Worker claimed he was assaulted; employer cites Code of Conduct
The Fair Work Commission (FWC) recently dealt with an employer’s decision to terminate a worker’s contract over his alleged rude and inappropriate behaviour during a company-scheduled medical examination.
On the other hand, the worker claimed unfair dismissal and said that the doctor assaulted him at the appointment.
DPW is a stevedoring company with operations in Port Botany, New South Wales, and the worker was a stevedore at its Port Botany terminal from November 2009 to the date he was summarily dismissed on 23 August 2022.
‘Very serious’ injury
On 29 June 2021, he suffered a “very serious” injury at home. A laceration to his left forearm reportedly left him with what he described as “residual thumb numbness, rendering [him] unable to operate a forklift or a rubber-tired gantry crane safely.”
As his injury was not work-related, it did not fall under workers’ compensation rights and obligations.
He asked to return to work on light duties but was informed by DPW that he was “ineligible” because the injury was not work-related.
According to records, although he was not entitled to workers’ compensation benefits following the non-work injury, a clause in his enterprise agreement with the company had certain income protection provisions where an employee could not attend work because of personal injury or illness.
Following his injury and a waiting period, he gave medical certificates and accessed the income protection payments under the enterprise agreement.
He remained “off work” until he was summarily dismissed on 23 August 2022 for serious misconduct concerning his conduct at an independent medical examination (IME) and his behaviour during the investigation on the matter.
What happened at medical examination?
The company’s HR instructed the worker to attend an IME where their company-approved doctor would examine him. The appointment did not go according to plan, with allegations of inappropriate behaviour.
The worker wrote to the employer and said:
“Hi! I just went to see your doctor. Visit was cancelled as your doctor (DP World) putting his hands on me to pull me towards a weight scale. I told him to get his hands off me and stop pulling me. At anytime I go to a doctor is to get examined, not to be grabbed and pulled along. I told the Doctor that and there is a difference, he then cancelled the appointment. I’m happy to go to another Dr to do my examination for DP World.”
Later, he reported the incident to a police station, accusing the doctor of assault.
During the investigation, the doctor made his statement and said:
“At the commencement of the appointment, I explained to him I would need to record his height and weight. While standing beside the worker, I asked him to stand on the scales at the same time touching his right arm with my left hand near the elbow. This is my usual practice to support patients as they stand on the scales to reduce the risk of falling,” the doctor said.
“He reacted immediately to my touch with sudden movement away from me saying he did not want to be touched and that touching him without permission was assault. Unfortunately, he continued to escalate; I felt threatened; the appointment terminated approximately 3 minutes after commencing. I note that he subsequently made a complaint to police who sought information from me,” the doctor added.
Employer communications
The employer wrote to the worker and said:
“You are employed by DP World and as part of your contract of employment, you are required to:
- act in DP World’s best interests and use your best efforts to promote the interest of DP World
- comply with DP World’s policies and procedures.
Under our Code of Conduct, you have an obligation to not engage in unacceptable workplace behaviour which includes any behaviour that would be offensive, intimidating, belittling, [abusive,] threatening or harmful to an individual or group of people.
As you are aware, DP World has been investigating allegations surrounding your conduct during an IME with the doctor.
You were advised of the following allegations:
- During the IME, when the doctor allegedly touched you, you became aggressive toward him
- As a result of your conduct, the doctor terminated the appointment, and the IME didn’t occur
- You subsequently made a complaint to the police, alleging the doctor assaulted you.
Having reviewed all of the information… the allegations individually and collectively amount to serious misconduct under your contract and would justify summary dismissal… You have acted contrary to DP World’s policies and values,” the company said.
‘Assertive but not aggressive’
The commission said the IME was a “work-related appointment,” which was booked by DPW.
“It was plainly a work-related appointment because the worker was absent from work and in receipt of enterprise agreement-specific income protection insurance payments - and the IME concerned an assessment of his fitness to return to work,” the decision said.
It noted the doctor’s decision to terminate his appointment due to the worker’s inappropriate behaviour and assessed if the latter’s “aggression” would justify his summary dismissal:
“The doctor self-determined to terminate the appointment, primarily because he was offended or annoyed by [the worker’s] statements about lack of prior consent to being touched and/or allegedly having assaulted him.”
“The two men had a difference of opinion about the nature and/or characteristics of what occurred... [But] the appointment would have continued had it not been for the doctor’s unilateral decision to terminate the IME,” the commission said.
“The worker’s actions (stepping back suddenly off the weighing scale, away from the doctor) and comments (around non-consensual touching and alleged assault) were not aggressive, but his statements were said in an assertive way,” it added.
FWC’s decision
Thus, the FWC found that the worker did not breach his obligations under DPW’s code of conduct and contract of employment.
The employer also cited the worker’s behaviour at the workplace concerning an “unethical” comment he made to a supervisor, but the commission likewise rejected it.
Ultimately, the FWC said the worker’s summary dismissal was harsh, unfair, and unreasonable. It ordered the employer to reappoint him to his original position.
The decision was handed down on 28 March.
