When Personal Injury and Employment Law Collide

KEY TAKE-OUTS

Mr Rode was a truck driver who was dismissed for making a joke to another employee in relation to making a WorkCover claim.

Although his WorkCover claim would be considered legitimate, his colleague reported his jovial comment to management, who; in turn, dismissed Mr Rode for not being fit to work full-time hours to obtain the JobKeeper payments due to his pre-existing injury. His employer claimed that they had lost trust in him for making the jovial comment to his colleague.

Mr Rode filed for unfair dismissal with the Fair Work Commission (Rode v Hinterland Motors Pty Ltd t/a Hinterland Toyota 2021 FWC 987) and was awarded $18,000.00 in compensation.

Background Facts

Like many other employees in Australia, Mr Rode (the applicant) was stood down in March 2020 due to the COVID-19 Pandemic. However, only hours after he was notified of this stand down, Mr Rode injured himself whilst at work.

Mr Rode made a jovial comment to a colleague (Mr Blayden) about the possibility of a Workcover claim, to which this colleague reported to the Employer, Hinterland Motors Pty Ltd t/as Hinterland Toyota (the respondent). The comment was words to the effect of “now would be a good time to make a Workcover Claim”. Hinterland Toyota accused Mr Rode of encouraging the other employee to participate and provide a witness statement in a fraudulent Workcover claim. Following this, Mr Rode assumed all was settled.

One week later, the applicant was offered full-time work by the respondent so that he could receive the JobKeeper payments. However, the applicant expressed his concern for performing long hours due to his injury that was pre-existing. The applicant stated that he could do the alternate work, but not on a full-time basis as he did not have the functional capacity to do so. The next day, the Respondent dismissed the Applicant on the spot due to the alleged fraudulent claim that Mr Rode’s colleague had reported.

There was CCTV, text message and email evidence provided by both parties. It should be specifically noted that during the respondent’s investigation process, they relied heavily upon the CCTV footage of Mr Rode falling and his actions following the incident, along with the Statutory Declaration given by Mr Blayden. The respondent concluded that Mr Rode was faking his new injury and that he was wanting to make a fraudulent Workcover claim. The Applicant had not attempted to make a claim and did not have any intention to do so.

Mr Rode was summarily dismissed via email, noting the main reason for the dismissal as the alleged fraudulent Workcover claim and the lack of trust resulting from this. Following the dismissal, the Applicant attempted to contact the Respondent to explain his side of the story. The Respondent was not cooperative and did not allow for a face-to-face meeting as requested by the Applicant.

The Applicant submitted that the reason for dismissal was not valid. Further to this, he submitted that he was not granted a proper investigation process regarding the allegation nor was he afforded a formal opportunity to respond.

Decision

The Commission considered sections 385 and 387 when making a decision. It was concluded that the dismissal was not warranted by valid reason and that the dismissal was harsh.

The Applicant was awarded $18,000.00 in compensation (subject to tax).

What does this mean for the future?

Employers need to understand the consequences of not complying with the Fair Work Act. It is necessary to allow employees to respond to any allegations of misconduct and to ensure the process is fair and just. Furthermore, employees need to understand their workplace rights.

COVID-19 bought to light several issues within workplaces, especially with the introduction of the JobKeeper payments. As an employer or an employee, if you are unsure of your obligations or rights, it is important to seek accurate and succinct legal advice.

ABOUT KARENA NICHOLLS:

Karena is a Partner at Coutts and is the Head of our Injury Compensation (with extensive knowledge in personal injury) and Employment Law teams. She is passionate and dedicated to helping her clients understand their rights and obligations and advising them on the best course of action to achieve their desired outcomes. It is her practical and client-orientated approach that has attributed to her authentic reputation positioning her as a highly regarded compensation and employment lawyer.