Parwinder Singh v Manhari Management Company Pty Ltd
[2021] FWC 3489
•28 JUNE 2021
| [2021] FWC 3489 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Parwinder Singh
v
Manhari Management Company Pty Ltd
(U2021/2126)
DEPUTY PRESIDENT MASSON | MELBOURNE, 28 JUNE 2021 |
Application for an unfair dismissal remedy.
[1] On 15 March 2021, Mr Parwinder Singh (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Manhari Management Company Pty Ltd (the Respondent) on 25 February 2021. The Applicant seeks an order for compensation.
[2] Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 24 June 2021. At the commencement of the proceeding on 24 June 2021 and after hearing from the parties, I determined to conduct a conference pursuant to s. 398 of the Act.
[3] At the Conference the Applicant was self-represented and gave evidence himself while the Respondent was represented by Mr M Gupta, Business Development Manager. The Respondent called the following witnesses to give evidence:
• Mr M Gupta – Business Development Manager
• Mr P Saunders – Transport Manager/Driver
• Mr M Bhardwaj – Exports Manager
Background and evidence
[4] The Respondent conducts a metal recycling business in Tottenham Victoria and at the time of the Applicant’s dismissal, employed approximately 40 staff 1. The Applicant commenced employment with the Respondent on 27 July 2020 and was employed as a full-time truck driver for which he received an hourly rate of pay of $28.00.
[5] The duties of the Applicant as a truck driver involved;
• The requirement to drive a range of ‘tipper’ and ‘tray’ trucks including both manual and automatic vehicles.
• Before commencing ‘runs’ each day, drivers are required to undertake a vehicle inspection of their allocated vehicles.
• Run sheets (jobs) are provided to drivers following which they are required to proceed to the designated pick-up address or addresses.
• The tipper truck involves scrap metal being placed in the tipper bin while tray trucks require scrap metal to be placed on the flat bed of the truck by a forklift.
• Chains or straps are used to secure a load in the case of both tipper and tray trucks which may require the driver to throw the strap or chain over the load before securing.
• On return to the Respondent’s site, the scrap metal is removed from the truck either by way of being tipped into a bin (from the tipper truck) or removed by a fork-lift in the case of a tray truck.
• Drivers may also be required to couple or uncouple trailers from the prime mover.
[6] Mr Saunders gave evidence that the duties of drivers do not involve heavy manual labour, a point conceded by the Applicant.
[7] The Applicant suffered injuries to the little finger on his left hand and left leg on 30 October 2020 arising from a workplace incident following which he made a workers compensation claim which was accepted by the Respondent’s insurer (EML) on 23 November 2020 2.
[8] Over the three months following the injury, the Applicant produced a series of certificates of capacity that indicated he was unable to perform his pre-injury duties 3. Mr Gupta states that in January 2021 he received an anonymous ‘tip off’ that the Applicant was working a second job while off on workers compensation. The Respondent was also unhappy with the length of time that the Applicant’s incapacity had continued for, believing the length of the Applicant’s absence and incapacity to be disproportionate to the injury. The Respondent contacted EML in January 2021 to see if it could contact the treating GP to find out why the Applicant was unable to return to work on alternate duties. EML agreed and engaged the services of a third-party occupational rehabilitation provider, Mend Services (Mend), to engage with the Applicant’s GP to determine whether an alternate duties plan could be developed and implemented.
[9] The Respondent also requested that EML initiate surveillance of the Applicant as the Respondent believed he may have been fraudulently claiming incapacity. EML declined to undertake the requested surveillance following which the Respondent commissioned its own surveillance conducted in the period 22- 28 January 2021. A surveillance report was furnished to the Respondent on 29 January 2021 4. The summary of key observations in the surveillance report stated as follows;
“Our first period of surveillance was undertaken on Friday 22nd January 2021 commencing at 7.00 a.m.
At approximately 9.26 a.m., the Subject emerged from his dwelling and was observed conversing on a mobile phone held initially in his right hand, then in his left and then hands free. He was noted pacing up and down at the front of his dwelling for approximately 40 minutes and appeared in good spirits laughing and smiling.
He was noted on two occasions to lean against his dwelling with his right leg bent up against the wall and his full weight on his left leg. He was further observed on this day at approximately 10.33a.m. clearing the contents of his mailbox and briefly conversing with a neighbour and with no further sighting of the Subject, surveillance was temporarily ceased at 1.30 p.m.
We re-commenced surveillance on this day at 4.00 p.m. and at approximately 6.26 p.m. a tradesman entered the property carrying a ladder and departed a short time later. The Subject then emerged and was noted standing at the front of his property conversing with a male neighbour, then bent down to pick up a young child. Following this the Subject departed the property with his male companion and walked around the neighbouring area and parkland covering a distance of approximately 2.8 kilometres before returning to his property and surveillance was terminated at 9.00 p.m.
A further period of surveillance was then undertaken on Saturday 23rd January, 2021 commencing at 4.00 p.m.
At approximately 8.21 p.m. the Subject departed the property alone and again walked around the neighbouring area with no obvious restrictions, covering a distance of approximately 1.2 kilometres before returning to his property and surveillance was terminated at 9.00 p.m.
A final period of surveillance was then undertaken on Friday 22nd (sic) January, 2021 commencing at 9.30 a.m.
The Subject emerged from his property at approximately 10.04 a.m. and throughout the day was noted in company with a male neighbour. The Subject and his male companion were observed digging a trench at both the Subject’s property and his male companion’s property.
The Subject was observed using a pick, a shovel, a backhoe, a hammer and a tape measure. He was noted to be wearing gloves and used both hands to undertake heavy manual work throughout the day including carrying large planks of wood with minimal rest.
After discussions were held with your office surveillance was terminated on this day at 4.00 p.m.”
[10] It is apparent from a review of the surveillance report and accompanying surveillance videos that the reference in the report summary to the ‘final period of surveillance’, reported as having been conducted on Friday 22 January 2021, was actually undertaken on Thursday 28 January 2021.
[11] A return to work case conference was conducted on 2 February 2021 at which the Applicant, his treating GP and Mend representatives attended. According to Mr Gupta, Mend was advised in advance by the Respondent that suitable alternate duties options could be provided that were less demanding than the activities undertaken by the Applicant as revealed by the surveillance. It was conceded by the Respondent that details of available alternate duties were not provided or discussed at the 2 February 2021 case conference. Arising from the case conference the Applicant remained unfit for normal duties and remained restricted to the performance of tasks that involved only the use of his uninjured right hand and allowed him to remain seated.
[12] After receiving a further certificate of capacity from the Applicant following the 2 February 2021 case meeting, the Respondent submitted the surveillance footage of the Applicant to EML, which subsequently provided it to the Applicant’s treating GP. On 10 February 2021 the Applicant was cleared by his GP to return to work and perform the full range of his pre-injury duties. There were no restrictions or limitations imposed by the medical clearance on the duties the Applicant was able to perform.
[13] Mr Saunders states that on 12 February 2021, the Applicant returned to work following his medical clearance and was allocated a truck and a ‘run’ that consisted of less than eight hours work. Mr Saunders further states that the Applicant declined to drive the truck allocated and in doing so cited his injuries. The Applicant was then offered alternate work in the ‘yard’ but also refused those duties and as a consequence was sent home.
[14] The Applicant states that he only came into work on the 12 February 2021 for the purpose of meeting Mr Crawford, who was the Respondent’s Compliance Manager and with whom the Applicant says he understood he would be discussing his return to work. He further states that he was not comfortable performing the ‘yard’ duties offered as he had not previously undertaken that particular work. He also states that the driving offered to him was in a manual truck which he was uncomfortable driving because of the ongoing effects of his left leg and left-hand injuries.
[15] According to Mr Saunders, the Applicant attended work again on 15 February 2021, was allocated a truck but refused to drive it, again citing his injury. Mr Singh agreed that he was asked to drive a truck and declined to do so but states that he was again uncomfortable driving the particular allocated truck because it was a manual and he remained concerned at driving a manual vehicle because of his injuries. On the same day Mr Crawford on behalf of the Respondent sent two pieces of correspondence 5 via email to the Applicant in relation to his alleged failure to follow directions. One letter dealt with Mr Singh’s refusal to drive a truck on the 12 February 2021, while the second letter dealt with Mr Singh’s refusal to drive a truck on the 15 February 2021. The letters were identical in form and content save for the reference to the date on which the Applicant had declined to perform driving duties. The latter letter was in the following terms;
“Dear Parwinder
Notice to Attend Disciplinary Meeting
I am writing to you about your Failure to Follow Direction during your employment with Manhari Metals.
Specifically, on the 15th February 2021, you presented to work and were asked to drive a truck and perform deliveries and pick ups as part of your normal duties as a Truck Driver. You claimed that you could not drive the vehicle based on your injuries, despite have a Certificate of Capacity that states you are fit to perform full pre injury duties.
On the 16th February 2021 at 07:00am, you will be required to meet with your supervisor to discuss your actions, where we intend to issue you with a written warning. You are welcome to bring a witness with you to the meeting, however, any witness present will not be given an opportunity to speak or to advocate for you and are there for support only.
At the meeting, you will be given an opportunity to explain your actions, which will be considered before the final decision is made as to if you will be issued a written warning. Should you fail to attend the meeting, a decision will be made in your absence.
If you would like to arrange for the meeting to occur earlier, please contact your supervisor and we will arrange a suitable alternative date and time for the meeting.”
[16] As set out in the letters dated 15 February 2021, Mr Singh was directed to attend work for a disciplinary meeting on the 16 February 2021. Mr Crawford, with whom he was required to meet, was absent on sick leave that day and the meeting did not proceed. The Applicant then proceeded to drive an allocated (manual) truck for the full eight hours that day.
[17] Mr Singh gave evidence that he also received an email on 16 February 2021 from a Ms Megan Jenkin, a rehabilitation consultant with Mend, which stated as follows;
“Hi Parwinder
Hope you are well.
Are you still wearing the splint on your little finger, 24 hours a day, 7 days a week? How have the physio appointments going? Did you attend your physio appointment last week.
As you are aware, I have been in discussions with both EML and Shannon in organising your Return to Work. Until this is sorted, please do not go to the workplace unless advised.
…….” 6
[18] On 17, 18 and 19 February 2021 the Applicant did not attend work, the absences supported by a medical certificate from his treating GP. On 22, 23 and 24 of February 2021 the Applicant also did not attend work although these absences were not supported by a medical certificate. Mr Singh states that he did not attend work because of the email he had received from Ms Jenkin on 16 February 2021. Mr Gupta expressed no knowledge of the email referred to by the Applicant.
[19] On 24 February 2021 Mr Crawford issued the Applicant with a further letter 7 advising him that he was required to attend a meeting at 1.00pm on 25 February 2021. The Applicant acknowledged that he received the email with the attached letter on 24 February 2021 but says he did not read the attached letter on that day. The letter stated as follows;
“Dear Parwinder,
I am writing to you about your Serious Misconduct during your employment with Manhari Management Co. Pty Ltd (Manhari Metals), in that you were fraudulently claiming Workers Compensation.
Specifically, during your employment with Manhari Metals, you were injured and made a Worksafe Workers Compensation claim. Surveillance was commissioned and conducted on the 22nd - 28th of January 2021. During this surveillance, it was observed that you had the capacity to walk a distance of greater than 2km and that you were capable of performing labour works including digging the ground with a pick, carrying multiple lengths of timber and squatting down to assist in the cutting of lengths of timber.
On the 2nd February, 2021, you attended a GP Return to Work Case Conference. Prior to this conference, we had provided suitable duty options to the Rehabilitation Co Ordinator that were significantly less demanding than the activities you performed during the surveillance period. However, in this conference, you indicated that you were still unfit for normal duties and could only perform tasks that involved the use of your uninjured hand only and in a seated position only. This is despite your clear capacity to stand, walk and squat for significant periods and to use both hands for strenuous activities such as digging.
The surveillance report was provided to your GP after the GP Return to Work Case Conference and your GP was, anecdotally, very distressed when he read the findings. You were, on the 10th February 2021, subsequently cleared to perform your full pre injury employment by your GP.
Further to the above, on the 12th and 15th of February, you presented to work and on both occasions, refused to drive the truck allocated to you, citing your injury. On the 12th February, you were also offered alternative work in the yard, but again refused.
Manhari Metals have provided you with multiple opportunities to return to work in a capacity that would not aggravate your injury. In all cases, you fraudulently claimed to your treating GPO that your injuries were much greater than they were and that your capacity for work was significantly lower than it was. Even knowing this, Manhari Metals attempted to look past this fraudulent (and potentially illegal) claims and provide you with work, but you continued to claim you were not capable of working.
On the 25th February 2021 at 01:00pm, you will be required to meet with Management to discuss your actions, where we intend to terminate your employment with Manhari Metals on the grounds of Serious Misconduct. You are welcome to bring a witness with you to the meeting, however, any witness present will not be given an opportunity to speak or to advocate for you and are there for support only.
At the meeting, you will be given an opportunity to explain your actions, which will be considered before the final decision is made as to if your employment with Manhari Metals will be terminated. Should you fail to attend the meeting, a decision will be made in your absence.
If you would like to arrange for the meeting to occur earlier, please contact your supervisor and we will arrange a suitable alternative date and time for the meeting.”
[20] It was not in dispute that the Applicant was not at any point directly provided with a copy of the surveillance report or the video footage referred to in the letter dated 24 February 2021 and on which the Respondent sought to rely. Mr Gupta claimed without any supporting evidence that the Applicant was shown the video footage by either his GP or by Mend prior to his dismissal on the 25 February 2021, a claim denied by the Applicant.
[21] Having viewed the video footage in advance of the hearing, the Applicant conceded that it revealed him to be performing vigorous manual labouring at a time he was said to be unfit for his pre-injury driving duties. He sought to explain the labouring he was captured performing as consistent with advice he received from his GP and rehabilitation consultant that he needed to continue to ‘work’ and strengthen his body to effectively recover from his injuries. He acknowledged that footage of him labouring was difficult to reconcile with his stated incapacity for work.
[22] Returning to the chronology of events leading to the Applicant’s dismissal, the Applicant states that Mr Crawford contacted him on 25 February 2021 to check whether he would be attending the scheduled meeting that day. The Applicant advised Mr Crawford that he had not read the letter dated 24 February 2021 and would not be able to attend the meeting due to conflicting appointments that day. Mr Crawford then offered to conduct the meeting by telephone which the Applicant agreed to participate in. The meeting proceeded on 25 February 2021 with the Applicant phoning in to the meeting with Mr Crawford and Mr Bahrdwha who attended as a witness.
[23] Mr Bahrdwha states that during the meeting Mr Crawford ran through the allegations of misconduct that were set out in the letter dated 24 February 2021 following which the Applicant was invited to respond. Mr Bahrdwha states that the Applicant responded to the effect that he was unable to carry out the full range of duties because his injuries had not fully recovered. The Applicant did not add to or contradict Mr Bahrdwha’s summary of the meeting. The meeting lasted between 20-40 minutes at the conclusion of which the meeting was adjourned for approximately 5 minutes while the Respondent considered the Applicant’s responses. Following the adjournment, Mr Crawford phoned the Applicant back and advised him that his employment was to be terminated with immediate effect.
[24] The Applicant was subsequently issued with a letter of termination 8 dated 25 February 2021 which stated as follows;
“Dear Parwinder,
Termination of Your Employment
I am writing to you about the termination of your employment with Manhari Management Co Pty Ltd (Manhari Metals).
On 24/02/2021 you were issued with a formal letter. This letter indicated that you were to attend a meeting the next day where Manhari Metals were considering terminating your employment. This letter also stated that if you did not attend the meeting Manhari would decide in your absence.
On 25/02/2021, despite not attending the meeting, you were given an opportunity to perform the meeting over the phone. You spoke to Shannon Crawford and present was Mohit Bhardwaj as witness. In that meeting, your Serious Misconduct, in that you fraudulently claimed workers compensation was discussed. You were informed on why Manhari Metals were considering terminating your employment and you were given an opportunity to respond to the allegations.
After the call, your responses were considered, however Manhari Metals were not satisfied that you did not act fraudulently. Manhari Metals consider that your actions constitute Serious Misconduct warranting summary dismissal. Shannon Crawford called you back after the determination was made, to inform you that your employment with Manhari Metals would be terminated.
Your employment will end immediately. You will be paid your accrued entitlements and any outstanding pay up to and including your last day of employment.
We thank you for your valuable contribution during your employment with us and wish you all the best for your future endeavors.”
[25] On the day of the conference on 24 June 2021 the Applicant produced a hand-written x-ray report 9 which appeared to be dated 16 June 2021. The Applicant stated that the report confirmed ongoing issues he has with his injured finger on his left hand and that ongoing injury management is still required.
Has the Applicant been dismissed?
[26] A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[27] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Initial matters
[28] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[29] Section 394(2) requires an application to be made within 21 days after the dismissal took effect. It is not contested that the Applicant was dismissed on 25 February 2021 following which he filed an application for an unfair dismissal remedy on 15 March 2021. I am therefore satisfied that the application was made within the period required under subsection 394(2) of the Act.
Was the Applicant protected from unfair dismissal at the time of dismissal?
Minimum employment period
[30] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time. The Applicant commenced his employment with the Respondent on 27 July 2020 and was dismissed on 25 February 2021, that being a period of employment of approximately seven months. I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period of six months.
Modern award or enterprise coverage, annual rate of earnings
[31] It was not in dispute and I find that, at the time of dismissal, the Applicant was in receipt of a rate of pay of $28.00 per hour which equates to annual remuneration of approximately $55,328.00 (excluding overtime). It follows that the Applicant’s annual rate of earnings was less than the high income threshold.
Did the Respondent comply with the Small Business Fair Dismissal Code in relation to the dismissal?
[32] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[33] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis). I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the Act.
Was the dismissal a case of genuine redundancy?
[34] Under s.389 of the Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[35] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise. I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[36] Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.
Was the dismissal harsh, unjust, or unreasonable?
[37] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission must take into account:
(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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(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; and
(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 that the FWC considers relevant.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s 387(a)?
[38] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”10 and should not be “capricious, fanciful, spiteful or prejudiced11.” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer12.
[39] In dismissing the Applicant, the Respondent relied on two reasons, the first being the Applicant’s alleged fraudulent claims that his injuries were such as to prevent him from returning to work and secondly the Applicant’s refusal to undertake normal driving duties on 12 and 15 February 2021 after he was cleared to return to work on 10 February 2021.
[40] I turn first to the Applicant’s refusal to undertake driving duties on 12 and 15 February 2021. The Applicant says in his evidence that following receipt of his return to work clearance he was in various discussions and correspondence with Mr Crawford regarding return to work arrangements and that he expected, when he attended work on the 12, 15 and 16 February 2021, that he would meet and discuss with Mr Crawford specific return to work arrangements. No evidence of any written communication of such discussion between the Applicant and Mr Crawford was in evidence. Written evidence of communication between the Mr Crawford and the Applicant in the period of 12-15 February 2021 was confined to the two letters dated 15 February 2021 dealing with the Applicant’s refusal to undertake driving duties and directing him to attend a disciplinary meeting on 16 February 2021.
[41] On one view it is difficult to reconcile the Applicant’s claim that he had been in discussions with Mr Crawford regarding return to work arrangements with Mr Crawford issuing two letters to the Applicant dated 15 February 2021 in which disciplinary action was foreshadowed arising from the events of 12 and 15 February 2021. Balanced against this apparent contradiction is the fact that the Applicant had been off work since 30 October 2021, a period in excess of 3 months following which it would not have been unreasonable for some discussions with the Applicant on his return to work to assist his reintegration into the workplace. On the Respondent’s evidence, noting that Mr Crawford has left the organisation and was not called to give evidence, the Applicant was cleared to perform his pre-injury duties on 10 February 2021, returned to work on 12 February 2021 and was expected to get on with his normal driving duties without limitation or delay. That was certainly Mr Saunders’ view who allocated the Applicant driving duties on both 12 and 15 February 2021
[42] The Respondent is not a large or sophisticated employer from a HR practice perspective. It is perhaps unsurprising then that the management of the Applicant’s return to work after a 3 month absence, putting aside the Respondent’s view as to the genuineness of the Applicant’s condition, was not ‘gold standard’. For his part the Applicant says that he was expecting to meet Mr Crawford and discuss his return to work arrangements in the period immediately following his medical clearance. The email from Ms Jenkins to the Applicant on 16 February 2021 strongly supports that view held by the Applicant as it refers to discussions having been occurring between Ms Jenkins and Mr Crawford regarding the Applicant’s return to work. Furthermore, Ms Jenkins stated in the email to the Applicant that he should not return to work until return to work arrangements were ‘sorted’ out. Putting aside whether Ms Jenkins had any authority to instruct the Applicant to not return to the workplace (which I doubt) the Applicant appears to have paid heed to her advice and did not attend work from 17- 25 February 2021.
[43] The Applicant expressed in his evidence some confusion regarding his return to work arrangements and that he felt the Respondent failed to properly manage his return to work. There is support for this state of confusion in the conflicting messages the Applicant received regarding his refusal to carry out driving duties on 12 and 15 February 2021 and advice received from the rehabilitation consultant on 16 February 2021. In these circumstances I am more inclined to accept that there was an absence of effective communication with the Applicant in the period between 12 – 16 February 2021 rather than a refusal of duty on the part of the Applicant. In any case, when the Applicant attended the workplace on 16 February 2021 for the purpose of attending a disciplinary meeting as directed by Mr Crawford, the meeting did not proceed, and the Applicant then undertook normal driving duties that day as directed.
[44] I am satisfied that the Applicant held concerns regarding his return to work following his medical clearance on 10 February 2021 and was expecting his return to work arrangements to be discussed between himself and Mr Crawford. I also accept that on his return to work on 12 and 15 February 2021 he declined to drive on either days or undertake alternate duties, that refusal being based on his belief that his return to work should have been more effectively planned. For its part the Respondent was entitled to reasonably believe that with a full medical clearance to return to pre-injury duties, the Applicant would return to his pre-injury driving duties without restriction or limitation, such duties including driving a manual truck which the Applicant had routinely driven before his injury. No criticism is made of Mr Saunders for believing so.
[45] As it transpired, discussions between Mr Crawford and the Applicant did not proceed on 16 February 2021 as planned, the Applicant undertook his normal allocated driving duties on that day and then apparently acted (perhaps unwisely) on the instructions of the rehabilitation consultant and did not return to work from that date, believing that the return to work arrangements would be sorted out. In these circumstances I am not persuaded that by declining driving duties on 12 and 15 February 2021 the Applicant had done so in a deliberate or wilful breach of his contract of employment and that such refusal constituted serious misconduct. Rather, the events of 12 and 15 February 2021 were a consequence of miscommunication and a belief on the Applicant’s part that his return to work arrangements were to be the subject of some discussion and planning. It follows that I am not satisfied that the Applicant’s conduct in declining driving or other duties on 12 and 15 February 2021 founds a valid reason for his dismissal.
[46] I now turn to consider the other reason advanced for the Applicant’s dismissal, that being his fraudulently claiming to be incapacitated when the surveillance evidence revealed otherwise.
[47] As set out in the evidence above, the Respondent initiated surveillance of the Applicant following a claimed anonymous tip off and because it was unhappy with the duration and degree of incapacity claimed by the Applicant following his 30 October 2020 accident. It was not in dispute that the Applicant produced a series of certificates of capacity between 30 October 2020 and 10 February 2021 that indicated he was unable to carry out his pre-injury duties. Nor was it in dispute that that the Applicant’s pre-injury duties did not involve heavy manual activity although the Applicant stated that he held concerns regarding the demands of driving a manual truck because of his leg and finger injury.
[48] As to the decision of the Respondent to initiate surveillance of the Applicant, I accept that it was entitled to do so in circumstances where it had a reasonable basis for suspecting that the Applicant was overstating the severity of his injury and thus prolonging his absence on workers compensation. The Applicant did not challenge the Respondent’s right to undertake surveillance or its reliance on the surveillance report and footage in initiating disciplinary action. I note at this point however that the Applicant was not provided with a copy of either the surveillance report or surveillance footage prior to the Respondent filing that material in advance of the hearing of this matter. I will return to this point when considering the procedural fairness aspects of the Applicant’s dismissal.
[49] A summarising extract from the surveillance report has been reproduced at [9] above. The report is some 20 pages in length and details surveillance observations of the Applicant on each of the three days in question, Friday 22 January 2021, Saturday 23 January 2021, and Thursday 28 January 2021. It also contains still photos of the Applicant captured at various times over those three days. Four DVDs, each of approximately sixty minutes in duration, were also provided as part of the report and were in evidence before me.
[50] DVD 1 13 records surveillance of the Applicant on 22 January 2021, DVD 214 records surveillance on both 22 and 23 January 2021 and DVD 315 and 416 records footage taken on 28 February 2021. Footage from 22 and 23 January 2021 revealed the Applicant variously standing and walking not insignificant distances of up to 2.8 kms on both days without apparent restriction. More telling was the footage of the Applicant taken on 28 January 2021 which, as set out by the Applicant in the letter of 24 February 2021, revealed the Applicant engaged in a range of manual labouring tasks including digging the ground with a pick, carrying multiple lengths of timber and squatting down to assist in the cutting of lengths of timber. It is also the case that the Applicant was shown to be using both hands with gloves both on and off at times. Again, there was no apparent restriction on the Applicant’s capacity. The footage of the Applicant undertaking manual labour on 28 January 2021 was not fleeting but captured a range of activities over several hours.
[51] The Applicant did not challenge that the footage revealed him to have undertaken manual labouring at a time when he was said to be unfit for work. He rationalised that apparent inconsistency with advice he claimed to have received from his treating GP and rehabilitation consultant that he needed to work his injured limbs to build and restore pre-injury strength. While I accept that rehabilitation from injury requires some physical activity to strengthen an injured limb the surveillance footage revealed more than mere strengthening work. It revealed the Applicant engaged in vigorous manual labouring at a time when, for the purpose of work, he was said to be limited to only seated work and could not use his left hand. The video footage cannot in my view be reconciled with those stated work limitations.
[52] The disconnect between the Applicant’s apparent physical capability revealed in the surveillance footage and his claimed incapacity to perform his normal work is brought into sharp relief by the abrupt change in his GPs’ view on his work capacity. On 2 February 2021 the Applicant’s GP reaffirmed the Applicants incapacity to perform any tasks other than seated duties involving use of the uninjured right hand only. Several days later the Applicant was fully cleared to return to pre-injury duties. The Applicant sought to attribute the change in the GP’s view to the Applicant’s ability to bend his injured finger in the intervening week between the 2 February 2021 case meeting and the medical clearance issued on the 10 February 2021. I find that explanation and the evidence of the Applicant on this point unconvincing with the far more likely explanation being the provision of the surveillance report and videos to the GP through EML following the 2 February 2021 case meeting. The evidence of the Applicant’s capacity in the videos is telling and I am satisfied that a strong inference may be drawn that the GP’s change of view as to the Applicant’s capacity was driven by his viewing of the surveillance footage.
[53] I am satisfied that by late January 2021 the Applicant had recovered sufficiently from the injuries he sustained in October 2020 such that he was capable of engaging in vigorous manual labouring as evidenced by the surveillance footage of him, particularly on 28 January 2021. That he was able to undertake such physical activity and yet maintain at the 2 February 2021 case meeting that he was unable to perform his normal duties at work, which it was not disputed did not involve heavy physical activity, was not properly explained by the Applicant. In my view the circumstances reveal that the Applicant was capable of returning to work by at least late January 2021. In my view he bore a responsibility to co-operate with his employer in achieving an effective return to work at the earliest practical opportunity. In simple terms he did not do so.
[54] The trigger for the Applicant’s return to work was ultimately not in my view due to a conscious decision on the part of the Applicant to get back to work but rather was driven by his GP viewing the video evidence which revealed that the Applicant had a greater physical capacity than had been previously apparent or revealed by the Applicant. By that conduct I am satisfied that the Applicant was dishonest as to his capacity to undertake his pre-injury duties or any other alternate duties.
[55] Before concluding my consideration of whether there was a valid reason for the Applicant’s dismissal, I turn briefly to the x-ray report produced by the Applicant on the day of the conference. The first thing to be said is that the report is dated 16 June 2021, it postdates the Applicant’s dismissal by almost four months and the medical practitioner that produced the report was not called to give evidence. Furthermore, the report says nothing about the Applicant’s capacity for work at the time of his dismissal and does not square with the Applicant’s above-described manual labouring activities on 28 January 2021. I have had no regard to the report in my consideration.
[56] I now return to the reason relied on by the employer in dismissing the Applicant, that being he had fraudulently claimed injuries that were much greater than they were and that his capacity for work was significantly lower than it was. Fraud can be defined as “wrongful or criminal deception intended to result in financial or personal gain”. While not a criminal deception I am comfortably satisfied that the Applicant by his acts or omissions did engage in deception as to the severity of his injury and his capacity for work, at least by late January 2021. The result of this was the maintenance of a personal benefit, that being the Applicant’s receipt of workers compensation payments. I am satisfied that this constitutes a valid reason for the Applicant’s dismissal. This weighs in favour of a finding that the dismissal was not unfair.
Notification of the valid reason - s.387(b)
[57] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,17 and in explicit18 and plain and clear terms19.
[58] The Respondent’s letter to the Applicant dated 24 February 2021 set out in detail the specific misconduct allegations, including that the Respondent believed that he (the Applicant) had been fraudulently claiming workers compensation and that the Respondent was considering the termination of his employment. The letter was in explicit and plain clear terms. I am satisfied that the Applicant was notified of the valid reason for his dismissal prior to the decision being made. This weighs in favour of a finding that the dismissal was not unfair.
Opportunity to respond to any reason related to capacity or conduct - s.387(c)
[59] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment20.
[60] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly21. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements22.
[61] The correspondence sent to the Applicant on 24 February 2021 set out in detail the matters on which he was invited to respond to in the meeting to be held on 25 February 2021. Mr Bahrdwha’s unchallenged evidence which I accept was that during the course of the meeting on 25 February 2021 Mr Crawford also went through the matters set out in the 24 February 2021 letter and invited the Applicant to respond. The Applicant’s response was that he remained unable to perform the full range of his pre-injury duties because of the continuing effects of his injuries.
[62] Central to the allegations of misconduct levelled at the Applicant was the covert surveillance undertaken of the Applicant in the period 22-28 February 2021. The Respondent placed great reliance on that material and summarised the findings of the surveillance report in the letter to the Applicant dated 24 February 2021.
[63] I accept that the Applicant would have been in little doubt as to the nature of the footage obtained of his activities in the period 22-28 January 2021, however the failure of the Respondent to provide the Applicant with a copy of the report and the relevant video footage in advance of the 25 January 2021 was a serious omission on its part. It is no answer for the Respondent to say that it provided a copy of the surveillance report and videos to its insurer EML and that EML in turn provided same to the Applicant’s GP. That is because at the time the report and videos were provided to EML and the Applicant’s GP, it was done for the purpose of facilitating the Applicant’s return to work, not for a disciplinary purpose. Moreover, there is no evidence, despite what the Respondent contends, that the Applicant was shown a copy of the report or videos by either his GP or by Mend.
[64] Fair treatment of the Applicant in circumstances where he was accused of workers compensation fraud and facing dismissal warranted him being provided with the material on which the Respondent sought to rely. That he was not provided with that material in advance of the disciplinary meeting had the effect of denying him a proper opportunity to respond to one of the reasons relied on for his dismissal. I am consequently not satisfied in the circumstances that the Applicant had a full opportunity to respond to one of the reasons relied by the Respondent in dismissing him. This weighs in favour of a finding that the dismissal was unfair.
Support person – s.387(d)
[65] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[66] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”23
[67] The Applicant was advised in the letter to him dated 24 February 2021 of the meeting to be conducted on the 25 February 2021 and was specifically notified of his right to be accompanied by a support person. This weighs in favour of a finding that the dismissal was not unfair.
Warnings regarding unsatisfactory performance - s.387(e)
[68] The dismissal did not relate to unsatisfactory performance. This factor is therefore not relevant in the circumstances.
Impact of the size of the Respondent on procedures followed - s.387(f)
[69] The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed approximately 40 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[70] The evidence in this matter indicates that the Respondent did not have access to the services of an in-house human resources specialist. There is no evidence before me, and nor did either party contend that the absence of a human resources specialist impacted on the procedures followed by the Respondent in dismissing the Applicant. This factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
[71] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. Neither party contended and nor did the evidence reveal that there were any other matters relevant to my consideration of whether the Applicant’s dismissal was unfair.
[72] I have made findings in relation to each matter specified in s.387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable 24. As set out above I am satisfied that there was a valid reason for the Applicant’s dismissal related to his deception regarding his real work capacity. I have also found that the Applicant was denied a proper opportunity to respond to the surveillance report and footage relied on by the Respondent. All other s.387 criteria either weigh neutrally or in favour of a finding that the dismissal was not unfair.
[73] In weighing the above-described procedural fairness failure against the existence of a valid reason for the dismissal I take into account the Applicant’s failure in these proceedings to effectively reconcile his conduct captured in the surveillance footage with his stated incapacity for work. Similar difficulty in reconciling the two would have been present had he received copies of the surveillance report and footage prior to his dismissal on 25 February 2021. In these circumstances I consider that even had he been afforded an opportunity to review the footage and surveillance report before the 25 February 2021 meeting, there is little prospect that the outcome would have been different. In short, I don’t believe that access to the surveillance material would have allowed the Applicant to influence a different outcome. In these circumstances I place significantly greater weight on the existence of a valid reason than the procedural failure. That procedural failure when weighed against the valid reason and other s.387 criteria is not sufficient for me to conclude that the dismissal was harsh, unjust or unreasonable.
Conclusion
[74] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act. The application is consequently dismissed. An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
Appearances:
P Singh, Applicant
M Gupta, Respondent
Hearing details:
2021.
Melbourne (by video using Microsoft Teams):
24 June 2021.
Printed by authority of the Commonwealth Government Printer
<PR730802>
1 Form F3, question 1.7
2 Exhibit A7, Claim acceptance letter from EML to Applicant dated 23 November 2020
3 Exhibit A1, Certificate of capacity dated 9 November 2020; Exhibit A2, Certificate of capacity dated 17 November 2020; Exhibit A3, Certificate of capacity dated 25 November 2020
4 Exhibit R4, Surveillance/Activity Report dated 29 January 2021
5 Exhibit R9 & R12, Notice to Attend Disciplinary Meeting letters, dated 15 February 2021
6 Exhibit A8, Email from Megan Jenkin to Applicant dated 16 February 2021.
7 Exhibit R10, Notice to Attend Disciplinary Meeting letter, dated 24 February 2021
8 Exhibit R11, Termination of Employment letter, dated 25 February 2021
9 Exhibit A8
10 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
11 Ibid.
12 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
13 Exhibit R5
14 Exhibit R6
15 Exhibit R7
16 Exhibit R8
17 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
18 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
19 Ibid.
20 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
21 RMIT v Asher (2010) 194 IR 1, 14-15.
22 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
23 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
24 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]– [7].
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