DECISION

Fair Work Act 2009
s.604—Appeal of decision

Rodney Harvey
v
Valentine Hydrotherapy Pools Inc
(C2021/3716)

VICE PRESIDENT CATANZARITI
COMMISSIONER MCKINNON
COMMISSIONER P RYAN

SYDNEY, 12 AUGUST 2021

Appeal against decision [2021] FWC 3373 of Deputy President Saunders at Newcastle on 10 June 2021 in matter number U2021/2065 - application for an unfair dismissal remedy – compensation amount – permission to appeal refused.

Introduction

[1] By notice of appeal dated 30 June 2021, Rodney Harvey seeks permission to appeal and appeals a decision and order made on 10 June 2021 by Deputy President Saunders. 1 The Deputy President found that Mr Harvey had been unfairly dismissed. The Deputy President ordered Valentine Hydrotherapy Pools Inc. (VHP) to pay Mr Harvey an amount of compensation under section 392(1) of the Fair Work Act 2009 (Cth) (Act) as an unfair dismissal remedy.2 The application for permission to appeal was heard by telephone on 3 August 2021.

The decision

[2] The relevant findings of the Deputy President are at paragraphs [65] to [70] of the decision:

“[65] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.

[66] I am satisfied on the balance of probabilities that if Mr Harvey had not been dismissed on 19 February 2021, he would have remained employed by VHP for a further four weeks. I make this finding notwithstanding that Mr Harvey contends that he would have remained in employment with VHP for as long as the pools stayed financially viable. The evidence points to a different conclusion. In particular, it is plain from his evidence that Mr Harvey not only had ongoing disputes with a number of the new members of the management committee from September 2020 onwards, he also had, and continues to have, a very negative opinion towards the part-time pool attendant employed by VHP, Mr Honess. At the time of Mr Harvey’s dismissal, Mr Honess remained employed by VHP. It appears as though Mr Honess has since ceased employment with VHP, although I do not know when that occurred or why it occurred. In any event, the clear picture one gets from assessing the evidence as a whole is that the relationship between Mr Harvey and VHP was deteriorating from 20 September 2020 onwards. Mr Harvey was angry and frustrated at the way he was being spoken to, payment for the hours he was working, the lack of recognition for his efforts, and what he perceived to be issues of non-compliance with the Award. VHP was concerned about what it perceived to be intimidating behaviour on Mr Harvey’s part and time spent by him on his mobile phone while at work. These tensions resulted in Mr Harvey stating, on two occasions within three days, that he intended to hand in his notice of resignation.…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Rodney Harvey v Valentine Hydrotherapy Pools Inc

Details

AGLC: Rodney Harvey v Valentine Hydrotherapy Pools Inc [2021] FWCFB 4990
Case: [2021] FWCFB 4990
Decision Date: 12 AUGUST 2021

CaseChat Overview and Summary

Rodney Harvey appealed against a decision of the Fair Work Commission, specifically Deputy President Saunders, which was delivered in Newcastle on 10 June 2021. The case number was U2021/2065, and it pertained to an application for unfair dismissal remedy. The appeal was centred on the compensation amount awarded to Mr Harvey and the refusal of permission to appeal. Valentine Hydrotherapy Pools Inc was the respondent in this case.

The primary legal issue before the court was whether the Fair Work Commission had erred in its calculation of the compensation amount for Mr Harvey's unfair dismissal. Additionally, the court had to determine if the Commission had correctly refused Mr Harvey's application for leave to appeal the decision. The appeal hinged on the interpretation of the relevant sections of the Fair Work Act 2009 and the application of precedent in similar cases.

The court found that the Fair Work Commission had properly exercised its discretion in determining the compensation amount, taking into account all relevant factors as required by the legislation. The court upheld the Commission's decision, noting that the calculation was consistent with the principles established in prior case law. Furthermore, the court determined that the refusal of permission to appeal was also appropriate, as Mr Harvey had not demonstrated that the appeal had a reasonable chance of success. The court dismissed the appeal, affirming the original decision of the Fair Work Commission.

As a result of the court's decision, the original compensation amount awarded to Mr Harvey by the Fair Work Commission was upheld, and the appeal was dismissed. The court's ruling confirmed the Commission's authority in such matters and reinforced the principles governing unfair dismissal remedies in Australia.

Orders