Employee dismissed when it was believed he’d file a claim
The applicant was a casual truck driver with Hinterland Motors Pty Ltd. He was employed through a disability employment agency, on account of a previous severe injury, in which he sustained 14 broken bones. After finishing a normal workday, the company service manager advised the applicant that, due to the COVID-19-inflicted downturn in work, he would be stood down until further notice. Following this meeting, the applicant went to clean his truck, where he slipped and hit his tailbone on the truck door.
On his way home, the applicant bumped into a colleague. According to the applicant, he told his colleague that he had no work until further notice and made a “jovial comment” that it would be a good time to file a WorkCover claim, given his recent slip. His colleague submitted that the applicant asked him to “witness” this slip so that the applicant could file this claim. The colleague reported the incident to his supervisor and filed a statutory declaration to this effect.
Soon after, the applicant was informed that the company was collating a Fraudulent Claim file against him. The company stated it had been brought to its attention that the applicant was seeking to make a WorkCover claim, following an “alleged incident” that occurred after he was told his casual hours were being put on hold.
Following a hasty investigation, the respondent summarily terminated the applicant’s employment, submitting that his dismissal was based partly on his colleague’s statutory declaration. The applicant raised a conflict of interest, that the statutory declaration was signed by a Justice of the Peace who was also the company’s payroll officer.
The Commission found that the reason for the applicant’s dismissal – that he intended to file a fraudulent WorkCover claim – was invalid. “To dismiss someone for something of which there is no certainty, and which may never eventuate, is clearly unconscionable,” The Commission said.
“Further, to say that the trust with the employee has been irrevocably broken through an action that did not occur and is disputed whether the intention was even going to be acted upon further stretches the boundary of fairness,” it reiterated. Ultimately, the Commission found the applicant had been unfairly dismissed. Compensation of $18,000 plus superannuation less taxation was ordered to the applicant.
Key Takeaways for HR:
- Anticipation of fraudulent behaviour is not sufficient to dismiss an employee under the Fair Work Act 2009 s 385
