Court calls allegations ‘scandalous’
A casual mechanic who was dismissed during the COVID-19 pandemic lost his appeal to get his job back after failing to follow the mandatory steps required under workers' compensation law for injured workers seeking reinstatement.
The worker claimed he was dismissed because of a foot injury sustained when he was hit by a car, but the employer provided uncontradicted evidence that the dismissal was due to bushfires and COVID-19 devastating the tourism business.
The Court found that the worker never applied to his employer for reinstatement or provided a medical certificate proving his fitness for work, as required by law, meaning he couldn't ask the Commission for a reinstatement order.
The worker's own submissions admitted the employer's business "was not good" at the time and didn't dispute the economic explanation for his dismissal.
Worker's injury and return to work
The worker commenced employment as a casual mechanic with the employer in January 2019.
The employer operates a motor vehicle hire company. In late August 2019, the worker sustained injuries to his foot after being hit by a car while walking. The worker contends he was walking home from his workplace; however, that contention is disputed by the employer.
In early September 2019, the worker returned to work. In early March 2020, the worker was terminated. In April 2021, the worker lodged an application for workers' compensation, but the application was lodged out of time.
Various incidents that impacted employer
The Commission had regard to the employer's reasons for dismissal: the business was heavily impacted by bushfires, which affected the state during September to December 2019, losing considerable business as people were unwilling to travel, which affected cash flow and reduced the need for mechanics.
The cashflow difficulties were compounded by the onset of COVID-19 in early 2020, which drastically affected the business and work available for staff, including the worker.
The employer's director provided uncontradicted evidence, including extracts from the booking system and profit and loss statements, showing a substantial decline in revenue and profitability.
The director deposed that termination was due to economic circumstances and not because of the worker's injury, and that the worker never applied to be reinstated to his former position nor produced a medical certificate certifying fitness for employment.
Employer's financial health
The worker's submissions and affidavit evidence did not contradict the employer's evidence regarding the decline in business or that dismissal occurred because of economic circumstances.
In the worker's submissions, he stated that the employer said dismissal was because the company's business was bad.
The worker admitted the employer's business was not doing well at the time of dismissal, submitting that the business was not good and work was very light, which was the reason he could return to work after five days of the accident.
In closing submissions, he stated that the employer's business was not good at that time, they didn't have much work, so he felt embarrassed.
Dismissal due to economic circumstances not injury
The Commission found there was no evidence that the employer dismissed the worker because he was not fit for employment due to the injury.
The employer's explanation that dismissal was due to a downturn in business was plausible, given the circumstances and financial evidence of a decline in bookings and income.
The worker did not dispute this explanation; rather, they appeared to support the contention that the business was not busy at the time of dismissal.
The Commission was satisfied that the worker was dismissed because of business requirements and not because he was unfit for employment because of the injury.
The Commission found that, on the basis that no application was made to the employer for reinstatement and a medical certificate was not provided to the employer, the employer was not required to reinstate the worker.
Consequently, the worker had not complied with the requirements, and the power to order reinstatement was not enlivened.
Even if requirements had been met, the worker's medical evidence did not support a determination that he was fit for employment.
The report by the worker's orthopaedic surgeon stated his injury was preventing him from going back to any meaningful work at the moment.
Worker appeals, alleges Commission made multiple errors
The worker appealed the decision, pursuing eight grounds of appeal, contending the decision was vitiated by errors of law.
The Court found the Commission determined it was unnecessary to determine if the worker was an injured worker because she accepted dismissal was not solely or mainly because the worker was not fit for employment in a position because of the injury.
Even if the Commission had found the worker was an injured worker, the accepted sole or main cause of dismissal, being the employer's economic circumstances, remains undisturbed.
The Court found the worker's argument that the Commission failed to understand his position appeared to be an attempt to reframe for the purpose of the appeal his evidence and submissions before the Commission.
The difficulty was that it was contradictory to the clear and cogent evidence and submissions made by the worker at the hearing. The employer provided uncontradicted evidence that it was the economic circumstances that were the sole or main reason for dismissal.
Worker never applied to employer or provided medical certificate
The Court found the worker was required to provide a medical certificate to the employer certifying fitness for employment, and this requirement was in mandatory terms.
It was not controversial that the worker neither sought reinstatement with the employer nor provided a medical certificate as required. It followed that there was no failure by the employer to immediately reinstate the worker.
Consequently, no application for reinstatement could be made to the Commission.
The Commission's powers were limited, and the Commission could only make a reinstatement order.
The Commission did not have the power to order an extension of time for complying with the mandatory steps. The worker had not established an error in the Commission's decision.
The matters argued under each ground of appeal had not succeeded in disturbing the finding that dismissal was solely or mainly because of the employer's economic circumstances.
The appeal was dismissed, and the decision of the Commission was confirmed.
