Harvey v Palcove Pty Ltd

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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respondent made misleading or deceptive representations in relation to terms of engagement – whether written terms superseded alleged oral representations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

Watson v Foxman (1995) 49…

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Details
Case
[2025] FedCFamC2G 915
Decision Date

CaseChat Overview and Summary

In the case of Harvey v Palcove Pty Ltd, the applicant, Mr Harvey, brought claims against the respondent, Palcove, in relation to his employment as a Store Manager at a Cheap as Chips store in Hamilton, Victoria. The central issues in the case revolve around whether Palcove made misleading or deceptive representations in relation to the terms of Mr Harvey's employment, whether there was a contravention of the Fair Work Act concerning overtime pay, and whether Mr Harvey was dismissed due to the exercise of his workplace rights.

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

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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