Mr Shaun Kinnane v DP World Brisbane Pty Limited
[2014] FWC 4541
•9 JULY 2014
[2014] FWC 4541 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Shaun Kinnane
v
DP World Brisbane Pty Limited
(U2013/2129)
DEPUTY PRESIDENT ASBURY | BRISBANE, 9 JULY 2014 |
Application for unfair dismissal remedy - Arbitration - Employee dismissed for fraud and dishonesty in connection with WorkCover claim and return to work - Covert surveillance of employee - Employee did not engage in fraud or dishonesty - No valid reason for dismissal - Dismissal was harsh unjust and unreasonable - Further evidence and submissions in relation to remedy to be provided.
OVERVIEW
[1] Mr Shaun Kinnane applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by DP World Brisbane Pty Limited (DP World). Mr Kinnane was employed as a Fitter in the garage and workshop area of DP World from 28 October 1991. Mr Kinnane also operates his own business - Rapid Fabrications - described as a car fabrication business, which he has run as a hobby for the past eight years. Mr Kinnane’s evidence is that at the time of his dismissal he employed one person in his business but does not draw a wage.
[2] On 9 May 2013, Mr Kinnane reported to his supervisor that he had sustained an injury to his right shoulder while at work. Mr Kinnane described the injury as a “niggle” in his shoulder. On 11 May 2013, Mr Kinnane reported an aggravation to that injury. Mr Kinnane made a claim to WorkCover Queensland in respect of his injury and that claim was accepted. After taking some time off and seeking medical attention, Mr Kinnane returned to work and performed suitable duties provided by DP World. The extent to which those duties were in accordance with a range of restrictions established by Mr Kinnane’s treating medical practitioner is in dispute.
[3] Mr Mark Hulme, Director and General Manager of DP World became concerned about what he described as the timeframe for the progression of Mr Kinnane’s injury and as to whether Mr Kinnane sustained his injury while working for Rapid Fabrications. Mr Hulme was also concerned that Mr Kinnane may have been working outside of his medical restrictions in his own business. As a result of those concerns, Mr Hulme, assisted by DP World’s Return to Work Coodinator, Ms Alanna Fitzpatrick, arranged for covert surveillance of Mr Kinnane to be undertaken.
[4] The surveillance showed that Mr Kinnane was performing work for Rapid Fabrications and showed him undertaking a number of activities that were said to be inconsistent with his medical restrictions. DP World determined to further investigate the matter and on 6 June 2013, Mr Hulme caused a letter to be forwarded to Mr Kinnane setting out allegations of gross misconduct in relation to his participation in a return to work program. The allegations included that Mr Kinnane had deliberately provided false information to WorkCover which DP World viewed as fraudulent and that he had provided fraudulent information to the Company with intent to deceive or obtain personal advantage. 1
[5] A meeting to discuss these allegations was held with Mr Kinnane on 13 June 2013. At that meeting Mr Kinnane was informed by Mr Hulme, that he was to be summarily dismissed. A letter confirming the reasons for Mr Kinnane’s dismissal was sent to Mr Kinnane on 24 June 2013 stating that Mr Kinnane:
● Failed to follow return to work restrictions as stated in his medical certificate;
● Provided false information to WorkCover;
● Made untrue statements to DP World with the intent to deceive or obtain advantage by doing so; and
● Had been dishonest for personal gain.
[6] In that letter evidence is set out that is said to support the Company’s concerns in relation to these matters including that Mr Kinnane had been observed lifting items weighing more than the weight restrictions in his medical certificates, without restriction or noticeable discomfort. It is further stated that Mr Kinnane placed himself at risk by working outside his restrictions; chose not to advise DP World or WorkCover that he was working elsewhere; exaggerated the extent of his restrictions or placed himself at risk of aggravation; and had been dishonest and deceitful.
[7] The letter concludes by stating that in the view of DP World, had Mr Kinnane disclosed to WorkCover that he was lifting heavy items, his claim may have been dealt with differently, and that Mr Kinnane’s behaviour constitutes gross misconduct on the basis that he had intended to deceive DP World for personal gain. The letter confirms that Mr Kinnane received his statutory entitlements but will not receive payment in lieu of notice.
[8] Mr Kinnane’s application for an unfair dismissal remedy was made on 1 July 2013, within the time required in s.394 (2) of the Act. Mr Kinnane is a person protected from unfair dismissal as defined in s.382 of the Act. DP World is not a small business and the dismissal was not a redundancy. The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties. Permission was granted for both parties to be legally represented on the basis that I was satisfied that it would enable the matter to be dealt with more efficiently taking into account its complexity and that no issue of fairness between the parties arose.
LEGISLATION
[9] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account procedural and substantive matters set out in s.387 of the Act as follows:
387 Criteria for considering harshness etc.
(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
(b) Whether the person was notified of that reason;
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal;
(e) If the dismissal related to unsatisfactory performance – whether the person had been warned about that unsatisfactory performance before the dismissal;
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) Any other matters the Commission considers relevant.
[10] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 2 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts3, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.4 In determining whether a reason is valid:
“It is not the [Commission’s] function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the [Commission] but rather it is ... to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...”. 5
[11] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 6
[12] The term “serious misconduct” is defined in s.12 of the Act and Regulation 1.07 as follows:1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.
[13] There is a distinction in the provisions of the Act between “serious misconduct” and “misconduct”. The former term is defined and the latter is not. In general terms, misconduct is wrongful conduct. To be properly described as “serious”, misconduct must be: “significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results”. 7 Serious misconduct is judged on an objective basis, and it is therefore not necessary that the employee should intend to do wrong. Wilful misconduct carries the additional connotation of intention, or a deliberately reckless course of misconduct, with knowledge that it is wrong.8
[14] Regulation 1.07 does not require that misconduct be wilful before it is serious misconduct, but provides that serious misconduct includes wilful or deliberate behaviour. However, to sustain an allegation of fraud, for the purposes of establishing that it was a valid reason for dismissal, requires that the employee is dishonest with the intention of gaining a benefit to which he or she is not entitled, to the detriment of the employer.
[15] Serious misconduct is sufficiently serious to warrant non-continuation of the contract of employment 9 or conduct that indicates that the employee has wilfully or deliberately disregarded the essential conditions of the contract.10 More than mere misconduct is required.
[16] Where an employer asserts as a valid reason for a dismissal, that an employee has engaged in serious misconduct such as theft or fraud, an assessment must be made as to whether, on the balance of probabilities, the employee did actually engage in serious misconduct. The strength of the evidence necessary to establish a fact upon which serious misconduct is grounded may vary according to the nature of what it is sought to prove, although the standard of proof does not. 11 A finding that a party in civil proceedings has engaged in fraudulent or criminal conduct should not be lightly made, and there is a need for clear and cogent proof. 12
EVIDENCE
Witnesses
[17] Evidence was given by Mr Kinnane on his own behalf. 13 Evidence was also given in support of Mr Kinnane’s application by Mr Trevor Munday, Deputy Branch Secretary of the Maritime Union of Australia (MUA).14
[18] Evidence for DP World was given by:
● Ms Alanna Fitzpatrick, Return to Work Co-ordinator; 15
● Mr Mark Hulme, Director and General Manager; and
● Mr Christopher McMonagle, Private Investigator, Maurice J Kerrigan & Associates.
[19] There was a significant amount of documentary evidence. Photographs and video footage taken during the period Mr Kinnane was under surveillance were also tendered. I have considered all of the evidence, but as I informed the parties during the hearing I have not viewed video evidence other than that which was viewed by all parties during the hearing.
Suspicions about Mr Kinnane’s injury and WorkCover claim
[20] Management of DP World was suspicious about the circumstances surrounding Mr Kinnane’s injury from the outset. These suspicions formed the basis upon which DP World engaged a private investigator to undertake surveillance of Mr Kinnane and are a significant part of what was described by Counsel for Mr Kinnane as a narrative of events that lead DP World to its conclusions and to determining to summarily dismiss Mr Kinnane.
[21] In his evidence to the Commission, Mr Kinnane said that on 9 May 2013 he was rostered on day shift and attended a meeting between DP World and the MUA between 6.00 am and 3.00 pm in his role as Delegate, and then returned to work to complete his shift. Mr Kinnane was injured approximately 45 minutes after starting work, when he stumbled while alighting from a forklift. Mr Kinnane said that one of his feet tripped over the other one and he grabbed the handrail with his right arm to prevent himself falling to the concrete. As he did this, Mr Kinnane’s right arm took the weight of his body before he could get to his feet after stumbling.
[22] Mr Kinnane said that he felt a twinge in his shoulder and something in his neck, but did not think too much of it. Mr Kinnane decided to report the incident to his supervisor Mr Christmas, because he believed it was the correct procedure, and because other employees have been disciplined for not reporting incidents. According to Mr Kinnane, Mr Christmas completed an injury or near miss report.
[23] On 11 May 2013 Mr Kinnane felt pain in the top of his right shoulder and his right arm, while he was servicing a forklift, which required him to lift his arms to perform overhead work. Mr Kinnane stopped working and went to report the pain he was experiencing to Mr Christmas. On the instructions of Mr Christmas, Mr Kinnane went to the Mater Private Hospital that night and was seen by Doctor Beggs. Mr Kinnane said that he spent about five minutes with Doctor Beggs and was told that he could go back to work on suitable duties.
[24] Doctor Beggs wrote a medical certificate for Mr Kinnane stating that he was capable of lifting up to 5 kilograms, occasional use of his injured arm and no above shoulder level work, and gave him pain killers. After seeing Doctor Begg, Mr Kinnane returned to work at around 1.30 am and upon handing his certificate to Mr Christmas, did paperwork for the rest of the shift, as directed by Mr Christmas. After completing his shift on 12 May 2013 Mr Kinnane was rostered off work for four days.
[25] On 13 May 2013 Mr Kinnane attended his own General Practitioner Doctor Kurshid who diagnosed shoulder sprain and certified that Mr Kinnane was not fit for work from 14 to 20 May 2013. Mr Kinnane submitted a claim for Workers’ Compensation on 14 May 2013. After discussions with Mr Whittaker, DP World’s Maintenance Manager and Ms Fitzpatrick, Mr Kinnane returned to work on suitable duties on 17 May 2013 and obtained a further certificate from Doctor Kurshid that he was fit for such duties from that date until 24 May 2013.
[26] Mr Kinnane was cross-examined about what were said to be inconsistencies in various statements he made about the mechanism of his injury. Mr Kinnane was shown an incident report said to have been completed by Mr Christmas. 16 The form states that: “While aligning 40 tonne forklift tyne worker developed a ‘niggly’ (sic) strain in shoulder and neck.” Mr Kinnane agreed that the contents of the report reflected what he had told Mr Christmas, other than he was alighting from the forklift in question and not aligning its tynes. Mr Kinnane also appeared to agree that after the incident he went to a Union meeting and participated in the normal way, although his witness statement indicates that he attended the meeting before the injury occurred.
[27] Mr Kinnane was shown a record of a conversation he had with Mr Reynolds from WorkCover on 14 May. Mr Kinnane is reported to have said: “I was getting down from a forklift after driving it, stumbled over my feet and landed hard on the floor and jarred my neck and shoulder, I didn’t fall over it was when my feet hit the ground my shoulder and arm took all the weight.” 17 Mr Kinnane agreed that this is what he reported to WorkCover. Mr Kinnane also agreed that he told Doctor Davies that his arm extended when he stumbled, as recorded in the certificate issued by Doctor Davies on 17 May 2013.18 Mr Kinnane further agreed that he told Doctor Joshi that he was: “stepping down and tripped over his own feet and had to hang on to the rail with his right hand resulting in pulling of the right shoulder”.19
[28] Mr Kinnane rejected the proposition that he had given different accounts, and said that he had explained the accident all the way through and could not be responsible for how it was abbreviated in the notes of various persons he had reported it to. Mr Kinnane also said that he had never claimed to have fallen to the floor but that his feet were on the floor and not on the ladder when he took the weight of his body on his right arm.
[29] Mr Hulme said that he had been aware for some years, through a conversation with Mr Kinnane, that Mr Kinnane operated a fabrication business on his days off. Mr Hulme said that Mr Kinnane attended a “Union meeting” on 9 May 2013 and in the days following that meeting attended at the Mater Hospital and was provided with a medical certificate enabling him to undertake suitable duties. According to Mr Hulme, Mr Kinnane subsequently attended his own doctor and was deemed totally incapacitated for the period from 13 to 20 May 2013.
Mr Hulme said in relation to Mr Kinnane:
“Given I observed that he was able to participate in meetings for periods exceeding six hours in the days prior, and that he displayed no noticeable discomfort, I was suspicious regarding how quickly he had moved from ‘a report of an injury’ to a level of total incapacity.
On the basis of the information before me and my suspicions that Mr Kinnane may have been exaggerating his level of incapacity, I directed my staff to arrange to undertake surveillance of Mr Kinnane.” 20
[30] Ms Fitzpatrick had similar suspicions about Mr Kinnane’s injury. In her statement, Ms Fitzpatrick said that on 10 May 2013 she received an email generated by the Company’s electronic database advising her of Mr Kinnane’s report of a “niggle” in his right shoulder during his shift. Ms Fitzpatrick said that she understood that Mr Kinnane attended a “union meeting” following the incident. Ms Fitzpatrick sent a text message to Mr Muscat, Human Resources Manager of DP World, and when he telephoned her in response, discussed the incident with him. During that discussion, Ms Fitzpatrick asked Mr Muscat whether Mr Kinnane had attended the Union meeting that day and Mr Muscat confirmed that Mr Kinnane was at the meeting and did not appear to be in any pain or discomfort.
[31] Ms Fitzpatrick was informed by email on 14 May 2014 that Mr Kinnane had made a WorkCover claim. Ms Fitzpatrick had a conversation with Mr Reynolds of WorkCover at around 11.57 am on 15 May 2013, in relation to Mr Kinnane’s claim. During that conversation Ms Fitzpatrick was also informed that Mr Kinnane had provided a “backdated” certificate from Doctor Kurshid dated 14 May 2013 stating that he was totally incapacitated from 13 to 17 May 2013. Ms Fitzpatrick said that she told Mr Reynolds that she was concerned because Mr Kinnane had gone from having a simple shoulder strain to being referred to an orthopaedic surgeon and from suitable duties to being totally incapacitated. The note of that conversation made by Mr Reynolds indicates that Ms Fitzpatrick mentioned that Mr Kinnane had attended Union meetings on 9 and/or 10 May 2013.
[32] Ms Fitzpatrick had a discussion with Mr Muscat between 5.00 pm and 6.00 pm on 15 May 2013 in relation to issues and concerns surrounding Mr Kinnane’s claim. During that discussion Mr Muscat said that Mr Kinnane had a second job and that this should be investigated, and that it may be worthwhile considering surveillance of Mr Kinnane. According to Ms Fitzpatrick, Mr Hulme also had a lengthy discussion with her on 16 May 2013 in relation to the “possibility of a second job” and during that discussion Mr Hulme gave approval to commence surveillance of Mr Kinnane.
[33] Ms Fitzpatrick also referred to other discussions with Mr Reynolds during which she voiced the following concerns:
● Upon being informed that Mr Kinnane dropped off paperwork to WorkCover’s Cannon Hill Office on 16 May 2013, Ms Fitzpatrick queried how he was able to do this when he was unable to drive and why he needed to make the trip to provide paperwork that WorkCover already had (the response to this concern was that when questioned by Mr Reynolds Mr Kinnane said that his daughter drove him to the office of WorkCover);
● Paperwork in connection with Mr Kinnane’s claim provided by the MUA contained a certificate from Doctor Kurshid dated 13 May 2013 which Ms Fitzpatrick found “interesting” given that the certificate appeared only after it had been pointed out that backdated certificates would not be accepted by WorkCover;
● Discrepancies between medical certificates issued by Doctor Kurshid and Doctor Beggs;
● Upon being informed by Mr Kinnane on 16 May that he had obtained an appointment on 17 May 2013 with an Orthopaedic Specialist Doctor Davies, Ms Fitzpatrick formed a view that it was “incredibly strange” that Mr Kinnane was referred to a specialist on 14 May 2013 for a strain and managed to secure an appointment on 17 May 2013.
[34] Under cross-examination, Ms Fitzpatrick agreed that she had no evidence that Mr Kinnane was driving while taking Tramadol or that he had injured himself while performing work at Rapid Fabrication. In relation to Mr Kinnane getting an early appointment to see a specialist, Ms Fitzpatrick said that had this been the only issue she would not have looked too closely at it, but it was one of many questions about the file that needed further examination. Ms Fitzpatrick was unable to articulate the basis for her suspicions about the fact that Mr Kinnane obtained an early appointment with Doctor Davies.
[35] Mr Kinnane said that on the day he travelled to the Cannon Hill office of WorkCover he was driven by his daughter. Ms Fitzpatrick agreed that she was given this information by Mr Reynolds. Mr Kinnane also said that he got the early appointment with Doctor Davies because there was a cancellation and he was offered that appointment, after making an appointment for a later date.
[36] In relation to backdated medical certificates, Ms Fitzpatrick pointed to a certificate from Doctor Kurshid indicating that he had seen Mr Kinnane on 14 May 2013 but that he was incapacitated from 13 May and a further certificate from Doctor Kurshid indicating that he saw Mr Kinnane on 13 May and that he was incapacitated from 13 May 2013. Ms Fitzpatrick said that her concern was that the second certificate was provided after she raised the issue of the first one being backdated. Ms Fitzpatrick said that a backdated medical certificate is a certificate where the date from which a Doctor certifies that a worker is incapacitated is earlier than the date the Doctor sees the worker. Such a certificate is not accepted by WorkCover. Ms Fitzpatrick agreed that she did not telephone Doctor Kurshid about her concerns with respect to the medical certificates but raised them with WorkCover. Mr Kinnane’s explanation for these certificates was that he saw Doctor Kurshid on both 13 and 14 May and was given a certificate on each occasion.
[37] Ms Fitzpatrick was cross-examined about two bundles of typed notes appended to her witness statement. The first bundle was said to be file notes which she used to refresh her memory of conversations while preparing her witness statement for these proceedings. 21 Ms Fitzpatrick said that these file notes were contemporaneous notes of conversations and other communications relating to Mr Kinnane’s claim. The second bundle was said to be a chronology of events that was prepared using the file notes.22 That chronology was prepared at the request of Mr Hulme for a meeting that Mr Hulme and Mr Muscat held with Mr Kinnane on 13 June 2013.
[38] Ms Fitzpatrick said under cross-examination that she produced the file notes each day based on her hand written notes, and that the entire note with respect to each day was done on the day that the events occurred. Ms Fitzpatrick maintained that position, despite it being put to her that the claim number for Mr Kinnane’s WorkerCover claim is included in file notes prior to the date when she became aware that Mr Kinnane had made a WorkCover claim at all and at a point where she could not have known the number of the claim. Ms Fitzpatrick ultimately agreed that the notes were not made contemporaneously and that they could have been made at any point up to the meeting of 5 June 2013 or even for the purpose of these proceedings. Ms Fitzpatrick maintained that the notes were not prepared for these proceedings.
[39] Ms Fitzpatrick was taken to the file notes made in relation to a number of conversations with Mr Reynolds of WorkCover recording that Ms Fitzpatrick made various statements about her suspicions in relation to Mr Kinnane’s WorkCover claim including:
● Mr Kinnane had a second position as a mechanic or that he could have such a position;
● Mr Kinnane’s injury had not happened at DP World’s workplace; and
● Mr Kinnane’s claim may have been related to impending redundancies.
[40] Ms Fitzpatrick agreed that she had made those statements (or said words to that effect) to Mr Reynolds. Ms Fitzpatrick also agreed that there is no reference to these statements having been made by her in her witness statement in these proceedings or the file notes she made of the conversations with Mr Reynolds. Further, Ms Fitzpatrick agreed that these statements were expressions of concern about WorkCover fraud on the part of Mr Kinnane and that this is a significant matter to have omitted from her statement in these proceedings.
[41] Ms Fitzpatrick also agreed that her chronology of events includes a statement that in a telephone conversation on 17 May 2013, Mr Reynolds told her that Mr Kinnane became “standoffish” when informed that WorkCover had some concerns about his claim and was investigating those concerns. Ms Fitpatrick agreed that this was not recorded in her file note of the conversation and that she had added it in to her chronology of events. Further Ms Fitzpatrick agreed that some persons might think that this coloured Mr Kinnane as being evasive and less than honest with WorkCover. Ms Fitzpatrick agreed that the chronology had been prepared by her for the purpose of discipline and possible termination of Mr Kinnane and that the letter to Mr Kinnane dated 6 June 2013 setting out the allegations of serious misconduct, was based on the information she had provided. It is also the case that there is no reference in Mr Reynolds’ notes of the conversation with Ms Fitzpatrick on 17 May 2013 on Mr Kinnane’s WorkCover file, to Mr Reynolds stating that Mr Kinnane was “standoffish”.
[42] Ms Fitzpatrick was shown an email sent by her on 16 May 2013 to Mr Hulme, Mr Muscat and a number of other DP World managers stating that WorkCover had “Once again ... proven their inadequacy” and that Mr Kinnane had booked an appointment with a specialist for the following day despite differing medical opinions and that his claim had not been accepted by WorkCover. 23 Ms Fitzpatrick agreed that she had not included this email in her statement to the Commission and had not said anything disparaging about WorkCover in her statement.
[43] Ms Fitzpatrick also agreed that on 17 May 2013 she had requested that WorkCover conduct an independent medical examination of Mr Kinnane and that DP World had not arranged such an examination or required Mr Kinnane to attend a medical examination conducted by a medical practitioner chosen by the Company. Further, Ms Fitzpatrick agreed that DP World could have organised such an examination and required Mr Kinnane to attend and that she had not recommended this course to management.
Alleged failure to follow return to work restrictions
Medical Certificates
[44] Throughout the course of his incapacity, Mr Kinnane was covered by a series of medical certificates setting out work restrictions. Those medical certificates are pro forma documents which have lists of activities and boxes for the medical practitioner to check in relation to various activities, and lines for comment.
[45] On 11 May 2013 when Mr Kinnane reported his injury, he was treated at the Mater Hospital by Doctor Begg who provided a medical certificate to the effect that Mr Kinnane was fit to undertake suitable duties and that he was not to perform work above shoulder level or lift weights in excess of 5 kilograms. 24 On 17 May 2013, Mr Kinnane saw an orthopaedic specialist, Doctor Davies, who provided a medical certificate for the period from 17 May to 17 June 2013 stating that Mr Kinnane was fit to undertake suitable duties subject to the following restrictions:
● Lifting weight limit of 5 kilograms;
● No work at or above chest level;
● Driving “except if on med”;
● No operating machinery; and
● No pushing or pulling.
Neither of the boxes on Dr Davies’ certificate to indicate “yes” or “no” to: bending/twisting/squatting or right hand work are checked. 25
[46] Mr Kinnane’s treating general practitioner Doctor Kurshid, saw Mr Kinnane on 14 May 2013 and certified that he was totally incapacitated for work from 13 to 17 May 2013. 26 Doctor Kurshid issued a further certificate on 17 May stating that Mr Kinnane is fit for suitable duties (restricted return to work) from 17 to 24 May 2013. That certificate is in a different format and has check boxes to indicate in relation to particular activities, “no”, “occasional” and “frequent”. Doctor Kurshid has checked the “frequent” box for the following activities:
● Lifting weight limit 5 kilograms;
● Bending/twisting squatting;
● Standing/sitting;
● Right/left handed work; and
● Driving.
[47] In relation to lifting, Doctor Kurshid has noted that this activity cannot be performed at or above shoulder level and in relation to driving, that Mr Kinnane is not to drive while taking Tramadol. 27
[48] Doctor Davies provided a further certificate on 23 May 2013 for the period from that date until 23 June 2013. In that certificate the lifting weight limit applicable to Mr Kinnane is 2.5 kg and there is a note to the effect that Mr Kinnane is not to perform work at or above chest level. Neither of the “yes” or “no” boxes in the line on the certificate dealing with lifting have been ticked. Similarly, neither of the “yes” and “no” boxes in the line listing bending/twisting/squatting have been ticked and there is no comment in relation to these activities. 28
[49] A further certificate issued by Doctor Kurshid on 24 May 2013 states that Mr Kinnane’s lifting weight is 25 kilograms and a box has been checked to indicate that the weight can be lifted frequently with the additional comment “not at or above shoulder height”. It is not in dispute that this weight is an error and that it should be 2.5 kilograms. The box indicating “frequent” has been ticked with respect to bending/twisting/squatting/ and sitting/standing. In relation to right/left handed work, the box indicating “frequent” has been ticked and the comment “no R hand work” has been added. The certificate further states that Mr Kinnane can drive frequently but that he is not do so while taking Tramadol and that he is not to push or pull. 29
[50] On 29 May 2013 Doctor Davies provided a report to WorkCover indicating that Mr Kinnane was to have an MRI and that in the meantime he would remain on light duties with no heavy lifting, no pushing or pulling, no operating machinery and no right handed work. 30
[51] On 31 May 2013 Doctor Kurshid issued a further medical certificate indicating that Mr Kinnane was fit for suitable duties from 17 May to 31 May 2013. The certificate does not state a weight limit in relation to lifting, but the box indicating “Frequent” is ticked and the notation “not at or above shoulder height” has been inserted on the line next to the words “Lifting weight limit”. That certificate further indicates that Mr Kinnane is not to undertake right handed work and is not to drive while taking Tramadol. 31
[52] On 6 June 2013, Mr Kinnane was seen by Doctor Davies who issued a certificate stating that Mr Kinnane was fit for suitable duties from that date until 20 July 2013, with a lifting weight limit of 5 kg. That certificate also stated that Mr Kinnane was not to perform work at or above chest height or operate machinery and that Mr Kinnane could drive. 32 Doctor Kurshid issued a further certificate stating that he saw Mr Kinnane on 7 June 2013 and that Mr Kinnane was fit for suitable duties from 17 May until 25 June 2013. The Certificate contains no lifting weigh limit but states “not at or above shoulder height”, states no right hand work and that Mr Kinnane is not to drive while taking Tramadol.33
[53] Mr Hulme said under cross-examination that the allegations about Mr Kinnane working outside of his medical restrictions were based on those restrictions including a lifting weight of 2.5 kilograms. Mr Hulme also said that he was given PDF copies of all of the medical certificates provided by Mr Kinnane prior to deciding to dismiss him and in the lead-up to the meeting on 13 June 2013. Mr Hulme agreed that the certificate issued by Doctor Kurshid on 17 May 2013 contained a 5 kg lifting weight restriction, and could be interpreted to mean that the injured worker could frequently lift 5 kilograms, but not at or above shoulder height, and could otherwise lift weights. Mr Hulme agreed that the same assumption could be made about the certificate issued by Doctor Davies on 17 May 2013.
[54] Mr Kinnane said that he did not fully understand the restrictions in the medical certificates. In particular, Mr Kinnane said that he understood that he could use his left hand and that the reference to the weights related to working above chest height. Further, Mr Kinnane maintained that the work he was performing at Rapid Fabrications was no more onerous than the suitable duties he was given at DP World. In this regard, Mr Kinnane said that the clerical duties he performed at DP World involved lifting boxes; counting heavy parts by taking them out of boxes; and fault finding on forklifts.
[55] Under cross-examination, Mr Kinnane maintained that he did not have any discussion with Ms Fitzpatrick about his medical certificates or the restrictions contained in them. Mr Kinnane agreed that he did not raise any concerns with management of DP World about being required to work outside his medical restrictions, but said that this was because he was not asked to do anything that caused him pain. Mr Kinnane said that he is aware of the difference between pain and discomfort and that discomfort does not prevent him from carrying out a task while pain is a signal to stop.
[56] Mr Kinnane also maintained under cross-examination that his understanding of the medical restrictions was that he was not to lift more than 2.5 kg or to work above chest height. Mr Kinnane agreed that generally the medical restrictions were that he was restricted from performing right hand work and from operating machinery and that he was not to drive while taking Tramadol.
[57] In relation to the certificate issued by Doctor Davies on 23 May 2013, Mr Hulme agreed that one interpretation of the certificate is that the weight limit of 2.5 kilograms could relate to lifting above chest height, but maintained that the statement “No work at or above chest level” is very clear. Mr Hulme also agreed that this certificate was issued just before the surveillance of Mr Kinnane commenced.
[58] In relation to the certificate issued by Doctor Kurshid on 24 May 2013 containing a 25 kilogram lifting limit, Mr Hulme said that he assumed that this was a typographical error but did not seek to clarify the matter. Mr Hulme said that he did not make an inquiry to Doctor Kurshid about the effect of ticking the “frequent” box on the certificate and making the comment “not at or above shoulder height”.
[59] Mr Hulme said that he was not asserting that Mr Kinnane did not suffer an injury, but was rather asserting that he had exaggerated his injury and was capable of working to a far greater extent than the certificates stated, or that if this was not the case, that Mr Kinnane had placed himself at significant risk of aggravation or further injury by not following the requirements of those plans.
[60] Mr Hulme also agreed under cross-examination that “right handed work” means doing work tasks with the right hand, and did not refer to using the right hand. Mr Hulme agreed that the right had could be used for pushing a shopping trolley or to open and close doors, and stated that this would not be a breach of the restrictions as long as it was not in the performance of work.
Return to work program
[61] Mr Kinnane returned to work on 18 May 2013. Mr Kinnane said that he was not given a return to work program or shown such a program by Ms Fitzpatrick or his supervisors. On previous occasions when Mr Kinnane has been working under such programs, he has been given a draft for comment and has indicated his acceptance by signing the program. Mr Kinnane maintains that he first saw the return to work program at his termination interview, when it was waved at him by Mr Hulme.
[62] Ms Fitzpatrick appended Mr Kinnane’s return to work program to her witness statement. 34 The Plan as documented, was signed by Ms Fitzpatrick and Doctor Beggs on 16 May 2013 and indicates that Mr Kinnane has a lifting weight restriction of 5kg and that he can occasionally use his injured arm. There is a space for Mr Kinnane to sign the plan and it has not been signed. There are also spaces for signature from Mr Kinnane’s treating Doctor who is indicated in the plan to be Doctor Kurshid and for the signature of his Supervisor. Those spaces are blank.
[63] Ms Fitzpatrick agreed under cross-examination that she did not discuss that program with either Doctor Kurshid or Mr Kinnane and in particular the lifting weight limit in the program, but maintained that she emailed the return to work plan to Doctor Kurshid and did not receive a response. Ms Fitzpatrick also agreed that she could not contest Mr Kinnane’s evidence that he was asked to move boxes or that he was allocated welding work. Ms Fitzpatrick said that she was not aware of what is involved in undertaking welding work or radio display terminal resetting. In relation to fault finding on forklifts, Ms Fitzpatrick said that she is not aware that this involves climbing on heavy forklifts.
[64] Mr Fitzpatrick said that in developing return to work plans, she provides a list of restrictions to supervisors and they provide her with a list of tasks that meet with those restrictions. Ms Fitzpatrick agreed that there is no document anywhere in evidence where a supervisor has provided tasks in connection with Mr Kinnane’s return to work plan. Ms Fitzpatrick agreed that she had not discussed with Mr Kinnane the work that he was doing for Rapid Fabrications.
[65] Mr Hulme agreed that it is normal procedure for an employee subject to a return to work plan, to sign that plan, although this can be challenging when employees work shift work. Mr Hulme acknowledged that Mr Kinnane did not sign the plan, but maintained that this did not absolve him from working within the restrictions as provided by his treating medical practitioner. Mr Hulme agreed that at the meeting of 13 June at which Mr Kinnane was dismissed, that Mr Kinnane alleged that he had not seen the return to work plan. Mr Hulme also agreed that he did not inquire as to whether the suitable duties program had been approved by Doctor Kurshid as required in the DP World document setting out the plan.
Surveillance of Mr Kinnane
[66] At the suggestion of Mr Muscat and with the approval of Mr Hulme, Ms Fitzpatrick arranged for surveillance of Mr Kinnane to be undertaken. Mr Hulme said that he was suspicious that Mr Kinnane was exaggerating his level of incapacity on the basis that Mr Kinnane had participated in meetings for periods of six hours in the days prior, and displayed no noticeable discomfort.
[67] Ms Fitzpatrick made contact with Mr Daniel Jennings of Maurice J Kerrigan & Associates and that firm was engaged to undertake the surveillance. On 17 May 2013, Ms Fitzpatrick sent an email to Mr Jennings. 35 The email refers to a conversation with Mr Jennings the previous day and states that WorkCover would not overrule a new medical certificate stating that Mr Kinnane is totally incapacitated, and that for that reason, DP World wished to pursue surveillance as soon as possible. The email states:
“Apparently, despite having an injury that would prevent him from doing office work, this worker has been driving around quite extensively. It would be of great interest to us to determine the activities currently being pursued by this worker during his time off work.” 36
[68] The email went on to set out Mr Kinnane’s details including his home address, date of birth and a mobile telephone number said to be a “contact”. I assume that this is Mr Kinnane’s mobile telephone number. A photograph of Mr Kinnane was also appended to the email. It concluded with a statement that the surveillance should commence on the weekend and the Company would be “highly interested” to see what activities Mr Kinnane is participating in while on “total incapacity” especially if these activities include any kind of mechanical work. The email also sets out Mr Kinnane’s upcoming medical appointments and states in relation to Mr Kinnane’s appointment with Doctor Davies that:
“Despite only being seen by the doctor at the Mater on Sunday morning and presenting to his doctor on Tuesday where he was referred to a specialist, Shaun has already managed to secure the following appointment with an Orthopaedic Surgeon…”
[69] Ms Fitzpatrick appended other email communication with the firm of private investigators to her witness statement. These emails contained information about Mr Kinnane’s business and the vehicle driven by Mr Kinnane. In an email of 27 May 2013 Ms Fitzpatrick informed the firm that Mr Kinnane had now been cleared to drive, and that DP World’s primary objective was to obtain evidence of him working.
[70] Under cross-examination, Ms Fitzpatrick was shown an email she sent to Mr Jennings of Kerrigans at 2.46 pm on 24 May 2013, in which she asked: “I don’t suppose you have any good news that will improve my Friday afternoon?” 37 In response to the proposition that good news for her would have meant bad news for Mr Kinnane, Ms Fitzpatrick said that if there was something that supported the suspicions it would have been good news, but if nothing had been found it would also be good news as she could move on to another case. Ms Fitzpatrick’s file note for 24 May 2013 also indicates that she had a telephone call from Mr Jennings of Kerrigans in which he stated that Mr Kinnane had been followed to a mechanical workshop where he appeared to be working. Ms Fitzpatrick sent a text message to Mr Muscat almost immediately after this call stating: “I have awesome news. Leave meeting & call me.”38
[71] Surveillance of Mr Kinnane was undertaken on 23, 24, 30 and 31 May 2013. The surveillance report provided by Kerrigans dated 4 June 2013 includes details of Mr Kinnane’s activities and conclusions that he is working in a metal fabrication/mechanical repairs type business and undertaking a range of tasks including driving, attending suppliers of vehicle components, walking, driving and carrying heavy items. It is observed that Mr Kinnane appears to undertake those activities without difficulty. The report includes a list of vehicles and registration numbers that were observed at Mr Kinnane’s home and at the premises of Rapid Fabrications. The report contains information such as the location of a school where Mr Kinnane dropped a “passenger” from his vehicle. Another includes a comment that he is speaking to a young woman with a “heavy” build.
[72] Mr McMonagle tendered observation sheets completed by various “Agents” including himself, during the surveillance of Mr Kinnane. One observation sheet includes a comment that Mr Kinnane can be described as “of bikie appearance”. There were also details, including registration numbers of vehicles at Mr Kinnane’s home and at Rapid Fabrications. Appended to the Report were a number of photographs showing Mr Kinnane undertaking a range of activities in relation to Rapid Fabrications. Video footage from the surveillance was also tendered.
[73] Mr Kinnane was cross-examined about the photographs and surveillance footage and photographs taken on 24, 30 and 31 May. The images taken on 24 May 2013 showed Mr Kinnane:
● driving a car with an open boot containing car parts; 39
● carrying a car differential with two other men; 40
● holding a piece of a car floor pan with both hands at waist height; 41 and
● crouched behind a tow truck with forearms and elbows resting on the tray above chest level. 42
[74] The images and footage on 30 May 2013 show Mr Kinnane:
● opening and closing a car bonnet; 43
● exiting a shop holding a box marked “Calvert” in his right hand; 44 and
● placing box marked “Calvert” into car boot with both hands. 45
[75] Mr Kinnane agreed that his actions shown in the photographs and video footage of pulling down a car bonnet with his right hand involved using that hand above shoulder height and pushing and pulling, and that this involved actions beyond his restrictions.
[76] With respect to carrying the differential, Mr Kinnane said that he is carrying it in his left hand, assisted by two other men and that his right hand is hanging at his side. In relation to carrying the car floor pan, Mr Kinnane said that the item was awkward rather than heavy and that he was guiding it away from a car that it was being carried past while another person took the weight. Mr Kinnane agreed that the car pan was in his right hand at one point, but maintained that his arm was not used above chest height and that he was steadying the car pan with that hand. Mr Kinnane also said that the car pan was only in his right hand momentarily, before being moved to his left hand.
[77] In relation to the photograph of him resting on the tray of a tow truck, Mr Kinnane said that he was in a lowered position inspecting the underneath of a vehicle that was on the truck. The photograph depicts Mr Kinnane leaning forward in a semi-squat position resting on his arms, which are at or below shoulder height. In relation to the photographs depicting him carrying a cardboard box and placing that box into the boot of his car, Mr Kinnane said that the box contained chrome dip-sticks and was very light.
[78] Mr Kinnane maintained that the items were not heavy and he was not lifting or using his right hand (other than to momentarily hold something while he shifted it to his left hand) and that his actions were consistent with his medical restrictions as he understood them. Mr Kinnane agreed that his actions in having his arms at shoulder height or above on two occasions as shown in the footage and photographs were contrary to medical restrictions, as he now understood them, but maintained that at the time he did not understand that this was the case.
[79] In relation to lifting his car bonnet and closing it, Mr Kinnane said that his car bonnet has gas struts and that he did not need to push or pull it so as to be working with his right arm above shoulder height. Mr Kinnane agreed that in performing this task he was using his right hand, sometimes above shoulder height and was pushing and pulling. Mr Kinnane further agreed that this was beyond his medical restrictions.
[80] Mr Kinnane said that he did not recall when he stopped taking Tramadol, but that it was before 27 May 2013. Mr Kinnane denied that he drove while taking Tramadol and in particular that when he was observed driving his car on 24 May 2013, he was taking that medication. Mr Kinnane agreed that between 17 and 29 May 2013 when he worked at DP World, he got taxis to and from work using vouchers provided by the Company. The taxi vouchers used by Mr Kinnane were not in evidence.
[81] Ms Fitzpatrick and Mr Hulme were cross-examined about what was shown in the photographs and video footage and agreed that they had no way of knowing the weight of the things that Mr Kinnane was lifting or carrying. Mr Hulme agreed that Mr Kinnane had claimed that he was lifting a strut assisted bonnet and he had no way of knowing what force was required to do that. Mr Hulme also accepted that the footage showed Mr Kinnane carrying objects in his left hand, and that this did not breach his medical restrictions. Mr Hulme also said that some of the certificates simply indicated no lifting of weights over 2.5 kilograms whether in Mr Kinnane’s left or right hand.
[82] Notwithstanding these concessions, Mr Hulme maintained that the surveillance footage indicated that Mr Kinnane was able to lift substantially more weight than indicated in his medical certificates and that he had either been exaggerating his symptoms or failing to follow them.
Alleged provision of false information to WorkCover
[83] Mr Hulme said in his evidence that at no time during the disciplinary meeting with Mr Kinnane on 13 June 2013, did he or any other manager raise a concern that Mr Kinnane had been guilty of dishonesty or fraud in making a WorkCover claim.
[84] Under cross-examination, Mr Hulme said that the false statements Mr Kinnane is alleged to have made to WorkCover were that Mr Kinnane had not declared that he had alternative employment and was working outside of DP World, or that he had an ability to operate with greater lifting capacity than stated in his medical certificates. Mr Hulme agreed that this was the extent of the misinformation alleged to have been provided by Mr Kinnane to WorkCover. Mr Hulme also said that he had been informed by Ms Fitzpatrick of the failure on the part of Mr Kinnane to provide this information to WorkCover.
[85] The WorkCover claim form completed by Mr Kinnane in relation to his injury was in evidence as part of his WorkCover file, which was tendered by Mr Munday. The Form required Mr Kinnane to provide details about the date of the injury, its nature and how it happened. The Form did not require Mr Kinnane to disclose hobbies or that he had a business outside his employment. It is also the case that WorkCover did not accept the evidence provided by DP World in opposition to Mr Kinnane’s WorkCover claim, and approved the claim.
Statements to DP World alleged to have been made to deceive or obtain advantage
[86] Mr Hulme said in cross-examination that he could not recall what untrue statements Mr Kinnane was alleged to have made to the Company. In relation to the advantage alleged to have been obtained by Mr Kinnane, Mr Hulme said that Mr Kinnane may make a common law claim in relation to his injury and the Company would be required to pay medical and rehabilitation costs. Mr Kinnane could also have a WorkCover claim paid when he was not entitled to this.
[87] Mr Hulme also said that Mr Kinnane had not indicated that he was working elsewhere and had also indicated that he had significant work restrictions and had not disclosed his ability to work outside those restrictions. The submissions of behalf of DP World indicate that the benefits it asserts that Mr Kinnane obtained are the provision of restricted or suitable duties and cab charge vouchers to travel to work. Mr Kinnane maintained that he ceased taking medication before 27 May 2013 and did not utilise cab vouchers provided by DP World after he ceased taking the medication which had prevented him from driving. As previously noted, the taxi vouchers used by Mr Kinnane were not in evidence.
The dismissal process
[88] Mr Hulme said that he held a meeting on 5 June 2013 with a number of managers including Ms Fitzpatrick during which Mr Kinnane’s medical reports, documented restrictions and surveillance covering the same period were reviewed. Mr Hulme caused a letter dated 6 June 2013 to be drafted and sent that letter to Mr Kinnane. The letter states that Mr Kinnane is directed to attend a disciplinary meeting on 13 June 2013, to discuss allegations of gross misconduct in relation to his behaviour during his return to work program. The allegations as set out in the letter are:
● Failure to follow the agreed work restriction program by performing tasks outside those stated in medical restrictions;
● Providing misinformation to WorkCover which DP World views as fraudulent;
● Breaching DP World’s Code of Conduct by making untrue statements and providing fraudulent information with intent to deceive or obtain advantage, constituting dishonesty for personal gain.
[89] Mr Kinnane attended the meeting with Mr Munday as his support person. Mr Hulme said that he provided a chronology of events, and showed Mr Kinnane photographs taken during the surveillance. Mr Kinnane provided responses including asserting that the work he performed outside DP World was not labour intensive and he was doing the same kind of work at DP World. Mr Kinnane also stated that his doctor had said he could work within pain limits and that he was not using his right arm to lift items.
[90] According to Mr Hulme, Mr Kinnane said that he had not informed his treating medical practitioners or the Company that he had the ability to work outside his restrictions. Mr Hulme maintained that at no time during the meeting did he inform Mr Kinnane that his dismissal was because he had been guilty of dishonesty or fraud in making a WorkCover claim. Mr Hulme agreed that this was one of the grounds upon which Mr Kinnane was dismissed. Mr Hulme also agreed that he did not adjourn the meeting to investigate Mr Kinnane’s assertions about the kind of work he was doing as part of the return to work plan.
[91] Mr Hulme said that he considered Mr Kinnane’s responses to the allegations and other relevant issues such as his length of service; whether his actions were inadvertent or there were extenuating circumstances; whether Mr Kinnane had been truthful; and whether his conduct in not providing information to his treating medical practitioners and the Company was reasonable and/or designed to deceive for personal gain. After considering these matters, Mr Hulme decided to summarily dismiss Mr Kinnane.
[92] Under cross-examination, Mr Hulme agreed that the reasons for Mr Kinnane’s dismissal were that he failed to follow return to work restrictions; provided false information to WorkCover and made untrue statements to the Company with intent to deceive. Mr Hulme also said that the allegations about working outside medical restrictions were put to Mr Kinnane on the basis that the lifting restriction was 2.5 kilograms.
[93] Mr Hulme agreed that Mr Kinnane stated during the meeting at which he was dismissed, that he had never seen the return to work plan, and that he noted that it was not signed by Mr Kinnane. Mr Hulme agreed that at no time during the meeting were the medical certificates shown to Mr Kinnane and he was not asked about his understanding of the restrictions in those certificates. Mr Hulme also agreed that Mr Kinnane was not shown the surveillance video footage during the meeting.
SUBMISSIONS
[94] It is submitted for Mr Kinnane that the primary and operative reason for dismissal was the allegation that he provided fraudulent information to WorkCover. This is not a valid reason for dismissal given that at the time of the dismissal, the alleged victim of the fraud had not investigated the allegations made by DP World. The reasons for dismissal proffered by DP World in relation to Mr Kinnane working outside of his medical restrictions must be understood in the context of the core reason for the dismissal and assessed by reference to the standards applicable to a reason of serious misconduct. It is submitted that:
● The issue of working outside of work restrictions was a low order concern for DP World;
● Mr Kinnane did not work outside those restrictions as they are properly understood; and
● Even adopting a strict black letter interpretation of the medical certificates, the events relied on do not constitute serious misconduct and did not justify termination of employment.
[95] DP World’s case against Mr Kinnane is reduced to the assertion of an obligation to make a disclosure to WorkCover about his activities with Rapid Fabrications. No such obligation exists and Mr Kinnane answered all questions asked of him by WorkCover. In particular Mr Kinnane was not required to disclose that he had a hobby or business. The WorkCover form completed by Mr Kinnane contains a section for the employer to comment about whether the injury occurred at work and if there is an obligation to disclose a non-work injury, it fell on DP World and not Mr Kinnane.
[96] From the outset, DP World was highly suspicious and it was this suspicion that drove the narrative up to the dismissal and after. The foundation of the suspicion of fraud on WorkCover became a fixed view formed from the moment the Company became aware of the injury. This was never the subject of a medical examination by the Company. The evidence supports the conclusions that:
● The real reason for the termination was that Mr Kinnane submitted a fraudulent claim to WorkCover;
● The thrust of Ms Fitzpatrick’s dealings with WorkCover was to have this alleged fraud investigated;
● The Company concentrated its efforts on establishing its theory; and
● Concerns that Mr Kinnane was working outside his medical restrictions were secondary.
[97] It was submitted that at the point that Mr Kinnane was called to the meeting on 13 June 2013 DP World had predetermined that it had grounds to dismiss him based solely on the results of the video surveillance. The medical certificates applicable to Mr Kinnane contained contradictory information and the return to work plan was not discussed with Mr Kinnane. There was no valid reason for the dismissal.
[98] The significant and operative concern of WorkCover fraud was not put to Mr Kinnane. Further, the video footage which was seminal to the dismissal was not played to him and the medical restrictions were not articulated or clarified. Untrue statements alleged to have been made by Mr Kinnane were not identified and despite allegations about dishonesty and fraud, Mr Kinnane was not asked about his intention, state of mind, knowledge and belief. The allegation that the injury did not happen at work or that the WorkCover application was motivated by redundancy was also not put to Mr Kinnane.
[99] In relation to the surveillance, it is contended that Mr Kinnane’s privacy has been invaded and that this is unjust, unreasonable and contrary to a fair go. The employment relationship confers no right to spy on an employee. The surveillance was initiated when there was no reasonable suspicion and without notification to Mr Kinnane. The surveillance invaded his privacy and that of his family and was used to justify a predetermined conclusion of fraud.
[100] DP World submits that the evidence shows Mr Kinnane was aware he was subject to medical restrictions, and had an obligation to work within those restrictions. Even if Mr Kinnane’s unusual interpretation of those restrictions is accepted, the video footage demonstrates and Mr Kinnane admits, that he worked outside those restrictions. The evidence does not support Mr Kinnane’s contention that he was asked to work outside those restrictions while undertaking the suitable duties he was assigned by DP World. The conduct and evidence establishes that:
● Mr Kinnane had an injury of such seriousness that he genuinely ought to have been subject to medical restrictions and outside of working hours carried on normal activities at Rapid Fabrications when these were contrary to those restrictions and risked aggravation of his injury; or
● Mr Kinnane’s injury was not as serious as he indicated to DP World and he was capable of performing work with fewer restrictions but failed to notify the Company or WorkCover of his increased capacity thereby dishonestly obtaining benefits such as reduced duties and cabcharge vouchers for travel.
[101] DP World also submits that Mr Kinnane was dishonest in his dealings with DP World and failed to make appropriate disclosures to WorkCover in relation to his work at Rapid Fabrications. In this regard, the Company submits that the allegation at the meeting of 13 June 2013 was not that Mr Kinanne injured himself at Rapid Fabrications and in that sense defrauded WorkCover, but rather that he did not disclose important matters about his outside employment that should have been disclosed. The failure to disclose the full facts was said to be dishonest conduct that could breach the Workers Compensation and Rehabilitation Act (2003) (Qld).
[102] DP World maintains that Mr Kinnane was notified of the reason for his dismissal in a detailed letter and had an opportunity to respond to the allegations against him at a disciplinary meeting at which he was permitted to have a support person. It was further contended that the conduct of surveillance was both reasonable and lawful, given that Mr Kinnane’s private activities in working for his own business while performing restricted duties for DP World was likely to have a significant impact on his work for DP World.
CONCLUSIONS
Was there a valid reason for Mr Kinnane’s dismissal?
[103] I do not accept that there was a valid reason for Mr Kinnane’s dismissal. There was a fundamental disconnect between the reasons given in the letters setting out the allegations against Mr Kinnane and confirming his dismissal on the one hand, and on the other hand, the evidence of witnesses for DP World and the submissions made on behalf of the Company in these proceedings.
[104] The letter of 6 June 2013 setting out the allegations against Mr Kinnane makes a clear reference to the provision of fraudulent information to WorkCover. The letter confirming Mr Kinnane’s dismissal dated 24 June 2013 also refers to Mr Kinnane providing false information to WorkCover. Mr Hulme agreed that the reasons for the dismissal included the provision of information to WorkCover which the Company viewed as fraudulent.
[105] In its submissions DP World asserts that the major and substantive reason for the dismissal was Mr Kinanne working outside his restrictions, and that the focus in Mr Kinnane’s case on WorkCover fraud as the essential reason for the dismissal, is an attempt to draw attention away from his misconduct, in relation to working outside his work restrictions. The fact that Mr Kinnane worked outside his restrictions is said to alone constitute a valid reason for his dismissal while his lack of candour with his employer and WorkCover provides a further basis upon which it can be said there was a valid reason for dismissal.
[106] This submission is an attempt to rewrite history. It is clear from the evidence that WorkCover fraud and associated allegations were a significant part of the reasons for Mr Kinnane’s dismissal. Ms Fitzpatrick and Mr Hulme were fixated on proving that Mr Kinnane engaged in WorkCover fraud by virtue of their view that his injury occurred while he was working for Rapid Fabrications. Their view that Mr Kinnane did defraud WorkCover was a substantive reason for dismissal. It was one of a number of serious allegations of fraud and dishonesty against Mr Kinnane and at least of equal significance to the other allegations. As such, the Company carried the onus of establishing that Mr Kinnane did engage in that conduct and that it was serious misconduct justifying summary dismissal.
[107] Even if the reasons for the dismissal are as articulated in DP World’s submissions in this case, I do not accept that the Company has met its onus and there is no basis upon which I could be satisfied that Mr Kinnane engaged in the conduct alleged or that he was fraudulent, dishonest or deceitful.
[108] I do not accept that Mr Kinnane engaged in gross misconduct by acting outside of the medical restrictions mandated by his treating doctors. Misconduct of the kind alleged by DP World on the part of Mr Kinnane requires intent or wilfulness. I do not accept that Mr Kinnane intentionally or wilfully undertook tasks in the performance of his work for Rapid Fabrications so that he placed himself at risk of further aggravation to his injury.
[109] To the extent that Mr Kinnane undertook some tasks associated with Rapid Fabrications which were inconsistent with his medical restrictions, I do not accept that there was any dishonesty or deception on the part of Mr Kinanne. The work restrictions contained in Mr Kinnane’s medical certificates were ambiguous. It is reasonable that Mr Kinnane would have had some uncertainty about those restrictions. Mr Hulme accepted that the restrictions as outlined in the certificates were capable of more than one interpretation and that the weight restrictions could be read as applying to lifting weights above chest level.
[110] This ambiguity is illustrated by the fact that the allegations about Mr Kinnane working outside his medical restrictions were based on a 2.5kg lifting restriction, while the return to work plan developed by Ms Fitzpatrick, and said to reflect those restrictions, contained a 5kg lifting restriction.
[111] In circumstances where there is no evidence to contradict that of Mr Kinnane, to the effect that he was undertaking restricted duties for DP World that were similar to the tasks he was undertaking for Rapid Fabrications, there is no basis upon which I could be satisfied that he wilfully or intentionally engaged in work for his own business that breached his medical restrictions. I am also of the view that the extremely limited extent to which Mr Kinnane could be said to have undertaken tasks in breach of his medical restrictions, is not sufficient to constitute serious misconduct such that there was a valid reason for Mr Kinnane’s dismissal.
[112] Further, I am of the view that DP World did little to clarify the restrictions applicable to Mr Kinnane, by failing to properly document and articulate the return to work plan that reflected those restrictions, in accordance with its own procedures. There was no adequate explanation provided by Ms Fitzpatrick in relation to her failure to discuss the return to work plan with Mr Kinnane and to resolve the apparently contradictory restrictions set out in the medical certificates. The failure of a person charged with managing the return to work of injured employees, to take these steps is inexplicable, other than on the basis that Ms Fitzpatrick was completely occupied with the attempt to establish fraud, deceit and dishonesty on the part of Mr Kinnane.
[113] I am also of the view that DP World cannot complain that Mr Kinnane did not assert that the restricted duties he was given were inconsistent with his return to work plan, in circumstances where there was a total failure on the part of the person charged with managing Mr Kinnane’s return to work, to discuss that plan with him or to take any steps to ensure that it was appropriate. In the absence of any evidence to the contrary, including from the very person responsible for the return to work program, I accept Mr Kinnane’s evidence about the duties he was given by DP World during the period he was unjured.
[114] I do not accept that Mr Kinnane dishonestly obtained benefits from DP World such as reduced work duties while maintaining his salary or cab charge vouchers. There is no evidence that the work performed by Mr Kinnane on suitable duties, was not useful or beneficial work for DP World. There is also insufficient evidence upon which I could be satisfied that Mr Kinnane used cab charge vouchers provided by DP World at times when he was physically able to drive. Despite the best efforts of Ms Fitzpatrick to establish to the contrary, there is no evidence that Mr Kinnane drove when he was taking Tramadol or that he used cab charge vouchers provided by DP World after he ceased taking Tramadol. At very least, I would have expected that such an allegation would have been supported by documentary evidence such as the used vouchers or some account associated with them.
[115] If Ms Fitzpatrick believed that Mr Kinnane was driving when he should not have been she had ample opportunity to ask him about this matter. On Ms Fitzpatrick’s evidence she had a discussion with Mr Kinnane about his claim immediately after being told by a manager that Mr Kinnane had left the site in a car. Instead of asking Mr Kinnane about this, Ms Fitzpatrick went and viewed video footage before forming the view that Mr Kinnane had not been driving on that occasion.
[116] I also do not accept that Mr Kinnane engaged in fraud with respect to his workcover claim. At the point Mr Kinnane was dismissed, DP World had provided the grounds for its views in this regard to WorkCover and no decision had been made by WorkCover in relation to those matters. WorkCover subsequently accepted Mr Kinnane’s claim after requiring him to attend an independent medical examination. WorkCover had no involvement in these proceedings and there is nothing in Mr Kinanne’s WorkCover file which was in evidence in this case, to indicate that WorkCover has any issue with his claim. Mr Kinnane’s WorkCover claim was for medical expenses and he did not receive compensation for lost wages. Further there is no evidence that he was performing work for Rapid Fabrications while being absent on sick leave from DP World.
[117] WorkCover fraud is a serious matter and employees who engage in such fraud are subject to significant penalties. Ms Fitzpatrick and Mr Hulme were unable to provide any basis for the allegation of WorkCover fraud other than to assert that Mr Kinnane did not make a full disclosure to WorkCover about his activities for Rapid Fabrications.
[118] Management of DP World knew prior to the reported injury that Mr Kinnane had his own business. There is no evidence that Mr Kinnane had an obligation to disclose to WorkCover that he had a hobby or business outside DP World. The claim form completed by Mr Kinnane simply requires him to indicate how the injury occurred and there is no evidence upon which I could be reasonably satisfied that he has failed to do so or has been untruthful in the information he provided.
[119] I am also of the view that it is not appropriate for the Commission to embark on an exercise of considering whether Mr Kinnane has complied with the provisions of the Workers Compensation Act in relation to his WorkCover claim. Quite simply there is no basis for a finding of fraud, in the total absence of any evidence from the alleged victim, or any evidence of a finding by WorkCover in relation to this allegation.
Was Mr Kinnane notified of the reason for dismissal and given an opportunity to respond?
[120] I accept that Mr Kinnane was notified of the reasons for his dismissal. Those reasons were set out in the letter of 6 June 2013 and the letter confirming the dismissal. However, I do not accept that Mr Kinnane had an opportunity to respond to those reasons.
[121] A significant matter in the decision to dismiss Mr Kinnane – that the injury did not occur at work and that he had provided fraudulent and false information to WorkCover – was not put to him. I accept the submissions advanced for Mr Kinnane that:
● The video surveillance which was critical to the Company’s view about his alleged misconduct was not shown to Mr Kinnane;
● The specific medical restrictions applicable at the time the surveillance was undertaken were not articulated or identified;
● No details were given to Mr Kinnane in relation to the allegation that he had provided false information or made untrue statements;
● The benefit or personal gain Mr Kinnane was alleged to have obtained was not identified; and
● Despite being accused or any questions which could have given DP World a basis to reach the conclusions that it did.
[122] Further, in relation to the allegations of fraud and dishonesty, Mr Kinnane was not asked about his intentions or state of mind. Allegations that the injury did not occur at work or that he was motivated by impending redundancies, were not put to Mr Kinnane. As a result, he did not have a reasonable opportunity to respond to a range of extremely serious allegations that were substantive reasons for his dismissal. It is significant that Ms Fitzgerald had no compunctions about articulating those allegations to WorkCover, and yet they were not put to Mr Kinnane.
Was there an unreasonable refusal for Mr Kinnane to have a support person?
[123] Mr Kinnane had Mr Munday of the MUA present during discussions relating to his dismissal and there was no unfairness on the basis of this criteria.
Was Mr Kinnane warned about unsatisfactory performance?
[124] Mr Kinnane was not dismissed on the ground of unsatisfactory performance and this is not a relevant criteria in the present case.
Did the size of the employer’s enterprise or absence of dedicated human resource management specialists impact on the procedures in effecting the dismissal?
[125] DP World is a large employer with access to dedicated human resource management specialists and these criteria are not relevant.
Are there other relevant matters?
[126] It is apparent from the evidence that from the time Mr Kinnane reported his injury, Mr Hulme and Ms Fitzpatrick embarked on an exercise directed to establishing that he was dishonest and fraudulent. It is also apparent that there were no grounds upon which the inference of dishonesty or fraud on the part of Mr Kinnane could reasonably have been drawn. The initial suspicions about the injury appear to have been generated by the belief that Mr Kinnane attended a Union meeting after the injury occurred, and displayed no obvious pain or discomfort.
[127] Leaving aside the nature of the meeting and the relevance of the fact it was a Union meeting, on the basis of the evidence before me, Mr Kinnane attended that meeting before he was injured. Even if I accept the suggestion in the evidence that there were two Union meetings around that time and that the injury may have occurred between those meetings, managers of DP World who observed Mr Kinnane at the meeting are not medically qualified and I do not accept that the fact that an employee who reports an injury of the kind initially reported by Mr Kinnane would be expected to display signs of discomfort, particularly while sitting in a meeting. The subsequent aggravation of the injury raised no suspicions with the medical practitioners who later examined Mr Kinnane and the injury and the mechanism of aggravation as reported by Mr Kinnane were accepted.
[128] The speed with which Mr Hulme concluded that there were suspicious circumstances surrounding the injury and the alacrity with which Ms Fitzpatrick set out to prove his suspicions was extraordinary. Ms Fitzpatrick was not an impressive witness. Her “contemporaneous” notes were not in fact contemporaneous and neither were they accurate. Ms Fitzpatrick maintained positions under cross-examination which were unsustainable and did not make concessions about the accuracy of her evidence in circumstances where it would have been reasonable for her to do so. In short, Ms Fitzpatrick went to great lengths to put a spin on every event and interaction with, and in relation to Mr Kinnane, so that it reflected adversely on Mr Kinnane and in some of her evidence embellished events by adding observations that were inaccurate.
[129] I am at a loss to understand how the fact that an employee who claims to be injured at work obtained an early appointment with an orthopaedic specialist, was a basis for Ms Fitzpatrick to be suspicious about that employee’s WorkCover claim. The fact that such an assertion may have impugned the integrity of Doctor Davies also seems to have been of no concern to Ms Fitzpatrick, who had no compunctions about airing her unfounded suspicion about the appointment to WorkCover. Similarly that Mr Kinnane chose to hand deliver documents to WorkCover is not a matter that should generate suspicion, particularly after it is established that Mr Kinanne did not drive on that occasion but was driven by his daughter. Even after finding out that Mr Kinnane did not drive, Ms Fitzpatrick queried why he took the documents to WorkCover at all.
[130] Ms Fitzpatrick recorded that she was told by Mr Reynolds of WorkCover that Mr Kinnane became “standoffish” when questions about his claim were raised. That assertion is not found in her “contemporaneous” file note of the conversation, or in the file note made by Mr Reynolds. Notwithstanding this, Ms Fitzpatrick included it in her chronology of events. Ms Fitzpatrick’s suspicions about the “backdated” medical certificate were also unfounded and had she bothered to ask Mr Kinnane about this matter, he could have provided a perfectly reasonable explanation for the apparent discrepancy, on the basis that he had two appointments with Doctor Kurshid on two successive days.
[131] The chronology prepared by Ms Fitzpatrick contains assertions that are not found in the file notes upon which the chronology is based or in the records of conversations between Mr Reynolds of WorkCover and Ms Fitzpatrick contained in Mr Kinnane’s WorkCover file. That chronology contains observations and conclusions that are at best prejudicial to Mr Kinnane and at worst, misleading and untruthful. This chronology formed the basis of the disciplinary action against Mr Kinnane and his subsequent dismissal.
[132] Discrepancies between the certificates issued by various medical practitioners could also have been easily reconciled by the Company having discussions with Mr Kinnane and the medical practitioners or directing Mr Kinnane to attend a medical examination conducted by a Doctor nominated by the Company. The Company could also have awaited the outcome of the examination ordered by WorkCover, particularly given that Ms Fitzpatrick had been pressing for WorkCover to undertake such an examination.
[133] DP World is a large Company that appears to pride itself on being proactive in respect to health and safety. Mr Kinnane said in his evidence that he could have been subject to disciplinary action if he did not report the injury. In my view the treatment meted out to Mr Kinnane is unlikely to encourage the timely reporting of incidents. Ms Fitzpatrick is employed by DP World on the basis that she is charged with managing injuries which occur in the workplace, including overseeing the return to work of injured workers. The manner in which Ms Fitzpatrick approached Mr Kinnane’s situation is entirely at odds with this role. There does not appear to have been any concern at all on the part of Ms Fitzpatrick or any manager of DP World that Mr Kinnane may have been genuinely injured at work. The proposition that Mr Kinnane was injured and that the injury occurred in the workplace, does not appear to have even been entertained.
[134] Rather, Mr Muscat, Mr Hulme and Ms Fitzpatrick almost immediately came to the view that Mr Kinnane 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. There does not appear to have been any consideration of the seriousness of the allegations that the Company was making against Mr Kinnane, including to WorkCover, and the implications of those allegations to Mr Kinnane.
[135] The Company continued on this course and did not depart from it, even when evidence of fraud did not materialise and the allegations were not able to be sustained. That the Company maintained its assertion of fraud against WorkCover in circumstances where WorkCover investigated the matters raised by the Company and nonetheless allowed Mr Kinnane’s claim, is illustrative of the lengths that Ms Fitzpatrick and other managers of DP World were prepared to go in impugning Mr Kinnane’s honesty.
[136] I do not accept as a general proposition that an employee has a right to privacy such that an employer who engages in covert surveillance will be found to have treated the employee unfairly. I accept that where an employer suspects on reasonable grounds that an employee is engaging in wrongful conduct (such as working in a manner inconsistent with medical restrictions while claiming sick leave or workers’ compensation benefits) covert surveillance conducted in an appropriate manner is an acceptable means of investigating such conduct.
[137] However, the circumstances in which a decision is made to implement surveillance and the manner in which it is arranged and carried out, may give rise to findings of unfairness. This is such a case.
[138] The decision to implement the surveillance of Mr Kinnane was not based on reasonable grounds. At the point the decision was made, there was insufficient information before Mr Hulme to ground a genuine and reasonable belief that Mr Kinnane was being dishonest about his injury. Mr Kinnane had simply reported an injury in circumstances where he could be liable for discipline for failing to do so and had later reported an aggravation. Mr Hulme’s and Mr Muscat’s mistaken views about Mr Kinnane’s participation in a meeting were not a sufficient basis for the surveillance to be implemented and if Mr Kinnane did participate in a meeting after reporting his injury, those managers were not medically qualified to make any conclusions about his apparent lack of impairment.
[139] Mr Kinnane had made no secret of the fact that he was operating Rapid Fabrications and this fact was not sufficient to justify the suspicions of Mr Hulme, Mr Muscat and Ms Fitzpatrick in relation to his injury, even when considered in light of Mr Kinnane’s attendance at the meeting. It is also noteable that the matters which lead Mr Hulme to approve the surveillance operation did not crystallise into allegations at the point Mr Kinnane was dismissed and were not put to Mr Kinnane in the dismissal meeting.
[140] The email briefing to Kerrigans in relation to the surveillance sent by Ms Fitzpatrick on 17 May 2013, is laced with prejudicial statements about Mr Kinnane. On receiving such an email, that firm can have been in no doubt that the object of the exercise was to catch Mr Kinnane “working” at a time when he was said to be totally incapacitated. This can only have been confirmed by Ms Fitzpatrick’s subsequent email to Kerrigans asking whether there was any good news to improve her Friday afternoon. Ms Fitzpatrick’s eagerness to obtain adverse information was matched only by her glee when she thought that the surveillance had yielded the result she was seeking, as evidenced by her email to Mr Muscat stating that she had “awesome news” and he should leave his meeting to call her.
[141] It is also the case that in the period between the email briefing to Kerrigans dated 17 May 2013, and the dates when the surveillance was undertaken, Mr Kinnane had medical certificates clearing him to undertake suitable duties subject to limitations. There is no evidence that the brief to Kerrigans was amended to inform the firm that there was a change to Mr Kinnane’s medical restrictions and that he was no longer totally incapacitated. To the contrary, the observations about Mr Kinnane walking distances, bending and squatting are indicative that Kerrigans was investigating Mr Kinnane on the basis that he was totally incapacitated. There were no restrictions on Mr Kinnane undertaking activities such as walking while he was under surveillance.
[142] It is also the case that DP World provided details to Kerrigans of Mr Kinnane’s date of birth and his mobile telephone number. Details of his treating medical practitioners were also provided, along with the next scheduled appointments he had with those practitioners. Given that Mr Kinnane’s home address was provided, along with a photograph of him, I can see no reason why it was necessary to provide that other information.
[143] Unsurprisingly, the prejudicial nature of the brief to Kerrigans generated an equally prejudicial report. Mr Kinnane is referred to in the Report as being “of bikie appearance”. The report is full of observations about Mr Kinnane’s appearance, his clothing and the appearance of other persons he was observed talking to. Why it was necessary to observe that Mr Kinnane was talking to a woman approximately 20 years of age who was of “heavy build” escapes me entirely. Similarly why it was necessary for Kerrigans’ agents to report on the make and registration number of vehicles that entered Mr Kinnane’s property or his business premises was not explained. Of particular concern is the fact that Mr Kinnane was followed and observations were written about the fact that he dropped a “passenger” at a school. Presumably this passenger was Mr Kinnane’s child and I do not accept that such observations should have been included in the report, or that Mr Kinnane should have been under surveillance while dropping his child to school.
[144] I am satisfied that Mr Kinnane’s dismissal was unfair on the basis that it was harsh, unjust and unreasonable. The dismissal was harsh because of its consequences for Mr Kinnane’s personal and economic circumstances. Mr Kinnane was a long serving employee with an unblemished work record. He states that he intended to express an interest in redundancies which were to be implemented by DP World in January 2014. There is nothing to indicate that, but for his unfair dismissal, Mr Kinnane would not have remained in employment until at least that time.
[145] Mr Kinnane was summarily dismissed on the basis of serious allegations which undoubtedly had an impact on his ability to obtain other employment. If Mr Kinnane did perform some work for Rapid Fabrications which was outside of his medical restrictions, then that work was limited and must be viewed against the ambiguity of those restrictions and the failure of DP World to properly implement a return to work program for Mr Kinnane. It is also the case that Mr Kinnane’s conduct is mitigated by his lack of understanding of those restrictions.
[146] Mr Kinnane’s dismissal was unjust because he was not guilty of dishonesty, deceit or fraud as alleged by DP World. The dismissal was unreasonable because it was decided on inferences that could not reasonably have been drawn from the material before the employer. A range of serious allegations against Mr Kinnane have not been made out and there was no reasonable basis for them to have been made in the first place. The suspicions of DP World were unfounded, and the conclusions drawn from the material before the Company in deciding to dismiss Mr Kinnane were erroneous.
[147] I am satisfied that Mr Kinnane should have a remedy for his unfair dismissal. Mr Kinnane seeks reinstatement. Prima facie, I can see no impediment to reinstatement. However, I am conscious that there has been a lapse of time between the dismissal and the hearing of Mr Kinnane’s application, and between the hearing and the decision.
[148] DP World reserved its right to make further submissions in relation to remedy. In his evidence to the Commission, Mr Kinnane indicated his intention to build up Rapid Fabrications so that it could cease to be a hobby and become a business from which he could make a living.
[149] In order to decide the appropriate remedy, I require further evidence from Mr Kinnane in relation to his attempts to mitigate his loss and his earnings up to the point at which he will receive a remedy. I also intend to provide DP World with an opportunity to make further submissions in relation to remedy. I do not intend to receive further evidence from DP World in relation to remedy, given that Mr Kinnane gave evidence about this matter, and DP World had every opportunity to call evidence in reply during the hearing.
[150] Mr Kinnane is directed to provide a statement of evidence by close of business on Friday, 18 July 2014 in relation to his loss since the termination of his employment, and in particular the matters in s.391(4) or s.394(d) (e) and (f) of the Act in the event that DP World opposes reinstatement and succeeds with that submission. DP World is directed to provide further written submissions in relation to remedy by close of business on Friday, 25 July 2014. DP World is further directed to advise whether they require Mr Kinnane for cross-examination in relation to his further statement of evidence. Any response to those submissions from Mr Kinnane is to be provided by close of business on Friday, 1 August 2014.
[151] In the event that cross-examination is required the matter will be re-listed. Otherwise the question of remedy will be determined on the basis of the material on the file.
DEPUTY PRESIDENT
Appearances:
Mr R.S. Reidy of Counsel on behalf of the Applicant.
Mr D. Perry and Ms J. Bloomfield on behalf of the Respondent.
Hearing details:
2014.
Brisbane:
January 20; 21;
March 20;
June 30.
1 Exhibit 1 Statement of Shaun Kinnane Annexure “SK13”.
2 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
3 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
4 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
5 Walton v Mermaid (1996) 142 ALR 681 at 685.
6 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
7 Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 42 per Derrington J.
8 Ibid at 42.
9 Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 3) [2013] FCCA 694.
10 Laws v London Chronicle (Indicator Newspapers) Ltd
11 Brinks Australia Pty Ltd v Transport Workers’ Union of Australia: PR922612 per Giudice J, Acton SDP and Hingley C.
12 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) 110 ALR 449.
13 Exibibit 1 Statement of Shaun Kinnane; Exhibit 2 Witness Statement of Shaun Kinnane in reply.
14 Exhibit 11 Statement of Trevor Munday.
15 Exhibit 13 Statement of Alanna Fitzpatrick.
16 Exhibit 14.
17 Exhibit 11 Statement of Trevor Munday Annexure “TM1” WorkCover File.
18 Exhibit 1 Annexure “SK5”.
19 Exhibit 1 Annexure “SK22”.
20 Exhibit 20 Statement of Mark Hulme paragraphs 8 and 9.
21 Exhibit 13 Annexure “AF1”.
22 Exhibit 13 Annexure “AF2”.
23 Exhibit 16.
24 Exhibit 1 Annexure “SK1”.
25 Exhibit 1 Annexure “SK5”.
26 Exhibit 1 Annexure “SK3”.
27 Exhibit 1 Annexure “SK4”.
28 Exhibit 1 Annexure “SK6”.
29 Exhibit 1 Annexure “SK7”.
30 Exhibit 1 Annexure “SK8”.
31 Exhibit 1 Annexure “SK9”.
32 Exhibit 1 Annexure “SK10”.
33 Exhibit 1 Annexure “SK11”
34 Exhibit 13 Statement of Alanna Fitzpatrick Annexure “AF13”.
35 Exhibit 13 Annexure “AF13”.
36 Exhibit 13 Annexure “AF13”.
37 Exhibit 17.
38 Exhibit 13 “AF1”.
39 Exhibit 1 Annexure "SK14”.
40 Exhibit 1 Annexure “SK15”.
41 Exhibit 1 Annexure “SK16”.
42 Exhibit 1 Annexure “SK17”.
43 Exhibit 1 Annexure “SK18”.
44 Exhibit 1 Annexure “SK19”.
45 Exhibit 1 Annexure “SK20”.
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