‘It was just a joke!’ – The Fair Work Commission awards 24 weeks’ wages to an unfairly dismissed casual employee

In the recent case of Mr David Rode v Hinterland Motors Pty Ltd T/A Hinterland Toyota [2021] FWC 987, Deputy President Lake of the Fair Work Commission (the Commission) found there was no valid reason for the dismissal of an employee whose employment was terminated for merely stating that he may file a workers compensation claim.

The Respondent, Hinterland Motors Pty Ltd T/A Hinterland Toyota (Hinterland), terminated the Applicant, Mr Rode, for purportedly indicating to another employee, in a joking manner, that he may file a workers compensation claim after being informed that he would be stood down from his employment due to the effects of the COVID-19 pandemic.

Facts

Mr Rode was employed by Hinterland as a casual truck driver with the assistance of EPIC Assist, which was Mr Rode’s disability employment service provider.

On 24 March 2020, Mr Rode finished his workday and was requested by Hinterland’s Service Manager, Mr Hoad, to attend to his office. Mr Hoad advised Mr Rode that due to the COVID-19 pandemic and a downturn in work, there was no work for Mr Rode to perform and he was stood down effective immediately. In his evidence, Mr Rode stated that following this meeting, while cleaning his truck he slipped on the driver’s seat and hit his tail bone on the truck's door locking bar.

Shortly thereafter, while at a service station, Mr Rode bumped into another Hinterland employee, Mr Blayden. During a discussion with Mr Blayden, Mr Rode purportedly asked Mr Blayden “if I put in a work cover claim would you say that you would witness the incident?”, to which Mr Blayden declined.

On 25 March 2020, during a meeting between Mr Blayden and Mr Hoad, Mr Blayden was asked if he would be willing to provide a statutory declaration recounting the discussion with Mr Rode. Mr Blayden completed a statutory declaration and submitted it to Hinterland. That same day, Hinterland sent Mr Rode an email indicating that Mr Blayden had raised concerns regarding Mr Rode purportedly threatening to make a workers compensation claim. Hinterland then indicated it was in the process of collating a ‘fraudulent claim file’ and offered Mr Rode the opportunity to respond.

Mr Rode responded to the email on the same day denying that he was making a workers compensation claim and confirming that he had not been to the doctors regarding anything stated in the email. In his response, Mr Rode explained how he hit his tail bone and confirmed his version of events regarding the conversation with Mr Blayden. In particular, Mr Rode asserted that his statement regarding making a workers compensation claim was made in a joking manner. Further, Mr Rode requested a copy of Mr Blayden’s statutory declaration. Following this response, further email correspondence was exchanged between Mr Rode and Hinterland but the matter was not progressed. In his evidence, Mr Rode considered that at this point the matter had resolved.

On 2 April 2020, Mr Rode was contacted by Mr Hoad about returning to work to complete ‘alternative duties’. During this conversation, Mr Hoad indicated to Mr Rode that he was eligible to receive JobKeeper payments. Hinterland’s General Manager, Mr Adamson, then liaised with Mr Rode regarding potential alternative duties Mr Rode could complete. Mr Rode indicated to Mr Adamson that he was able to perform alterative cleaning and detailing duties, but could not perform these duties on a full-time basis as he did not have the functional capacity to sustain that kind of work due to his previous injury.

On 3 April 2020, Mr Rode was sent a letter confirming that Hinterland had summarily terminated Mr Rode’s employment for allegedly attempting to file a fraudulent workers compensation claim. Mr Rode contacted Hinterland to arrange a meeting to discuss his ‘side of the story’ however Hinterland rejected this request.

Mr Rode filed an unfair dismissal application in the Commission, submitting that the reason for his dismissal was not valid as he did not intend to, and did not, file a workers compensation claim, nor was he granted a proper investigation process regarding the allegation. Due to the nature of his disability, Mr Rode sought financial compensation of 26 weeks of pay equal to the JobKeeper allowance he would had received had he remained employed by Hinterland, totalling $19,500 plus superannuation.

Decision

Deputy President Lake found that Hinterland’s decision to terminate Mr Rode’s employment on the basis of conduct that had not occurred and was in dispute as to whether it would ever be acted upon was “questionable”, “clearly unconscionable” and “stretches the boundary of fairness”.

Deputy President Lake found that there was no valid reason for Mr Rode’s termination of employment. Summarising the events, Deputy President Lake held that “an attempt was made to bolster a highly speculative allegation of purported fraud which had not yet occurred, with a hasty and poorly conducted investigation”. Further, it was held that filing a workers compensation claim is an entitlement to any employee, and for an employer to pre-emptively determine that a claim (which was not made in any event) to be fraudulent was “overreach of a significant scale”.

Further, Deputy President Lake gave a stern assessment of Hinterland’s conduct in circumstances where they were receiving the JobKeeper allowance, stating “I regard it as contemptable behaviour that an employer terminate an employee on weak and contested evidence”.

Deputy President Lake held that Hinterland did not have a valid reason to terminate Mr Rode’s employment and had acted in a pre-emptive manner by failing to establish that Mr Rode’s actions were fraudulent or that they occurred. Mr Rode was awarded 24 weeks’ compensation totalling $18,000 plus superannuation.

Take Home Messages

It goes without saying that if employers are injured in connection with the performance of their duties, they are entitled to file a workers compensation claim. It is up to the compensating authority to determine whether to accept the claim or not. In this case, regardless of whether Mr Rode was joking in his comment or not, Hinterland’s pre-emptive actions were harsh, unjust and unreasonable.

For any workplace investigation, employers are reminded to exercise due diligence and ensure they are undertaken in a procedurally fair manner and that employees are given the opportunity to respond to any allegations. In the current case, Hinterland clearly skipped these steps in their investigation.

For more specific information on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Virginia Liu on +61 8 8210 1279 or vliu@normans.com.au or Thomas Tagirara on +61 8 8217 1337 or ttagirara@normans.com.au.