mr Harvey denied becoming angry and upset with Mr Scott or accusing him of being a racist. Initially, in response to a question from counsel, Mr Harvey said “No. I don’t know where you’re getting your facts from. The answer is no. I – and I honestly don’t recall, but he has been racist.”
Given the seriousness of the allegation, I asked Mr Harvey whether he accused Mr Scott of being a racist on the day he was in the store. Mr Harvey responded:
No. I don’t recall, your Honour, because I told him, like, he was racist. Maybe when I was in [Ballarat], when he made a comment about my wife, that’s when I told him he was racist. And after that also, I could have. But on a specific day at a specific time, after two years, I don’t think it is possible for anyone to recall.
Mr Thomas, counsel for the respondent, explored the matter further, understandably seeking clarity. To the question “You deny that you accused Mr Scott of being a racist on 28 June?”, Mr Harvey replied: “I did not say I deny. I said I have mention few times to him that he needs to be mindful because it is racist”. Mr Harvey also denied ever apologising to Mr Scott for calling him a racist.
Other emails between Mr Scott and Mr Harvey
The context of Mr Harvey’s complaints and allegations against Palcove would not be complete without recognising that there were many conversations and many emails exchanged between him and Mr Scott over the course of his employment. It is not possible, in this judgment, to include every interaction and an explanation of every issue in minute detail. Suffice to say, many emails simply reflect the management relationship between Mr Harvey as a Store Manager and Mr Scott as his supervising Regional Manager.
On the morning of 29 June 2022, after his store visit the previous day, Mr Scott sent Mr Harvey an email which contained his store visit notes and an explanation of where the management and merchandising of the Hamilton Store required improvement. Mr Scott set out his concerns about store and the various actions he expected to be taken to address those concerns. Mr Scott also sent a large number of photos taken from the successful Ararat store and a detailed “Winter Warmers & Mother’s Day Pack” for guidance. Objectively, the email was polite but robust and conveyed the message that Mr Harvey needed to lift his game.
Later that day, at 8.27 pm, Mr Harvey responded in a somewhat defensive tone to the issues which had been raised with him about store wages, rostering and merchandising. In that email Mr Harvey again pressed his claim for additional gondolas. Mr Harvey said, inter alia:
I would also like to inform, after sleeping over our discussion about re-merchandising our entire furniture area and a few other areas.
It will be best if we wait for the gondolas to be transferred from Horsham, hopefully soon. This will prevent us from double handle everything and give us more avenues and ideas to merchandise in the best possible way. May be by then we will get more staff to help us out.
…..
In my opinion, if possible, it would be great if you could arrange a team of your superhero’s who helped setting up in Ararat and Geelong.
Their firsthand experience will help to execute everything swiftly (1 or 2 days) as per company standards and most important will be safe for customers shop around.
However, it will be most productive if the gondolas come first followed by the Superhero’s.
Very early the following morning, 30 June 2022 at 5.48am Mr Scott sent Mr Nelson a copy of the previous email chain, including Mr Harvey’s response from the previous evening. Mr Scott said to Mr Nelson:
FYI on the below.
I’ll pick up with why still in the store at 8.30pm and also store standards are not a choice as per his comments re furniture etc.
At 6.09am Mr Scott resumed his email conversation with Mr Harvey about the outstanding quality and operational issues at Hamilton. On this occasion, Mr Scott copied his response to Mr Nelson. Relevantly, Mr Scott concluded his email to Mr Harvey with the words:
Can you let me know why you are still at the shop and sending an email at 8:27pm when you finish at 6:30pm, ERPLY EOD is significantly quicker with stores being able to complete well within the 30 mins allocated.
A few minutes later, at 6.12am, Mr Nelson responded to Mr Scott (copied to Ms Wilton) as follows:
Morning,
The demeanour is the concerning part, there is a silent “us v them” message starting to if not already be formed and that’s clearly manipulating behaviour and obviously not healthy.
This thinking that we just have a team that goes around fixing stores for management that don’t have the Steele and skill to do themselves we need to snuff out. Yes it fast forwards progress but it’s also not the go to. Clearly MS, Richard has a skill gap in what we expect as “what good looks like” and his perception.
I have not met the guy in person but there are concerning behaviour patterns already, let’s ensure we are offering him solid support through our structured store visits and over communicate and educate the VM principles of our business.
Laura thoughts?
SN
At 6.41am Mr Scott responded to Mr Nelson, again copying Ms Wilton. In a lengthy email Mr Scott explained what steps he had taken to educate Mr Harvey on store merchandising during each of his structured visits. In what I would describe as a very business focused email, Mr Scott mentioned a number of Mr Harvey’s shortcomings in terms of time management, staff management and store presentation. In conclusion, Mr Scott remarked:
I am also concerned with pattern that is starting to occur as I now think that he is out of his depth in being able to manage at Store level as he wants others to do his job for him, hence that’s why the emails.
These emails evidence a range of performance issues which seem to have informed a consensus that Mr Harvey was struggling as a Store Manager, was out of his depth and was resistant to or not engaging with suggestions for improvement. I am satisfied that the concerns about Mr Harvey’s performance were genuine and that the escalation of Mr Scott’s concerns to Mr Nelson and Ms Wilton occurred in the ordinary course of what one would expect in a business hierarchy.
Conversation between Mr Harvey and Ms Wilton
At [39] of his Amended Statement of Claim, Mr Harvey alleges that after the shelving/write up incident, he contacted Ms Wilton and disclosed his concerns about Mr Scott. More specifically, Mr Harvey claims to have told Ms Wilton about:
(a)the alleged comments Mr Scott made about Mr Harvey’s wife and his golf and shooting hobbies; and
(b)Mr Scott’s conduct and comments during the “shelving incident” as discussed above.
Mr Harvey also claims to have told Ms Wilton that he “believed Mr Scott was doing everything to ensure that [he] was a failure”[20]. Mr Harvey alleges Ms Wilton said the conduct of Mr Scott did not align with the culture or values expected of Palcove and that the company would ensure Mr Scott did not interact with Mr Harvey like this in the future.
[20] Harvey Affidavit at [58]
Mr Harvey did not specify the precise date on which this conversation occurred. However, for the reasons explained below, I infer that the interaction occurred by telephone on or about 30 June 2022, after the various emails to which I referred in the preceding paragraphs.
Ms Wilton recalls Mr Harvey calling her on 30 June 2022. During this phone call, during which Ms Wilton made contemporaneous handwritten notes, Ms Wilton alleges Mr Harvey made the following statements:
(a)Mr Scott had been bullying him and was “pompous” and “changing the goal posts”;
(b)Mr Scott had asked him to complete tasks which Mr Harvey did not feel could be completed given the state of the Hamilton Store and his inexperienced and “stubborn” team;
(c)Mr Harvey said that he was “working to their IQ”;
(d)Mr Harvey said that conducting monthly store audits when requested by Mr Scott “wasn’t my priority”;
(e)Mr Harvey stated that he had gone to another store to arrange for the transfer of fixtures to the Hamilton Store and that Mr Scott put the transfer on hold;
(f)Mr Harvey said that he thought the Hamilton Store shift runner was “spying” on him for Mr Scott but that Mr Harvey had not approached the shift runner about this because he did not want to get them “off side”; and
(g)Mr Harvey said that he thought the staff at the Hamilton Store were “purposely not following [Mr Harvey’s] direction” because he is dyslexic.
In response, Ms Wilton asked Mr Harvey whether he had evidence, such as emails from Mr Scott, to support the claims he was making.
Contrary to Mr Harvey’s assertions, Ms Wilton says that at no point during the call did Mr Harvey mention:
(a)a conversation between him and Mr Scott about recreational golf or shooting activities;
(b)concerns about any comments made by Mr Scott regarding Mr Harvey’s marital status or his wife;
(c)concerns about any comments made by Mr Scott regarding Muslims and their place in Australia; or
(d)that he was working 60 hours a week or a similar amount of overtime.
On 30 June 2022 at 3.46pm, following this telephone conversation with Ms Wilton, Mr Harvey sent Ms Wilton the email he had received from Mr Scott on 29 June 2022. That was the email in which Mr Scott provided Mr Harvey with post-store-visit feedback on different areas of the store he needed to improve. As mentioned, the feedback he provided appeared direct, yet polite and did not seem to personally attack Mr Harvey.
At 7.39pm that same day, Mr Harvey forwarded Ms Wilton two other emails email he had received from Mr Scott, both dated 1 June 2022. Those two emails related to head office amendments to the store payroll budgets and the requirement for Mr Harvey to roster and manage staff within those budgets.
Mr Harvey alleges that by discussing these incidents with Ms Wilton, he made a complaint or inquiry in relation to his employment or proposed to make a complaint or inquiry in relation to his employment. Mr Harvey alleges that he exercised a workplace right within the meaning of s 341(1) of the FW Act.
Ms Wilton’s investigation of Mr Harvey’s complaint
Following her phone conversation with Mr Harvey, Ms Wilton called Mr Scott to inform him about the call and Mr Harvey’s complaints. During this discussion, Mr Scott countered with concerns that Mr Harvey was undermining his authority. Ms Wilton requested Mr Scott to provide her with evidence to support his concerns.
On 4 July 2022, Mr Scott sent Ms Wilton the following emails:
(a)at 8.56am, an email chain with the subject “My wages July 22”. Attached to this email was the 29 June email Mr Harvey had previously sent to Ms Wilton on 30 June 2022 as mentioned above; and
(b)at 8.57am, an email chain with the subject “Battery Compliance”.
Ms Wilton gave evidence and was cross-examined about the steps she took to look into Mr Harvey’s complaint about Mr Scott.
Ms Wilton could not find any witnesses that observed the incidents and conduct alleged by Mr Harvey as they had occurred in private. Ms Wilton explained that her investigation was therefore limited to her discussions with each of Mr Scott and Mr Harvey and an examination of the emails which had passed between them.
Ms Wilton ultimately concluded that there was no evidence of bullying or inappropriate behaviour by Mr Scott against Mr Harvey and that Mr Scott’s actions constituted “reasonable management action”. Ms Wilton conveyed this conclusion to Mr Harvey and asked whether he had any further concerns. Mr Harvey told Ms Wilton that relations with Mr Scott were “fine”.
Store altercation
On 23 July 2022, Mr Harvey came into the Hamilton Store on his rostered day off to assist with laying out merchandise. Mr Harvey was not rostered to be at work that day and that he was dressed in casual attire. According to Mr Harvey, the following events occurred[21]:
(a)he saw a group of teenagers use a band aid without paying for the box;
(b)he requested the group to pay for the box and asked to check their backpack;
(c)they opened the bag but he could not see into it and requested a better view, saying he could not let them leave until he saw the bag;
(d)the group became “abusive and agitated”, made racist comments and “tried to escape”;
(e)one boy and one girl punched him before the other boy and girl “jumped on him”;
(f)the police were called and took Mr Harvey’s statement.
[21] Wilton Affidavit, Exhibit LW-1 at 100-101
Mr Harvey says he called Mr Scott and conveyed these events to him. Mr Harvey told Mr Scott that he had been assaulted by the teenage shoplifters. In cross-examination Mr Harvey agreed he had described the incident as him having been “attacked”. He agreed that he also told Ms Wilton that he had been attacked.
Mr Scott asked whether Mr Harvey was okay, and Mr Harvey explained he had a sore shoulder. Mr Scott instructed Mr Harvey to see a doctor, file a police report and complete Palcove’s internal incident report. Mr Scott also queried why Mr Harvey was on site at the Hamilton Store given he was not rostered. In response, Mr Harvey explained he had stopped to check on the store.
Shortly thereafter, Mr Scott notified Mr Nelson and Ms Wilton of this incident.
Investigation into the incident
As Human Resources Officer, Ms Wilton commenced an investigation into the incident. She was assisted by Ms Correll, the Human Resources Assistant at Palcove.
There were two Palcove employees working at the Hamilton Store at the time of the incident. As part of the investigation, Ms Corell interviewed Mr Jack Annett, the employee who was working at the checkout at the time of the incident. Mr Annett stated that he did not witness the physical altercation or hear anyone use a racial slur. Ms Wilton interviewed the other employee, Ms Hodkinson. Ms Hodkinson stated she did not witness the physical altercation or hear anyone make racist comments at Mr Harvey.
On 26 July 2022, Ms Wilton telephoned Mr Harvey to discuss the incident. Mr Harvey recounted a similar narrative as he had previously given, adding that he had gone to the hospital and been diagnosed with a torn muscle on his right side, although an X-ray confirmed that he had not broken any ribs. Mr Harvey also said that he had been advised to take a week off but he wanted to come in for light duties. Also in response to Ms Wilton’s questioning about his health, Mr Harvey stated that he was okay because he was an ex-boxer and could handle himself, or words to that effect. A copy of Ms Wilton’s interview notes were tendered in evidence.
Ms Wilton gave evidence that she arranged to obtain CCTV footage from the Hamilton Store. During her oral evidence Ms Wilton explained that she contacted the company’s IT department and asked them to pull any footage that they had in the entire store which showed an altercation. She said she was supplied with CCTV footage of the register area (from two different camera angles) where the incident occurred.
Footage from one angle was shown in court. Further footage was also provided to the Court after I requested production of any other video evidence. The entirety of the footage was tendered in evidence without objection, although Mr Harvey maintains that it does not capture the entirety of his interaction with the youth offenders. I have viewed all the available video footage in the course of preparing these reasons.
Ms Wilton gave evidence that she reviewed the CCTV footage on 27 July 2022. This is at odds with the evidence given by Mr Scott, where he asserts he reviewed the CCTV footage on 25 July 2022 with Ms Wilton.[22] There is nothing from the evidence to indicate that Mr Scott or Ms Wilton were lying or attempting to fabricate a particular narrative in their favour. Rather, it appears one of them likely misjudged the precise date upon which they reviewed the CCTV footage.
[22] Scott Affidavit at [74]
Ms Wilton gave evidence that following her conversation with Mr Harvey and after reviewing the CCTV footage, she made the following preliminary findings:
(a)Mr Harvey was at the Hamilton Store without Mr Scott’s knowledge or authorisation on his rostered day off and was not wearing the Cheap as Chips uniform; and
(b)Mr Harvey’s account of events was not consistent with the CCTV footage. In particular, the CCTV footage showed that:
(i)the alleged shoplifters did not appear to be agitated while waiting in the queue at the cash register;
(ii)Mr Harvey approached the boy with the backpack who was standing on his own, gestured to his bag and then Mr Harvey ducked beneath the bollard separating him from the register queue;
(iii)Mr Harvey initiated the physical altercation by pushing the boy and forcing him out of the queue and back into the store (outside the view of the CCTV footage);
(iv)a girl on crutches intervened to separate Mr Harvey from the boy. The boy does not appear to have “jumped” Mr Harvey as he had alleged; and
(v)the boy made contact with Mr Harvey but only after Mr Harvey instigated the incident and then the boy was stopped by Mr Harvey from leaving the store.
Mr Scott gave evidence that after viewing the CCTV footage he reached similar conclusions to Ms Wilton. Mr Scott said that he also formed the view that Mr Harvey was the instigator of the physical altercation because he climbed underneath a guardrail before pulling the backpack off the teenage customer.
Ms Wilton also provided the CCTV footage to Mr Nelson. Mr Nelson gave evidence that he drew similar conclusions to Mr Scott and Ms Wilton. Of particular concern to Mr Nelson were that:
(a)Mr Harvey was dressed in casual clothing at the time, not in clothing which would identify him as a Cheap as Chips employee;
(b)the alleged shoplifter appeared to be a minor;
(c)there did not appear to be any aggression on the part of the alleged shoplifters;
(d)the alleged shoplifters were standing at the queue at the point of sale counter at the time of the incident and had not left the store. Therefore, Mr Nelson was of the view that it could not be reasonably concluded the young person had committed an unlawful act; and
(e)objectively, it appeared that Mr Harvey instigated the physical altercation as he could be seen confronting and pushing the alleged shoplifter.
Ms Wilton then called Mr Nelson and they discussed their observations. Mr Nelson believed Mr Harvey’s actions involved a minor and were escalatory in breach of Palcove policies and the conduct expected of a Store Manager. Mr Nelson said his inclination was that Mr Harvey’s conduct warranted termination. However, Mr Nelson added that while Mr Harvey’s termination was “likely”, a meeting with Mr Harvey would first need to be conducted to provide him with an opportunity to explain his actions[23].
[23] Wilton Affidavit at [76]
Applicant’s work capacity following store incident
In parallel with the investigation about the store altercation, there was ongoing communication between Ms Wilton and Mr Harvey about his injuries and between Mr Harvey and Mr Scott about store related issues.
It will be recalled that despite claiming injuries in the altercation, Mr Harvey expressed a strong desire to return to work. However, Palcove sought confirmation that he was safely able to do so.
On 26 July 2022, Ms Wilton sent Mr Harvey an email asking him to complete Palcove’s Work Capacity Assessment.
The following day, Ms Wilton sent a follow-up email re-iterating that the Work Capacity Assessment was required before Mr Harvey could return to work. She also requested a copy of the police report. At 4.37pm, Mr Harvey responded to this email attaching a Work Capacity Assessment completed by Dr Dale Ford of the Hamilton Medical Group, as well as the report Mr Harvey made to the Victoria Police. Mr Harvey said that although the doctor had diagnosed him with cracked ribs that would take six weeks to heal he believed that he would be better off working than recovering at home.
At 11.29am on 28 July 2022, Ms Wilton informed Mr Harvey would not be able to return to work until he had medical clearance. About an hour later, Mr Harvey responded and expressed his desire to continue working and “to keep the store up to stands”. On the same day, at 4.56pm, Mr Harvey sent an email discussing administrative issues he had with the Hamilton Store and further stated that he would come to the Hamilton Store every now and again to “support the team and complete administrative tasks”.
On 29 July at 10.36pm, Ms Wilton responded and informed Mr Harvey that he “will not be able to attend work at this time and will be on paid leave”.[24] Mr Harvey responded to this email on the same day and stated that he would “obey the business decision and stay away for a while and would check on the over the phone”.[25]
[24] Wilton Affidavit, Exhibit LW-1 at 121
[25] Wilton Affidavit, Exhibit LW-1 at 120
Mr Harvey asserts that he was absent from work on paid personal leave from 27 July 2022 to 2 August 2022. Ms Wilton said that to her knowledge, while Mr Harvey was on paid leave, he continued to attend the Hamilton Store contrary to Mr Scott’s directions. Mr Scott agrees with these statements.
By sending a certificate of capacity, Mr Harvey claimed that he proposed to make a claim for workers’ compensation and therefore, was proposing to exercise his right to benefit from a workplace law, being the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Mr Harvey also alleges that he exercised workplace rights by being absent on paid personal leave between 27 July 2022 to 2 August 2022.
The probation review meeting
Ms Wilton gave evidence that in the ordinary course she and the regional manager would meet up with a new employee during the probationary period. Ms Wilton said this meeting involves an assessment of the employee’s performance and is usually scheduled to occur around 3 to 4 months into the probationary period. Ms Wilton gave evidence that if it were not for the store altercation, Mr Harvey’s probationary meeting would have occurred in or around the middle of August 2022.
Ms Wilton said that the altercation and her investigation findings prompted a discussion with Mr Scott about bringing forward Mr Harvey’s probation meeting. She said that by bringing forward the meeting, they could raise any performance issues, including affording Mr Harvey an opportunity to address their issues about the store altercation. Ms Wilton also said that the meeting would allow her to determine if any disciplinary action, up to and including termination, should be taken.
On 1 August 2022, Ms Wilton sent Mr Harvey an email informing him that she and Mr Scott would meet with him the following day for his probation review. In its terms, the email to Mr Harvey read:
Subject: Cheap as Chips Probation review meeting
Hi Richard,
I hope you are well. During employee probation period. We like to meet with employees around the four-month mark. Mark had planned to meet with you in a couple of week however given the current circumstances and the fact that I will be in Victoria tomorrow we think it is a good opportunity to bring this forward. As such, we will be holding review meeting with you tomorrow at the Hamilton store at 3:30pm.
I have attached the probation review and invite you to complete this prior to the meeting.
Kind regards,
Mr Harvey gave evidence that he took the invitation at face value and at all times understood that the meeting scheduled for 2 August 2022 was for the purpose of discussing his performance as store manager, measured against the expectations for that position. I completely understand why Mr Harvey would have formed that impression and why, when the meeting did take place, he would have felt taken by surprise when confronted with allegations of misconduct.
Also, unbeknownst to Mr Harvey, in the days prior to the 2 August 2022 meeting, Ms Wilton had been carefully reviewing Palcove policies and procedures and had formed the belief that Mr Harvey had breached:
(a)the Code of Conduct;
(b)the Customer Theft Procedure;
(c)the Employee Responsibility policy;
(d)the obligations expected of him pursuant to the “Store Manager-What I do” document by which he was bound.
Ms Wilton’s affidavit annexed a copy of each of these policies, highlighted by her to identify the relevant sections in respect of which she believed Mr Harvey was in default.
There is no evidence that Mr Harvey was put on notice prior to the “probation meeting” that he would face allegations of misconduct, breach of policy or that his employment was in immediate peril.
2 August 2022 meeting
On 2 August 2022 at 3.30pm, Ms Wilton and Mr Scott met with Mr Harvey at the Hamilton Store. Ms Wilton travelled from Adelaide to attend the meeting.
The Palcove witnesses concede that going into the meeting Mr Harvey was at risk of being terminated. Mr Nelson conceded that he knew the meeting was taking place and he was expecting to receive a call from Ms Wilton and/or Mr Scott with a recommendation about Mr Harvey’s future.
Mr Harvey and the company witnesses gave different accounts of the interview. Mr Harvey said the interview went for five minutes. Mr Harvey said there was no discussion about the store altercation and that he was not asked questions about it. He agreed that he was shown some CCTV footage and a number of company policies, but maintained that the incident at the store was not the subject of discussion. He said at the end of the five-minute meeting he was abruptly terminated by Mr Scott and asked to turn over his keys and his lanyard. He denied that there was any break during the meeting or that Mr Nelson was contacted. He maintained this account throughout cross-examination.
I accept his Honours statement of principle. However, applied to the facts of this case, I reject the assertion that Palcove or Mr Scott impliedly authorised Mr Harvey to work beyond his contracted hours. I accept the respondent’s submission that the following factors weigh against a finding of implied authorisation:
(a)objectively there was an alternative to Mr Harvey working overtime. I have accepted the evidence of Ms Shillington, Mr Scott and Mr Nelson that it was possible to operate the Hamilton store within the confines of the salary budget without the need for the Store Manager to work more than 38 hours per week;
(b)there was no expectation from Mr Scott or Palcove that overtime was to be worked on any regular basis. The staff salary budget has been formulated to meet the needs of each particular store. The expectation from Mr Scott was that Mr Harvey would operate his store within the parameters of its salary budget and I am satisfied that it was possible (but probably not easy) to do so;
(c)there was no ongoing understanding between Mr Harvey and Mr Scott that Mr Harvey should work overtime. In fact, at numerous points throughout his employment, Mr Scott confronted Mr Harvey about why he was working additional hours and requested that he not attend the store outside of his rostered hours.[42] Mr Harvey conceded that this was true. Further, Mr Scott offered Mr Harvey coaching and guidance to assist him to roster his employees within the parameters of the salary budget and within the hours available to him;
(d)I do not accept that Mr Harvey could have had an expectation that he would be paid beyond what had been provided for in the staff budget;
(e)the Hamilton Store had a low square-footage and modest sales budget. It was regarded as a C-grade store and I accept the evidence of the company’s witnesses that it should have been possible for a Store Manager to attend to his duties in relation to the store within his rostered hours.
[42] Scott Affidavit at [53]
I well understand that Mr Harvey was a new employee and that a certain amount of extra work might have been required for him to learn the ropes. I also understand that as a new employee Mr Harvey would have been keen to impress Palcove with his dedication and application to the task. However, even if Mr Harvey did work some additional hours I am not satisfied that he worked overtime with express or implied authorisation. Mr Harvey conceded under cross-examination that he knew he had to seek Mr Scott’s approval before working overtime and that Mr Scott did not authorise him to work additional hours.
The Set Off Clause
Finally, the respondent submits that even if Mr Harvey worked overtime, the Set Off Clause in his employment contract specified that the purpose of his annual salary was to compensate Mr Harvey for any additional hours that he worked
Mr Harvey was a salaried, not an hourly employee. The notional hourly rate for his work as store manager was approximately $35.43 per hour (excluding superannuation), some $10 per hour greater than the Enterprise Agreement rate for a store manager.
The respondent contends that the Set Off Clause contains a broad contractual purpose, being that Mr Harvey’s annual salary would compensate him for all other incidents and entitlements of employment. As the purpose of this clause is broad, the respondent submits that this clause can be used to offset any entitlement to overtime pay Mr Harvey was owed under the Enterprise Agreement.
The principles associated with set off in the industrial context were conveniently summarised in the Full Court decision in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 where, at [865] White J said:
For the purposes of the resolution of the present case, the authorities reviewed above may be taken to stand for the following propositions concerning the entitlement of an employer to set off in analogous circumstances:
a. the issue may require the application of the parties’ contract: Poletti v Ecob at 332. If they agree that a sum of money is paid and received for a specific purpose which is over and above or extraneous to an award entitlement, the contract precludes the employer from later seeking to rely on the payment as satisfying an award obligation which is outside the agreed purpose of the payment. If the payment was made for the purpose of satisfying the kind of award obligation sought to be satisfied, it may be brought into account as satisfaction or part satisfaction of that obligation. If it was paid for some other purpose, then the employer cannot bring the payment into account: Discount Lounge Centre at [23]. Stated more generally, an employer cannot later reallocate an amount agreed to be paid to an employee in respect of subject A (for example, ordinary hours of work) to meet a claim in respect of subject B (for example, overtime): Ray v Radano at 478-479 (Sheldon J); Pacific Publications at 419; Discount Lounge Centre at [57]. The focus is on the purpose of the payment. If it arises out of the same purpose as the award obligation, it can be set off: ANZ v FSU at [48]-[52]. I will refer to this as the “Contractual Principle”;
b. the issue may involve application of the common law principles concerning payment by a debtor to a creditor: Poletti v Ecob at 332-333. When there are outstanding award or enterprise agreement entitlements, a payment designated by the employer as being for a purpose other than satisfaction of the award entitlement cannot be regarded as having satisfied the award or enterprise agreement. I will refer to this as the “Designation Principle”;
c. close regard must be had to the character of the payment on which the employer relies for the claimed set off and the purpose (usually, the agreed purpose) for which it was made; and
d. the purpose for which a payment was made will be a question of fact in each case. It may be express or may be implied from the parties’ agreement or from the employer’s conduct: James Turner at [21(3)]. The “designation and appropriation” are matters to be determined by reference to the whole of the evidence: ANZ v FSU at [56].
The respondent submits that there is a close correlation between a payment for “additional hours” as is discussed in Mr Harvey’s contract and a payment for “overtime” as is discussed in the Enterprise Agreement, such that Mr Harvey’s annual salary may operate to discharge the obligation to pay overtime rates under the Enterprise Agreement.
The respondent submits that Mr Harvey’s annual salary was set in an amount to compensate him for some or all of the additional hours that he may have worked. In an aide memoir annexed to the respondent’s final submissions, the respondent calculated that if Mr Harvey was paid strictly in accordance with the Enterprise Agreement for all the hours that he worked in the hours that he was rostered to work as set out in the timesheet records for the period of May 2022 to 2 August 2022, he would have been entitled to be paid $15,570.48. In fact, Mr Harvey was paid a salary of $17,440.11 for that same period, an excess of nearly $2,000.
In all the circumstances, I am satisfied that the Set Off Clause entitles Palcove to apply Mr Harvey’s salary to discharge any entitlements he may have under the Enterprise Agreement. In the absence of any better evidence about the actual hours, dates and times worked by Mr Harvey, I have accepted that the timesheet records are the best available evidence and a proper basis for the calculation of his entitlements.
For the reasons set out in the foregoing paragraphs, I am not persuaded that Palcove has contravened s 50 of the FW Act as alleged. Mr Harvey’s claim for underpayment must be dismissed.
ALLEGED UNLAWFUL ADVERSE ACTION
The Statutory Framework
Section 340(1) of the FW Act precludes “adverse action” being taken by a person against another because, amongst other things, that other person has exercised, or purported to exercise, a workplace right. It provides (relevantly):
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Further, section 341 defines the circumstances in which a person has a workplace right, including that:
(1)A person has a workplace right if the person:
…
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Section 342(1) sets out a table which defines the “circumstances in which a person takes adverse action against another person”. Item 1 in that table provides that adverse action is taken by an employer against an employee if the employer dismisses him or her.
Further, sections 360 and 361 of the FW Act facilitates proof by an applicant of a claim of adverse action in two ways.
First, s 360 provides that, for the purposes of Pt 3-1 of the FW Act, “a person takes action for a particular reason if the reasons for the action include that reason”. Accordingly, an applicant who alleges adverse action will succeed if it is found that a prohibited reason was a substantial and operative reason for the respondent’s conduct, even if there were also other non-prohibited reasons.
Secondly, s 361(1) creates a rebuttable presumption, expressed as follows:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
It would be rare if ever possible for an employee to be able to prove the reason or reasons which actuated an employer to do what it did. The purpose of the rebuttable presumption is to throw onto respondents the onus of proving that which is peculiarly within their knowledge.
In summary, Mr Harvey, as the applicant, must prove each of the workplace rights, the possession or exercise of which he claims was a reason for the employer’s conduct. He must also prove the “adverse action” relied on – which here is not denied by the respondent. The onus otherwise rests with Palcove.
Adverse action
Section 340(1) of the FW Act is only engaged where a person has taken “adverse action” against another. In this case the applicant bears the onus of proving adverse action within the meaning of s 342.
Mr Harvey makes two claims of alleged adverse action, namely:
(a)that he was dismissed by Palcove on 2 August 2022; and
(b)that during the 2 August meeting, Palcove alleged deficiencies in Mr Harvey’s performance that in turn made Mr Harvey’s employment less secure, by exposing him to termination of his employment.
The respondent admits that the dismissal constituted adverse action within the meaning of item 1(a) of the table in section 342(1) of the FW Act.
However, Palcove denies the other alleged instance of adverse action. The respondent submits, and I accept, that the raising of performance or conduct issues with an employee in order that those issues be addressed by an employee is not conduct which amounts to adverse action within the meaning of s 342 of the FW Act[43].
There is, therefore, a single instance of adverse action which is the subject of this proceeding. The determinative question is why did the respondent terminate Mr Harvey’s employment?
Workplace rights
Section 340(1) of the FW Act proscribes the taking of “adverse action” against another because, amongst other things, that person had a workplace right or proposes to exercise a workplace right.
In order to engage the rebuttable presumption in s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 at [55]; Alam v National Australia Bank [2021] FCAFC 178 (Alam) at [14].
An applicant is required to plead in the originating application, statement of claim or in some other document the particular reason or intention for which he or she alleges that the respondent took the adverse action complained of in the proceeding.
The party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the respondent’s reason(s) for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100]; Alam at [14].
Workplace rights alleged by Mr Harvey
In his Amended Statement of Claim, Mr Harvey alleges that he exercised his workplace right to make a complaint or inquiry within the context of s 341(1)(c)(ii) of the FW Act. He alleges to have made a formal complaint on six separate occasions.
As previously mentioned, Mr Harvey claims that he was dismissed for allegedly making or proposing to make the following complaints or inquiries in relation to his employment:
(a)the alleged Shillington contract conversation;
(b)the alleged expired food conversation;
(c)the alleged golf and wine conversation;
(d)the alleged religious conversation;
(e)the alleged write up conversation (shelving incident); and
(f)the conversations between Mr Harvey and Ms Wilton.
Further, Mr Harvey contends that he exercised his workplace right in accordance with s 341(1)(a) by making a claim for workers’ compensation and taking paid leave between 27 July 2022 and 2 August 2022 following the “store altercation”.
Mr Harvey alleges that these various instances of him exercising or proposing to exercise workplace rights, even if not the primary reason for his dismissal, were substantial and operative reasons for his dismissal.
Admitted workplace rights
The respondent does concede to one workplace right being exercised by Mr Harvey, being his action in writing an email to Mr Scott on 27 June 2022 in relation to his employment. The respondent accepts that correspondence constitutes a complaint or inquiry and therefore, a workplace right, within the meaning of s 341(1)(c)(ii) of the FW Act.
The details of this email are found in the background. Based on my assessment of the evidence and the respondent’s concessions, I am satisfied that Mr Harvey exercised a workplace right in this instance.
Contested workplace rights
The respondent submits that, with the exception of the 27 June email, each of the alleged “complaints or inquiries” that Mr Harvey alleges do not constitute a complaint or inquiry that he was “able to make” within the meaning of s 341(1)(c) of the FW Act.
There is a significant body of law which provides guidance in distinguishing a complaint or enquiry which an employee is “able to make” for the purposes of s 341(1)(c) from those which an employee is not. The relevant authorities which provide that guidance were discussed at length in my recent decision in Shum v Southern Migrant and Refugee Centre Inc (No.3) [2025] FedCFamC2G 393 at [350]-[363].
Suffice to say, the current state of the law is that expressed by the Full Court in Alam where the Court said at [65]:
…the complaints and inquiries to which [section 341(1)(c)] refers are not confined to those which can be made to an external authority or to persons with the capacity to seek compliance with a legal obligation, but include complaints or inquiries made to the employer itself in relation to the person’s employment: Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 IR 307 at [141]-[143] (Jessup J); Shea v TRUenergy at [600].
It is not necessary for the complaint or inquiry to have an instrumental source. It is sufficient that the complaint be in relation to employment and that the ability to make it is grounded in an instrumental right, a contractual right or in the general law: Alam v National Australia Bank [2021] FCAFC 178.
However, there are limitations. As Snaden J said in Messenger v Commonwealth of Australia(Represented by the Department of Finance) [2022] FCA 677 at [150]:
…in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire. (emphasis added)
For reasons which will become apparent shortly, it is not strictly necessary for me to formally characterise each of the alleged complaints or inquiries as being ones which Mr Harvey was able to make for the purposes of s 341(1)(c) of the FW Act. Nonetheless, given those complaints and inquiries have been pleaded as such, I will deal with each of them briefly.
The Shillington contract conversation
Mr Harvey alleges that on 20 April 2022, Mr Harvey asked Ms Shillington why his employment contract did not provide for a salary of $80,000, plus superannuation and $10,000 on account of relocation costs as promised by Mr Scott during his employment interview. Ms Shillington wholly denies ever discussing this subject matter.[44] She does testify to Mr Harvey approaching her and informing her that he had not received his contract, but she denies that Mr Harvey raised any issues about the contents of his employment contract.
[44] Shillington Affidavit at [26]
When cross-examined Mr Harvey conceded that he raised this issue with Ms Shillington as a peer and had no expectation that she would do anything about it or take the complaint up on his behalf. Mr Harvey concedes that to the extent he noted that the contract contained a salary less than he was expecting, Ms Shillington simply told him to raise it with HR.
I am not satisfied that Mr Harvey has met the evidentiary burden of proving that he made a complaint or enquiry about his contract as pleaded. If he did raise the issue he claims to have raised with Ms Shillington, I do not consider it was in the nature of a complaint or enquiry as contemplated by s 341(1)(c).
Alleged Expired Food Conversation
Mr Harvey alleges that during his employment, he asked Mr Scott what was to be done with large quantities of expired food that were being kept in the Hamilton Store warehouse. Mr Harvey submits that Mr Scott instructed him to sell it, to which Mr Harvey refused, asserting he did not want to make anyone sick. Mr Scott wholly denies making these statements.[45]
[45] Scott Affidavit at [93]
Not every interaction by which one person communicates to another the existence of some suboptimal state of affairs will qualify as a “complaint”, as that term is properly understood. An expression of frustration about internal management, structural or operational issues is a common incident of life at any workplace. Voicing one’s exasperation or frustration at not being listened to in their role or failing to get sufficient cut-through to get a timely response from a colleague, another department or management is in many respects part and parcel of the ordinary workplace dynamic.
In my view, the exchange between Mr Harvey and Mr Scott regarding the sale of food falls into the category of disagreement between a store manager and his supervisor about operational issues. It was not the assertion of a right regarding Mr Harvey’s employment.
Alleged Golf, Wife and Religious Conversation
Mr Harvey alleges that during a lunchtime meeting with Mr Scott and Ms Shillington, Mr Scott made derogatory and insulting comments about Mr Harvey’s hobby playing golf, his wife and her religion as a practising Muslim. Details of this incident are discussed in background above.
Save for his own testimony, Mr Harvey has not provided any evidence to substantiate this claim. Mr Scott and Ms Shillington wholly deny these conversations ever occurring. Insofar as it may be possible that some conversation occurred between Mr Scott and Mr Harvey, Ms Shillington said she was not present
I am not satisfied that the pleaded allegations had been made out. Mr Harvey did not put any of these alleged conversations or allegations in writing. Mr Harvey did not explore these conversations or the serious allegations in course of cross-examination of the respondent’s witnesses. Ms Wilton claimed that Mr Harvey never reported these conversations to her and the contemporaneous notes of her conversation with Mr Harvey on 30 June 2022 contain no reference to these matters. During cross-examination Mr Harvey could not recall whether or not he made any allegation of racism to Ms Wilton and conceded that his memory was not very sharp.
It is difficult to reconcile the evidentiary contest. Given my overall impression of Mr Harvey’s evidence, I consider that he has a propensity to embellish but I do not see him as one who would fabricate. I have also observed that Mr Harvey is somewhat suspicious about the motives of others and that he is hypersensitive to criticism. If I were to speculate, I suspect that the issues of golf, his wife’s status as a refugee and her Muslim religion may have come up in idle discussion and it is possible that a benign comment made by Mr Scott has been taken out of context. But even if so, I am not persuaded that it was the subject of complaint.
Alleged Write Up Conversation/Shelving Incident
Mr Harvey alleges Mr Scott cancelled a delivery of shelving Mr Harvey had ordered for the store. Mr Harvey submits that Mr Scott told him:
(a)the company would not pay for the shelving;
(b)Mr Scott did not have to provide Mr Harvey any reason for cancelling the delivery; and
(c)that he would “write up” Mr Harvey.
Mr Harvey did email Ms Wilton and Mr Nelson about this incident on 27 June 2023. In this email, he made the following statements:
You wanted to replace the table with gondolas on the store floor. On my days off I spend time and money to go to Horsham personally, worked out with Steven and Jeremy to get it transferred to our store. You out rightly refused the transfer without having the courtesy to inform me. Even though one day before I informed you that I am going to Horsham especially to see how many gondolas we need.
Insofar as there was a disagreement between Mr Harvey and Mr Scott, it was similar to the type of disagreement they had about the merchandising of so-called expired food. The disagreement about an operational matter resulted in an expression of disapproval, exasperation and frustration by Mr Harvey, but it was not a complaint or enquiry about any of the rights pertaining to his employment. In any event, the email does not mention that Mr Scott threatened to write up Mr Harvey and I am not satisfied on the evidence that Mr Scott threatened to do so.
Alleged Conversation between Ms Wilton and Mr Harvey
Mr Harvey alleges that he complained to Ms Wilton about Mr Scott’s comments regarding his hobby playing golf, his wife and her religion. He further complained about Mr Scott’s conduct and comments during the shelving/fixtures incident. Once again, Mr Harvey does not provide any substantive evidence to support these allegations and does not even specify the date when these complaints were made or the means by which these complaints were made.
As discussed in the background, Ms Wilton conceded she received a phone call from Mr Harvey on 30 June 2022 where he spoke about Mr Scott. However, Ms Wilton denies that Mr Harvey complained about comments Mr Scott made about Mr Harvey’s hobbies, wife or religion.
I accept Ms Wilton’s evidence. She made contemporaneous notes of her discussion with Mr Harvey. The notes do not record that Mr Harvey complained about Mr Scott’s alleged racism. Mr Harvey conceded that the court should defer to Ms Wilton’s notes where there is an inconsistency between his evidence and her recollection. I agree that I should do so.
Workers’ Compensation
Mr Harvey alleges that on 27 July 2022, he provided Palcove with a certificate of capacity. Ms Wilton concedes that Mr Harvey sent her a Work Capacity Assessment completed by Dr Dale Ford at Hamilton Group.
The respondent does not dispute the characterisation of a benefit of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) or the making of a workers’ compensation application as a “workplace right” within the meaning of section 341(1) of the FW Act. Palcove also does not dispute that Mr Harvey had those workplace rights.
However, the respondent submits that no workers’ compensation application was actually made. Mr Harvey has not provided any evidence to dispute this allegation.
Paid Personal Leave
Palcove does not dispute the characterisation of the personal leave provisions in the FW Act as a “workplace right” within the meaning of section 341(1)(a) of the FW Act. Palcove also does not dispute that Mr Harvey was entitled to access personal leave benefits during his employment pursuant to section 97 of the FW Act. However, Palcove submits that Mr Harvey was not on personal leave between 27 July 2022 and 2 August 2022. Rather, they submit that during his period Mr Harvey was on paid leave. Ms Wilton reiterated this fact in an email sent to Mr Harvey on 29 July 2022 at 10.36pm.
REASONS FOR DISMISSAL
I now turn to the central question in this case, as it is in all adverse action case cases, namely “why was the adverse action taken?”
The competing hypotheses are clear. On the one hand, Mr Harvey alleges that he was dismissed on 2 August 2022 because he exercised or proposed to exercise one or more of the workplace rights he possessed (prohibited reasons) or for reasons which included those prohibited reasons. On the other hand, Palcove asserts that the adverse action taken by Palcove was the result of a decision by Mr Nelson, who agreed with the recommendations of Ms Wilton and Mr Scott to dismiss Mr Harvey because of his actions during the store altercation.[46] The respondent wholly denies that Mr Harvey’s dismissal was associated with or actuated by the exercise of any of the workplace rights he alleges.
[46] Respondent’s Outline of Submissions filed on 3 May 2024 at [108]
Mr Harvey enjoys the benefit of the rebuttable presumption which accepts the correctness of his allegation that he was dismissed because of his exercise of workplace rights. In order to succeed in his claim, Mr Harvey does not need to prove the truth of his claim that the respondent acted for prohibited reasons. By the same token, undermining Mr Harvey’s narrative or damaging his credit may not be sufficient for the respondent’s defence to succeed.
It falls to the Court to determine “the actual reason of the decision-maker, in his or her own mind”. The determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] per French CJ and Crennan J; at [101] per Gummow and Hayne JJ, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] per French CJ and Kiefel J, Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27], ABCC v Hall at [19].
The enquiry is not whether the decision-maker’s reasons were fairly or properly formed or whether their reasons and conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]. A claim under Part 3-1 of the FW Act “…is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome”: Ermel v DuluxGroup (Australasia) Pty Ltd (No.2) [2015] FCA 17 at [48].
To discharge the statutory burden created by s 361 of the FW Act, Palcove must prove to the requisite civil standard that Mr Harvey’s exercise of a workplace right or workplace rights did not factor in any substantial or operative way as a reason for its decision to dismiss him from his employment. Rebutting the statutory presumption requires the respondent to lead, and for the court to accept on the balance of probabilities, evidence as to why the adverse action was taken. The respondent will only succeed if I am persuaded that the proscribed reasons or circumstances that are alleged did not factor in any substantial or operative way as a reason for the conduct that the applicant seeks to impugn: General Motors-Holdens Pty Ltd v Bowling (1976) 12 ALR 605 at 612, 619.
I am so persuaded.
Having considered the whole of the evidence, including my own viewing of the CCTV footage, I accept that the store altercation was the principal and actuating reason for the decision to dismiss Mr Harvey. I consider Mr Harvey’s performance in the role of Store Manager during the probationary period was a secondary reason which may have tipped the scales against him. However, I am satisfied that none of the workplace rights alleged by Mr Harvey was a substantial and operative reason for the decision.
Palcove’s Customer Theft Procedure provides as follows:
The biggest deterrent to potential shoplifters is good service. Attentive, alert checkout operators and floor staff who are acknowledge and are aware of all customers in their store, make it difficult for shoplifters to remain inconspicuous and allows them little opportunity to steal. Cheap as Chips policy on customer theft is that prevention rather than apprehension is best for all involved. If you make it difficult for thieves by offering them service they will go elsewhere. [emphasis in original]
…
Legally, customers can refuse a bag inspection. In this case management can ask the customer to leave the store or refuse any goods to be sold. You do not have the legal right to forcibly search or detain a customer if they refuse a bag check.
…
Juveniles (minors) cannot be treated in the same manner as adults, although they must be accorded the same respect and given the same rights as an adult. A juvenile cannot be questioned without a parent or legal guardian present, and no property (such as backpacks) can be searched[47]. [emphasis added]
[47] Wilton Affidavit at [10]; Exhibit LW-1 at 6-9
The evidence in these proceedings corroborated the findings of Palcove management which led to the dismissal of Mr Harvey’s employment, namely:
(a)Mr Harvey was not rostered to work on 23 July 2022 and gave various explanations as to why he was at the Hamilton Store on that day;
(b)Mr Harvey was not wearing company uniform and was not clearly identifiable as the Store Manager;
(c)minors were involved in the altercation which occurred near the cash register;
(d)Mr Harvey appears to have initiated physical contact with one of the minors by forcing him out of the queue and further into the store;
(e)objectively, Mr Harvey’s claim of having been “attacked” is not substantiated;
(f)Mr Harvey’s initial account of the incident was inconsistent with CCTV footage and other witness accounts, and his explanation for the inconsistencies was not adequate;
(g)Mr Harvey’s conduct revealed by the CCTV footage was inconsistent with the Customer Theft Procedure;
(h)Mr Harvey’s explanation that he had been verbally assaulted in the store cannot be established, but even if true did not warrant his departure from store policy, particularly when minors are involved; and
(i)Mr Harvey’s comment to Ms Wilton and again to Ms Wilton and Mr Scott that he was an ex-boxer and able to look after himself revealed a lack of insight into his obligations as Store Manager.
The reasons advanced for Mr Harvey’s dismissal are objectively plausible. The store altercation undoubtedly occurred and while there may be differences of opinion about aspects of what occurred, the observations about Mr Harvey’s conduct by Ms Wilton, Mr Scott and Mr Nelson are consistent and rational. I accept the subjective belief of Mr Nelson that Mr Harvey’s conduct in the store altercation was contrary to Palcove policies and procedures and warranted dismissal.
It is not for this court to determine whether the decision to dismiss was fair, just or reasonable. That is a matter about which views may differ. A Tribunal assessing the fairness of the dismissal might, for example, take the view that Mr Harvey was not afforded procedural fairness because he believed that the meeting on 2 August 2022 was about his performance over the whole of the probation period. Views might also differ about whether dismissal was proportionate to the misconduct, in light of Mr Harvey’s claim that he was provoked by racist comments.
The critical question for this court is whether the respondent, through its human actors, was actuated to effect the dismissal for reasons or reasons which included prohibited reasons.
In his final written submissions, Counsel for the respondent extracted from the transcript an exchange between the bench and Mr Nelson which explored Mr Nelson’s reasons for accepting the recommendation from Ms Wilton and Mr Scott to terminate Mr Harvey’s employment. Mr Nelson’s responses to my questions revealed his state of mind:
HIS HONOUR: Are you able to tell me about that phone call [during the adjourned Performance Meeting] and what you were told?
MR NELSON: I was told that – after interviewing Mr Harvey, that his version of events did not reflect what we had seen in the footage and was somewhat unremorseful for his actions and that the footage clearly showed up to that point that he was the aggressor, and that was the – the gist of it. Yes.
HIS HONOUR: All right. And the case put forward on behalf of the company is that you received a recommendation from Laura and Mark?
MR NELSON: Correct.
HIS HONOUR: And what was that recommendation?
MR NELSON: That Mr Harvey’s employment would be terminated.
HIS HONOUR: And you agreed with that?
MR NELSON: Yes, I did.
HIS HONOUR: And can you tell me why you believed that Mr Harvey’s employment should be terminated?
MR NELSON: Yes. We have a code of conduct and – and internal company policy procedures, and there was a number of breaches across those. You know, one under the code of conduct is you’re not to assault another person, and the – the customer theft procedure was also not followed in the allegations.
HIS HONOUR: Mr Harvey has said in these proceedings that he conveyed in the course of the meeting that there was a broader – the meeting that you weren’t at, but there was a broader context to this, where he had been abused by the youths for a period of time and they had used racist language toward him and that the – so that what occurred was in a context. Did you know about his response – what he had said?
MR NELSON: Yes. They did relay that to me, that – through the investigation as well, that that was some of the claims, but outside the footage, there was no evidence to support that.
HIS HONOUR: All right. Yes. Thank you.
It was clearly open, on the available evidence, for Ms Wilton and Mr Scott to have concluded that Mr Harvey had escalated the incident. Having viewed the CCTV footage for myself I consider it was open to Mr Nelson to accept Ms Wilton’s recommendation that Mr Harvey be dismissed. Crucially, Mr Nelson also submitted that he was unaware of any complaints Mr Harvey made about or to Mr Scott or any other employee, save for one incident where Mr Harvey complained to Ms Wilton. However, Mr Nelson maintained that he was unaware of the contents of that complaint and firmly asserted that this did not factor into his decision to terminate Mr Harvey at all.[48] I accept that evidence.
[48] Nelson Affidavit at [55]
The evidence of the company witnesses was coherent and consistent. The reasons advanced for the dismissal were inherently plausible and were not fabricated. I do not accept that the store altercation was used as a pretext to dismiss Mr Harvey for other reasons. The CCTV footage is the best contemporaneous evidence of what occurred, it was reasonable for management to rely on it and the conclusions reached by management based on that evidence were reasonably open and rationally relied upon for decision-making.
I accept that the reasons for dismissal did not include the prohibited reasons alleged by Mr Harvey. I am satisfied that the respondent has discharged the statutory presumption under s 361 of the FW Act. Mr Harvey’s claim for relief for a contravention of s 340 of the Act must be dismissed.
DISPOSITION
For the reasons set out in this judgment, I have found that each of the substantive claims advanced by Mr Harvey in this proceeding should be dismissed.
I anticipate that Mr Harvey will be disappointed by my findings. The underlying facts of this case are unfortunate. I believe that Mr Harvey genuinely pinned his hopes on a new career with Cheap as Chips and was prepared to risk relocation to a new town and a new home as part of that venture. I accept that he also incurred costs in renting a property and purchasing new furniture and then, after his dismissal, having to dismantle what he hoped would be a long-term arrangement. I also anticipate Mr Harvey will harbour some ill feeling about the way he was treated and a sense that his commitment and dedication as store manager were not properly recognised.
Be that as it may, the task of the court is to determine whether Mr Harvey has made out his various causes of action to the requisite level of proof. He has not persuaded me that Palcove engaged in misleading or deceptive conduct in relation to the establishment of his employment, that he was underpaid during the period of his employment or that he was dismissed for a prohibited reason.
The whole of Mr Harvey’s application will be dismissed.
This is a proceeding to which s 570 of the FW Act applies. Accordingly the circumstances in which the court may make an order for the payment of costs will be limited to those prescribed in the legislation. Even if the circumstances in s 570 are made out, the power to award costs remains in the discretion of the court.
Any application for costs must be made within 14 days of today’s date and should be accompanied by a written submission, not exceeding 5 pages, as to why costs should be awarded to the party seeking them. In the event such an application is made, the court will determine whether further directions are necessary.
I certify that the preceding three hundred and fifty-eight (358) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 13 June 2025
- AGLC
- Harvey v Palcove Pty Ltd [2025] FedCFamC2G 915
- Case
- [2025] FedCFamC2G 915
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining if Palcove made misleading or deceptive representations regarding Mr Harvey's employment terms. Mr Harvey alleged that he was promised a certain salary and benefits, which were not honoured. The court examined the recruitment process and the communications between Mr Harvey and Palcove's recruitment agency, Frontline Retail Recruitment. Additionally, the court had to decide whether the written terms of employment superseded any alleged oral representations.
The court found that Palcove's recruitment agency provided a position description and salary band, which were relied upon when advertising positions. However, the court needed to establish whether there were additional oral representations that were not honoured. The court also had to assess whether the written contract of employment superseded these alleged oral representations. The court considered the evidence provided by both parties and concluded that the written contract terms were clear and binding.
Further, the court examined the claim under the Fair Work Act concerning overtime pay. Mr Harvey alleged that he worked over 60 hours per week but was not compensated accordingly. The court had to determine whether Mr Harvey could establish the hours he actually worked and whether his salary compensated for these additional hours. The court found that while Mr Harvey claimed to have worked excessive hours, there was insufficient evidence to substantiate these claims. The court also examined whether Palcove authorised the working of additional hours and the operation of the set-off clause in the contract of employment.
Finally, the court addressed the issue of adverse action under the Fair Work Act. Mr Harvey alleged that he was dismissed for exercising his workplace rights. The court had to determine whether Mr Harvey exercised his workplace rights and whether his dismissal was related to these exercises. The court conducted an inquiry into the subjective reasons of the decision-maker and concluded that Palcove had not discharged the statutory presumption under section 361 of the Fair Work Act. The court found that Mr Harvey's dismissal was not related to the exercise of his workplace rights.
In conclusion, the court found in favour of Palcove on all counts. The court held that Palcove did not make misleading or deceptive representations, that there was no contravention of the Fair Work Act concerning overtime pay, and that Mr Harvey's dismissal was not related to the exercise of his workplace rights. The court dismissed Mr Harvey's claims and ordered him to pay Palcove's costs.
Orders
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Background
Background to the litigation
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Evidence Before The Court
Decision
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