Allegations of fraud, injured workers and dismissal – the slippery slope

July, 2014

In a recent decision of the Fair Work Commission, an employer has been strongly criticised for summarily dismissing an employee who it was alleged, among other things, had “failed to follow return to work restrictions” and who had “provided false information to WorkCover.”

In Kinnane v. DP World Brisbane Pty. Limited, the employee reported an injury to his shoulder at work and two days later reported an aggravation. The employee lodged a claim with WorkCover which was accepted. In the meantime, the employer became suspicious of the employee’s claim, ultimately undertaking covert surveillance of the employee’s activities. This occurred in circumstances where the employer was aware that the employee was conducting his own car fabrication business in conjunction with his regular employment.

In finding that the termination of the employee was unfair, Deputy President Asbury, noted that the employee was not shown the surveillance footage which formed part of the basis for his termination. She also noted that the work restrictions contained in the employee’s medical certificates were “ambiguous”, and that there was “no basis for a finding of fraud” in relation to the employee’s WorkCover claim.

While also finding that the undertaking of covert surveillance by an employer was reasonable in certain circumstances, Deputy President Asbury went on to find that various managers of the employer:

“… almost immediately came to the view that (the employee) was being dishonest about the incident and embarked on a course of action to prove that this was the case. This view was formed on the flimsiest of evidence and without any reasonable foundation”.

The Deputy President was also critical of certain managers of the employer, finding that there did not appear to be any concern that the employee in question may have been genuinely injured at work.

The remedy in the matter is yet to be determined.

Conclusion

Employers need to be very careful about embarking on a termination process, particularly when there are suspicions of dishonesty and fraud, which could otherwise substantiate a summary termination of employment.

Investigations into such matters should be thorough, and to the fullest extent possible, procedural fairness should be afforded to an accused employee. Mills Oakley can assist employers with these matters.

Contact Mills Oakley

For more information, please contact our workplace relations, employment and safety team:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

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