The employer argued credibility, but the tribunal wasn't convinced
A South Australian truck driver was sacked for serious misconduct and still walked away with workers' compensation. Here is what led to that decision.
Peter Russell drove concrete agitator trucks for Premix Pty Ltd. In mid-February 2022, he felt a painful popping sensation in his lower left back while shifting a heavy concrete pump hose on a job site. On 31 March 2022, he stepped backwards off his truck onto uneven ground, jarring his back again and spraining his left ankle.
He told no one at Premix. Fearing he would lose his job, Russell paid for chiropractic treatment out of pocket, scaled back his heavier duties, and kept driving. He did, however, report both incidents to his treating practitioners while still working, consulting chiropractor Dr James Rennie from about a week after the February incident, and reporting to his GP Dr Harikla Tsokkos in mid-March 2022. It was only on 6 April 2022, the day he was dismissed, that he first raised the injuries with his employer.
The termination had nothing to do with the injuries. CCTV from inside his truck captured Russell using his mobile phone while driving on multiple occasions, breaching road rules and his employment contract. He had already admitted it to a company owner, Frank Femia, the day before the formal disciplinary meeting. At that meeting on 6 April, he admitted it again, acknowledged his error of judgement, apologised, and said it would not happen again. He was then dismissed.
Within weeks, Russell secured a similar role at Sintom Pty Ltd, passing a practical driving test and medical examination. He took oxycontin before the medical to mask his pain, and later admitted he lied on the health questionnaire by denying any loss of full back function. He lasted about three months before resigning on 22 August 2022. He told Sintom it was to care for his seriously ill father, which was true, but his worsening back was a factor he kept to himself. His father died on 24 December 2022.
He then lodged a workers' compensation claim for income support. The compensating authority rejected it. Premix opposed it.
At the South Australian Employment Tribunal, the respondents attacked Russell's credibility. They raised his 2017 guilty plea to charges of unlawfully importing steroids, for which he served eight months in jail before successfully appealing for a lesser sentence, noted he had lied on medical questionnaires for both Premix and Sintom to conceal a 2015 back injury for which he had received workers' compensation, and produced surveillance footage of him exercising at a gym, arguing it showed capacity well beyond what he reported.
Deputy President Lieschke, who delivered the decision on 2 March 2026, was not convinced. Before the footage was shown to Russell, he had already described his gym routine in precise detail, the exercises, the machines, the weights. Those descriptions, the Tribunal found, were "remarkably accurate and precise when compared with what I subsequently saw." Every exercise shown had been approved by his treating physiotherapist as part of a structured rehabilitation programme.
The Tribunal accepted the dismissal for phone use was justified. But that did not end his compensation entitlements. The entitlement period commenced on 6 April 2022, the day Russell ceased work at Premix, but by obtaining and performing similar work at Sintom, he had restored his standing to claim weekly payments from the time he left that second job. In April 2023, he wrote to Premix acknowledging his misconduct and offering to return to suitable duties. Premix never replied. Deputy President Lieschke found there was "no evidence it would not have been possible for the applicant to return to Premix, subject to suitable duties being available" and treated the unanswered letter as an alternative basis on which mutuality had in any event been restored.
Russell was awarded weekly compensation from 24 August 2022 and reimbursement of medical expenses.
There are hard lessons here for those managing people in Australian workplaces. Dismissing an injured worker for misconduct does not close the workers' compensation chapter, as the two run on separate tracks. Surveillance of a claimant exercising is not the credibility weapon it might seem, especially when the exercises are medically supervised and the claimant has accurately described them in advance. Ignoring a former employee's written offer to return to suitable duties can provide an independent basis for restoring that worker's entitlements. And when workers feel they cannot report injuries without risking their jobs, costly disputes years later are often the result.
