Employer argues 'fraudulent misconduct'
The Fair Work Commission (FWC) recently dealt with the unfair dismissal claim of a worker who said she was terminated after “falsely claiming” that an employer’s client damaged her car.
The worker, Nichola Harrop, filed an application with the FWC alleging that she suffered unfair dismissal from her employer, Workpower Incorporated.
Harrop held the position of a disability support worker with the employer. On April 20, 2023, the worker was tasked with supporting Nic Lori, a client of the employer.
Damage to the worker’s property
The events following their arrival at a car park on Riverside Drive, where the worker intended to take Lori bike riding, are a point of dispute.
The worker alleged that Lori, in a state of agitation, caused damage to her car by head-butting the tailgate. The employer disputed this, and both parties agreed that the worker later drove Lori to the employer's office in Cannington, reporting the incidents.
The worker's manager took Lori for a drive, the worker completed incident reports. Subsequently, the employer instructed the worker to file a police report and an insurance claim, both of which were duly completed.
The employer's investigation into the alleged damage remained inconclusive, leading to the worker being stood down with pay on June 30, 2023. Later, after a series of discussions, the employer decided to terminate her employment.
Employer questioned worker's credibility
The employer said the dismissal was justified due to the worker's false claim about the vehicle damage. The employer's argument relied on a comprehensive investigation and expert advice, emphasising the lack of injuries to Lori despite the reported damage.
The employer also questioned the credibility of the worker's account, highlighting inconsistencies in the timeline and factual details. Lastly, the employer argued that the repeated false claims were aggravated by the vulnerability of the client, who is non-verbal.
The worker said there was no valid reason for dismissal related to capacity or conduct, adding that she did not fabricate details and presented no direct evidence refuting her claim.
Was there a valid dismissal?
In its decision, the FWC investigated the evidence of both parties, as well as the submissions of expert witnesses. It found that "it would require a sledgehammer to inflict the level of damage observed" on the worker's car.
The FWC said that there would be "a significant level of force required to inflict the level damage to the [worker's] vehicle, and such force could not have been applied by a human head, particularly one that subsequently showed no sign of injury."
After finding that the damage was not caused by the client, the FWC said that it "was not reasonable for her to continue to insist that it was in the face of the insurance assessment and the opinion of [experts]."
"In so insisting, the [worker] has gone beyond what a reasonable person would regard as being an appropriate level of advocacy for her claim."
"In persisting with her position as she did, the [worker] has clearly created an impression in the mind of the [employer] that she was acting fraudulently," it said.
"This was a reasonable position for the [employer] to take," it added. Thus, the FWC said the worker "has acted in such a way as to be consistent with persisting with an attempt to convince her employer of something that was not correct," and consequently said there was a valid reason for her termination. It then dismissed the worker's application against the employer.
