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Unfit for work, but making money elsewhere

Libby Pallot, Anthony Massaro, Abbey Burns, Ben Tallboys and Caitlin Walsh

The NSW Industrial Relations Commission has upheld the dismissal of a support worker who lied about both her capacity for work, and her employment with another organisation, to support her workers’ compensation claim.

 

Shakir v Department of Family and Community Services [2017] NSWIRComm 1040

Ms Shakir was engaged by the NSW Department of Family and Community Services as a disability support worker in a group home. After an altercation with a colleague on 17 August 2017, Ms Shakir promptly went on stress leave, and made a workers’ compensation claim.

However, on 15 September Ms Shakir began working full time for another disability service provider in a similar role. She did not disclose this new employment to the Department. In fact, Ms Shakir continued to present certificates of capacity stating that she had no capacity to work, and that she had not engaged in any form of paid employment.

The Department became aware of Ms Shakir’s dishonesty, and put the various allegations of misconduct to her for response. She denied the allegations, and maintained that she was not working for another employer. An investigation report was prepared, concluding that Ms Shakir had engaged in misconduct, and she was dismissed on this basis. Ms Shakir made an application to the NSW IR Commission, arguing her dismissal was harsh, unjust or unreasonable.

The Commission upheld the dismissal, stating that deliberate dishonesty “strikes at the heart of the employment relationship” and will generally “disincline the Commission to intervene in a dismissal”.

However, the Commission was critical of the investigation report’s findings. The investigator had made a factual error, finding that the employee had withheld information about being employed elsewhere at a time when it was clear that Ms Shakir had not yet commenced at the new employer. While this did not ultimately affect the outcome of the case, the Commission reminded employers that it is not enough for a decision maker to simply rely on an investigation report for dismissal; they must consider the findings critically and form their own view based on the evidence available.

Employers are generally expected to take medical certificates, including certificates of capacity, at face value. However, if you have reasonable grounds for suspecting that a certificate is fake or contains misleading information, you can investigate further. If an employee has deliberately misled you, you may have grounds to justify dismissal. However before taking this step you should be confident that you have sufficient evidence to prove the deception. The burden of proof will usually be on the employer where a decision to not take an employee’s medical evidence at face value is challenged in a court or tribunal. If the employee is eligible to make an unfair dismissal claim, it is also important that the investigation process leading to a decision is procedurally fair, and that any findings can withstand scrutiny.

For advice on managing suspicious certificates, investigations and dismissals, contact Russell Kennedy’s Workplace Relations, Employment and Safety Team.

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