In this disturbing Fair Work legal case, an employer (Newland Food Company Pty Ltd ) unfairly sacked an injured worker, because they were of the (sick!) opinion that the injured worker was a workcover claim “predator” who was presumed to deliberately injure himself! Fair Work awarded compensation to the injured worker.
In just about any workcover situation it is our (injured) experience and opinion that injured workers are treated as guilty by all parties, including our own employers – The world looks down on people who have been injured (made ill) at work, assuming that we are all lazy, malingerers or fraudsters, taking advantage of the workcover system. Workcover insurance companies, along with some politicians, and a biased media have shaped this stigma through decades of similar, unfounded claims and statements. As a result countless genuinely injured workers become a “suspect”, “enemy” and a “disposable inconvenience” simply because they were injured at work! This is exactly what happened to the following injured worker, who was sacked by his employer, based on its unfounded misconception that he was a “vexatious and sophisticated predator” of the workers’ comp system!
Background of the legal matter
The injured worker, a quality assurance officer with Newland Food Company Pty Ltd, suffered a series of genuine work injuries. In 2007 the injured worker suffered a work-related elbow injury; followed by a crushed foot in 2011 and a shoulder injury requiring reconstruction in 2012.
When he returned to work after his shoulder surgery in August 2012, he was told by his employer that his “position was no longer available” and was subsequently demoted. The injured worker was of the opinion that he should at least have been offered a redundancy option.
Because of the perceived adversarial nature of his relation with his employer, the injured worker recorded a number of conversations with managers without their knowledge. He also took pictures of unsafe food practices at work so that he could raise concerns about these practices with managers.
The injured worker’s employer then sacked him in February 2013 for alleged ” threatening, intimidating and accusatory conduct”.
The Fair Work Commission Hearing
The Fair Work Commission found the employer “had set out on a course of conduct to get rid of the [injured worker] on whatever spurious or unsubstantiated basis [it] could“.
The Fair Work Commission (FWC) heard that the injured worker’s employer (wrongly) believed that the injured worker was trying to collect information against Newland Food Company Pty Ltd so it would be forced to offer him a (large) redundancy payout. The employer was also of the (sick) opinion that the injured worker might deliberately injure himself to obtain workers’ compensation!
The FWC hear that, during the injured worker’s termination meeting, the employer accused the injured worker of being a “vexatious and sophisticated predator” of the workers’ compensation system, and threatened him that they would “run [him] though the courts for as long as it takes” if he attempted to sue the company.
The FWC heard that the real reason for the sacking was because (the injured worker) had made 2 workcover claims, has been absent from work for a period of time because of his injuries and surgery, and because he had concerns about safe food practice.
The FWC (Deputy President Sams) basically agreed with the injured worker’s version of “events” and stated:
“it was plain enough that the [employer’s] attitude to the [injured worker] and, in my view, its ultimate decision to dismiss him, was unashamedly coloured by the view that he was ‘milking’ the WorkCover system”.
“[The employer] even said so,”
“Added to this, was the appalling failure of the [employer] to afford the [worker] any modicum of procedural fairness.
“These failures were so self-evident and manifestly unjust, that I have trouble understanding how the [employer] seriously believed it could get away with it.
“Generally, the statements and evidence of [the employer] are replete with inferences, assumptions, corrections, guesses, false conclusions, reliance on hearsay and just blatant prejudice against the [injured worker].”
As such the FWC found there was no valid reason for the injured worker’s dismissal. The injured worker was awarded 26 weeks of pay (less earnings he received as a truck driver following his sacking).
A word about the secret recordings
The FWC Deputy President Sams found that reinstatement of the (injured) worker was inappropriate because the injured worker had secretly recorded conversations with his managers and shattered the employment relationship. (Mind you, who would want to work or continue work for an employer who believes injured sods are “system” milkers!?).
Deputy President Sams stated:
“There could hardly be an act which strikes at the heart of the employment relationship, such as to shatter any chance of re-establishing the trust and confidence necessary to maintain that relationship, than the secret recording by an employee of conversations he or she has with management.”
“Although there may be sound reasons why an employee (or an employer for that matter) believes it is necessary to secretly tape workplace conversations, I consider such an act to be well outside the normal working environment and contrary to the well understood necessity for trust and fidelity in the relationship between employee and employer.“
You can read the full text of the Fair Work legal case here: T v Newland Food Company Pty Ltd  FWC 8220 (21 October 2013)
Termination of employment – summary dismissal for serious misconduct – shift restructure while employee on workers’ compensation – covert surveillance – supervisory role discontinued – employee sought redundancy – photographs taken by employee of improperly stored food – secret recordings of conversations with management – allegations of threatening and intimidating behaviour not substantiated – no valid reason for dismissal – no procedural fairness – dismissal substantively and procedurally unfair – reinstatement inappropriate – compensation to be ordered – parties directed to confer as to consent orders.
[Post dictated and manually transcribed on behalf of WCV]