Workers’ Compensation System

Abuse of the Workers’ Compensation System Found by Court

A worker who was filmed performing various manual activities while claiming incapacity payments has been denied an unfair dismissal remedy, with the Fair Work Commission finding he had abused the workers’ compensation system.

In Adelaide, Senior Deputy President Matthew O’Callaghan found his dismissal was warranted because he couldn’t be trusted not to make fraudulent claims in future, and his actions undermined the workers’ compensation system.

“Even if [the employer] had taken another form of disciplinary action against [the worker], apart from employment termination, his actions in July 2015 undermined the future operation of the rehabilitation and compensation system which applied to him,” he said.

The GM Holden Ltd worker made a number of workers’ comp claims from 1989, and claimed he was totally incapacitated in July last year after aggravating a lower back injury.

The employer placed the worker under covert surveillance, and he was subsequently sacked after footage showed him “performing a range of activities wholly inconsistent with his alleged incapacity”, such as stepping in and out of a trench, hammering, sawing, digging, and lifting and carrying things over lengthy periods of time.

The worker argued his dismissal was harsh because: he didn’t wilfully mislead the company; he would lose a redundancy payment of about $180,000 when the factory closed in 2017; and he had worked for Holden for 28 years with a “spotless” disciplinary history.

He said his age, limited work experience, back injury and the circumstances of his dismissal would make it difficult for him to find other work.

The FWC heard the worker’s doctor and an independent medical specialist both signed a “ceased to be incapacitated certificate” after viewing the surveillance footage, and found the activities seen in the footage “clearly establish” that he was dishonest about his capacity.

“To the extent that they demonstrated that [the worker] could have undertaken modified duties at work rather than being certified as unfit for any work, they represent a fraudulent claim for workers’ compensation benefits from at least 9 July 2015,” Senior Deputy President O’Callaghan said.

The worker argued the activities involved “minimal effort”, and that he performed them using safe working practices to help him recover from his back problems.

But the Senior Deputy President said this didn’t change the fact that he was undertaking various functions which were “inconsistent with the assertions he made to his doctor”.

He found the termination was warranted because the worker repeatedly misled his employer and doctors, and there was a “high likelihood that [he] would take further absences from work in the future which he would assert were linked to his back condition”.

His employer “could no longer have the necessary level of trust in him as an employee whose ongoing employment was profoundly linked to the workers’ compensation system which he had abused”, Senior Deputy President O’Callaghan said.

“That loss of trust was [the worker’s] doing and was fundamental to maintenance of the employment relationship.”