We have said, posted, blogged and whinged about it a million times -If you use social media such as Facebook, Twitter, LinkedIn etc, you need to be very careful how you use these websites whilst your workcover claim is running! In this article we describe the case of an injured claimant stating she suffers from physical injury related exhaustion, however AAMI produced Facebook posts describing her extremely active exercises including bootcamp. In an other case, it is revealed that derogatory comments on Facebook may give rise to sanction, including sacking!
Facebook posts can lead to sacking & can destroy workcover claims
Facebook posts and quality of life choice defeat ‘Indiana Jones’ head-on injury deficit claim
The lifestyle preference of a 32 yr-old travel industry sales manager [Anya] not to “chase the highest income she can”, has counted against her in the assessment of accident related income loss from a fatal December 2009 collision, writes Carter Capner’s law.
Anya Basic was returning from a holiday in Yepoon , when the car she was travelling in as a front seat passenger collided head-on with an overtaking vehicle approaching from the opposite direction.
After dragging herself from the Lancer, she “hobbled over and saw two girls aged 8 and 3 in the deceased’s car” and comforted them until an ambulance arrived about an hour later.
Anya had excelled as the state business development manager for adventure travel specialist, Intrepid Travel but by February 2012 – just after she was due to start a new role as national sales manager – she resigned to perform a part-time role.
At issue in the two-day liability admitted trial, was the extent to which the need to reduce her working hours was caused by accident related injuries and in particular, that part of the role which required her to drive around 20,000 km each year conducting sales visits to regional and country travel agents.
She claimed in justification for the work change – naturally enough one would have expected – that her adjustment disorder from the calamity as well as her neck and leg injuries, made the driving commitment too onerous and left her exhausted and irritable by day’s end.
It noted that in early 2012 around the time she decided to work part-time, she also enrolled in Indonesian language courses – in anticipation of possibly moving to live in that country – began an anthropology degree at Southern Cross University and took up charity work for one half day each week.
AAMI, the CTP insurer of the oncoming vehicle - with whom Anya achieved an “exemplary work history” for 8 years before moving into travel – argued these activities should be counted as a four-day/week work commitment even though her paid role was for just 2.5 days.
The court agreed.
Future economic loss was assessed by allowance only of an amount equivalent to one year’s net income of $53,000, referenced to the salary for the national role that she had in fact declined.
All in all, damages were assessed at $90,000.
You can read the full case here: Basic v Australian Associated Motor Insurers Limited (2012) QDC 208 Brisbane Andrews SC DCJ, published 7/08/2012
Facebook comments can lead to sacking
The main issue that has been brought into “stark relief” from Facebook cases in the industrial arena is the extent to which conduct outside of work can be the subject of sanction by an employer, Raper says. “So related to this issue is whether the conduct is private, and whether it’s outside, therefore, the purview of employers.”
Raper explains social-media-related misconduct cases tend to fall into 3 categories:
- crossing of “professional boundaries” via social media;
- social media misconduct outside of work – for example making disparaging comments online, or harassing or intimidating co-workers; and
- social media as a contemporaneous record of misconduct – for example where an employee claims to be sick, but posts photos from the party they’re attending, or posts evidence online of misconduct that occurred in the workplace.
Rappers states “courts have gained over time a greater understanding of the technology, and then have considered the misconduct in the light of the wider obligations of employers to protect their workforces”; “there’s a lesson to be learned from all parties in terms of employers understanding what their rights and obligations are, and also employees working out, ‘When does the conduct overstep the mark and can be the subject of sanction?’”
misconduct outside work hours
Rapers says that many employers struggle with the issue of sanctioning employees for misconduct outside of work, but there are [now] some instructive decisions to guide their actions.
For example, a Federal Court decision in McManus v Scott-Charlton (1996) shows that “When considering the question of obeying lawful direction and the extent to which an employer can give a direction or sanction an employee for conduct outside of work, it was said rightly that when you’re considering the conduct, it’s about matters affecting work”, Raper said.
Barrister Raper also says that “Tribunals expect employers to provide “some legitimate level of supervision of the relationship of employees inter se… in order to protect the interests of an employer from adverse effects that can flow from employee misconduct”.
She also says that in determining whether sanctions are fair and warranted, an independent umpire will specifically consider “the extent to which the conduct has affected the employer’s business, and whether the relationship of trust and confidence has been compromised”
“In that decision Deputy President Swan quite rightly said, ‘Let’s see what the employee handbook says about being courteous and respectful. Let’s deal with the issues about how an employee shouldn’t behave. [And] putting aside whether there was a policy in place that dealt with Facebook or not, or email, or inappropriate outside-work conduct… let’s deal with common sense that would dictate that one could not write and therefore publish insulting and threatening comments about another employee in the manner which occurred’.
- Workcover claim and the use of social media – a lawyer’s warning
- Social media used as evidence against injured workers: cases
- Workcover spies on injured workers via social media, ebay and even GPS!
[post pre-dictated and entered on behalf of WCV]