Even though he was seen bending and lifting on video surveillance, the AIRC has ruled that a Qantas officer’s compensation claim for a totally incapacitating back injury was not fraudulent .The Qantas officer and his doctor successfully argued that none of the activities he carried out on the surveillance video were inconsistent with his injury or his level of incapacitation.
The Commission heard that the worker, a ramp services officer at Qantas Airways Limited, was dismissed for misconduct after the airline conducted an investigation into his claim based on its video footage.
Qantas said the officer had “knowingly misrepresented” the degree of his incapacity by failing to inform the airline that his condition had improved. It said he had also failed to make “reasonable efforts” to return to work.
According to the officer’s medical certificate, the airline said, he was “completely unfit for work” for at least one month after an injury to his lower back.
However, he was recorded on a Qantas surveillance camera “engaging in a range of physical activities including bending, twisting, lifting, pulling, squatting, carrying and running”.
The officer maintained that he was incapacitated to work in his former position as a ramp services officer, which required heavy lifting in confined spaces over a long period of time.
He relied on the evidence of his medical practitioner, who said that his return to these duties within a month would probably result in an exacerbation of his injury.
The officer and his doctor also argued that none of the activities he carried out on Qantas’s video were inconsistent with his injury or his level of incapacitation.
Suspicion justified, but no evidence: Commissioner
Commissioner Peter Richards accepted that Qantas’s observation of its supposedly incapacitated worker “moving freely and without distress … provided fertile ground for suspicion to take root”.
However, while its suspicions were “reasonably held in the circumstances”, he said, Qantas failed to find any evidence that an act of fraud or intentional misconduct had followed.
Furthermore, Commissioner Richards said, the officer was under no formal obligation to inform his employer of the ongoing condition of his injury. Nor was he expected to “second guess or challenge his treating medical practitioner”, he said.
“[The worker] did not conceal his improved condition and it was unlikely that his medical practitioner would have reviewed his original diagnosis until [the end of the month] in any event.
“The [worker's] behaviour simply conformed with that of a person who believed he was under no obligation to work for reason of the stark terms of the medical certificate that had been issued to him,” he said.
Commissioner Richards also suggested that if Qantas’s compensation manager had contacted the officer’s doctor about the terms of his medical certificate or referred him to the airline’s own practitioner, “the matter may have taken a different course”.
He ruled that Qantas had unfairly dismissed the officer because its allegation of serious misconduct had not been made out. He invited the parties to negotiate their own settlement of the matter based on his findings, but sought submissions on remedy if this was unsuccessful.